Appellant urges that a parenthetical clause in the seventh paragraph of the court's charge, which is set out below, was erroneous and hurtful, and amounted to the submission of a count in the indictment which was abandoned, and that we did not consider this contention. We did consider same but failed to discuss it.
The first count of the indictment charged that appellant swindled the First National Bank of Canyon by giving and drawing a certain check, etc. The second count charged the swindling of C. D. Lester by giving and drawing said check. The testimony showed that Lester was cashier of the bank named in the first count, and testified that appellant presented the check in question to him and that he paid to appellant fifty dollars of the bank's money. In submitting the case only under the second count the learned trial judge told the jury in the charge that if they believed appellant "did then and there obtain *Page 554 from said C. D. Lester $50 in money of the value of $50, belonging to the said C. D. Lester (or that said money then and there belonged to the First National Bank of Canyon, Texas, and that said C. D. Lester then and there had the actual care, control and management of the same), by means of giving and drawing a check" etc. Under Art. 457 of Vernon's C. C. P. an indictment for theft, swindling, etc., may allege ownership of the property in question in a special owner, viz: one who has the care, management and control of the property. Such is the situation appearing in count No. 2 in this case. We are not in accord with appellant's construction of the case of Nasets v. State, 32 S.W. Rep. 698, he contending that same holds ownership may not be laid in a special owner in a swindling case. The contrary is held in Phillips v. State, 17 Texas Crim. App. 169, and cases cited; also see McGinty v. State,93 Tex. Crim. 160.
The legal effect of the parenthetical clause complained of is the same as if the trial court in a separate paragraph of the charge had told the jury that Lester would be deemed in law the owner of the property in question, if he had the care, management and control of same, even though in fact it belonged to the First National Bank of Canyon. Referring to the Nasets' case, supra, we observe that it is alleged that the injured party acted as cashier of the bank, and that the property belonged to the bank, and that the bank was deprived of same, etc. Such is not the allegation in the second count in the instant case.
Appellant also contends that he made an admission to be considered as evidence in this case, which was shown by other evidence to be untrue, and that he should not be held in law bound by said admission, under such circumstances. We find that the admission referred to was that the check in question was presented to the bank on which it was drawn, and payment was refused because appellant had no money in said bank, and that if present the cashier of said bank would so testify. We also find from an examination of the record that after Mr. Lester learned by the use of a telephone that appellant had no money in the bank on which his check was drawn, Lester did not send the check or present it to said bank for payment. That part of appellant's admission relating to the presentation of the check, would seem of little materiality in a case where there was no claim either that accused had money in the bank at the time he drew the check, or reasonable ground for believing that such check would be paid when in the ordinary course of business it would be presented. The admission was *Page 555 made to prevent postponement of the case evidently until the cashier of the Lamesa bank could be present as a witness. Appellant's admission that when he gave the check he had no money in said bank was material and true, and we regard the legal effect of his admission that payment was refused when the check was presented as going no further than would the testimony of the cashier of the Lamesa bank, if present as a witness, that appellant had no money in the bank at the time when the check would have reached it in the ordinary course of business. It appears from this record that appellant was arrested more than two weeks after the giving of the check, and there is nothing suggesting or showing that at any time he had any account in the Lamesa bank or any expectation that the check would be paid if presented there.
We have examined the authorities cited by appellant and are unable to agree that they support his contention in any regard. Branch's Crim. Law, Sec. 677, and Jackson v. State, 88 S.W. Rep. 239, do not support his contention in regard to the admission; nor does Whitaker v. State, 211 S.W. Rep. 787, or McGinty v. State, 245 S.W. Rep. 924 support the proposition that ownership in swindling cases may not be laid in a special owner. The contrary appears.
Being unable to agree with appellant's contention in either of the points raised, the motion for rehearing will be overruled.
Overruled.