Conviction for swindling; punishment, two years in the penitentiary.
Having concluded that our former opinion was not correct, same is withdrawn and the following substituted therefor:
We think the indictment sufficient, and that the motion to quash same was properly overruled. Same alleged that the property described therein, to-wit; a cashier's check for $2690.82, was obtained by appellant by means of false pretenses, devices and acts, and fraudulent representations made by him to Mr. Trantham, cashier of a bank, namely, by drawing and presenting a draft, which is copied in the indictment, upon W. C. Biggers Company, and attaching thereto twenty-eight weight certificates (hereinafter for convenience referred to as tickets) issued by Coleman, a certified public weigher, at Kemp, Texas, — the substance of said tickets being set out in the indictment, and upon the face of which draft as so set out, where the words "For twenty-eight bales of cotton for which tickets are attached." It was also alleged that by these things appellant represented and intended to convey to Mr. Trantham that he, appellant, was the buyer of said cotton as represented by said draft and tickets, — and that he owned said tickets and had a right to attach them to said draft as collateral therefor; also that said tickets represented the actual bales of cotton which appellant had bought and which were then in possession of the public weigher at Kemp, Texas, and that appellant thus induced Trantham to issue and deliver to him said cashier's check in order that appellant might acquire title thereto and possession thereof. The indictment further alleges:
"And the said J. Roy Trantham, agent of the aforesaid corporation, then and there acted and relied upon the said representations so made and so used by the said A. L. Nash as represented by the said draft upon W. C. Biggers Co., and the attached weight certificates accompanied by the said representations that he, the said A. L. Nash was the buyer and owned the said twenty eight bales of cotton as represented by the said weight certificates and had theretofore bought the said twenty eight bales of cotton in due course of trade at Kemp, Texas, and the said J. Roy Trantham then and there issued the said cashier's check payable to the order of First National Bank of Kemp, Texas, and delivered the said cashier's check to the said A. L. Nash and the said A. L. Nash did then and there and thereby and in said manner acquire the title and possession of the said cashier's check for the value of $2690.82, and did thereafter appropriate it to the use and benefit of him, the said A. L. Nash:" etc. *Page 327
While the false pretense might consist wholly of acts of appellant, Speer v. State, 50 Tex.Crim. Rep.; Blum v. State, 20 Texas Crim. App. 578, if it be alleged that the owner of the property relied on same, still we think the quoted averment sufficiently states that the presentation of the draft with the tickets attached was accompanied by representations that appellant had bought and owned the twenty-eight bales of cotton as represented by said tickets, and that he had bought said cotton in due course of trade at Kemp, Texas, and that it was at said place and represented by said tickets. The allegations concerning the representations, the meaning and intent thereof, and the effect thereof are repeated with much detail throughout the twelve pages of this indictment. If the drawing and presenting of the draft with the tickets attached had been relied on and accepted by Trantham, and if these alone had in fact induced him to part with the cashier's check, this would have made out a case, and such allegation would have been enough, but, as said, this indictment went further. Escue v. State, 88 Tex.Crim. Rep.. Nor do we think it good cause for complaint at this indictment to urge that some custom of trade or course of dealing should have been alleged. This is not a civil suit possibly calling for extraneous averments of matters which might enter into a contract. The question is not whether the false representations were of all things which might have been said, but were the things said or done false, and were they relied on, and did they induce the owner to part with his property. See Harrison v. State, 44 Tex. Crim. 244; Brown v. State, 62 Tex.Crim. Rep., and authorities cited in Blum v. State, 20 Texas Crim. App. 578.
As we view this case, it turned upon the jury's belief of the falsity of the particular acts and representations of appellant, especially regarding the tickets, and the fact that he had bought certain cotton which was in the yard at Kemp and represented by said tickets, by means of which he acquired from Trantham the cashier's check referred to. We fail to see the materiality of the testimony, — objection to which is complained of in bill of exception No. 6, — seeking to show that under other circumstances and upon different facts Trantham believed or knew that appellant had authority to draw drafts upon Biggers Company. The record fully sustains the proposition that he had no right or authority to draw such draft and attach void or worthless weight certificates thereto, which he admitted he had stolen from the public weigher at Kemp. *Page 328
There is another bill of exception setting out that the trial court refused to let Trantham testify that he and his bank contended that the draft drawn and presented by appellant, as part of the means by which he secured the said cashier's check, was a valid and legal obligation against Biggers Company, — the drawees of such draft. The action of the court below was correct. That there might be questions of agency, etc., so involved as to give rise to Trantham's belief, aside from his reliance upon the fraudulent tickets attached to the draft, would not operate to negative the guilt of appellant, and such issues could have no place in this record.
The cashier's check issued by Trantham and delivered to appellant was made payable to a bank at Kemp. Appellant sought to show that though said check was delivered to him, it could not be used or cashed without the endorsement of said Kemp bank. Testimony offered supporting this proposition, was properly rejected. Trantham testified that he and his bank parted with both title and possession of the cashier's check. It would be as much a violation of the statute for one to swindle for the benefit of a third party as for himself. Injury to the party alleged in the indictment to have been defrauded, is the requisite, — not benefit to the alleged swindler. This in substance disposes of the complaints in bills of exception Nos. 1, 2, 4 and 7.
We deem the facts to be entirely sufficient. Appellant was a cotton buyer, buying cotton in Kaufman county for W. C. Biggers Company of Waxahachie. Mr. Coleman testified that he was a certified public weigher at Kemp, Texas, and as such weighed cotton for those who might bring same to his yard. When he weighed a bale of cotton he issued therefor a weight certificate or ticket showing the weight, number, condition of the cotton, etc., which weight certificate was delivered to the party who brought the cotton to the yard. When such bale was thereafter removed, shipped or otherwise disposed of the ticket was returned to him, and he kept these void or cancelled tickets in a locked box in the yard. He said that in January, — a short time before appellant presented the said draft and weight certificates to Trantham, — appellant came to his yard ostensibly looking for a lost bale of cotton. Appellant and Coleman looked through the locked box of cancelled tickets. Shortly after this occurrence Coleman said he missed ninety-nine of said cancelled tickets. He identified twenty-eight tickets shown him as part of the ninety-nine thus taken from his box. Said twenty-eight tickets were shown to be tickets received from appellant by Trantham *Page 329 attached to either the draft in question or to some one of three other fraudulent drafts drawn by appellant upon Biggers Company under circumstances like those in this case. Mr. Patterson, a member of the firm of Biggers Company, testified that appellant admitted to him that he stole these tickets from a cotton yard at Kemp. This witness said they never received any cotton called for by said tickets. Appellant admitted to Patterson that he was short about seven thousand dollars.
The State's motion for rehearing is granted, the judgment of dismissal and reversal is set aside, and the judgment is now affirmed.
Affirmed.
ON MOTION FOR REHEARING.