Reese v. State

• Decision Date: 16 December 1931
• Docket Number: No. 14377.,14377.
• Citation: 44 S.W.2d 679
• Parties: REESE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 679

44 S.W.2d 679

REESE v. STATE.

No. 14377.

Court of Criminal Appeals of Texas.

December 16, 1931.

Appeal from Nacogdoches County Court; Clyde Shofner, Judge.

A. R. Reese was convicted of swindling, and he appeals.

Reversed, and prosecution dismissed.

Edward Yarbrough, of Henderson, for appellant.

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

MORROW, P. J.

The offense is swindling; penalty fixed at a fine of $5 and confinement in the county jail for one hour.

The conviction is under subdivision 4 of article 1546, P. C., 1925.

The following is a synopsis of the state's evidence: J. T. Wright was manager of the Nacogdoches Dry Goods Company. In part payment for a suit of clothes purchased, the appellant executed and delivered to Wright a check for $8.40. The check was promptly presented and dishonored, and months later, when the prosecution was begun, the check remained unpaid. Appellant claimed that he had good reason to believe that he had sufficient funds to his credit in the bank with which to pay the check, and that it would be paid. The evidence before the jury justifies the decision of the issues of fact in favor of the state.

It is not thought that the indictment was vitiated by the omission of an averment that Wright was the agent of the Nacogdoches Dry Goods Company. The absence of an averment that the Nacogdoches Dry Goods Company was a corporation is deemed fatal to the conviction.

In charging the offense of swindling, as defined in subdivision 4 of article 1546, P. C., 1925, if the injured party is a corporation, it is imperative that there be an averment to that affect, giving the name of the corporation. See Whitaker v. State, 85 Tex. Cr. R. 272, 211 S. W. 787; Faulk v. State, 38 Tex. Cr. R. 77, 41 S. W. 616; Spurlock v. State, 45 Tex. Cr. R. 282, 77 S. W. 447; Pruitt v. State, 83 Tex. Cr. R. 148, 202 S. W. 81; Nasets v. State (Tex. Cr. App.) 32 S. W. 698. If such indictment names the corporation alone, proof that in parting with its property reliance was upon the value and validity of the check might be difficult. An averment naming the corporation and making proper averment to the effect that its property was possessed and under the control of a named agent or representative vested with authority to dispose of the property, proof of reliance on the check could be made by the agent or representative. Such is, in substance, the intimation in the Pruitt Case, supra.

In the instant case, the information charged that the appellant acquired the property of the "Nacogdoches Dry Goods Co., Inc." There is no specific averment to the effect that the owner of the property was a corporation, and no averment explanatory of the meaning of the letters "Inc." In the proof it was...