King v. State

308 S.W.2d 40, 165 Tex. Crim. 432, 1957 Tex. Crim. App. LEXIS 2380

• Court: Court of Criminal Appeals of Texas
• Decided: October 9, 1957
• Docket: 29099
• Status: Published

Opinions

BELCHER, Judge.

The conviction is for felony theft; the punishment, two years in the penitentiary.

The indictment containing only one count is in the form ordinarily used in charging theft of property in general. Willson’s Criminal Forms, 6th Ed., Sec. 1970. See also, Gibbs v. State, 158, Texas Cr. Rep. 145, 253 S.W. 2d 1002.

The state’s evidence shows that the appellant obtained the possession fo $30.00 in money and merchandise of the value of $30.95 from Audrey Karraker, sole owner and operator of a ready to wear store, for which he gave her a draft that he wrote in her presence, dated December 28, 1955, in the amount of $60.95. By his statements to Audrey Karraker that the draft was good and that it would be paid when presented to the bank since he had recently deposited $2000 in the bank, he induced Audrey Karraker to deliver to him the money and the merchandise, otherwise she would not have parted with the possession of the same. Proof was made that the draft in question was not paid when it was presented to the South Main State Bank of Houston, Texas, because of insufficient funds in appellant’s account; that his account in said bank on November 15, 1955, showed a balance of $2.54, and a balance of $0.02 after December 7, 1955, through February 14, 1956, and that it at no time showed a deposit of $2000.

Appellant entered a plea of not guilty but did not testify or call any witnesses to testify in his behalf.

The record shows that the prosecution in this case was based on Art. 1413, Vernon’s Ann. P.C.

Appellant contends that the instrument used to obtain possession of the money and merchandise was not complete on its face, in that it was not drawn on any bank, and created no legal obligation, therefore the evidence is not sufficient to support the conviction.

The record shows that the instrument in question was drawn on the “So Main State, Houston, Texas.”

Under a similar contention in Redding v. State, 159 Texas Cr. Rep. 535, 265 S.W. 2d 811, where the draft relied upon by the state was signed by the accused and was drawn on the “Union National Bank” there being no further description of the bank, such as its location, we said:

“We know of no rule of law which requires that the false pretext or device relied upon, if in writing, must be complete in form * * * .”

No error is here shown.

Appellant complains of the refusal of his specially requested charge wherein he sought to have the jury instructed that even though they found beyond a reasonable doubt that he took the money and merchandise, yet, if he did not have the fraudulent intent at the time he obtained said property or if they had a reasonable doubt thereof, to find him not guilty.

Appellant did not testify or offer any testimony in his behalf. No issue was made in the evidence to support the requested charge.

The court’s charge sufficiently instructed the jury as to the necessity of the existence of a fraudulent intent when the appellant obtained the possession of the money and merchandise.

The refusal of the requested charge does not show error.

The evidence is sufficient to support the conviction and no error appearing the judgment is affirmed.

Approved by the Court.