Mathews v. State

• Decision Date: 01 January 1870
• Citation: 33 Tex. 102
• Parties: CELIA MATHEWS v. THE STATE.
• Court: Texas Supreme Court

33 Tex. 102

CELIA MATHEWS

v.THE STATE.

Supreme Court of Texas.

1870.

1.Article 1471, Pas.Dig., disallowing a motion for a new trial after a motion in arrest of judgment, was repealed by the enactment of the code of criminal procedure, so far as criminal causes were concerned.Hence, the case of the State v. Mann, 13 Tex. 62, has ceased to be authority to the effect that a motion for a new trial in a criminal cause cannot be heard after a motion in arrest of judgment.As the law now stands, it was error to refuse to entertain a motion for a new trial in a criminal cause, because a motion in arrest had been previously made and overruled.

2.Appellant was indicted for swindling, under article 2426, Pas.Dig.The facts were, briefly, that appellant applied to purchase goods on credit from a merchant, stating that she lived with a planter, and had cotton in his possession, out of which she would pay for the goods.The merchant refused to sell her the goods except on an order from the planter, whereupon she went out and soon returned with an order purporting to have been signed by the planter, but alleged to have been a forgery.On presentation of the order the goods were wrapped up and placed on the counter for her, but before they passed into her manual possession the fraud was discovered, and the merchant replaced the goods on his shelves.The evidence was clear to the effect that the sale was agreed to by the merchant solely upon the credit of the supposed order, and in no degree upon the representations of the appellant.Held, that the indictment should not have been for swindling, but for attempting to pass a forged instrument, knowing it to be a forgery, as provided for in article 2105.

3.Indictment for swindling a firm styled B., K. & Co.; the evidence showed the style of the firm to be B. & K. Held, that there was a fatal variance between the allegation and the proof, and the court below should have instructed the jury to acquit on account of it.

APPEAL from Gonzales.Tried below before the Hon. Wesley Ogden.

The opinion of the court gives a full statement of the material facts.Miller & Sayers, for the appellant, filed an able argument for a reversal and dismissal of the judgment below.

E. B. Turner, Attorney General, for the state.Swindling is defined by article 2426, Pas.Dig.

Article 2429 provides that if it is sufficiently apparent that the intent to swindle existed, etc., the offense is established.

The indictment charges, that by means of certain false and fraudulent representations made to one A. A. Brooks, a member of the firm of Brooks, Knox & Co., the defendant procured certain articles of value.It alleges the intent necessary, and that the representations were false and fraudulent.

Counsel seem to think that inasmuch as a forged instrument was used in the effort made to swindle, that the offense properly should be designated as forgery, or that of uttering and passing a forged instrument knowing the same to be false.It may be true that such a charge might be sustained, but it by no means follows that the defendant cannot be convicted of swindling, if the proof shows that the defendant used the forged instrument as one of the means of perpetrating the fraud or swindle.

The indictment states in plain and intelligible words the intent to swindle, the means used to consummate such intention, and does negative the truth of the representations; and the case of Baggerly v. The State, 21 Tex. 758, is good authority to support this case, for this transaction is so simple that the statement of it, with little or no explanation, is readily understood.And the whole genius of our law is to strip cases of that unnecessary verbiage which to the mass of mankind conceals the true meaning under an accumulation of legal terms and phrases.

The point raised by counsel as to the sufficiency of the proof to sustain the conviction, because the indictment states the order to have been upon Brooks, Knox & Co., when it was drawn upon Brooks & Knox, is not well taken.If the indictment had been for the forgery, and the intent to defraud Littlefield, the drawer of the draft, then the point would be more forcible under adjudicated cases.

The charges refused were properly rejected, as no possession of the goods is necessary under the statute; and as to the order itself, we have stated that this is not for forgery or uttering a forged instrument with intent to defraud Littlefield, but was one of the means used, devices resorted to, to acquire personal property with intent to appropriate to her own use.

The material matters alleged are in the instrument negotiated, and that is enough.

Swindling is an offense not known to the common law.

The doctrine of merger in criminal cases has no existence in America, nor has it in England since the statute of George IV, passed purposely to avoid the effect of decisions which had been made before that time.2 Whart. Am. Crim.Law, § 2071.

The forged draft need not be set out, and I refer the court to the two thousand one hundred and fifty-second section in Wharton's American Criminal Law, as giving a satisfactory answer to the point raised.It cannot be said in this case that a copy of the order could have aided the court or jury.

WALKER, J.

Appellant assigns for error the following: First.The court erred in overruling the motion in arrest of judgment, for the reasons stated in the motion.Second.The court erred in refusing to consider the motion for a new trial after the motion in arrest of judgment.Third.The court erred in refusing to grant the motion for a new trial for the reasons stated in the motion.

The indictment in this case intends to charge the offense of swindling, under art. 2426 of the criminal code.

We are of opinion it should have been framed upon art. 2105 and should have charged the defendant with an attempt to pass a forged instrument in writing, knowing it to be a forgery.

The appellant, a colored girl of the age of fifteen or sixteen years, is charged with swindling Brooks, Knox & Co., merchants of Gonzales, out of certain goods, wares and merchandise, of the aggregate valve of twenty-three dollars.This on or about the twenty-seventh day of August, 1869, by means of certain false and fraudulent pretenses, to wit: that she, the appellant, unlawfully, feloniously, falsely and deceitfully, did pretend, and fraudulently did represent to Mr. A. A. Brooks, a member of the firm of Brooks, Knox & Co., merchants of the town of Gonzales, that she, the said Celia Mathews, was then and there in the service and employ of one George Littlefield, and that she was the owner of a parcel of cotton which was in the possession of Littlefield; and further, that she had a written order from Littlefield in her favor, drawn upon the firm of Brooks, Knox & Co. by George Littlefield, instructing Brooks, Knox & Co. to sell her such articles of merchandise as she might desire to purchase, and that he(Littlefield) would be responsible for payment; and that by reason of these false pretenses Brooks, Knox & Co. were induced to sell her certain goods, etc.Under what we consider sufficient negative averments, the indictment charges that appellant had no cotton in the possession of George Littlefield, and that she had no order drawn in her favor by Littlefield on Brooks, Knox & Co.

At the October term of the district court of Gonzales county for the year 1869, the cause was tried, and the jury found the appellant guilty, and fixed her...