Powell v. State

• Citation: 70 S.W. 968
• Parties: POWELL v. STATE.
• Decision Date: 19 November 1902
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

70 S.W. 968

POWELL v. STATE.

Court of Criminal Appeals of Texas.

November 19, 1902.

Appeal from district court, Tarrant county; Irby Dunklin, Judge.

C. W. Powell was convicted of theft, and appeals. Reversed.

W. A. Hanger, for appellant. O. S. Lattimore, Co. Atty., and Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of theft, and given three years in the penitentiary.

Appellant made a motion to quash the second count in the indictment on the ground that the same sets up no offense against the laws of the state, and that there was a variance between the alleged false and fraudulent representations in the indictment and the traverse of said representations. Appellant has not called our attention to any variance between the allegations in said indictment, and we have found none. However, the trial court submitted only the first count to the jury, which charged theft, and this question need not be further considered.

Appellant excepted to the action of the court refusing to permit him to show by witness Smith Powell that before and at the time of defendant's arrest on this charge defendant had credit at the Waco State Bank of Waco, Tex., and that checks drawn by defendant would have been paid by said bank. This testimony was offered after the state had proven by prosecutor that to the best of his recollection defendant represented and stated to him that he had money and credit at the First National Bank of Waco, Texas, although he might have said the State National Bank of Waco, Tex. It is also shown in this connection that the charge of swindling was then pending against appellant, as well as the charge of theft. It occurs to us that, under the facts of this case, the testimony was material and relevant under either count in the indictment. It was admissible, in connection with the checks drawn by appellant and set out in the indictment, to show that the same were drawn in good faith, and evidenced a loan and transfer of the money and property of prosecutor to appellant, which would answer the first count in the indictment, as tending to prove that the prosecutor parted with his property, and not the mere possession thereof; and it would also tend to show that appellant was not guilty of a fraud or pretense in the transaction, and so be an answer to either count. We do not think the fact that the bank at Waco was the Waco State Bank, and that there was no such bank as the State National Bank of Waco, Tex., would render this testimony inadmissible. At least, this was a matter subject to explanation.

We further believe that the court should have given the special requested instruction asked by appellant; that is, if the jury believed from the evidence that defendant acted in good faith in borrowing the money described in the indictment, to acquit him. The state itself introduced Jno. L. Barlow, who testified that appellant started or was getting ready to go with him to Waco to get the money to repay him when he was arrested. Of course, the testimony setting up this defense, as it appears in...