McCuistion v. State, 21827.

• Decision Date: 04 February 1942
• Docket Number: No. 21827.,21827.
• Citation: 158 S.W.2d 527
• Parties: McCUISTION v. STATE.
• Court: Texas Court of Criminal Appeals

158 S.W.2d 527

McCUISTION v. STATE.

No. 21827.

Court of Criminal Appeals of Texas.

February 4, 1942.

Appeal from District Court, Hays County; M. C. Jeffrey, Judge.

Jesse McCuistion was convicted of the offense of swindling, and he appeals.

Judgment affirmed.

Saunders & Saunders, of San Antonio, and McKie & Hill, of San Marcos, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Conviction is for swindling, punishment assessed being two years in the penitentiary.

Appellant and one C. C. Sparks were jointly indicted. Appellant was alone upon trial.

It is averred in the indictment that appellant and Sparks designing and intending to secure from Robert Lee Calhoun a check for $275 (which is set out in haec verba), and with the intent to appropriate the check to their own use and benefit, did acquire said check by means of false pretenses and devices and fraudulent representations made by them to Calhoun, and did thereby induce Calhoun to execute and deliver the said check to appellant and Sparks, and obtained and acquired from Calhoun the check in question. The false representations are averred as follows: "* * * The said C. C. Sparks and Jesse McCuistion did then and there falsely pretend and fraudulently represent to the said Robert Lee Calhoun that the map exhibited and shown by them to said Calhoun had delineated thereon specific directions for locating a cave in Mexico, that said cave contained fabulous quantities of gold bars, diamonds, pearls and other jewels and treasures, that C. C. Sparks had been to said cave and had seen the gold and other treasures therein contained and which he described, and that C. C. Sparks had removed therefrom large quantities of gold bars, estimated to weigh 1500 pounds, that after removing said gold bars from the cave C. C. Sparks had again hidden such removed gold on the Southern or Mexican side of the Rio Grande River in Mexico, and that said Sparks had shown and exhibited such gold to said McCuistion, and that said Jesse McCuistion had seen such removed and rehidden gold on the Southern or Mexican side of the Rio Grande River in Mexico; that in consideration of Robert Lee Calhoun's execution and delivery of said check for $275.00 to them, the said C. C. Sparks and Jesse McCuistion would undertake to, and would, bring into Texas, and would deliver to Robert Lee Calhoun one-third of the gold and other treasures in the cave and rehidden in Mexico by C. C. Sparks, which one-third would be of the value of not less than one million dollars."

It is further averred in substance that Calhoun believed and relied on said false representations, and was thereby induced to deliver said check to appellant and Sparks, and parted with the "title and possession" thereof; that appellant and Sparks knew the representations and statements were false when they made them: "* * * for, in truth and in fact, the said map was wholly fictitious and did not show the directions for locating a cave in Mexico containing fabulous quantities of gold bars, diamonds, pearls and other jewels and treasures, and no such cave existed, and C. C. Sparks had not been to any such cave and had not seen the treasure in said cave, as described by him, and the said C. C. Sparks had not removed from the said cave large quantities of gold bars, weighing approximately 1500 pounds, and the said C. C. Sparks had not again hidden such removed gold weighing approximately 1500 pounds on the Southern or Mexican side of the Rio Grande River in Mexico, and the said C. C. Sparks had not shown and exhibited to Jesse McCuistion, and the said Jesse McCuistion had not seen, such removed and rehidden gold on the Southern side of the Rio Grande River in Mexico, and said C. C. Sparks and Jesse McCuistion did not intend in return for Robert Lee Calhoun's check for $275.00 above set out to bring into Texas, and deliver to Robert Lee Calhoun one-third of the gold and other treasures in the cave and rehidden in Mexico by C. C. Sparks, which one-third would be of the value of not less than one million dollars; and the said C. C. Sparks and Jesse McCuistion then and there well knew that each and all of said pretenses, statements, and representations were false, but C. C. Sparks and Jesse McCuistion made said false and fraudulent representations for the purpose of acquiring said check and written instrument, which they did so acquire, against the peace and dignity of the State."

The indictment is attacked in various particulars, none of which is deemed tenable, and only two of which we think necessary to consider. It is urged that some material representations relate to future promises or happenings, and therefore, will not support a prosecution for swindling.

"While a mere false promise to do something in the future is not within the statute, a false promise of future performance, when coupled with a false statement as to a past or existing fact, will support a charge for swindling." 39 Tex.Jur. p. 1058, Sec. 7. Supporting the text are cited Ratcliff v. State, 118 Tex.Cr.R. 616, 38 S.W.2d 326; Mitner v. State, 100 Tex.Cr.R. 455, 273 S. W. 565; Pickens v. State, 78 Tex.Cr.R. 34, 180 S.W. 234; Boscow v. State, 33 Tex.Cr. R. 390, 26 S.W. 625. The present indictment sets out statements regarding past and existing facts, which, if true, would show the ability of appellant and Sparks to do the thing promised. This criticism of the indictment seems to have been answered by the authorities cited.

The indictment is further attacked on the ground that the averments therein, if true, show appellant to be guilty of theft by false pretext, and therefore, he should have been prosecuted for theft and not for swindling. Appellant invokes Art. 1549 P. C. and the cases construing same to support his contention. Said Article reads as follows: "Where property, money, or other articles of value enumerated in the definition of swindling, are obtained in such manner as to come within the meaning of theft or some other offense the rules herein prescribed with regard to swindling shall not be understood to take any such case out of the operation of the law which defines any such other offense."

The cases construing said article hold that if the property was obtained in such manner as to come within the meaning of theft or some other offense the prosecution should be for theft or such other offense and not for swindling. See Witherspoon v. State, Tex.Cr.App., 37 S.W. 433; Hirshfield v. State, 11 Tex.Cr.App. 207; Bink v. State, 50 Tex.Cr.R. 445, 98 S.W. 863; De Blanc v. State, 118 Tex.Cr.R. 628, 37 S.W.2d 1024; Haley v. State, 127 Tex. Cr.R. 177, 75 S.W.2d 272; Lovine v. State, 136 Tex.Cr.R. 32, 122 S.W.2d 1069. The case of Sims v. State, 21 Tex.App. 649, 1 S.W. 465, seems in conflict with Hirshfield, supra, but Withe...