Prince v. State

• Decision Date: 08 November 1922
• Docket Number: (No. 7170.)
• Citation: 247 S.W. 863
• Parties: PRINCE v. STATE.
• Court: Texas Court of Criminal Appeals

247 S.W. 863

PRINCE v. STATE.

(No. 7170.)

Court of Criminal Appeals of Texas.

November 8, 1922.

Appeal Reinstated and Affirmed January 17, 1923.

Rehearing Denied February 21, 1923.

Appeal from Dallas County Court, at Law; T. A. Work, Judge.

G. D. Prince was convicted of misdemeanor theft, and he appeals. Affirmed.

Oscar H. Calvert, of Dallas, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

The conviction is for misdemeanor theft; punishment fixed at a fine of $50 and confinement in the county jail for a period of 7 days.

The recognizance is defective, in that it fails to state the punishment. Code of Crim. Proc. art. 919; Vernon's Texas Crim. Stat. vol. 2, p. 882, Branch's Ann. Tex. Penal Code, §§ 615 to 617.

The state's motion to dismiss the appeal is sustained.

On Motion for Rehearing.

A new recognizance having been made, the dismissal is set aside.

The conviction is for swindling, a misdemeanor; punishment fixed at a fine of $50 and a jail sentence of 7 days.

The appellant obtained personal property from the possession of Lavender by means of a check drawn by the appellant upon the Dallas National Bank, dated July 25th, for the sum of $25. In the indictment it is charged that, at the time of giving and drawing the check, and at the time when, in the ordinary course of business, said check would be presented at said bank for payment, the appellant did not have sufficient funds with which to pay said check, and had no good reason to believe that said check would be paid. This averment is in accord with subdivision 4 of article 1422 of the Penal Code, on the subject of swindling. The other averments in the indictment comply with article 1421 of the Penal Code. We discern nothing in subdivision 4 mentioned which condemns it as unreasonable or unconstitutional. It has been treated as valid in a number of instances. See Pruitt v. State, 83 Tex. Cr. R. 148, 202 S. W. 81; Moore v. State, 87 Tex. Cr. R. 77, 219 S. W. 1097; McGinty v. State, (No. 6971), 245 S. W. 924.

Lavender was the manager of the mercantile establishment from which appellant received the goods. The check was delivered to Lavender, and the representations were made to him. The fact that it was drawn in favor of F. M. Hammond Company was in accord with the averment in the indictment, and proof of it was no variance. McGinty v. State, supra. The check was delivered about 4 o'clock in the afternoon of July 25th. It was delivered at Lancaster, a town situated in the same county as the city of Dallas. It was deposited in a local bank at Lancaster, and in the regular course of business it reached the bank at Dallas, upon which it was drawn, on the 29th of July. At the time of its presentation at the bank at Dallas, the appellant's account had been closed, and there were no funds to his credit. It was shown that, at some time during the business hours on the 25th of July, there stood to the credit of the appellant in the bank upon which the check was drawn an amount sufficient to pay it, but that during the business hours of that day, other checks, previously drawn by the appellant, were presented and his account became exhausted. He became aware of the condition of his account on the following day, and, so far as the record reveals, he had neither made nor undertaken to make any arrangements with the bank to have the check in question paid when it reached the bank upon which it was drawn. It thus inferentially appears that, at the time the check was drawn at 4 o'clock in the afternoon of the 25th of July, appellant was without funds in the bank upon which it was drawn, and it affirmatively appears that he had previously issued checks...