The appellant was convicted of the offense of theft of five hundred dollars, and his punishment was assessed at confinement in the state penitentiary for a term of two years.
The indictment in this case is in the usual form charging ordinary theft of five hundred dollars from August Fuhrmann. Mr. Fuhrmann testified in substance as follows: "The first conversation I had with the defendant about this matter was a few days before the first of August, 1934. He already had some of my money and a note. He said that he needed five hundred dollars more. He said, 'I will give you a good clear deed of trust on 813 or 815 Lambie Street. I says, 'Is there any indebtedness against it?' He says, 'That is clear; there is no indebtedness against it.' He says, 'I will make the note for two years, but I will pay it in less than two years.' On the morning of August 14th the defendant came to where I was at work; he handed me a check and said, 'Your wife told me to tell you to sign this check. I then signed the check; he had the check already drawn in the sum of five hundred dollars. I believed his statement that the property was clear of liens and I relied on it. Had it not been for that statement I would not have loaned him the money. I gave him the check and he delivered the note and deed of trust to me. I intended to part with the title and possession of the money. This all took place on the same day. A few months later I found out that there were two prior existing liens against said property to secure loans in excess of the value of the property." Appellant denied that he told Fuhrmann the property was clear of liens.
Appellant's first contention is that if the State's testimony as above related is accepted as true and that offered by him be disregarded, it shows a case of swindling and not theft. Therefore, the main inquiry is: Did Mr. Fuhrmann, the injured party, intend to part with the title and possession of the money and did he do so upon the false representations as to a present existing fact and past event? If so, the offense is swindling; if not, it is theft. Texas Jurisprudence, Vol. 39, p. 1057, lays down the following rule: "To constitute the crime of swindling, the false pretense or representation must relate to an existing fact or past event; mere false promises or professions as to future happenings or events are insufficient." We think that the facts as herein above set forth bring this case within the term swindling and not theft. The false statement and representation which appellant made to Fuhrmann, *Page 641 according to Fuhrmann's testimony, was that there were no valid existing liens against the property at the time he obtained the loan. That Fuhrmann intended to part with the title and possession to five hundred dollars at the time the note and deed of trust were delivered to him by the appellant is not controverted. Hence the false representation was only as to a present existing fact. We think that the facts in this case are very similar to the facts of Brown v. State, 138 S.W. 604, and the same rule there announced was reaffirmed by this court in the case of New v. State, 83 S.W.2d 668.
The State has filed a very able brief in which it cites us to the case of Sherman v. State, 62 S.W.2d 147, as authority for sustaining its position, but we think that the facts in the Sherman case are not at all like or similar to the facts in the instant case. In that case the false representations related to some future act; something to be done in the future by the accused which brought that case within art. 1413, P. C., 1925, and differentiates it from the instant case. The case of Contreras v. State, 39 S.W.2d 62, and the case of De Blanc v. State, 37 S.W.2d 1024, show a state of facts which make them easily distinguishable from the case at bar. In the case of Hoovel v. State, 69 S.W.2d 104, the facts show that the false representations, which the appellant made to Holcomb, consisted of what he was going to do in the future, that is, that he was going to exchange for Holcomb three hundred shares of Cities Service Common Stock owned by Holcomb for one hundred shares of Cities Service Preferred Stock, which exchange was to be performed and the Preferred Stock delivered to Holcomb within sixty days. This he failed to do but immediately sold the stock certificates, which he had obtained from Holcomb, and converted the money. It will be observed that the facts in the case of Hoovel v. State, supra, are not similar to the facts in this case.
Being of the opinion that the facts in this case as disclosed by the record show a case of swindling and not theft, it is, therefore, ordered that the judgment of the trial court be, and the same is, reversed and the cause remanded.
Reversed and remanded.
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. *Page 642
ON MOTION FOR REHEARING.