Smith v. State

In his motion for rehearing, appellant renews his contention that the facts do not show a case of theft by false pretext. We have again examined the facts and are unable to so agree.

When Mrs. Odom surrendered the oats into appellant's possession, she did so, according to her testimony, upon the representation of the appellant that he would carry them to town and would weigh them in order to know the amount due or to be paid therefor at the price agreed upon; and that, upon such amount being ascertained, he would place the money therefor in the bank. This constituted the representation by which appellant obtained possession of the oats. That he did thereafter convert same to his own use, and without paying her therefor, is not disputed. Such facts warranted the jury's finding appellant guilty. Newcomb v. State, 95 S.W.2d 456, 131 Tex.Crim. R.; Sparks v. State, 95 S.W.2d 704,131 Tex. Crim. 37; and McCain v. State, No. 21,828, decided January 21, 1942, and not yet reported. (Reported in this volume).

It was within the province of the jury to determine the disputed issue of fact relative the value of the oats alleged to have been taken. Appellant's contention that the jury was bound to accept the value of the oats as fixed by the State's witnesses is without merit and is overruled.

Believing that the case was correctly disposed of by the original opinion, the motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 233