The State may be entirely correct in its theory, as stated in its motion for rehearing, that appellant and his wife conspired and schemed to fraudulently obtain from prosecuting witness such money as they could get from her, — and every word said and act done by appellant in the premises, may have been pursuant thereto and in furtherance thereof, but unless the facts in evidence warrant the jury in believing beyond a reasonable doubt that the obtaining of the $130.00 involved in the first transaction, was theft by false pretext, the jury could not be justified in returning the verdict of guilty, and this court would err in permitting the judgment of conviction to stand.
Mr. Branch, in Sec. 2626 of his Annotated P. C., cites numerous cases beginning with White v. State, 11 Tex. 769, and Pitts v. State, 5 Texas Crim. App. 122, supporting the rule quoted from the Gibson case, referred to in the original opinion. We regard same as the settled law of this State. Tested by same, there seems no question but that in so far as the character of the case against appellant was determined by the acquisition of the $130.00, this was a case of swindling and not theft by false pretext. The testimony *Page 428 shows that on February 20, 1928, the same day prosecuting witness gave to appellant her check for said $130.00, — both she and he signed articles of co-partnership in the Ben King Produce Company, which document recites that she contributed "One hundred and thirty dollars to the said company, to become one-half owner in the said business." It is perfectly clear that she intended to part not only with possession but also with the title to said money, which became and was part of the assets of the firm thereafter. Our law-makers have seen fit to write the law of swindling and theft by false pretext in so nearly the same language as to lead the courts early in the judicial history of this State to draw the line of distinction between the two offenses as consisting chiefly in whether the owner intended to part with the possession only, or with both title and possession of the property affected. We have examined the authorities cited by the State in its motion, but are inclined to the view that Anderson v. State, 77 Tex. Crim. 31, is against the weight of authority, and that the other cases cited support the original opinion herein.
The indictment in this case was broad enough in its terms to comprehend any or all of the transactions between appellant and Mrs. King. It charged the acquisition by appellant of more than fifty dollars, and specified no particular transaction. The first transaction between the parties was the one involving the $130.00 advanced by her when the partnership was formed. As to this transaction, the offense, if any, was swindling. Other transactions appear in testimony in which appellant got at various times sums exceeding fifty dollars from Mrs. King, which transactions might by testimony be shown not to be such as involved a parting with the title to her money. In his charge to the jury the learned trial judge for some reason saw fit to single out the $130.00 transaction, and submit the acquisition of this money alone as the basis for this prosecution. This may have been brought about by some character of request on the part of appellant's counsel for an election, which does not appear from the record. The State's reliance in the case submitted in the charge to the jury being based entirely upon said $130.00 transaction, and this being swindling and not theft, reversal was made necessary.
Believing the case properly disposed of originally, the State's motion for rehearing is overruled.
Overruled. *Page 429