Conviction for theft; punishment, five years in the penitentiary.
The indictment in this case charged theft in the usual form. The proof showed that the owner of the alleged stolen money drew it out of a bank and delivered it to appellant to be used by him in a game of poker, at which the owner was present but not, if his testimony is true, participating. The state claimed that appellant represented to said owner at the time that he was absolutely sure to win upon hands already dealt, and claimed by appellant to be both known to him, — and that appellant would at once return to said owner his money, $2,000, and in addition would divide with him $4,000 which appellant claimed to be the amount of a roll of bills put in the pot by appellant’s opponent in the game, and *596which would be won by appellant beyond doubt. According to the testimony of the prosecuting witness, when a show-down of hands was had, appellant claimed that he won and raked in the contents of the pot. Witness said he demanded his money, but that appellant and his opponent insisted that they be permitted to play another hand, during which the third party, who had been introduced to witness as Dr. Loyd, but whose real name later was found to be Creech,■ — suddenly grabbed all the money and ran out of the room. Witness said he got up and started after Dr. Loyd, but was detained by appellant who assured him that he should wait there and that he, appellant, would at once go and stop Loyd and bring the money back. Instead of doing this, said witness testified that through a window he saw Dr. Loyd and appellant in a car leaving going toward Fort Worth.
There seems no question of the right of the state to ask conviction for theft upon such facts, though the indictment charged theft in the usual form. Mr. Branch in his Annotated P. C., sec. 2493, cites authorities supporting the proposition that an indictment in the ordinary form for theft will support a conviction on facts showing that the possession of the property was obtained by false pretext. See Brady et al. v. State, 108 Texas Crim. Rep., 606, 2 S. W. (2d) 261. Under the testimony of the state the intent of the owner was not to make appellant his agent, nor to lend the money in any sense so as to create a bailment, — and we think the case neither one of embezzlement nor theft by bailee. Nor does it appear that said witness intended to part permanently with his money, or to part with title thereto. We are of opinion the case is not one of swindling.
Appellant’s bill of exception No. 1 to the refusal of a continuance is qualified by the trial court, and as qualified presents no error. For all we know from the bill all the witnesses named in the application for continuance may have appeared and testified upon the trial.
Bill of exception No. 2 is qualified at some length, and as qualified shows no error. Appellant’s attorney noted upon said bill after same had been qualified by the court as above stated, that he excepted, and he had attached to said bill a lengthy statement made for and to him by the official court reporter of the court. The fact of such exception is in nowise approved by the trial judge. In such case we do not consider the exception to the qualification but must consider the bill as qualified. Miller v. State, 104 Texas Crim. Rep., 205, 282 S. W., 812. The reason is clear. Every bit of exception, in order to be valid, requires the approval of the trial court. The attorney of the accused can in no case write upon any document the fact of his exception and thus validate same. The bill as qualified shows no error.
Appellant’s bill of exception No. 3 purports to complain of the refusal of six special charges referred to as “Set out and copied in his motion *597for new trial,” but none of which charges are set out in the bill of exception either by their tenor or in substance. Such bill of exception is manifestly insufficient. In section 207, of volume 4, Texas Jur., upon citation of many authorities, it is said that a bill of exception must be complete within itself, and must stand or fall by its own allegations; also that the appellate court must be able to determine from the bill itself whether the complaint in respect of the ruling in question is well founded; that the bill must be made so full and certain in its statements as that in and of itself it will disclose all that is necessary to manifest the supposed error. Nantz v. State, 103 Texas Crim. Rep., 285, 280 S. W., 581; Mills v. State, 102 Texas Crim. Rep., 473, 277 S. W., 1077; Carnes v. State, 101 Texas Crim. Rep., 273, 275 S. W., 1002; Gonce v. State, 112 Texas Crim. Rep., 191, 14 S. W. (2d) 845; Green v. State, 108 Texas Crim. Rep., 664, 2 S. W. (2d) 274; McCall v. State, 113 Texas Crim. Rep., 62, 18 S. W. (2d) 172; Black v. State, 111 Texas Crim. Rep., 372, 13 S. W. (2d) 100, and many others cases are cited supporting the proposition above stated. In section 208, vol. 4, of the same work appears the statement that the court will not look beyond a bill of exception, nor refer to other parts of the record to supply omissions or make a bill complete, or to ascertain whether error has been committed. Mitchell v. State, 111 Texas Crim. Rep., 101, 10 S. W. (2d) 87; Searcy v. State, 89 Texas Crim. Rep., 478, 232 S. W., 319; Mills v. State, 102 Texas Crim. Rep., 473, 277 S. W., 1077; Ard v. State, 101 Texas Crim. Rep., 545, 276 S. W., 263; French v. State, 99 Texas Crim. Rep., 429, 269 S. W., 786, are cited to support the text. None of the special charges appearing in the transcript bear any notation of exception, nor do they indicate at what time in the proceedings they were presented to the court, and same are insufficient to call for any ruling. This court has many times and with elaborate care endeavored to lay down rules governing the preparation of such bills of exception. However, we have examined and analyzed each of said special charges, and think refusal of none of same presents reversible error.
Bill of exception No. 4 complains of the refusal of special charge No. 6, which is one of those above referred to. There is nothing in said bill of exception that shows or suggests that said special charge was presented after the conclusion of the evidence and before the argument began, nor is there notation on the charge to such effect. Section 260, volume 4, Texas Jur., cites numerous authorities supporting the proposition that to authorize a review of the refusal to give specially requested charges it must be shown, either by a formal bill of exceptions or by a notation on the charges themselves over the signature of the judge, that the requested charges were presented to the judge before the main charge was read to the jury, that they were refused, and that exception was taken to the action of the court in refusing to give them. Stovall v. State, 112 *598Texas Crim. Rep., 230, 16 S. W. (2d) 242; Barker v. State, 109 Texas Crim. Rep., 67, 2 S. W. (2d) 851; Rambo v. State, 96 Texas Crim. Rep., 387, 258 S. W., 827; Hull v. State, 94 Texas Crim. Rep., 137, 249 S. W., 1061; Solomon v. State, 110 Texas Crim. Rep., 122, 7 S. W. (2d) 960; and many other cases are cited supporting the text. We have considered the refusal of this special charge, however, in connection with the others set out in the motion for new trial. Bill of exception No. 5 complains of the refusal of a peremptory instruction. We think same properly refused.
The facts in this case show that appellant and a man named Creech, who was going under the name of Dr. Loyd, went to the Carmichael boarding house in the town of Granbury, and that appellant met Weeden, the owner of the alleged stolen property and insisted that Weeden accompany him to said room where he wanted to introduce him to Dr. Loyd, who was engaged in the business of procuring oil leases. Weeden accompanied appellant to said boarding house and was introduced to Creech by appellant as Dr. Loyd. According to his testimony appellant suggested that They have a game of cards, and upon being informed that prosecuting witness did not play, appellant and the supposed Dr. Loyd engaged in the game. Presently appellant took Weeden aside and informed him that Loyd knew little about the game, and that Loyd had a large sum of money, to-wit: $4,000, and that, if appellant had $2,000 he would call the hands which had already been dealt to each party in the game, and that beyond doubt he would win Dr. Loyd’s $4,000, and that if witness would procure for him the sum of $2,000 and let him use it for that purpose, witness being present, appellant would win the money, and would at once return the $2,000 to prosecuting witness, and would give him in addition $2,000 more which he would win. Relying upon these statements Weeden went with appellant to the bank, cashed a check for $2,000, and accompanied appellant back to the room where the $2,000 were put in the pot and the bet called, and appellant, claiming that he won the money, raked in the contents of the pot. We think these facts show a clear case of guilt.
No error appearing, the judgment will be affirmed.
Affirmed.