Tuttle v. State

• Decision Date: 11 January 1899
• Citation: 49 S.W. 82
• Parties: TUTTLE v. STATE.
• Court: Texas Court of Criminal Appeals

49 S.W. 82

TUTTLE v. STATE.

Court of Criminal Appeals of Texas.

January 11, 1899.

Appeal from district court, Kaufman county; J. E. Dillard, Judge.

W. P. Williams and William H. Allen, for appellant. Mann Trice, for the State.

HENDERSON, J.

Joe Tuttle was convicted of swindling in an amount over $50, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

The conviction of appellant was for being an accomplice to his principals, T. J. and N. Singleton, in the perpetration of the alleged swindling. On the trial, the judgment of conviction of T. J. Singleton was introduced in evidence. Appellant objected to the introduction of this evidence, "because said judgment and sentence was immaterial and inadmissible, and was not competent as proof of guilt against T. J. Singleton, and because same would tend to prejudice the minds of the jury, both against said T. J. Singleton and against this defendant." The objection, in so far as the same afforded proof against appellant, was sustained; but it was admitted in evidence against T. J. Singleton, and the court, in its charge, expressly limited the same as against the said T. J. Singleton. We believe that said judgment of conviction was competent evidence to be considered by the jury in determining the guilt of the said T. J. Singleton. It was necessary for the state to make out a case against the principal before it could claim a conviction of appellant, and in our opinion said judgment of conviction was admissible in evidence against said Singleton. See Preston v. State (decided at the last Tyler term), 48 S. W. 581.

We believe the action of the court was proper in rejecting testimony to the effect that the R. P. Rhea Company charged a percentage of 30 per cent. upon the original cost of goods, or invoice price, in arriving at the selling price. As explained by the court, full latitude was given to the defendant to show that the price of the goods as stated by the state's witness was not the market price of the goods in question. Appellant did not undertake to show that the goods in question in that market were worth 30 per cent. less than they were sold at. If they added 30 per cent. to the original cost of the goods in arriving at the selling price, and the goods were worth that in the market, it would be immaterial what they may have added to the original cost of the goods at wholesale in order to fix the actual market price of the goods.

The mortgage offered in evidence was excluded by the court on the ground of a variance between the allegations in the indictment as to a description of the mules and the mortgage offered in evidence. The mortgage offered in evidence was a copy of that set out in the indictment, and described the animals mortgaged thus: "One bay mare, about 15½ hands high; one brown horse mule, about 15½ hands high," etc. But the indictment alleged that said T. J. and N. Singleton did then and there fraudulently represent to the said R. P. Rhea Company, through its vice president, N. E. Shands, that they were owners of one bay mare mule, about 15½ hands high, and of one brown horse mule, about 15½ hands high, and as such owners had the right to sell, dispose of, and mortgage said mules. As we understand it, the indictment was incongruous; that is, the pleader undertook to set out and describe the property mortgaged, and about which the false representations were made, and he set out that one of the animals was a bay mare mule and the other was a brown horse mule, but...