Pruitt v. State

• Decision Date: 13 March 1918
• Docket Number: (No. 4871.)
• Citation: 202 S.W. 81
• Parties: PRUITT v. STATE.
• Court: Texas Court of Criminal Appeals

202 S.W. 81

PRUITT v. STATE.

(No. 4871.)

Court of Criminal Appeals of Texas.

March 13, 1918.

Appeal from District Court, Wood County; J. R. Warren, Judge.

Marvin Pruitt was convicted of swindling, and he appeals. Reversed and remanded.

C. W. Vickery and B. F. Cathey, both of Quitman, and Simpson, Lasseter & Gentry, of Tyler, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

The indictment was for swindling. The offense as alleged was based upon the fact that appellant defrauded the First National Bank of Hawkins, a corporation, by obtaining from it a sum of money on a check drawn by him on the Continental State Bank of Big Sandy, Tex. It was charged that he represented that he had the right and authority to draw the check, that it would be a good and valid check, and would be paid by the Continental State Bank when presented in the ordinary course of business. This happened about April 15, 1915; the indictment was returned December 7, 1916. Appellant was a merchant, and operated a feed store at Hawkins, and kept an account at both the banks named. During his business operation covering several years he had drawn a great many checks on the bank at Big Sandy which had been cashed by the bank at Hawkins. Both of the bankers had permitted him to carry an overdraft, and on the occasion in question he was overdrawn with the bank at Big Sandy. He desired to pay for a car load of hay, and sought credit to the extent of about $154 for that purpose of the bank at Hawkins, having his conversation with one of the men who operated it in the absence of the other. The bank declining, he went, he says to Big Sandy, and arranged there with Mr. Perdue, the manager of the bank, to pay the check, and, acting upon his statement that he would pay it, he drew and negotiated the check, using the money for the purpose stated. Subsequently he says that the banker at Hawkins, who was absent when he first applied for the loan, returned, and told him that he would advance the money; that it was unnecessary to have made the arrangement at Big Sandy. This is denied by the banker at Hawkins. Appellant says that, acting upon this assurance, he told the banker at Big Sandy it would not be necessary for him to pay the check. The check was not paid by the bank at Big Sandy, but there is no other testimony as to the reason.

Articles 1421 and 1422, P. C., define the offense of swindling. The latter article enumerates certain acts which will constitute swindling, one of these subdivisions specifying obtaining money on a check on any bank when he has not, at the time of giving or drawing such check, or at the time when in the ordinary course of business such check would be presented, sufficient funds to pay same, and no good reason to believe that such check will be paid.

To convict appellant it was essential that the state prove that at the time the check in question was drawn appellant not only had no funds at the bank at Big Sandy on which it was drawn, but that he had at that time no good reason to believe that the check would be paid. The absence of good reason to believe that the check would be paid was an element of the offense. The burden was on the state to prove this negative allegation. It was a part of the state's case. It called none of the officers or others connected with the bank at Big Sandy to prove that appellant had no good reason to believe his check would be paid. It relied apparently upon the fact that appellant had no money in the bank at Big Sandy, and that the check was not paid. He represented that he had the right to draw the check.

The case of Moore v. State, 20 Tex. App. 233, is in point. Moore got money from a person named in the indictment,...