Price v. State
| Decision Date | 13 December 1905 |
| Citation | 91 S.W. 571 |
| Parties | PRICE v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, McLennan County; Sam R. Scott, Judge.
R. A. Price was convicted of theft by false pretenses, and he appeals. Reversed.
Taylor & Gallagher and Tom M. Hamilton, for appellant. Howard Martin, Asst. Atty. Gen., for the State.
The first count in the indictment was not submitted by the court to the jury. The second count undertakes to charge theft by false pretenses under article 861, Pen. Code 1895. The objection is made to the indictment that it fails to allege the appropriation of the property after obtaining it by virtue of the false pretenses. Where the indictment undertakes to charge specifically theft by false pretenses and fraudulent representations, under article 861, Pen. Code 1895, it is necessary that the terms of that statute be complied with in so charging the offense. Among other things, that article makes as a part of the definition of the offense that after obtaining the money the same must be appropriated. This indictment does not charge an appropriation. It simply charges that the goods were obtained by means of the false representation with intent to appropriate. This is not sufficient. (This does not militate against the proposition that a conviction can be had for obtaining money by false pretenses and fraudulent representations under an ordinary indictment charging theft.) There must be an appropriation charged under this article. The difference between this article and article 877, Pen. Code 1895, consists in this: Under article 861 the fraudulent intent must exist at the time of obtaining the money, and the representations must be false. Under article 877 the goods are obtained, not by false representations, but by contract of borrowing, hiring, or bailment, and the fraudulent intent arises subsequent to obtaining the goods. The fraudulent intent, in other words, is conceived after legally obtaining the property. Appropriation is necessary under both statutes.
It is further contended that the count submitted by the court, and under which the conviction was obtained, does not charge theft. We think this contention is correct. It is charged that appellant and one Fuller "did then and there falsely and fraudulently represent and pretend to one N. R. Stegall, who was then and there in an extreme drunken condition, that he, the said N. R. Stegall, had assaulted an old man and knocked him down, and that said old man was seriously hurt by said assault, and that if h...
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Johnson v. State
...theft. As authority for such proposition appellant offers the cases of Slack v. State, 111 Tex. Cr.R. 417, 13 S.W.2d 113; Price v. State, 49 Tex.Cr.R. 131, 91 S.W. 571; Elbury v. State, 114 Tex.Cr.R. 269, 25 S.W.2d 846, 847; Legler v. State, 97 Tex.Cr.R. 465, 262 S.W. 478; Arnold v. State, ......
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Lewis v. State
...5 Tex. App. 122; Williams v. State, 34 Tex. Cr. R. 523, 31 S. W. 405; Powell v. State, 44 Tex. Cr. R. 273, 70 S. W. 968; Price v. State [49 Tex. Cr. R. 131, 91 S. W. 571], decided at Tyler term, In the case of Bink v. State, 50 Tex. Cr. R. 448, 98 S. W. 865, this court, speaking through Jud......
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McCuistion v. State, 21827.
...and without said latter allegation the indictment is fatally defective. Brown v. State, 95 Tex.Cr.R. 664, 255 S.W. 750; Price v. State, 49 Tex.Cr.R. 131, 91 S.W. 571. There is no allegation in the present indictment either direct or indirect that the check obtained from Calhoun was actually......
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Segal v. State
...Bink, parted with both title and possession, and that the offense was not theft. The statute in question was construed in Price's Case, 49 Tex. Cr. R. 132, 91 S. W. 571, in which Price falsely represented to Stegall that he had committed an offense while intoxicated, and would be prosecuted......