Hullum v. State

415 S.W.2d 192, 1967 Tex. Crim. App. LEXIS 1092

• Court: Court of Criminal Appeals of Texas
• Decided: May 24, 1967
• Docket: 39563
• Status: Published

Opinions

OPINION

McDONALD, Presiding Judge.

The offense is theft by false pretext; the punishment, 30 days confinement in jail.

The evidence reveals that prior to April 15, 1965, appellant was employed as a deputy sheriff of Travis County, and that he resigned on that date and was thereafter employed by Central Investigation Agency, a corporation engaged in the business of making bail bonds and private investigations.

During the period from April 19 to April 22, 1965, two sons of the complaining witness, Mrs. J. E. Wimberley, were being held by the juvenile authorities of Travis County as the suspected perpetrators of certain burglaries. In response to overtures made by Larry Lane, an employee of appellant who visited Mrs. Wimberley at her home, she had agreed to consult appellant, who Mr. Lane said “could help the boys.” The following morning appellant and his employee went to the home of the complaining witness and escorted her to appellant’s office, where appellant and Mrs. Wimberley “talked about the boys,” and appellant “said he could get them out,” and also indicated he would keep the oldest boy from “going to Gatesville.” A fee of $65.00 for appellant’s services was agreed upon by these two parties, after which agreement appellant called the Juvenile Home. A brief telephone conversation ensued out of the hearing of Mrs. Wimberley, following which appellant instructed her to “Go pick the boys up,” informing her that they were being probated to him. Mrs. Wimberley testified that “He told me to act like I was surprised that they were getting out.” Mrs. Wimberley then went to the Juvenile Home, and her two sons were released from custody. She testified that although the juvenile authorities explained to her that the boys were released to her, she still thought “they were probated to him (appellant), too.”

Mrs. Wimberley thereafter made two payments of $10.00 each to appellant, reducing her balance owed to $45.00, but having been persuaded by her sons that appellant had nothing to do with their being released, she refused to make further payment. As a result of this action, she received a letter, dated June 23, 1965, which was signed by an Austin attorney, and which stated:

“The Central Investigating Agency, Incorporated, has turned over your account to me for collection. On May 22, 1965 you incurred a bill for sixty-five dollars ($65) for services rendered by the agency. The balance due and owing is now forty-five dollars ($45). If this balance is not cleared up by June 30, 1965, I will advise my client to bring suit against you in Small Claims Court.”

Upon receipt of this letter, Mrs. Wim-berley consulted the juvenile authorities, and an investigation was subsequently conducted of this matter, which led to the charge upon which appellant now stands convicted in this cause.

Mr. Jack Harrell testified, and appellant stipulated, that he was the juvenile authority with whom appellant had the telephone conversation mentioned above. He testified that he did not tell appellant the boys were to be released to him; that appellant’s telephone call bore no influence upon the decision to release the boys, and that he informed appellant that it had already been determined that the boys were to be released in the custody of their mother.

A business card of R. C. Hullum, Jr. was introduced in evidence, the reverse side of which bore the notation: “5-1-65 — Rec. from B. Wimberly — $10.00 on Rill (signed) R. C. Hullum, Jr.” Mrs. Wimberley testified that this card was the receipt she received from appellant as evidence of the first $10.00 payment.

We find the evidence sufficient to sustain the conviction, and, in so finding, overrule appellant’s contentions that the evidence fails to support findings that appellant obtained the money by a false pretext; that the complaining witness was induced by such false pretext to part with the money; or that appellant had the intent to defraud the complaining witness. The circumstances surrounding the transaction, and the representations made by appellant to the complainant as set out above in the summary of facts, are sufficient to raise the issue of theft by false pretext. The state’s chief witness was the complainant. It is true that there was testimony tending to impeach her credibility, and that many of her answers were equivocal or uncertain. The jury nevertheless was authorized to believe that witness, and there was other evidence and testimony which corroborated her story. The facts support a finding that appellant obtained $10.00 from the complainant upon the false pretext that he could and did aid in effecting the release of her sons from detention by the juvenile authorities.

Trial was conducted in the County Court at Law No. 2 of Travis County upon transfer of the cause from the 147th District Court of Travis County. Appellant attacks the jurisdiction of the county court, contending that there is no constitutional or statutory authorization for trial in a county court upon indictment, and that trial in county court can be initiated only upon an information or affidavit.

To support his contention that prosecution in county court upon an indictment is unconstitutional, appellant relies upon Article V, Section 17 of the Texas Constitution, Vernon’s Ann.St., which provides in part that “prosecutions may be commenced in said court by information filed by the county attorney, or by affidavit, as may be provided by law.” He points out that, prior to 1925, Articles 448 and 449 of the Code of Criminal Procedure authorized prosecution in the county court upon indictment or information, but that these statutes were repealed by omission when the Code of Criminal Procedure, 1925, was enacted. He cites Ethridge v. State, 76 Tex.Cr.R. 41, 172 S.W. 784, wherein it was stated that an information “shall be filed” as a prerequisite to trial in the county court. He concludes that since the repeal by omission of Articles 448 and 449, supra, the requirement of prosecution by information in misdemeanor cases in county courts is mandatory.

We find no cases in point. It would appear that a similar contention was summarily overruled in Quarles v. State, Tex.Cr.App., 385 S.W.2d 395, however a review of that record reveals that the issue there involved was sufficiency of the transfer, and whether the document upon which that appellant was prosecuted was an indictment or an information.

The traditionally preferred form of accusatory pleading is the indictment returned by a grand jury, for the reason that such a procedure provides “a means of protection to the citizen against the dangers of a false accusation, or the still greater peril of a sacrifice to public clamor.” In re Wilcox, 153 Misc. 761, 276 N.Y.S. 117, 121; see the Interpretative Commentary to Article I, Section 10 found at 1 Vernon’s Ann.Tex. Const. pp. 267, 271. Certainly an accusation based upon the investigation and collective conclusion of twelve unbiased citizens provides greater insurance against mistaken or malicious prosecution than does prosecution upon information filed upon the oath of one person. For this reason, pleading by indictment is a requisite to prosecution for the more serious crimes in the federal courts, Fifth Amendment, Constitution of the United States; in the courts of this state, Article I, Section 10, Constitution of the State of Texas, and in almost all other jurisdictions in the United States, 42 C.J.S. Indictments and Informations § 9, p. 838. As a matter of practicability, such protection has not been extended to misdemeanants.

Article V, Section 17 of the Texas Constitution provides in part:

“Prosecutions may be commenced in said court by informat'on filed by the county attorney, or by affidavit, as may be provided by law. Grand juries empanneled in the District Courts shall enquire into misdemeanors, and all indictments therefor returned into the District Courts shall forthwith be certified to the County Courts or other inferior courts, having jurisdiction to try them for trial; * *”

From this provision, it can be seen that prosecutions in the 'county court may be commenced on information, or, in some cases, by affidavit. The grand jury is nevertheless authorized to return indictments for misdemeanor offenses. It would necessitate a tortured construction of the law to conclude that such a constitutionally-authorized indictment, when transferred, as provided, to a court having jurisdiction of the offense, would not be sufficient as an accusatory pleading, while an information charging that offense would be satisfactory. We do not interpret the law in this manner. We agree with appellant “that the county court cannot acquire jurisdiction or try a misdemeanor where it originated in the county court until an information has been filed,” Davis v. State, 150 Tex.Cr.R. 463, 202 S.W.2d 943, but we conclude that trial in the county court upon a properly transferred indictment does not violate an accused’s constitutional rights.

This interpretation is supported by the additional language in Article V, Section 17, providing that “if such indictment be quashed in the County, or other inferior court, the person charged, shall not be discharged if there is probable cause of guilt, but may be held by such court or magistrate to answer an information or affidavit.” This must be interpreted to mean that where an indictment has been returned and transferred to a county court, prosecution will be based on that indictment unless it is quashed.

The authorities cited by appellant support the proposition that one accused of a misdemeanor is entitled to at least a written accusatory pleading in the form of an information. They do not support the conclusion that, trial in the county court upon a properly transferred indictment violates the Constitution.

For the first time in his motion for new trial, appellant also contends that the trial court lacked jurisdiction over this cause because the indictment was not transferred in accordance with law. No plea to the jurisdiction was filed, and appellant’s motion to quash the indictment did not challenge the order of transfer. Because formal objection was not timely made, appellant’s objection that there is no record that the indictment was ever presented by a grand jury or received by the district court cannot be considered. Williams v. State, 167 Tex.Cr.R. 503, 321 S.W.2d 72; Poe v. State, 98 Tex.Cr.R. 177, 266 S.W. 417; Adams v. State, 93 Tex.Cr.R. 249, 246 S.W. 661.

At the hearing on appellant’s motion for new trial, these facts were adduced. The order for transfer, when signed by the district judge, directed that the cause be transferred to “the County Court at Law of Travis County.” The county clerk’s office refused to file this order and returned it to the district clerk because the order failed to specify whether the cause was transferred to the County Court at Law No. 1 or the County Court at Law No. 2. The deputy district clerk, without authority of the district judge, inserted “No. 2” immediately after the words, “County Court at Law.”

Appellant contends that this altered order is, in effect, no transfer order at all, and without an order of transfer, the County Court did not acquire jurisdiction. He argues that even if other defects in the transfer cannot be raised on appeal because of his failure to preserve error, he cannot be said to waive that which he did not know, and that this defect, not apparent on the face of the order, and not discovered until the hearing on his motion for new trial, is before this Court for review. We find no substantial defect in the order. A reading of Chapter 69, Section 6 of the General and Special Laws of the 59th Legislature shows that even if the district judge had designated to which of the two courts the cause was transferred, such designation would have been ineffective, inasmuch as •the cause, notwithstanding such designation, could have been tried in either court, by either judge, in either courtroom. The order as signed by the district judge was in substantial compliance with Article 419, Code of Criminal Procedure, 1925, then in effect. Dittforth v. State, 46 Tex.Cr.R. 424, 80 S.W. 628; Johnson v. State, 28 Tex.App. 562, 13 S.W. 1005.

By formal bill of exception, appellant contends that his conviction of theft by false pretext upon a general theft indictment is a deprivation of constitutional rights granted by Article 1, Section 10 of the Constitution of the State of Texas, and the Sixth and Fourteenth Amendments of the Constitution of the United States, because such pleading constitutes a denial of his right to be apprised of the nature and cause of the accusation against him, and that his motion to quash the indictment should have therefore been granted. This Court overruled this identical contention in Cameron v. State, opinion delivered February 23, 1966, Tex.Cr.App., 401 S.W.2d 809. We here adhere to our holding therein stated and find no merit in appellant’s formal bill.

Appellant urges that there was a fatal variance between the proof and the allegations in the indictment that the money was the corporeal personal property of Mrs. J. E. Wimberley, and that it was taken from the possession of Mrs. Wimberley. He contends that the record shows that Mrs. Wimberley was a married woman; that there is no evidence in the record to show that the money was her separate property; and that where the evidence fails to show that the property is the separate property of the wife, under the circumstances here-involved, ownership must be alleged in the husband.

The record discloses no relationship or contact between appellant and Mr. Wimber-ley. The evidence shows that from the initial solicitation until the indictment of appellant, appellant and Mrs. Wimberley were the principal parties to this transaction. She was the one attempting to secure the release of her sons; she was contacted by appellant’s employee; she negotiated to have appellant effect their release; she was the person induced to pay appellant for the services he allegedly had performed; it was her name in which the account was. carried on the business records of the investigating organization; it was Mrs. Wim-berley who paid the money to appellant and to whom he gave a receipt for that money;, and it was to Mrs. Wimberley that the threatening letter was sent when she refused to pay more money.

It is the obvious deduction that the money was taken from the possession of Mrs. Wimberley.

Article 402, Code of Criminal Procedure. 1925, now Article 21.08, Vernon’s Ann.C. C.P., states, in part:

“Where one person owns the property, and another person has the possession ■of the same, the ownership thereof may be alleged to be in either.”

The primary purpose of the indictment being to apprise the accused of the nature of the charges against him, appellant cannot complain that ownership was alleged in the person from whom he obtained the money he was alleged to have stolen, and with whom he had dealt throughout the transaction upon which the charge was based.

Appellant’s many other formal and informal bills of exception have been considered. We find no reversible error presented by any of them.

The judgment is affirmed.