Lamoyne v. State

111 S.W. 950, 53 Tex. Crim. 221, 1908 Tex. Crim. App. LEXIS 179

• Court: Court of Criminal Appeals of Texas
• Decided: March 11, 1908
• Docket: No. 4291.
• Status: Published

Opinions

BROOKS, Judge.

Appellant was convicted of swindling, and his punishment assessed at thirty days confinement in the county jail.

The ind ictment in the case contained three counts, the first for swindling, and the second and third for disposing of mortgaged property. The evidence shows that the appellant gave Drane & Co. a mortgage upon a hay-press and lifting-jack, worth $250, and mower and rake worth $75, and upon hay, which, the evidence showed was 100 tons, worth $5 per ton. At the time of the execution of said mortgage, appellant stated to Drane & Co., that there was no prior lien upon said property, but the facts show there was a lien in favor of the bank for about $300; and Mrs. Richmond, the owner of the land upon which the hay was growing, for about the same amount; that Drane & Co. did not part with their property except upon the statement that appellant owned the farm and the hay, appellant stating at the time that he not only owned the farm, but that all of same was unincumbered, including the hay and other personal property mortgaged. The facts show as stated this was false. The evidence in this case shows nothing in the world but a plain act of swindling, and a swindling for an amount over the value- of $50. The fact that the prosecuting witness, who represented Drane & Co., got the property back from the appellant, and sold same to a third party for $335, was no reason whatever for charging the jury that, if appellant swindled Drane & Co. out of less than $50 it would be a misdemeanor. The learned trial judge seems to have labored under the impression that the fact that the prosecuting witness did not suffer a financial loss of over $50 by the transaction, it would not be a felony. This is not the law. If prosecuting witness by means of false and deceitful pretenses on the part of appellant was induced thereby to part with $350 worth of property the fact that the same was subsequently secured and most of the value of the property obtained, would not be any character or kind of legal defense to the prosecution, and in fact would not be legitimate evidence to be introduced in the trial of the case. It follows, therefore, that the court erred in charging upon misdemeanor theft in favor of appellant, but it is a matter of which appellant cannot complain, since although the evidence conclusively shows that the swindling was for an amount over fifty dollars, and the jury convicted for a misdemeanor swindle: This would not be a reason, according to the statute of this State for a new trial, since appellant was convicted of a less grade of offense than he was charged with. It follows from the above that the court did not err in refusing to give the special charge requested by appellant to the effect that Drane & Co. had the right to compel Mrs. Richmond and the People’s Rational Bank to marshal their securities and to make their indebtedness out of the other security held by them, before resorting to their security upon the hay grown upon the Richmond farm, and that the security given by LaMoyne to Drane & Co., was of greater value than the hay-press he bought from Drane &. Co. This is not the law. This question is thoroughly settled by the statute, itself. Article 946 of the Penal Code is, as follows: “It is not necessary, in order to- constitute the offense of swindling that any benefit shall accrue to the person guilty of the fraud or deceit, nor that any injury shall result to the persons intended to be defrauded, if it is sufficiently apparent that there was a willful design to receive benefit or cause an injury.”

The indictment in this case is in proper and legal form, and the other questions raised by appellant, in view of the foregoing we do not deem necessary to discuss.

Finding no error in the record, the judgment is affirmed.

Affirmed.