Carroll v. State

323 S.W.2d 45, 168 Tex. Crim. 41, 1959 Tex. Crim. App. LEXIS 2443

• Court: Court of Criminal Appeals of Texas
• Decided: March 25, 1959
• Docket: No. 30,527
• Status: Published

Opinions

MORRISON, Presiding Judge.

The offense is theft by false pretext; the punishment, four years.

Mary Wilde, a long-time patient at a San Angelo hospital, testified that the appellant came to her room in the hospital and told her that her brother had made a contribution for the installation of new windows at the Catholic church near her home in Ballinger and suggested that the appellant see her to secure a further contribution. She testified that she signed a check payable to the appellant and which the appellant had prepared in the sum of $500.00 for the purpose indicated in the appellant’s conversation.

It was shown that there was no project for the installation of new windows at the Catholic church in question.

A detailed recitation of the facts is not called for because the appellant testified to all the salient facts, admitting having taken the check in question to the First National Bank in Ballinger where she cashed it, as the bank president testified, but claimed that she was acting as an innocent agent for one Mary Reed.

Mary Reed, who was serving a term in the penitentiary for her participation in the theft of this and other checks from the injured party, was called in rebuttal by the state and testified that she and not the appellant was the innocent agent in the transaction.

By motion to quash and motion for instructed verdict, the appellant asserted that if she was guilty of any offense it was that of. embezzlement and not that of theft because the check was made payable to her and because the injured party testified that at the time she signed the check she did so willingly and gave her consent for the appellant to take the same with her when she left the hospital.

• Appellant cites and relies upon only one case, Elbury v. State, 114 Texas Cr. Rep. 269, 25 S.W. 2d 846. She overlooks the fact that the fallacy of the holding in Elbury and other kindred holdings was recognized and departed from by this court in De Blanc v. State, 118 Texas Cr. Rep. 628, 37 S.W. 2d 1024; Contreras v. State, 118 Texas Cr. Rep. 626, 39 S.W. 2d 82; White v. State, 123 Texas Cr. Rep. 282, 58 S.W. 2d 530; Sherman v. State, 124 Texas Cr. Rep. 273, 62 S.W. 2d 146;; Hoovel v. State, 125 Texas Cr. Rep. 545, 69 S.W. 2d 104; Haley v. State, 127 Texas Cr. Rep. 177, 75 S.W. 2d 272; New v. State, 83 S.W. 2d 668; Baldwin v. State, 132 Texas Cr. Rep. 427, 104 S.W. 2d 872; Lovine v. State, 136 Texas Cr. Rep. 32, 122 S.W. 2d 1069; and Johnson v. State, 144 Texas Cr. Rep. 392, 162 S.W. 2d 980. See also 39 Texas Juris., sec. 3, p. 1053, and Bomar v. Insurors Indemnity & Ins. Co., 242 S.W. 2d 160.

Conner v. State, 133 Texas Cr. Rep. 429, 111 S.W. 2d 723, answers appellant’s contention that she could not be guilty of theft by false pretext because the injured party consented to her taking the check. There, we said:

“The consent of the owner, if obtained by means of a false pretext, is no defense to a charge of theft, if the intention of the accused, at the time of the taking, was to divest the owner of his property.”

Finding no reversible error, the judgment of the trial court is affirmed.