Segal v. State

• Decision Date: 14 May 1924
• Docket Number: (No. 7546.)
• Citation: 265 S.W. 911
• Parties: SEGAL v. STATE.
• Court: Texas Court of Criminal Appeals

265 S.W. 911

SEGAL v. STATE.

(No. 7546.)

Court of Criminal Appeals of Texas.

May 14, 1924.

State's Rehearing Denied November 12, 1924.

Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.

A. T. Segal was convicted of theft, and appeals. Reversed and remanded.

A. H. Mount and Robert B. Allen, both of Dallas, for appellant.

Jed C. Adams, of Dallas, and Tom Garrard, State's Atty, and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The appeal is from a conviction of the offense of theft, a felony; punishment fixed at confinement in the penitentiary for a period of three years.

Appellant was a merchant doing a jobbing business, and was a customer of a wholesale establishment. He had on various occasions purchased large amounts of goods from this wholesale dealer; had been extended credit for the amount of the purchases; and, so far as the record reveals, these transactions had been mutually satisfactory. He entered the store and told Boggess, the employee who had the authority to authorize sales on credit, that he desired to buy some articles, and was told by Boggess to go to Williams, the salesman, and make the selections. Appellant inspected some overalls, of which there were on hand 56 dozen. Williams priced the entire lot. Appellant purchased one pair of overalls for a sample, and later telephoned that he would take the lot at the price fixed. Williams passed the order to the billing clerk, it received the approval of Boggess, and the goods were delivered to the appellant and billed to him on the terms which were customary, viz., to be paid for within 60 days, with the option of a discount of 2 per cent, if paid for in cash. After receiving the goods, appellant sold them to other dealers at a reduced price, and other testimony was introduced, from all of which the jury decided that at the time appellant bought the goods he did not intend to pay for them.

On these facts the state asserts and the appellant denies that the conviction may legally stand. While the averments come within the terms of the general definition of theft embraced in article 1329, P. C., it is claimed by the state that the proof comes within the purview of article 1332, P. C., which reads thus:

"The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete."

One who, with a preconceived design to fraudulently deprive the owner of personal property, obtains possession of it, and makes use of the possession to convert the property to his own use, would not be excused from a charge of theft by the fact that the owner consented to part with the possession of his property. This we understand to be a general rule often applied in our own and other jurisdictions. See Hedge v. State, 89 Tex. Cr. R. 238, 229 S. W. 862, 14 A. L R. 889, in which the owner, by mistake, overpaid a sum of money in payment of an account, and the receiver was convicted of theft. See, also, Campos v. State, 84 Tex. Cr. R. 217, 207 S. W. 931. The principle has found expression in statutory provisions, notably in the statute denouncing theft by bailee. See article 1348, P. C.; Lee v. State, 81 Tex. Cr. R. 117, 193 S. W. 313; also article 1416, P. C. (the statute defining embezzlement); Simco v. State, 8 Tex. App. 406; Zysman v. State, 42 Tex. Cr. R. 432, 60 S. W. 669; Wilson v. State, 47 Tex. Cr. R. 159, 82 S. W. 651. Other illustrations are to be found in 17 Ruling Case Law, pp. 13 to 19, inclusive.

When the owner of property voluntarily parts, not only with its possession, but with the title to the property as well, the offense is not theft. It may, under certain circumstances, be swindling; but one having both the possession and title to property does not, by converting it, become guilty of theft, notwithstanding the acquisition with fraudulent intent. As summarized by Judge Lattimore in Gibson's Case, 85 Tex. Cr. R. 464, 214 S. W. 341, it is said:

"The distinction between the offense of swindling and theft by false pretext, as deduced from the opinions of this court, seems to depend upon whether the injured party was induced to part or intended to part with both title and possession of his property, in which event the case is swindling; or whether he intended to part only with possession, in which event it will be theft by false pretext."

Touching the particular statute under consideration (articles 1332, P. C.) this court, in the case of Frank v. State, 30 Tex. App. 382, 17 S. W. 936, had before it a transaction in which Frank purchased from Vickers 5 dozen eggs with a fraudulent intent. Frank was convicted of theft. The court reversed the case, saying:

"If the owner parted, or intended to part, with the title of the property, the offense could not be theft, but would be swindling."

In Bink's Case, 50 Tex. Cr. R. 452, 98 S. W. 249, the facts showed that, while Bink and Chapman, who were strangers, were riding on a train, Bink was notified that a certain sum of money would be needed at once to pay freight charges. Bink told Chapman that he did not have the funds; that he had not expected a demand for charges until they reached the station of Sawyer, where he had deposited all of his money. Upon this statement, which the jury found to be untrue, he borrowed from Chapman a sum of money, stating that on reaching Sawyer the money would be refunded. His conviction for theft was reversed upon the ground that Chapman, in lending the money to Bink, parted with both title and possession, and that the offense was not theft.

The statute in question was construed in Price's Case, 49 Tex. Cr. R. 132, 91 S. W. 571, in which Price falsely represented to Stegall that he had committed an offense while intoxicated, and would be prosecuted, unless he paid to Price a sum of money. Upon the acquisition of the money upon the false statements Price was convicted of theft. The court, in reversing the case, said:

"Clearly under these allegations Stegall intended to part with the property and the title to it in order to avoid the consequences of the alleged assault on the old man. Unaccompanied by the threats, it would be swindling. * * * With the threat involved in the transaction and alleged, it might be robbery under article 857, Penal Code. However, we are not discussing these questions, and only allude to them in regard to the contention that this is not a case of theft by false pretext under article 861 [now article 1332], Penal Code."

In the case of Pitts v. State, 5 Tex. App. 122, the facts were these: Nixon loaned Pitts a horse. Pitts traded the horse to Robinson, representing that it belonged to him. He was indicted for the theft of the horse which he got from Robinson. The court, in reversing the case, said:

"It is clear from the evidence that Robinson intended to part with his property, the bay gelding mentioned in the indictment, when he traded him to Pitts."

Illustrations of like announcements by this court upon similar facts might be extended. See Cline v. State, 43 Tex. 494; Underwood v. State, 49 Tex. Cr. R. 286, 91 S. W. 572; Powell v. State, 44 Tex. Cr. R. 278, 70 S. W. 968. The decisions of this court from its earliest days, in construing the statute under consideration, have uniformly declared, as was said in Underwood's Case, supra:

"* * * The unbroken line of authorities in this court lay down the proposition that where the money is obtained by false pretenses, and the party intended at the time the same was obtained, to part with both the title and possession of the money, these facts make out a case of swindling, and not theft. The facts before us, as stated above, show that prosecutor intended to part both with the title and possession of the money; and hence this prosecution should have been brought for swindling and not theft."

This uniform construction of the statute has prevailed, notwithstanding the reenactment of the statute unchanged in the several revisions of the Code, thereby giving to the statute legislative sanction of its judicial interpretation. The proposition that the acquisition of property upon a fraudulent pretext by the receiver or upon his fraudulent intent will not support a conviction for theft if it appears that the owner intended to part with both possession and title is declared by ...