McDaniel v. State

• Decision Date: 11 October 1911
• Citation: McDaniel v. State, 140 S.W. 232, 63 Tex.Cr.R. 260 (Tex. Crim. App. 1911)
• Parties: McDANIEL v. STATE.
• Court: Texas Court of Criminal Appeals

140 S.W. 232

McDANIEL v. STATE.

Court of Criminal Appeals of Texas.

October 11, 1911.

Appeal from District Court, Hood County; W. J. Oxford, Judge.

W. J. McDaniel was convicted of swindling, and he appeals. Reversed and remanded.

Mark McMahon, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, charged with swindling. The court submitted to the jury only the seventh count in the indictment, upon which appellant was found guilty, and his punishment assessed at two years confinement in the penitentiary.

This seventh count alleges the unlawful acquisition of $1,000 by means of certain false representations. It is alleged, in substance, that appellant represented that he was a member of the Western Construction Company, and that said company was solvent and able to build a railway proposed; that the headquarters of such company was at Houston, and G. W. Hubbard and Joe Bowers were members of said company, as well as defendant; that defendant was solvent and worth $10,000 above his liabilities; whereas in truth and in fact said defendant was not a member of the Western Construction Company; and said Bowers and Hubbard were not members of said company, and said company was not in fact solvent and able to build a railway as proposed; that, by reason of the false representations, defendant obtained a contract with certain citizens named to build a railway from Lipan to a connection with the Ft. Worth & Denver Road, and obtained $1,000 under said contract. We do not think the motion to quash the seventh count in the indictment should have been sustained. It is true, to make the indictment clear that it only charges the obtaining of $1,000, that certain allegations in regard to the allegation of value of the contract must be treated as surplusage, but this may be done, and then the allegation would be specific.

However, we have read this record carefully, and we do not think the evidence supports the allegations in the indictment. While it is true that the evidence would show that appellant represented that he was a member of the Western Construction Company, and that Hubbard, Bowers, and Fairtrace were also members of such company, and that said company was solvent and able to build a line of railway as proposed, when in truth and in fact Hubbard, Bowers, and Fairtrace were not members of such company, and the inference is strong that there was not then, and had never been, such company organized, and but for this representation the prosecuting witnesses would not have contracted with appellant, yet the contract itself says the $1,000 was to be paid to appellant and used by him in making a survey of the line, blue prints, etc. It appears that he did make some kind of survey, made blue prints showing the location of the line on the ground, and submitted them to prosecuting witnesses, together with a contract to build the railway. It is true the contract called for the construction of the road by the Western Construction Company, while the contract submitted was with the Taylor & Lipan Railroad Company. Appellant suggested if the contract was not satisfactory to make pencil memoranda thereon and return to him. This was not done, apparently for the reason it had been learned there was no such company as the Western Construction Company. But it also appears from the evidence that this information was known to Mr. Roach, the custodian of the money, prior to the time he paid any of the money to appellant.

Article 943 of the Penal Code provides that 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 and deceitful means or devise, etc. The statute is clear that the injured party must part with the possession of the money, or other thing of value, by reason of the false pretenses alone. In Blum v. State, 20 Tex. App 578, 54 Am. Rep. 530, the court lays down four distinct elements of swindling, all of which must concur, as follows: (1) There must be an intent to defraud; (2) there must be an actual act of fraud committed; (3) false pretenses must have been made by the accused; (4) the fraud must have been accomplished by means of the false pretenses made use of for the purpose. The very essential element of the offense is that the party injured in parting with his property actually relied upon and was deceived by the false pretenses, etc., which were used by the accused. Curtis...