Barnett v. State

ON MOTION FOR REHEARING.

HAWKINS, Judge.

Appellant urges that we should regard the notation on bills of exception over his attorney’s signature as a sufficient exception to the court’s qualification to said bills; it is further insisted that the case of Miller v. State, 104 Texas Crim. Rep., 205, 282 S. W., 812, cited in our original opinion, does not support our holding, but is dicta.

As suporting the proposition that this court is bound by the qualification to a bill unless an objection or exception to the qualification is *599authenticated by the trial judge, and that the mere notation of objection to the qualification over the attorney’s signature is insufficient, we cite section 195, volume 4, Texas Jurisprudence. In the notes under said section will be found collated Ashley v. State, 107 Texas Crim. Rep., 465, 296 S. W., 892; Scherpig v. State, 112 Texas Crim. Rep., 61, 13 S. W. (2d) 872; Whitehurst v. State, 111 Texas Crim. Rep., 607, 13 S. W. (2d) 376; Williams v. State, 111 Texas Crim. Rep., 378, 13 S. W. (2d) 112; Serna v. State, 110 Texas Crim. Rep., 220, 7 S. W. (2d) 543, 544.

In the latter case it is stated that "objection to the qualification must be authenticated by the trial judge, either over his signature in connection with the bill itself, or by a separate bill.” See also Nicholson v. State, 107 Texas Crim. Rep., 631, 298 S. W., 436. Many other cases supporting the proposition will be found collated in the notes under section 195, volume 4, Texas Jurisprudence.

Notwithstanding the unsatisfactory manner in which the questions are brought forward for review we will consider special charges Nos. 5 and 6, the refusal of which is insisted upon as error. Special charge No. 5 follows: “* * * you are instructed that before you can convict the defendant it would be necessary for the State to prove beyond a reasonable doubt that defendant had in his mind, at the very time the money was delivered to him by Weedon, if you should find it was so delivered, that said defendant had in his mind the specific intent then to steal or take said money by stealth; and if you should believe at the very time said money was delivered to defendant by the said Weedon, that said defendant then intended to play or wager at a game of cards with said Weedon, and to thus acquire said money, or if you have a reasonable belief that such might have been the facts, then in that event you will find the defendant not guilty and so say by your verdict.”

Article 1413, P. C., reads: “The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.”

The gravamen of the offense of theft by false pretext is that accused came into possession of the property by a willing surrender of it to him by the owner, he, however, being induced to so deliver possession by a false pretext or device, and with the fraudulent intent on the part of accused at the very time he came into possession of it to appropriate it to his own use, followed by such appropriation. See Porter v. State, 23 Texas App., 295, 4 S. W., 889. In so far as special charge number five required the jury to believe beyond a reasonable doubt that at the very time the money *600was delivered to appellant he had the fraudulent intent to appropriate it, the subject was covered by the main charge. Said charge proposed to further tell the jury that before conviction could result appellant must have had in his mind at the time he received the money “the specific intent then to steal or take said money by stealth.” Such language seems to convey the idea that the appropriation of said money must be accompanied by stealth. This is not a sound legal proposition. If possession of the money was obtained by a false pretext or device with the intent on the part of appellant to appropriate it, the manner of consummating the appropriation would appear to be immaterial. The charge was properly refused.

That part of the charge which would have informed the jury that if at the time the money was delivered by Weedon to appellant he intended to play or wager it at a game of cards "with Weedon”, and thus acquire the money, seems to be entirely without support in the testimony. All the evidence is to the contrary.

Special requested charge No. 6 reads as follows: “* * * if you should find or believe from the evidence, or if you should have a reasonable doubt that such were the facts, that prosecutor, J. M. Weedon, entered into a card or poker game with the defendant or other parties and bet or wagered his said money in said game and in that manner lost the same; or if you should believe that said J. M. Weedon delivered the said money to defendant Ryan Barnett, for the purpose of being bet and wagered at a game of cards and you believe that defendant did bet or wager.said money at said game, either under the instructions of prosecutor Weedon or with his consent, and thereby lost said money, then you will find the defendant not guilty and so say by your verdict.”

The first part of said charge is subject to the same criticism as was special charge No. 5, in that there is no testimony raising the issue that Weedon entered into the card game. The latter part of said charge entirely ignores the issues (1) whether appellant obtained possession of the money by false pretext of device, and (2), the absence or presence of fraudulent intent at the very time he did come into possession of it. The evidence showed that Weedon did deliver the money to appellant to wager at a game of cards. To have given the charge as framed would have been equivalent to an instruction to acquit. Of course, if the money was delivered by Weedon to appellant to be wagered at a game of cards in the absence of any false pretext or device, or without intent on appellant’s part at the time he took possession of it to appropriate it to his own use, appellant would not be guilty of theft, but special charge No. 6 ignores both of these propositions. The court therefore was not in error in refusing said charge.

We have again carefully examined the facts. We can not agree with appellant’s contention that the evidence does not support the conviction. *601Appellant arid the man known as Dr. Loyd on the day of the alleged offense had gone to Mrs. Carmichael, rented from her a room, representing that they were getting oil leases for the Texas Oil Company. They advised her that they would like a table in the room to put their blue prints on. A table was put in the room. After thus setting the stage appellant went out to secure the victim. He insisted that Weedon go with him to meet his friend, Dr. Loyd, whom he described as a very charming person. Upon being assured by Weedon that he was not interested in his friend Loyd, appellant then insisted that Weedon go with him to where appellant and his wife were staying. Upon reaching the place appellant’s wife was not there, but Dr. Loyd was. Weedon was invited into a card game but declined. Appellant and Loyd then engaged in a game in Weedon’s presence and appellant was apparently winning Loyd’s money. Upon a certain hand being dealt appellant called Weedon out and asked permission of Dr. Loyd to take both hands with him, assuring Dr. Loyd that he would not look at his (Loyd’s) hand. Upon getting outside the room he exhibited both hands to Weedon, and assured him if he had $2,000 to bet he could win $4,000 from Loyd and in this way induced Weedon to go to the bank and get the $2,000, and turn it over to appellant to bet on the game, with the assurance that the same $2,000 would be returned to him, and also one-half of the amount which was sure to be won from Loyd. Upon playing that hand out appellant claimed to have won the money and Weedon immediately demanded the return of his $2,000. Loyd suggested that they play another hand to which Weedon consented. Either the second hand was played, or was ostensibly played, and Loyd claimed to have won the money back. He hastily departed with it. When Weedon attempted to follow he was restrained by appellant who said he would get the money and return it. Instead, he departed in a car with Loyd. We do not attach the same importance as appellant to the fact, if it be a fact, that Weedon consented to the playing of another hand. The money he parted with had never been returned to him. It was still in appellant’s possession. The transaction must be viewed in its entirely, and not be cut into fragments. The facts lead to the inevitable conclusion that a conspiracy had been formed between appellant and Loyd of which Weedon was the victim. Appellant secured possession of the money by the pretext heretofore stated. If it was the purpose of the conspiracy to eventually appropriate the money it would be immaterial whether that was done upon the playing of the first hand or of a subsequent hand. The facts in Porter v. State, 23 Texas App., 295, 4 S. W., 889, are similar in many respects to those discoverable in the present record. The charge of the court set out in the opinion in that case very clearly and pertinently states the law controlling. The facts of this case call forcibly to mind the old story told in rhyme of the “Spider and the Fly.” In that instance, after weav*602ing his webb, the spider seemed patient to wait for the fly to appear. In this instance, after having the web all set, the fly was sought for and brought in.

“Will you walk into my parlor?” said the Spider to the Fly.

“’Tis the prettiest little parlor that ever you did spy;

The way into my parlor is up a winding stair,

And I have many curious things to show when you are there.”

Not the least curious of which was a card player not only willing for his opponent to leave the room with his own hand of cards, but also to entrust him with both hands, a performance difficult of explanation save upon the theory that it was in furtherance of the conspiracy then rapidly culminating. Unless the sensibilities of Weedon, as claimed by him, had been dulled by the few drinks of liquor he had taken at appellant’s invitation, his credulity is absolutely astounding. The facts might furnish material for a story which could with propriety bear the title “A Sucker’s Credulity” or “A Card Sharp’s Sad End.”

Finding ourselves unable to agree with any of appellant’s contentions, and believing, after a most careful re-investigation of the record, that the conclusion announced in our original opinion is correct, the motion for rehearing is overruled.

Overruled.