CONCURRING OPINION ON MOTION FOR REHEARING. The indictment occupies about twelve pages of the transcript and its length precludes a verbatim reproduction here. Stripped of all verbosity and legal verbiage, it in effect alleges that the swindling consists in obtaining from The Farmers Merchants National Bank of Kaufman a cashier's check in the sum of $2690.82 by means of presenting to and transferring to said bank a draft drawn on Biggers Company for $2690.82, with twenty-eight cotton weight certificates attached thereto as collateral. We think the effect of the allegations fairly construed is to charge in substance that appellant intended by presenting such weight certificates to represent that he was the owner of and in possession of the cotton described in said weight certificates which he had theretofore bought in the ordinary course of dealing. As described in the indictment, the draft which the appellant exchanged for the cashier's check mentioned above is set out in the indictment as follows:
"Accepted Jan. 18 1928 } The Farmers Merchants National } Bank No. 419 } With interest at 8% per } annum } Kaufman, Texas Jan 18 1928 } W. C. Biggers Company } At 60 days sight pay to the order per A. L. Nash } of F M Bank $2690.82 } } Twenty Six Hundred Ninety } 82/100 Dollars.
For 28 Bales Cotton for which Bills Lading are attached Tickets
To W. C. Biggers Co. At the Farmers Merchants National Bank } F. M. Bank Kaufman, Texas. } Seller."
In Art. 1545, P. C., 1925, it is said: " 'Swindling' is the acquisition of any personal or movable property, money or instrument of writing conveying or securing a valuable right, by means of some *Page 332 false or deceitful pretense or device, or fraudulent representation, with intent to appropriate the same to the use of the party so acquiring, or of destroying or impairing the right of the party justly entitled to the same."
In construing this statute, this court has used the following language:
"It may be laid down as a general rule of the interpretation of the words 'by some false pretense,' which are used in the statutes, that, whenever a person fraudulently represents as anexisting fact that which is not an existing fact, and so gets money, etc., that is an offense within the act. (Bouvier's L. Dic., 'False Pretenses.') But 'it is not necessary that the pretense or pretenses should be in words; that there may be a sufficient false pretense, within the meaning of the act, to be implied from the acts and conduct of the party, without any verbal representation of a false or fraudulent nature.' (2 Arch. Cr. Prac. Plead. (8th ed.), p. 1386.) The conduct and acts of the party will be sufficient without any verbal assertion. (2 Whart. Cr. L. Sec. 1170.) 'Any designed misrepresentation of existing conditions by which a party obtains goods of another is within the statute.' (Id. Sec. 1135.) " Blum v. State, 20 Tex.Crim. R..
While the weigher's certificates accompanying the draft are not negotiable, they are non-negotiable instruments coming within the purview of Arts. 569 and 570, of the Revised Civil Statutes, 1925, which are quoted as follows:
"The obligee or assignee of any written instrument not negotiable by the law merchant, may by assignment transfer all his interest therein to another."
"The assignee of any instrument mentioned in the preceding article may sue thereon in his own name. He shall allow every discount and defense against the same which it would have been subject to in the hands of any previous owner before notice of the assignment was given to the defendant. In order to hold the assignor, drawer or endorser as surety for the payment of the instrument, the assignee shall use due diligence to collect the same. Such diligence can only be waived in writing."
Similar facts were before the Supreme Court of this state in the case of Stamford Compress Company v. Ft. Worth National Bank, 105 Tex. Rep. 44. The Compress Company issued a receipt as follows:
"No. 290. Stamford, Texas, May 13, 1908. No. Bales 42.
"Stamford Compress Company. Received from West Cotton *Page 333 Yard for account of Will Rives, Mark . . . . . . at owner's risk, forty-two bales cotton. Not responsible for water damage or loss or damage by fire. This receipt must be returned on delivery of the cotton and is non-negotiable.
(Signed) T. O. Purkett, Supt."
For a valuable consideration Rives delivered the receipt to the Fort Worth National Bank, and without notice of such delivery the Compress Company delivered to Rives the forty-two bales of cotton. The bank sued the Compress Company for the value of the cotton. The Supreme Court, referring to the two statutes above quoted, made the following remarks:
"It follows as a necessary conclusion that the Compress Company had the right to deal with Rives as owner of the cotton until notice was given to it of the transfer of the receipt to the bank. Rives gave such reason for not presenting the receipt as under the circumstances was reasonable and the Compress Company had the right to rely upon his statement. Swearingen v. Buckley, 1 Texas Unreported Cases, 421; Daniel Neg. Inst., Sec. 742."
"There is no dispute of the proposition that the assignment and delivery of the receipt by Rives vested the title to the cotton in the bank, which could have maintained an action for it."
"We repeat that we make no contention against the claim that the title to the cotton passed to the bank."
On the facts before them the Supreme Court decided the controversy in favor of the Compress Company upon the sole ground that the latter was entitled to regard Rives as the owner of the cotton until notice was given them that the receipt had been assigned to the bank. In form the receipt described in the case last mentioned is somewhat different from the certificates under consideration in the present appeal, but taking into account the statutes bearing upon the subject of public weighers the certificates in the present instance, so far as they relate to the issues involved, are the same in substance as those described in the opinion of the Supreme Court.
In Chap. 6, of Title 93, Revised Civil Statutes, 1925, page 1598, provision is made for the appointment of a public weigher. His duties are defined. He must take an oath of office and must give bond. His deputies must likewise give bond. He must give receipts in the form prescribed by the Commissioner of Markets Warehouses, which shall be known as a State Certificate of Weights and Measures. The public weigher shall keep books showing a record of the commodities weighed, and they shall be separately stored by him *Page 334 in lots distinguishing various consignments from others. The commodities weighed shall be tagged. None but the public weigher can perform the duties imposed upon such weigher by statute. It seems manifest that under the statutory provisions the public weigher is the custodian of cotton weighed by him pending its demand by the owner and until presentation of the receipt issued to the person for whom the cotton is weighed.
That to support the indictment it is essential that in addition to the averments therein contained there be a specific statement that the accused in terms told the banker that the draft was in payment of the twenty-eight bales of cotton and that they were stored in the yard mentioned in the tickets, is deemed in conflict with the necessary implication arising from the draft, the weigher's certificates and the averments contained in the indictment. It is averred that the representations of the appellant, with the documents, as set forth in the indictment, produced the belief in Trantham (the agent of the bank), "that the said A. L. Nash was the buyer and owner of said twenty-eight bales of cotton represented by said weight certificates and had theretofore bought the twenty-eight bales of cotton in due course of trade at Kemp, Texas, and that said weight certificates were valid, legal and valuable, and represented the actual bales and weights of cotton then and there in the possession of the said Gaston Coleman, a certified public weigher." From Ruling Case Law, Vol. 15, p. 1123, the following quotation is taken:
"The courts will take judicial cognizance of commercial usages and customs which have become so well established and generally known that they are considered to be a part of the law merchant of the country. * * * Courts will likewise notice customs pertaining to business in general, and the manner of conducting it. * * * The general custom and course of business in any trade if they be sufficiently notorious are also proper subjects of judicial observation."
Cotton is the chief agricultural product of the state of Texas, which produces annually about one-fourth of the cotton that is grown in the whole world. Cotton is prepared for shipment in bales of an average of 500 pounds in weight. A greater part of the state's production of cotton is exported to foreign countries or shipped to points in other states of the Union. These facts are of common knowledge. It is likewise a matter of common knowledge that the certificates issued by public weighers in accord with the laws of the state are used in due course of trade as symbols or tokens of the bales of cotton in the conduct of the financial transactions necessary to facilitate the marketing of the commodity. *Page 335