Under Art. 1549, P. C., as it existed prior to its amendment by the 48th Legislature, it was the rule that where a state of facts showed both the offense of swindling and some other offense the prosecution was required to be maintained for such other offense. In other words, where a state of facts showed both swindling and theft by false pretext a conviction thereunder could not be maintained for swindling. De Blanc v. State, 118 Tex.Crim. R., 37 S.W.2d 1024; McCuistion v. State, 143 Tex.Crim. R., 158 S.W.2d 527.
By the amended Art. 1549, P. C. (set out in the original opinion) such rule was abrogated and was the basis of the amendment, as shown in the emergency clause to the bill. (Chap. 240, Acts Regular Session 48th Legislature in 1943).
Under Art. 1549, P. C., as amended, the State may now prosecute either for the offense of swindling or theft by false pretext, under a state of facts showing both offenses. Whitehead v. State, 148 Tex.Crim. R., 185 S.W.2d 725.
Applying the rule stated to the instant conviction for theft by false pretext, the material inquiry is whether the facts show the commission of that offense, it being immaterial whether the facts also show the crime of swindling. Appellant's argument that the instant facts show the crime of swindling is therefore unavailing.
As pointed out in the original opinion, appellant obtained possession of the automobile by the giving of a worthless check, which he represented to be good and would be paid upon presentation to the bank, followed by the subsequent appropriation of the automobile.
We remain convinced that the facts are sufficient to warrant the jury's conclusion that appellant came into possession of the automobile by a false and fraudulent pretext, with the intent, at the time, of depriving the owner of the automobile of the value thereof and to appropriate it to his own use and did so appropriate the automobile, thereby establishing the crime of theft by false pretext. As supporting this conclusion, see, also, Roe v. State, 140 Tex.Crim. R.,144 S.W.2d 1104. *Page 261
Believing a correct conclusion was reached originally, the motion for rehearing is overruled.
Opinion approved by the Court.