Redding v. State, 26716

• Decision Date: 20 January 1954
• Docket Number: No. 26716,26716
• Citation: Redding v. State, 265 S.W.2d 811, 159 Tex.Crim. 535 (Tex. Crim. App. 1954)
• Parties: REDDING v. STATE.
• Court: Texas Court of Criminal Appeals

Page 811

265 S.W.2d 811

159 Tex.Crim. 535

REDDING v. STATE.

No. 26716.

Court of Criminal Appeals of Texas.

Jan. 20, 1954.

Rehearing Denied March 17, 1954.

Martin & Shown, by W. E. Martin, Houston, for appellant.

William H. Scott, Dist. Atty., King C. Haynie, Asst. Dist. Atty., Houston, Wesley Dice, State's Atty., Austin, for the State.

WOODLEY, Judge.

Appellant was convicted of felony theft and the jury found that he had been twice previously convicted of a felony. The court, thereupon, entered judgment that he be confined in the penitentiary for life. His motion for new trial was heard and overruled and he appeals from the life sentence pronounced against him.

The previous convictions alleged were sufficiently established by the state's evidence, and no question is raised in regard thereto.

The statement of facts shows, in regard to the primary offense, the following.

Charles E. Hill, the injured party, operated a used car business in Houston under the trade name of H & H Motor Company. On February 28, 1953, appellant came to Hill's place of business and agreed with Hill upon the purchase of a 1946 Ford automobile for the sum of $500, that being its value.

A check or draft for $500, payable to H & H Motor Company, was delivered to Hill who in turn gave to appellant a receipt in that amount, reciting payment in full for the automobile, and appellant was permitted to take possession of the automobile in return for the draft.

The draft was signed by appellant and was drawn on the 'Union National Bank', there being no further description of the bank such as its location.

Hill testified that the check or draft was for the full purchase price of the automobile; that he had a conversation with appellant pertaining to the check before he accepted it; that appellant said the bank was 'on Main Street'; that he said he had the money in the Union National Bank in Houston; that he was relying on the check and appellant's statement when he took the check, and did not otherwise give his consent or permission for appellant to take the automobile; that he carried the check to the bank which appellant said he was drawing it on, the Union National in Houston, and could get no money on it.

The evidence further shows that appellant had never had an account in the Union National Bank in Houston and that the draft was never paid. The Ford automobile was found in a badly wrecked condition some four days after appellant took possession of it.

Appellant's brief complains (1) that the evidence is insufficient to show an appropriation of the automobile alleged to have been stolen; (2) that the check given Hill in payment for the automobile was inadmissible in evidence; (3) that the court's charge was erroneous in that it did not require the jury to find that appellant appropriated the automobile, and (4) that the court erred in refusing to charge the jury not to consider the check offered in evidence.

Appellant's first point is predicated upon the assumption that he came into possession of the automobile lawfully. The state's case was in fact for theft by false pretext, it being permissible to prosecute therefor under an indictment alleging ordinary theft.

The offense of theft by false pretext is the obtaining of possession of property by a willing surrender of the owner induced to deliver such possession by false pretext or device and with the fraudulent intent of accused, at the time he came into possession of the property, to appropriate it to his own use, followed by such appropriation. Maxwell v. State, 134 Tex.Cr.R. 314, 115 S.W.2d 939.

Under some circumstances the offense of theft would be complete although the owner parted with both title and possession of the property, if he was induced to do so by some false pretext and the other elements were present. Roe v. State, 140 Tex.Cr.R. 387, 144 S.W.2d 1104.

In King v. State, Tex.Cr.App., 213 S.W.2d 541, 542, the facts were similar in all respects to the facts here, and a conviction for theft was affirmed. In the opinion in that case is found the following statement of the law which appears applicable here:

'The constituent elements of theft by false pretext consist, first, in obtaining the property by means of a false pretext; second, that at the time the property is so obtained the accused had the intent to deprive the owner of the value thereof and to appropriate it to his own use and benefit; and third, that pursuant to said intent said property was appropriated by the accused.

'The uncontroverted facts show that appellant, with a view of obtaining the possession of the automobile in question, gave Mr. Price a worthless check which he knew to be worthless. By his fraudulent statements to Mr. Price that it was good; that it would be paid when presented to the bank since he had the money in the bank, he induced Mr. Price to deliver unto him the automobile, otherwise he would not have parted with the possession of the same. The evidence clearly and unmistakeably shows the false pretext and also shows the fraudulent intent of appellant to deprive Price of the automobile and to appropriate it to his own use and benefit which he did.'

On rehearing we said: 'We remain convinced that the facts are sufficient to warrant the jury's conclusion that appellant came into the possession of the automobile by a false and fraudulent pretext, with the intent, at the time, of depriving the owner of the automobile of the value thereof and to appropriate it to his own use and did so appropriate the automobile, thereby establishing the crime of theft by false pretext. As supporting this conclusion, see, also, Roe v. State, 140 Tex.Cr.R. 387, 144 S.W.2d 1104.'

We think the enactment of the so called 'Hot Check Law,' Vernon's Ann.P.C. art. 567b, made no change in the law relative to prosecution for theft by false pretext. See Gibbs v. State, Tex.Cr.App., 253 S.W.2d 1002.

Appellant took the automobile away from the used car lot and, we think, appropriated it in accordance with his original intention. The question of his acquiring title is hereafter discussed.

Appellant's second contention, that the check or draft was inadmissible, is based upon three grounds: (a) that it was not drawn upon any bank; (b) was not described in the indictment, and (c) that it was unlawfully obtained.

We know of no rule of law which requires that the false pretext or device relied upon, if in writing, must be complete in form, or where the...