Much of appellant's motion is taken up with criticisms of the language employed in the original opinion herein, and the conclusions drawn therein. Much of his criticisms we fear are but hypercritical, and none of them can affect the final conclusion stated therein, that the testimony, taken as a whole, seemed to have convinced the jury, and also convinced us, that appellant, a seasoned and high-stakes gambler, not only won all the money of Reid and his over-confident friends in a poker game, but also lured the complaining witness into a confidence game that resulted in Reid losing the sum of $6,500.00.
No bills of exceptions are found in the record, and but one legal proposition is presented to us in this motion.
Appellant contends that under the statute denouncing a theft by false pretext, Art. 1413, P. C., the acquisition of the property obtained by such pretext should be for a lawful purpose, and that if the purpose of its acquisition from the complaining party was shown to be unlawful, then the possession *Page 585 thereof by the accused would not be "by lawful means," and such statute would not be violated.
It is admitted, however, that this court, in the case of Lovell v. State, 48 Tex.Crim. Rep., upon motion for a rehearing, held that the purpose for which the property was obtained by false pretext, although such purpose might be an unlawful one, nevertheless an accused could not defend on the ground of such illegality. In this decision the consensus of opinion followed was that the punishment for crime is a matter in which society is primarily interested, and where both the complaining witness and the accused intended to violate the law, the crime of one should not be used to shield the other.
We think the phrase "by lawful means," contained in the statute, Art. 1413, supra, refers to the means by which the property came into the possession of the accused, and not to what the accused was expected or intended to do with such property. Such phrase would doubtless preclude a possession by violence or other unlawful means, but can not be extended to effect the purpose for which the property would be afterwards used.
The motion for a rehearing is overruled.