Walker v. State, 27021

• Citation: 271 S.W.2d 286,160 Tex.Crim. 383
• Decision Date: 09 June 1954
• Docket Number: No. 27021,27021
• Parties: Freeman WALKER, appellant, v. The STATE of Texas, appellee.
• Court: Texas Court of Criminal Appeals

Page 286

271 S.W.2d 286

160 Tex.Crim. 383

Freeman WALKER, appellant, v. The STATE of Texas, appellee.

No. 27021.

Court of Criminal Appeals of Texas.

June 9, 1954.

John L. Bates, W. C. Haley, Waco, for appellant.

James H. Moore, Dist. Atty., Lufkin, Wesley Dice, State's Atty., Austin, for the State.

BELCHER, Commissioner.

Appellant was convicted for felony theft, and his punishment was assessed at two years in the penitentiary.

The indictment, drawn under Art. 1413, P.C., charges the theft, by false pretext, of 14,509 feet of lumber of the value of $1,089.22.

The state's testimony shows that appellant had purchased lumber for several years from H. H. Andrews, and had given him a check in the amount of $1,069.04 for a load of lumber on March 3, 1953, and another check in the amount of $979.77 for lumber on March 9, 1953.

H. H. Andrews testified that about March 17, 1953, appellant telephoned him about the purchase of another load of lumber for which he wanted to give a check and he told appellant that his check of March 3 was returned unpaid and that he did not want other checks which would not be paid; that appellant told him to send the check of March 3 back as the money was in the bank to pay it, and that the check of March 9 had been paid. He further testified that on March 20, 1953, appellant came to his place of business for lumber and when he was questioned about his check stated again that the check of March 9 had been paid; that the money was in the bank to pay the one of March 3, and further stated to him that he had the money in the bank to pay the check for the lumber he was then purchasing. Witness Andrews further said that he believed and relied upon these statements when he accepted appellant's check, dated March 20, 1953, and drawn on the Donie State Bank in the amount of $1,089.22, in payment for 14,509 feet of lumber which he delivered to him.

It was shown by the records of the account of appellant in the Donie State Bank that his balance on March 20, 1953, was $32.41. Also the evidence shows that the check in question was presented to said bank and payment refused for lack of sufficient funds. It was further shown that the check of March 9 was never paid, nor was there sufficient funds in appellant's account in said bank on March 20 to pay the check of March 3, and it was not thereafter paid.

Appellant, testifying in his own behalf, testified that he had made many purchases of lumber from H. H. Andrews, and that in February, 1953, he told Andrews that he sold on credit which caused him to be short of money at times, but that he deposited his money as fast as it came in. He testified that he bought lumber from Andrews by telephone on March 3 and sent a signed check by the driver of the truck who received the lumber; that on March 9 he went with the driver of the truck for the lumber, told Andrews he was in a tight for money, and left a signed check for the lumber. He further testified that Andrews telephoned him after his truck had arrived there on March 20, and wanted to know about the two checks that were returned; that he told him he would collect some accounts due and pay him; that Andrews agreed to accept his check for lumber on March 20, which he sent to him. Appellant denied that he told Andrews on March 20 that one of the checks had been paid and the other would be paid upon its return, insisting that he told him he was having financial difficulties.

The jury resolved the issues of fact against appellant and we find the evidence sufficient to sustain the...