Brown v. State

29 Tex. 503

• Court: Texas Supreme Court
• Decided: July 1, 1861
• Status: Published

Opinion

Wheeler, C. J.

The evidence, in our opinion, is not

sufficient to support the conviction. The alleged false pretense or representation is, that the paper given the witness, Mrs. Coraway, for the property obtained from her by the accused, was a “genuine and good bank bill,” when in truth it was not a bank bill, but was a worthless piece of paper.

The representation that the paper was a good and genuine bank bill is the alleged operative cause of the delivery to the accused of the property, and the falsity of the representation is the gravamen of the accusation. It is that which constitutes the criminality of the charge. It is manifest, therefore, that proof of the averment of the falsity of the representation, that is, proof that the paper was not a good and genuine bank bill, was essential to a conviction, and upon this point we are of opinion there was a failure of proof.

There is no evidence that the paper was the same which was proffered by the accused to the witness, Ratcliff There is no evidence touching its genuineness by any witness who saw it, except the statement of the witness Evans, and he does not profess to know, or undertake to say, it was not genuine. He does not profess to have competent knowledge to enable him to sj>eak to that point. He did not like the appearance, and refused to receive it. But that fact, qualified as it was by his acknowledged want of competent information on the subject, cannot be deemed competent proof that the paper was not a genuine bill.

We may feel, as doubtless the jury did, a strong suspicion, from all the attendant circumstances, that the paper was a forgery or worthless, but we cannot say that the record affords competent evidence of the fact; and without such evidence it is manifest the conviction cannot be sustained.

We are therefore of opinion that the judgment be reversed, and the cause

Remanded.