ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.In his motion for rehearing appellant again urges that his offense, if any, is embezzlement, and not swindling. In view of such insistence we have re-examined the record. If Mr. Hardy had placed money in the hands of appellant to use in the purchase of stock and appellant had converted the money to his own use instead of buying the stock, appellant would be guilty of embezzlement of the money which had thus come into his hands as Hardy’s agent. However, as we understand the record, Hardy was not to furnish any money or pay for the stock until appellant had bought it for him. Therein we think lies the distinction. Appellant falsely represented to Hardy that he had already purchased the stock, whereupon Hardy delivered to appellant the $1,677.50 to cover the purchase price, when in fact no purchase had been made.
It is appellant’s further proposition that if he is not guilty of embezzlement he should have been prosecuted for theft by false pretext and not swindling. It is sometimes difficult to distinguish between those two offenses. In swindling the false representation must be as to an existing fact or to a past event. Such are the facts here, false representations as to a purchase of stock already consummated; whereas, in theft by false pretext the representations may and usually do involve future promises upon which reliance is placed in parting with property. As illustrative see Haley v. State, 127 Tex. Cr. R. 177, 75 S. W. (2d) 272; Anderson v. State, 77 Tex. Cr. R. 31, 177 S. W. 85; Contreras v. State, 118 Tex. Cr. R. 626, 39 S. W. (2d) 62; Sherman v. State, 124 Tex. Cr. R. 273, 62 S. W. (2d) 146; Rundell v. State 90 Tex. Cr. R. 410, 235 S. W. 908; White v. State, 123 Tex. Cr. R. 282, 58 S. W. (2d) 530; Lovine v. State, 136 Tex. Cr. R. 32, 122 S. W. (2d) 1069; Baldwin v. State, 132 Tex. Cr. R. 427, 104 S. W. (2d) 872.
Believing proper disposition of the case was made by our original opinion, appellant’s motion for rehearing is overruled.