This cause was heretofore reversed and remanded by this court on the sole proposition that the trial court was in error in failing and refusing to charge the jury, at appellant's request, on the law governing a theft by means of a false pretext.
Art. 1413, P. C. reads as follows: "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, thoughoriginally lawful, was obtained by any false pretext, or withany intent to deprive the owner of the value thereof, andappropriate the property to the use and benefit of the persontaking, and the same is so appropriated, the offense of theftis complete."
It will be observed that a conviction may be had under the above statute in two ways, one being the obtaining of the consent of the owner of the property by means of some false pretext, and the other being the acquisition of the property with the owner's consent, but at the time of obtaining such consent of the owner there existed in the mind of the person so acquiring such property the intent to deprive the owner thereof of the value of the same, and the further appropriation thereof.
The proof of either one of these means to the satisfaction of the jury would be sufficient grounds for the upholding a judgment for theft.
Appellant objects to the charge of the trial court, and sets up the same in a bill of exceptions, as follows: "Defendant objects to said charge for the reason that same does not advise nor inform the jury that they cannot convict the defendant unless they find and believe from the evidence that it was from some false pretext on the part of the defendant as to some past or present fact, upon which prosecuting witness, Antone Willeke, relied and but for which he would not have parted with his property."
Appellant also admits in his brief that there are two separate and distinct methods set forth in Art. 1413, supra, in which the crime of theft can be committed. We quote that portion of the brief: "It seems that this appellant was indicted and tried under that portion of the statute underlined above, that is, 'with any intent to deprive the owner of the value thereof'. Appellant admits at the outset that if this case was tried upon the underscored portion of the statute, possibly his proposition is not well taken as is reflected in appellant's bill of exception number one, *Page 396 for it seems that under that portion of the statute, it is not necessary to show any false pretext, but a mere taking with the intent to deprive the owner of the value thereof."
It appears from the court's charge that this cause was tried on the second alternative method of committing the crime of theft, although the taking was had with the owner's consent, and the court's charge to the jury evidences the same in the following language: "You are further instructed that in order to convict the defendant of the crime of theft in this case you must be satisfied from the evidence, beyond a reasonable doubt, that he not only did appropriate the one head of cattle to his own use and benefit as alleged in the indictment, but you must further find and believe beyond a reasonable doubt that the intention of the defendant to defraud the owner of the value thereof, (if you have found that such intent existed) existed at or before the taking of said one head of cattle."
I grant that possibly both elements of the commission of this offense were presented to the jury in the testimony, yet the mere fact that the State saw fit to pursue the path outlined by the last alternative set forth in Art. 1413, supra, would certainly not force it to also pursue the method of committing the same offense as set forth in the first portion of such article. The State evidently did utilize a false statement by appellant relative to his bank account in order to show a present intent to appropriate the property unlawfully at the time he obtained possession thereof. And it is further of note that at appellant's instance the trial court gave a charge on circumstantial evidence.
The facts as herein presented might have been classified as coming under the statute denouncing the crime of swindling also, but I do not think the State should have been compelled to elect to prosecute the same under such statute, but could use its own judgment in selecting any one of the violated statutes or offenses that it thought applicable to the facts.
It seems clear to me that the false pretext of having certain money in the bank could have been used for the purpose of showing an instant intent to deprive the owner of the cattle and thus establish an offense under the second alternative of Art. 1413, supra, or had the State so desired, it could have been used as the predicate for the conviction herein; but in no event do I think that because there are present in the facts two alternative ways of committing the denounced offense of theft, that it was incumbent on the court to charge the jury on both phases thereof; nor do I also think that the appellant should be allowed *Page 397 to defend on the alternative theory not presented nor relied upon by the State. That two such methods of committing theft are included in Art. 1413, P. C., we have heretofore held in Davenport v. State, 78 S.W.2d 608, in the following language: "The statute denouncing the offense embraces two modes of committing the crime, namely, obtaining the property by false pretext and obtaining the property with intent to deprive the owner of the value of the property in question. The present prosecution is based upon the latter. The distinction between a prosecution under this statute and others denouncing theft is emphasized in many decisions of this court. Among them is Segal v. State, 98 Tex.Crim. R., 265 S.W. 911, 35 A. L. R. 1331. See Vernon's Ann. Texas P. C., Vol. 3, Art. 1413, and notes thereunder on page 23 of 1934 Cumulative Annual Pocket Part. See, also, Speer v. State, 58 S.W.2d 95; DeBlanc v. State, 118 Tex.Crim. R., 37 S.W.2d 1024."
The only further question presented to us is the sufficiency of the evidence to sustain a finding that the appellant at the time of acquiring possession of the cattle had the intent at such time to deprive the owner of the value thereof, and to appropriate same to his own use and benefit. In this connection, I think the statement made at such time to the owner of the cattle relative to certain moneys had in the bank by appellant, and the proven falsity of such statement, would go far to show his present intent to obtain these cattle unfairly from their owner, and under the law of circumstantial evidence I am impressed with the fact that the jury was warranted in saying that when appellant told the owner of these cattle that he had funds in a certain bank practically sufficient to cover the amount, lacking a few dollars, when he had no such funds, and had not had same therein for more than two years, this was cogent evidence going to show that appellant at such time had the intent to deprive the owner of the value of $1119.00 worth of cattle.
The latter portion of Art. 1413, P. C. either means something or nothing, and to give such article the construction set forth in the opinion of Judge Hawkins entirely destroys the efficiency and meaning of such latter portion of such article, and same would be useless. When appellant told Willeke that he, appellant, had the sum of $1119.00, lacking a few dollars, in a certain bank, and obtained possession of about 43 head of cattle, it seems to me that the fact that he had no such amount of money in such bank, and had had no money at all in such bank for more than two years, brought this case clearly within *Page 398 the provisions of the latter part of such article 1413, P. C., as follows: "* * * or with any intent to deprive the owner ofthe value thereof and appropriate the property to the use and benefit of the person taking," etc. I think this latter provision just above quoted is an additional method of committing the offense of theft, and either conveys such a meaning or means nothing.
We are not authorized to think that the Legislature wrote a meaningless thing into the law, but such has been carried in the Code for many years and through many revisions, and I think same should be given effect as a means of committing theft. I think the trial court was correct in utilizing this portion of the statute in this instance, and therefore respectfully enter my dissent herein.