The State has filed a motion for rehearing, insisting that the representations made by appellant to Fuhrmann, while in some respects referring to present facts or past events, in part, at least, related to the execution of a note and deed of trust on property intended to secure the payment of the five hundred dollars advanced by Fuhrmann, and that the representations as to the execution of the note and deed of trust referred to a transaction to occur in the future; and therefore, that we reached a wrong conclusion in our original opinion holding that if appellant was guilty of any offense it was swindling and not theft by false pretext.
As we understand the facts, the State's position can not be maintained. In his direct examination Fuhrmann testified as follows: "After this check was signed by me and delivered to Mr. Speckels I got a note and deed of trust from him."
This statement, standing alone, might justify the State's position; but Fuhrmann immediately proceeding with his testimony said: "The deed of trust was made out before I let him have this money, because he was working on it, but he did not actually deliver the note and deed of trust to me until after he got the check. I don't know exactly how long it was afterwards that he delivered the note and deed of trust to me, but it wasn't as much as a month — just a few days. I have the note and deed of trust here. This is the note and deed of trust which were delivered to me by Mr. Speckels. They were not delivered to me on the second of August, it was the fourteenth;the check is dated August 14, that is the actual date of thecheck, and the deed of trust and the note were delivered on thefourteenth; the papers were delivered on the same day as thecheck."
It will be borne in mind that the actual date of the note and deed of trust was August 2, twelve days before the check was issued on the 14th. As we understand the record, during the two weeks following the date of the note and deed of trust negotiations were proceeding between Mr. Fuhrmann and Mr. Speckels with reference to the loan. Fuhrmann seemed undecided about the matter and it was not until the 14th that Mr. Fuhrmann concluded to let him have the money. Considering the testimony of Mr. Fuhrmann in its entirety, it appears clear that the delivery of the check by Fuhrmann to Speckels and the delivery of the note and deed of trust by Speckels to Fuhrmann were contemporaneous transactions. There is no complaint by Mr. Fuhrmann that Speckels represented *Page 643 that he would execute a note and deed of trust, which he never in fact executed. If this were true the principle announced in New v. State, 83 S.W.2d 668, relied upon by the State in the motion for rehearing, would be applicable. Under the facts we do not think it is at all applicable here. Mr. Fuhrmann was complaining that Mr. Speckels represented that the property upon which the deed of trust was executed was clear from any prior encumbrance when in fact it was not, and it was upon this representation that Fuhrmann relied. He said this very clearly in his evidence, as follows:
"I stated that Mr. Speckels told me the property was clear. I believed that statement and relied on it. Had it not been for that statement I would not have loaned him the money. * * * I relied wholly upon the statement of Mr. Speckels and gave him the money for the purchase of that note and deed of trust with the understanding that the property was clear. * * * I intended to give him the money, and did give it, for the purchase of this note and deed of trust. I intended for him to keep the money and I keep the note and deed of trust — provided it was good — that is, acting on the representations he had made that the property was clear. The representation that he had made was the sole moving thing that influenced me to part with my money; if he had not made the representation that it was clear and if I had not believed him, I never would have acted on it."
If we go to the testimony of appellant in regard to the time of the delivery of the note and deed of trust to Fuhrmann it indicates that the note and deed of trust were executed on August 2nd and had been delivered to Fuhrmann and were held by him pending his decision as to whether he would let appellant have the money. Appellant's testimony in regard to the matter is as follows:
"Mr. Fuhrman later turned over to me the check for five hundred dollars * * * I presume that was about ten days after he had the papers, I don't know exactly, but I believe about a week or ten days after the papers were written."
On cross-examination he testified: "I had delivered the deed of trust and the note to Mr. Fuhrmann at the time Mr. Fuhrmann delivered this check to me. I don't recall just how long it was before this check was executed that I had delivered the note and deed of trust to Mr. Fuhrmann, but I recall that at the time it was agreed that they were going to accept this deed of trust and note it was around August 2. * * * I delivered them about a week or ten days before this check was delivered *Page 644 to me. I say now I delivered this note and deed of trust to Mr. Fuhrmann before he executed this check and before I got any money on it."
Without reference to appellant's testimony, however, it appears from the quoted testimony of the State's witness, Mr. Fuhrmann, that the facts of this case make it swindling.
The State's motion for rehearing is overruled.
Overruled.