The offense is swindling. The punishment assessed is confinement in the state penitentiary for a term of two years.
Appellant's first contention is that the evidence is insufficient to sustain his conviction. The evidence adduced by the State, briefly stated, shows that appellant approached W. U. White, the alleged injured party, and said that he wanted him (White) to cash a check for him in the sum of $50. White told him to go to the bank. Appellant replied that he had had some trouble with the bank and did not care to go there. White told appellant he did not mind cashing the check if he had the money in the bank; that he did not have $50 to spend or loan. Appellant then said: "You give me your check for $50 and I will cash it and I will give you my check in the same amount." White then asked appellant if his check was good, and appellant replied: "You don't think I would give you a check without money? That money will be there to take care of the check." Thereupon White gave his check in exchange for appellant's, which was drawn on the First National Bank in Lubbock, Texas. This check was not paid when presented on January 10th or 11th because of insufficient funds. It was again presented for payment some few weeks later and payment refused because of no funds.
Appellant testified in his own behalf. He said he went to see White with a view of swapping checks with him. That he *Page 109 told White that a check had come back against him. That he had a check outstanding that would be back at the bank and asked White to accommodate him by swapping, which would give him a little time to get the money to take care of the checks when they came in. That he told White he had some checks charged back against his account and his check for house rent was out and would not be paid unless he got some money into the bank. That thereupon White exchanged the check in question with him for a check in a like sum drawn by him on the First National Bank in Lubbock.
The testimony raised an issue of fact which the jury decided against appellant's contentions. This court would not be authorized to disturb their findings on a controverted issue of fact.
Appellant urged a few objections to the court's charge and requested special charges supplying the omissions therein. The special charges were given as requested. Consequently he has no ground of complaint in that respect.
His last complaint is that the trial court erred in paragraph four of his charge in instructing the jury that if they had a reasonable doubt of his guilt to convict him. We have carefully read the charge, but are unable to understand by what process of reasoning appellant reached the conclusion that the court's charge is subject to such a construction. In paragraph three, the court instructed the jury relative to the elements of the offense, and then told them that in a prosecution for this offense, it was necessary that all of the enumerated elements be established by testimony beyond a reasonable doubt, and in case they had a reasonable doubt, thereof, to acquit him. Then in paragraph number four, he instructed them as follows:
"Now, therefore, you are instructed that if you find and believe from the evidence beyond a reasonable doubt that the defendant * * on or about the 6th day of January, A.D. 1938, * * * did unlawfully and fraudulently and by means of false pretenses * * * did induce the said W. U. White to deliver to him * * the said check * * * then you will find the defendant guilty of swindling and assess his punishment at confinement in the penitentiary for any term of years not less than two nor more than ten, and unless you so find or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict not guilty."
Appellant asserts with much earnestness that the charge above quoted was an instruction to convict him if the jury had a reasonable doubt that he did the things charged in the indictment. *Page 110 We find ourselves unable to agree with him and in our opinion it did not convey such an idea to the jury. Appellant cites the case of Anderson v. State, 90 S.W.2d , 564, as supporting his contention. We do not gree with him. The complaint made of the charge in that case was that the court in his instruction to the jury on the defensive theory failed to couple therewith an instruction on reasonable doubt.
All other matters complained of have been carefully considered by us and are found to be without merit.
The judgment of the trial court is affirmed.
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.
ON APPELLANT'S MOTION FOR REHEARING.