Conviction for swindling; punishment, two years in the penitentiary.
Appellant had a Ford car. It was mortgaged to secure the amount of $367.00. The date of this mortgage was February 5, 1936. Saunders had a Chevrolet car for which he wanted around $500.00. Appellant seems to have agreed to buy the Chevrolet provided Saunders would allow him $200.00 for his Ford car. The parties signed a contract for a conditional sale, it, too, being of date February 5, 1936, and recited that the Chevrolet was to be sold to appellant for $504.00, of which $200.00 was to be paid by appellant on or before delivery to him of the said Chevrolet car. Saunders testified that he got certain information from appellant, prior to the consummation of the trade, in the form of a purchaser's statement, and when they came to the blank showing what appellant owed and what property he had appellant said he did not owe anything except he would owe some $200.00 on a lease in the fall. We quote from Saunders' testimony as follows:
"I believed what he told me that that was all the money that he owed. If I had known that Jim Crossland was indebted to M. K. Witt Motor Company, and that they had a mortgage on the Ford car which he was trading to me I would not have sold, traded or delivered him the Chevrolet automobile that I had sold him according to this conditional sales contract.
"I did not know that there was a mortgage on that Ford car at that time. From what he told me I believed that there was not a mortgage on it. At the time in question, on February 5th this year I traded from him a Ford car. That was traded to me as a down payment and there was a $460.00 car that we were trading him. The insurance and carrying charges came to $54.00."
Appellant gave to Saunders a written bill of sale for said *Page 80 Ford car. He delivered same to Saunders and received in exchange the Chevrolet car above referred to. A week or ten days later it was discovered that the Ford car traded in by appellant was mortgaged to secure the amount of $367.00, and the mortgagee took possession of the said Ford car, whereupon Saunders repossessed himself of the Chevrolet car.
There are two or three counts in the indictment, one of which was quashed, and the others seem sufficient. Appellant complains of the refusal of an application for continuance made because of the absence of his wife, alleged to be sick, and also because of the absence of one McGee. It was frankly admitted in the application that appellant did not know where the last named witness lived, and for that reason had not had process issued for him. Appellant also had had no process issued for his wife, and said that he expected her to be present at the trial. In setting up the fact of her sickness in the application, it is only stated that on Wednesday night, September 16, 1935, owing to the excessive rain his wife got wet, chilled and was confined to her bed and room, and was unable to attend court for said reason. No certificate of any doctor was attached, nor was there any testimony presented to the court regarding the illness of said wife other than the statement in the application for continuance. We think the application for continuance correctly overruled, and especially so in view of the fact that on the day following this trial appellant's said wife came to Coleman and appeared before a notary public, and there made an affidavit in support of appellant's motion for new trial. We might further observe that the only thing appellant seems to have expected in testimony from his wife, had she been present, was the fact that he was possessed of seven hundred bushels of oats at the time he traded cars. We note that when appellant testified, he claimed to have had about six hundred and sixty bushels of oats which he admitted were worth about twenty cents a bushel in Coleman at the time of this alleged transaction. The alleged purpose of this testimony was in order that it might be taken as substantiating appellant's claim that he purposed to sell the oats and to apply the proceeds to the extinguishment of the debt against the Ford car, which he represented to be clear of debt. In support of this theory appellant testified, while a witness in the case, that he had several hundred bushels of oats, and that he hired a man named McGee to take them to Kerrville and sell them, and that McGee did haul three loads, averaging around two hundred and twenty bushels to the load, and sold them to some man whose name appellant could not remember, *Page 81 but who gave McGee a check on a bank which appellant could not cash because the man had no money in the bank. Appellant said McGee then hauled the oats back and put them in his, appellant's, barn. As far as this record shows they are still in appellant's barn, because no effort appears further to sell them, if indeed appellant ever possessed them. Oats are tangible things, and if appellant had them it would not appear to be difficult for him to have established by the testimony of some one else that he in fact had said oats. We see no error in the action of the trial court in refusing the application for continuance, nor in refusing the motion for new trial based on the fact of the refusal of a continuance. On the trial appellant was unable to tell where McGee could be found, nor could he tell the amount of any check McGee brought him in payment of the oats referred to, nor the name of the party who was supposed to have signed the check. Appellant also testified that a man named Atterholt hauled some cattle to Fort Worth for him, and that he told Atterholt to bring the check received for the cattle and give it to the holder of the mortgage on the Ford car. The State put Atterholt on the witness stand, and he swore he never hauled any cattle to Fort Worth for appellant, nor any cattle in which appellant was interested, and that appellant never told him at any time to take the check to the party who held the mortgage on said Ford car.
Appellant, on cross-examination, admitted that when he traded the Ford car in question to Saunders he knew there was a mortgage on it, and that the mortgage had not been paid off, and while he did not know the exact amount of the indebtedness secured thereby, he would not deny it was $367.00. M. K. Witt testified that was the amount of the mortgage on the Ford car at the time.
We have carefully gone over each contention appearing in the record on behalf of appellant, and find ourselves unable to agree that any of them are well taken, or that they find support in law or in fact.
The judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.