Sims v. State
| Decision Date | 25 June 1886 |
| Citation | 1 S.W. 465 |
| Parties | SIMS v. STATE. |
| Court | Texas Court of Appeals |
A term of five years in the penitentiary was assessed against the appellant upon his conviction for swindling, under an indictment, the charging part of which reads as follows: "* * * That Dock Sims, late of said county, on or about the twenty-fifth day of May, A. D. 1883, and in said county and state of Texas, did then and there, by means of false pretenses and devices and fraudulent representations, then and there knowingly and fraudulently made by him to G. C. Fort, did induce the said G. C. Fort to deliver to him, the said Dock Sims, and the said Dock Sims did and there, and by the means aforesaid, acquire from the said G. C. Fort, a certain horse of the value of one hundred dollars, ($100,) the same being the personal and movable property of the said G. C. Fort, with the intent to appropriate the same to the use of him, the said Dock Sims, in this, to-wit: the said Dock Sims did then and there falsely pretend and fraudulently represent to said G. C. Fort that he, the said Dock Sims, was then and there the owner of four certain cattle, to-wit, four work oxen, and had the right to dispose of the same, and did thereby then and there fraudulently induce the said G. C. Fort to exchange his said horse for said cattle, and then and there deliver the said horse to the said Dock Sims, when in fact and truth the said Dock Sims did not own the said cattle, and did not have the right to dispose of the same; and the said Dock Sims then and there knew that said pretenses and representations so made by him to the said G. C. Fort were false, — against the peace and dignity of the state," etc.
Defendant's first application for a continuance, grounded upon the absence of witnesses whose testimony is alleged to be material to his defense, shows that he used legal and sufficient diligence to obtain said testimony. The application, in other respects, complies fully with the requirements of the law. There can be no question but that the absent testimony, as it is set forth in the application, was material to the defendant, and the evidence adduced on the trial does not render it impossible that it is true, but, on the contrary, tends to corroborate it. We think the court erred in not granting the defendant's motion for a new trial when it appeared from the evidence that the absent testimony was not only material to the defendant, but probably...
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Ellard v. State
...§ 27. That the facts so alleged may also constitute an offense under a different statute does not vitiate the indictment. Sims v. State, 21 Tex.App. 649, 1 S.W. 465; 30 Tex.Jur.2d, p. 579, § 26. See also Akin v. State, Tex.App., 12 S.W. 1101; Cedargreen v. State, Tex.Cr.App., 432 S.W.2d 524......
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Bink v. State
...v. State (Tex. Cr. App.) 37 S. W. 433; Hirshfield v. State, 11 Tex. App. 207. These cases seem to question or overrule Sims v. State, 21 Tex. App. 649, 1 S. W. 465. Assuming that our decisions state the distinction between theft and swindling and announce a correct rule, was this a case of ......
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McCuistion v. State, 21827.
...1024; Haley v. State, 127 Tex. Cr.R. 177, 75 S.W.2d 272; Lovine v. State, 136 Tex.Cr.R. 32, 122 S.W.2d 1069. The case of Sims v. State, 21 Tex.App. 649, 1 S.W. 465, seems in conflict with Hirshfield, supra, but Witherspoon, supra, followed Hirshfield, and in effect overruled Sims, supra. If......
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Harper v. State
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