Ratcliff v. State, 14008.

• Decision Date: 01 April 1931
• Docket Number: No. 14008.,14008.
• Citation: 38 S.W.2d 326
• Parties: RATCLIFF v. STATE.
• Court: Texas Court of Criminal Appeals

Page 326

38 S.W.2d 326

RATCLIFF v. STATE.

No. 14008.

Court of Criminal Appeals of Texas.

April 1, 1931.

Rehearing Denied May 6, 1931.

Appeal from District Court, Smith County; Gordon Simpson, Judge.

J. H. Ratcliff was convicted of swindling, and he appeals.

Affirmed.

J. N. Snell and W. H. Hanson, both of Houston, for appellant.

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

LATTIMORE, J.

Conviction for swindling; punishment, two years in the penitentiary.

It is alleged in the indictment that appellant falsely pretended and represented to Boyce McDowe and Mrs. Clem McDowe that he (appellant) had talked to the district attorney of Smith county, Tex., with reference to a case pending in the district court of said county against Clem McDowe charging him with a felony, and that he could settle said case and secure dismissal of same for the sum of $150, of which $50 would have to be paid in cash; and thereby induced said parties to deliver to him $50 in money, and to part with title to same, etc., when in fact he had not talked to said district attorney about said case, and well knew that he could not settle said case or secure dismissal thereof; and further that said parties relied on and believed said false pretenses and representations, and were thereby induced to part with their said money, and that they did deliver same to appellant. We think this charges the offense of swindling. That a part of the false representations in such case be a promise as to some future matter will not affect the case if in connection therewith it appear that the accused made false representations as to some existing fact without which the party or parties would not have parted with the property. Boscow v. State, 33 Tex. Cr. R. 390, 26 S. W. 625; Blum v. State, 20 Tex. App. 578, 54 Am. Rep. 530; McFarland v. State, 45 Tex. Cr. R. 248, 75 S. W. 788; Underwood v. State, 49 Tex. Cr. R. 285, 91 S. W. 572; Lovell v. State, 48 Tex. Cr. R. 85, 86 S. W. 758, 13 Ann. Cas. 561. The description of the property obtained by the appellant from said parties as $50 in money was sufficient. We do not think it necessary to allege in the indictment the specific interest had by the injured parties in the party charged in the case pending in the district court of Smith county. The state does not have to plead its evidence. In our opinion, the indictment was sufficient.

That $30 of the money obtained by appellant belonged to Mrs. McDowe, was paid to appellant, and was money in which Boyce McDowe had no interest, also that a like situation existed, only reversed, as to the $20 paid appellant by Boyce McDowe, would in nowise affect the question of appellant's guilt, and the special charge seeking an instructed verdict of acquittal in case the jury believed the above state of facts to exist was properly refused. Nothing is better settled in this state than that the taking of property from different owners at the same time and place constitutes but one offense. Wilson v. State, 45 Tex. 81, 23 Am. Rep. 602; Hudson v. State, 9 Tex. App. 151, 35 Am. Rep. 732; Hirshfield v. State, 11 Tex. App. 216; Adams v. State, 16 Tex. App. 171; Shubert v. State, 21 Tex. App. 551, 2 S. W. 883; Wright v. State, 37 Tex. Cr. R. 627, 40 S. W. 491; Davidson v. State, 40 Tex. Cr. R. 285, 49 S. W. 372, 50 S. W. 365. The Wilson Case, supra, is well reasoned and supported by citation of authorities. A quotation therein appears from an opinion of the Supreme Court of Missouri (Larton v. State, 7 Mo. 55, 37 Am. Dec. 179) as follows: "The stealing of several articles of property at the same time and place undoubtedly constitutes but one offense against the laws; and the circumstance of several ownerships cannot increase or mitigate the nature of the offense."

We are in accord with the proposition thus stated, and believe that, when one takes from different ownerships, at the same time and place, a number of articles—those taken from no one owner being of value sufficient, if alone charged, to make the offense a felony— the accused has no just ground of complaint if the indictment charge him with taking at the named time and place the certain described property of A, B, C, and D of the aggregate value of a sum more than $50 from the possession of A, B, C, and D, without the consent of said parties, or either of them, and with intent to appropriate same, etc.; or, if the pleader prefers, the indictment may charge the accused with taking at one time and place from A certain described property of the value of $_____, and charge that at the same time and place said party did...