Williams v. State, 51541
| Decision Date | 13 October 1976 |
| Docket Number | No. 51541,51541 |
| Citation | 542 S.W.2d 131 |
| Parties | J. D. WILLIAMS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
James S. Moss, Mesquite, for appellant.
Wiley L. Cheatham, Dist. Atty., Cuero, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.
This is an appeal from a conviction under our former penal code for the offense of theft of a check of over the value of $50.00. Punishment was assessed at nine years in the Texas Department of Corrections.
The indictment charged in part in the first count that appellant and Pete Allmon, acting together, did then and there in the County of Jackson, State of Texas, 'Unlawfully and fraudulently take one check of the value of over $50.00, the same being the corporeal personal property of Belle Hamilton from the possession of the same Belle Hamilton', without her consent, 'with the intent to deprive' her 'of the value thereof and with intent to appropriate same to the use and benefit of them, the said J. D. Williams and Pete Allmon.' The State elected to go to trial on the first count only. Appellant was tried separately.
The learned trial judge properly charged the jury on the law applicable to the case, including the definitions of 'theft', 'fraudulent taking', 'theft by false pretext', 'principals', 'accomplice witness' and 'corroborating evidence'.
The appellant did not testify in his own behalf and rested his case without any testimony being offered by appellant.
Appellant contends in two grounds of error that the evidence is insufficient to sustain his conviction because there was no showing that at the time of taking he possessed the criminal intent to deprive the complaining witness of the value of the check, and further contends that venue was in Tarrant County rather than Jackson County. We do not agree.
The evidence shows that Pete Allmon, Norman Cowart and appellant contrived a scheme to have Pete Allmon obtain an appointment to sell insurance through First Continental Life and Accident Insurance Company of Houston, in order that Cowart and appellant could unlawfully solicit, obtain and submit applications for insurance through Allmon, as an agent, which was also prohibited by law.
All these men went to Houston to make the arrangements; then Cowart and appellant started contacting prospects and obtaining money from them by making false and incorrect representations. The officials of First Continental Life and Accident Insurance Company of Houston did not give either of them permission to sell insurance for their company.
Both Cowart and appellant contacted the 75 year old complaining witness, Belle Hamilton, of Lolita, in Jackson County. Both represented to Belle Hamilton that they were authorized insurance agents for First Continental Life and Accident Insurance Company, which was untrue. They also represented to her that their alleged insurance company had purchased and taken over the Tidelands Life Insurance Company of Corpus Christi, with whom Belle Hamilton had a policy on which the premium was paid up and in force at the time. Cowart and appellant falsely represented to Belle Hamilton that her annual premium on her 'Tidelands' policy was due, all of which was false and untrue.
Belle Hamilton signed and delivered to them a check for $382.78, dated October 13, 1973, payable to the First Continental Agency. She also signed a blank application for a new insurance policy. The victim testified that she had no knowledge that she was signing papers to apply for a new insurance policy, and she did not agree to buy a new policy with any company. Because of this action of appellant and Cowart, her policy with 'Tidelands' Life Insurance Company lapsed for non-payment. Belle Hamilton believed the representations of appellant and Cowart and relied on same and testified she would not have signed and delivered her check to them if she had known that if was for a 'new' policy with any company. After leaving Belle Hamilton's house, both Cowart and appellant returned to Fort Worth, and gave the money and application to Allmon.
The officials of First Continental Life and Accident Insurance Company of Houston became concerned about appellant, Cowart and Allmon and cancelled Allmon's appointment without granting appellant or Cowart authority to sell for their company. Appellant, Allmon and Cowart deposited the money of Belle Hamilton and others in Allmon's special account, which they opened as 'First Continental Agency, Pete Allmon', in the Security State Bank in Fort Worth. After the First Continental Life and Accident Insurance Company refused to let appellant, Cowart and Allmon represent their company, appellant, Cowart and Allmon forged an application for insurance from Belle Hamilton and others to American Insurance Company in Brownwood, with whom Allmon was associated. They retained the agent's commissions and submitted the forged application of Belle Hamilton and others to the insurance company in Brownwood without the knowledge and consent of the victims.
The testimony of accomplice witness Norman Cowart was that he and appellant intended and did at the time of the taking of Belle Hamilton's check on October 11, 1973, in the amount of $382.78 at her home in Lolita, Jackson County, make false and fraudulent representations to her in order to induce her to deliver the check to them.
He testified:
'A She was told that she carried her insurance through our agency and that she had a premium coming due and that the First Continental Agency had taken over, or bought out Tidelands Life Insurance Company and it was a combination of Southwest Service Life and Tidelands that we were setting her up on a better policy and that it would be with First Continental Agency. And--
Q All right. Now at this time, were either you or this defendant, J. D. Williams, licensed to sell insurance?
A No, sir.
Q All right. All right. And, let me ask you this. In truth and in fact, was she carrying her insurance through your agency, meaning you and this defendant, J. D. Williams, in truth and in fact?
A No. No, sir.
Q And, did she have any premium due like you told her?
A No, sir.
Q And had the First Continental Insurance Company bought out Tidelands like it was represented to this woman?
A No, sir.
Q Now, then, who made these representations to this woman, you or this defendant, or both of you?
A Both of us.
Q Okay. By both of you, do you mean you and this defendant, J. D. Williams?
A Yes, sir.
Q Did you two know that these representations that you made to this woman were false when you made them?
A Yes, sir.'
The evidence further showed that the victim, Belle Hamilton, 75 years of age, relied on and believed the false and fraudulent representations of appellant and Cowart and that she signed and delivered her check to them in Jackson County, Texas on October 11, 1973. It was about February 28, 1974, when she realized that she had been a victim of appellant and Norman Cowart.
Article 1413, V.A.P.C., provides:
'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.'
To form the basis of the offense of theft by false pretext, the false pretext must be the inducing cause which moves the injured party to surrender the property in question. If the injured party knows, or by the exercise of ordinary prudence should know, at the time he parts with possession of the property that the pretext is in fact false, the offense cannot arise. Kinder v. State, 477 S.W.2d 584 (Tex.Cr.App.)
The evidence further shows that during 1973 Norman Cowart and appellant. J. D. Williams, were soliciting and selling insurance without license or appointments as required by law; therefore, neither was an authorized agent for any insurance company. Appellant had his appointment to sell insurance 1 withdrawn and cancelled in early October 1973.
The complaining witness testified that two men, the appellant and Norman Cowart, came in her house located in Lolita on October 11, 1973, and both of them talked to her about her insurance with Tidelands Insurance Company, which was due; that they represented the First Continental Insurance Company had bought Tidelands Company out and they came to collect the premium; that she did not agree with them to buy a new policy of insurance with any company from them and that she gave them a check in the amount of $382.78 for only the premium they represented to her was then due. She further testified that she did not sign or give the appellant or anyone else permission to sign her name twice to an application for an insurance policy with American Insurance Company and denied that the two signatures thereon were hers. She testified that she wrote a letter to American Insurance Company of Texas on February 28, 1974 (State's Exhibit 13, which was read before the jury), advising them that she had learned on this date
Belle Hamilton further testified as follows:
'Q (BY MR. CHEATHAM): Now then, after writing this letter to the American Insurance Company of Texas, Mrs....
To continue reading
Request your trial
-
McManus v. State
...properly excluded it. It is well settled that a witness may not be impeached on immaterial and collateral matters. See Williams v. State, 542 S.W.2d 131 (Tex.Cr.App.1976); Ellard v. State, 507 S.W.2d 198 (Tex.Cr.App.1974); Fisbeck v. State, 166 Tex.Cr.R. 105, 311 S.W.2d 865 The second lette......
-
Garza v. State
...witness on an immaterial or collateral matter. See Flannery v. State, 676 S.W.2d 369, 370 (Tex. Crim App. 1984); Williams v. State, 542 S.W.2d 131, 138 (Tex. Crim. App. 1976). Here, the substance of Newbern's testimony remains the same regardless of the source-that as far as Newbern knew, o......
-
Harwei, Inc. v. State, 2-283A64
...City of Kansas City v. Fritz, (1980) Mo.App., 607 S.W.2d 837; State v. Bohannon, (1971) 187 Neb. 594, 193 N.W.2d 153; Williams v. State, (1976) Tex.Cr.App., 542 S.W.2d 131; Scott v. State, (1920) 89 Tex.Cr.R. 70, 228 S.W. 1099; 32 Am.Jur.2d False Pretenses Sec. 51 (1982); R.M. Perkins, Perk......
-
Brown v. State
...Tex.Cr.App., 550 S.W.2d 699; Loa v. State, Tex.Cr.App., 545 S.W.2d 837; Etheredge v. State, Tex.Cr.App., 542 S.W.2d 148; Williams v. State, Tex.Cr.App., 542 S.W.2d 131; James v. State, Tex.Cr.App., 538 S.W.2d 414; Deas v. State, Tex.Cr.App., 531 S.W.2d 810; Moore v. State, Tex.Cr.App., 521 ......