Luce v. State

• Decision Date: 27 October 1920
• Docket Number: (No. 5837.)
• Parties: LUCE v. STATE.
• Court: Texas Court of Criminal Appeals

224 S.W. 1095

LUCE v. STATE.

(No. 5837.)

Court of Criminal Appeals of Texas.

October 27, 1920.

Appeal from District Court, Milam County; John Watson, Judge.

A. F. Luce was convicted of swindling, and he appeals. Reversed, and cause ordered dismissed.

Henderson, Kidd & Henderson, of Cameron, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

The appeal is from verdict and judgment finding the appellant guilty of swindling. The transaction grows out of an exchange of property, in which the injured party, Bobbie Sufrett, conveyed a lot to one J. L. Carter, and received in exchange therefor two vendors' lien notes, executed by R. T. Morris, and secured by a lien upon certain lands situated in Culberson county. The indictment appears to have been drawn on the theory that the acquisition of the lots of land by false pretenses was within the swindling statute. The trial court, however, in submitting the case to the jury, eliminated that phase of the case, and the conviction rests upon the allegations seeking to charge the offense with reference to the acquisition of personal property, and of an instrument in writing.

The statute defines swindling as follows:

"`Swindling' is the acquisition of any personal or movable property, money or instrument of writing conveying or securing a valuable right, by means of some false or deceitful pretense or device, or fraudulent representation, with intent to appropriate the same to the use of the party so acquiring, or of destroying or impairing the rights of the party justly entitled to the same." Pen. Code 1911, art. 1421.

And article 1422 contains the following:

"Within the meaning of the term `swindling' are included the following wrongful acts: * * *

"The obtaining by false pretense the possession of any instrument of writing, certificate, field notes or other paper relating to lands, the property of another, with the intent that thereby the proper owner shall be defeated of a valuable right in such lands."

It is charged in the indictment that certain false representations were made to acquire (a) Certain lots of lands described in the indictment, of the value of $500; (b) to acquire an instrument in writing conveying to J. L. Carter the above mentioned and described real estate; (c) to acquire the improvements on said land, consisting of a house used as a hotel, of the value of $3,000; (d) "and further devising and intending to secure the unlawful acquisition of all furniture and equipment then and there in said building, of the value of $1,000." Among the false representations averred is that the notes were represented to be a first and only lien upon the land.

The appellant, we think, justly contends that this averment upon motion to quash should have been eliminated, because, while it was traversed in general terms, it failed to describe any prior or additional lien. Moore v. State, 81 Tex. Cr. R. 606, 197 S. W. 728; Graves v. State, 31 Tex. Cr. R. 65, 19 S. W. 895; Wills v. State, 24 Tex. App. 400, 6 S. W. 316. This fault, while it might work a reversal, would not be fatal to the prosecution, for the reason that there are other averments touching the false representations which would suffice.

The sufficiency of the allegation concerning the personal property was challenged by a motion to quash the indictment and to arrest the judgment. It is insisted that there is an absence of a positive and direct averment that personal property was acquired, and that it only inferentially appears to be charged that there was furniture or fixtures in the hotel. Allegations in an indictment of this kind should be direct and positive. Branch's Ann. Texas P. C., § 2634, and cases cited. Treating the indictment as not obnoxious to this rule, the question of the sufficiency of the descriptions of the personal property occurs. The language of the statute (C. C. P. art. 458) is this:

"When it becomes necessary to describe property of any kind in an indictment, a general description of same by name, kind, quality, number and ownership, if known, shall be sufficient."

The necessity to describe the personal property is obvious. The language chosen seems rather to classify than to describe it. It is conceived that an allegation charging the theft of the live stock in a pasture would not be a description under the statute, but to perfect it it would be necessary that there be some designation of the kind and number of stock. So we think the averment that the property acquired was "the furniture and equipment," accompanied by no...