Nichols v. State, 19906.

• Decision Date: 09 November 1938
• Docket Number: No. 19906.,19906.
• Parties: NICHOLS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 672

123 S.W.2d 672

NICHOLS v. STATE.

No. 19906.

Court of Criminal Appeals of Texas.

November 9, 1938.

On the Merits January 11, 1939.

Commissioners' Decision.

Appeal from Jones County Court; Omar T. Burleson, Judge.

H. Nichols was convicted for swindling, and he appeals.

Reversed and cause remanded.

R. E. Rodgers, of Hamlin, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Conviction is for swindling; punishment is assessed at confinement in the county jail for thirty days.

An examination of the record fails to show that notice of appeal was given as required by law. Vernon's Ann.C.C.P. art. 827. Such is necessary to give this court jurisdiction. See Branch's Annotated Penal Code, Sec. 588, p. 302 and cases there cited.

The appeal is therefore dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

On the Merits.

KRUEGER, Judge.

On a former day we dismissed the appeal in the case because of a defective record. The record has been perfected and the case will now be considered by us on its merits.

It was charged in the information, omitting the formal parts, that:

"* * * On or about the 6th, day of November, A. D. 1935, one H. Nichols did then and there unlawfully, and with intent to defraud, acquire property same being one 2-year cream colored jersey heifer of the value of Twenty-four and 05/100 ($24.05) Dollars, the same then and there being the personal property of T. L. Gleason with the further intent to appropriate the same when so acquired to the use of him the aforesaid defendant, and the said property was so obtained from said owner by the said H. Nichols by the means of drawing and giving a certain check of the tenor following:

                           "`88-430
                           "`Hamlin, Texas, 11-6-1935
                

"`Farmers and Merchants National Bank

                      (Solid as a Rock)
                

"Pay to the order of T. L. Gleason $24.05 Twenty Four 5/100 Dollars

                                   "`H. Nichols'
                

"and which check was then and there so drawn and given by the said H. Nichols, and the said H. Nichols, did then and there deliver said check to said owner in exchange for said property which was then and there delivered to the said H. Nichols, by said owner, and said owner did then and there part with the title and possession of said property to the said H. Nichols in consideration of the said delivery of said check, and the said owner then and there believed that said check was good and then and there relied on the payment of same; when in truth and in fact the said H. Nichols at the time of the drawing and giving said check did not have on deposit in said bank sufficient funds to pay said check, and the said H. Nichols then and there had no good reason to believe that said check would be paid by said bank when the same should be, in the ordinary course of business, presented to said bank for payment; and said check was in the course of business presented to said bank, and payment of said check was refused by said bank for want of sufficient funds of the said H. Nichols the maker and drawer of said check, and more than fifteen days have elapsed since presentation was made, and the maker still fails and refuses to make said check good, etc."

The proof shows that on or about the 6th day of November, 1935, the appellant and L. F. Gleason, the father of T. L. Gleason, met in the town of Hamlin; that appellant told Gleason that he desired to buy a cow or yearling fat enough for...