HARPER, Judge.
—Appellant was convicted of theft, and his punishment assessed at three years confinement in the State penitentiary. The evidence in this case would show that Ida Childress was arrested in Harris County, charged with a misdemeanor alleged to have been committed in Hacogdoches, Texas. When she was so arrested she was in Harris County. As to who employed J. Vance Lewis to represent her is a disputed question. The State’s evidence is, that he was employed by a sister of Ida Childress, Annie Baxter, who says that he charged her a fee of ten dollars and she paid it to him.
Appellant’s contention is, that he was not employed by Annie Baxter to represent Ida Childress, but he was employed by Hattie Bullock, and that his fee was $125, and all the money he received from Hattie Bullock was in payment of that fee. Hattie Bullock and Annie Baxter deny this and say that Annie Baxter employed appellant and paid him, and all the money received by appellant from Hattie Bullock was money to be used as bond for Ida Childress. Anyway, it appears conclusively from this record that appellant was employed to represent Ida Childress; that he sued out a writ of habeas corpus before Judge Robinson, and no bond of any character was required on the hearing. How, the State’s testimony is that when the hearing was had appellant went to Hattie Bullock, a cousin of Ida Childress, and represented to her that the bond of Ida Childress was fixed at $100, and he wanted her to assist in making the bond. She said she did not have that much money, but had $50 which she would put up and did put up on the bond for Ida Childress. Appellant said this, was all right, he would put up the remainder. Ida Childress was discharged by Judge Robinson. Several days thereafter appellant approached Hattie Bullock and told her that the bond of Ida Childress had been increased and he needed $75 additional to put up as bond for Ida Childress, which would be returned to her in sixty days. Hattie Bullock gave appellant this $75,' and on this transaction this prosecution is based.
The State’s contention is that under article 1332 of the Penal Code this constituted theft—that article providing that if the money was obtained by any false pretext, with the intent to deprive the owner of the value thereof, and with the intent to appropriate the money to the use and benefit of the person taking it, it would constitute theft.
Appellant’s contention is, that even though the money was obtained under the circumstances detailed by the State’s witnesses, the crime proven would be swindling under article 1421 of the Penal Code, and appellant could not be convicted under an indictment charging him with theft. Article 1421 provides that the “acquisition of any money by means of any false or deceitful pretense or device, or fraudulent representation, with the intent to appropriate it to the use of the person so acquiring,” is swindling.
These two articles of the Code, which, to a casual reader, would indicate that the Legislature had defined the same state of facts to constitute two separate and distinct offenses—theft by fraudulent pretext, and swindling—have often been before this court, and a line of demar
cation has been clearly and distinctly marked out—as to what will constitute theft under article 1332, and what acts will constitute swindling under article 1421. In Underwood v. State, 49 Texas Crim. Rep., 285, this court, speaking through Judge Brooks, said: “The unbroken line of authorities in this court lay down the proposition that where the money is obtained by false pretenses, and the party intended at the time the same was obtained, to part with both the title and possession of the money, these facts make out a case of swindling and not theft. The facts before us, as stated above, show that prosecutor intended to part both with the title and possession of the money; and hence this prosecution should have been brought for swindling and not theft. Taylor v. State, 32 Texas Crim. Rep., 110; Frank v. State, 30 Texas Crim. App., 381; Pitts v. State, 5 Texas Crim. App., 122; Williams v. State, 34 Texas, 558; Powell v. State, 44 Texas Crim. Rep., 273; Price v. State, decided at Tyder term, 1905.”
In the case of Bink v. State, 50 Texas Crim. Rep., 450, this court, speaking through Judge Henderson, said: “The material question is whether this conviction can be sustained for theft. Appellant contends that it can not; that if he is guilty of any offense it is swindling and not theft, inasmuch as the evidence without controversy shows that the fee in the property was acquired by him by means of a false pretext, and not the mere possession of the property. We understand our decisions on this point to hold, that the acquisition of the title to the property, that is, the fee in the property, if it is acquired by means of the false pretext, it is swindling; whereas, if the mere possession of the property is parted with, by means of the false pretext, it is theft. Articles 861, 674, Penal Code; State v. Vickery, 19 Texas, 326; May v. State, 15 Texas Crim. App., 430; Sims v. State, 28 Texas Crim. App., 447; Price v. State, 14 Texas Ct. Rep., 876; Curtis v. State, 31 Texas Crim. Rep., 39; Johnson v. State, 46 Texas Crim. Rep., 415.”
And in the case of Bink v. State, 50 Texas Crim. Rep., 450, this court, speaking through Judge Davidson, said: “There is and has been in England and America, and it is true in Texas, a marked distinction between theft and swindling. Article 861, Penal Code, provides, in substance, that if the possession of the property is wrongfully obtained, it is theft if the purpose at the time of obtaining the property was to appropriate it, or it was obtained by false pretenses for the purpose of appropriating it. Article 877 provides, wherever property is obtained by contract of borrowing or other bailment, and the property is subsequently appropriated, it constitutes theft. But under these statutes and all of the law of theft, the distinction between that crime and swindling is found in this, that in theft the title to the property is not an issue. In swindling the passing of the title is necessary. The rule may be stated in this way: The true distinction between theft and swindling, where the property is acquired by means of false pretenses, is this: if the owner was induced to part with his property finally by means of the false pretenses, the offense is swindling. But where the possession delivered by the owner was obtained in a manner not sufficient to pass title
to the property, the owner only intending to part with the possession and custody and not the title to his property, and the party so acquired possession then and there entertaining the fraudulent intent to appropriate it and did appropriate it, the offense is theft. In this State this is the distinction made by the statutes in regard to swindling and theft, and has been recognized by all the decisions in an unbroken line, commencing with White v. State, 11 Texas, 769; see also State v. Vicker, 19 Texas, 326; Cline v. State, 43 Texas, 494; Pitts v. State, 5 Texas Crim. App., 122; Hudson v. State, 10 Texas Crim. App., 215; Frank v. State, 30 Texas Crim. App., 381; Curtis v. State, 31 Texas Crim. Rep., 39; Taylor v. State, 32 Texas Crim. Rep., 110.”
It is thus made plainly manifest that if by the fraud practiced the
title
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HARPER, Judge.
—Appellant was convicted of theft, and his punishment assessed at three years confinement in the State penitentiary. The evidence in this case would show that Ida Childress was arrested in Harris County, charged with a misdemeanor alleged to have been committed in Hacogdoches, Texas. When she was so arrested she was in Harris County. As to who employed J. Vance Lewis to represent her is a disputed question. The State’s evidence is, that he was employed by a sister of Ida Childress, Annie Baxter, who says that he charged her a fee of ten dollars and she paid it to him.
Appellant’s contention is, that he was not employed by Annie Baxter to represent Ida Childress, but he was employed by Hattie Bullock, and that his fee was $125, and all the money he received from Hattie Bullock was in payment of that fee. Hattie Bullock and Annie Baxter deny this and say that Annie Baxter employed appellant and paid him, and all the money received by appellant from Hattie Bullock was money to be used as bond for Ida Childress. Anyway, it appears conclusively from this record that appellant was employed to represent Ida Childress; that he sued out a writ of habeas corpus before Judge Robinson, and no bond of any character was required on the hearing. How, the State’s testimony is that when the hearing was had appellant went to Hattie Bullock, a cousin of Ida Childress, and represented to her that the bond of Ida Childress was fixed at $100, and he wanted her to assist in making the bond. She said she did not have that much money, but had $50 which she would put up and did put up on the bond for Ida Childress. Appellant said this, was all right, he would put up the remainder. Ida Childress was discharged by Judge Robinson. Several days thereafter appellant approached Hattie Bullock and told her that the bond of Ida Childress had been increased and he needed $75 additional to put up as bond for Ida Childress, which would be returned to her in sixty days. Hattie Bullock gave appellant this $75,' and on this transaction this prosecution is based.
The State’s contention is that under article 1332 of the Penal Code this constituted theft—that article providing that if the money was obtained by any false pretext, with the intent to deprive the owner of the value thereof, and with the intent to appropriate the money to the use and benefit of the person taking it, it would constitute theft.
Appellant’s contention is, that even though the money was obtained under the circumstances detailed by the State’s witnesses, the crime proven would be swindling under article 1421 of the Penal Code, and appellant could not be convicted under an indictment charging him with theft. Article 1421 provides that the “acquisition of any money by means of any false or deceitful pretense or device, or fraudulent representation, with the intent to appropriate it to the use of the person so acquiring,” is swindling.
These two articles of the Code, which, to a casual reader, would indicate that the Legislature had defined the same state of facts to constitute two separate and distinct offenses—theft by fraudulent pretext, and swindling—have often been before this court, and a line of demar
cation has been clearly and distinctly marked out—as to what will constitute theft under article 1332, and what acts will constitute swindling under article 1421. In Underwood v. State, 49 Texas Crim. Rep., 285, this court, speaking through Judge Brooks, said: “The unbroken line of authorities in this court lay down the proposition that where the money is obtained by false pretenses, and the party intended at the time the same was obtained, to part with both the title and possession of the money, these facts make out a case of swindling and not theft. The facts before us, as stated above, show that prosecutor intended to part both with the title and possession of the money; and hence this prosecution should have been brought for swindling and not theft. Taylor v. State, 32 Texas Crim. Rep., 110; Frank v. State, 30 Texas Crim. App., 381; Pitts v. State, 5 Texas Crim. App., 122; Williams v. State, 34 Texas, 558; Powell v. State, 44 Texas Crim. Rep., 273; Price v. State, decided at Tyder term, 1905.”
In the case of Bink v. State, 50 Texas Crim. Rep., 450, this court, speaking through Judge Henderson, said: “The material question is whether this conviction can be sustained for theft. Appellant contends that it can not; that if he is guilty of any offense it is swindling and not theft, inasmuch as the evidence without controversy shows that the fee in the property was acquired by him by means of a false pretext, and not the mere possession of the property. We understand our decisions on this point to hold, that the acquisition of the title to the property, that is, the fee in the property, if it is acquired by means of the false pretext, it is swindling; whereas, if the mere possession of the property is parted with, by means of the false pretext, it is theft. Articles 861, 674, Penal Code; State v. Vickery, 19 Texas, 326; May v. State, 15 Texas Crim. App., 430; Sims v. State, 28 Texas Crim. App., 447; Price v. State, 14 Texas Ct. Rep., 876; Curtis v. State, 31 Texas Crim. Rep., 39; Johnson v. State, 46 Texas Crim. Rep., 415.”
And in the case of Bink v. State, 50 Texas Crim. Rep., 450, this court, speaking through Judge Davidson, said: “There is and has been in England and America, and it is true in Texas, a marked distinction between theft and swindling. Article 861, Penal Code, provides, in substance, that if the possession of the property is wrongfully obtained, it is theft if the purpose at the time of obtaining the property was to appropriate it, or it was obtained by false pretenses for the purpose of appropriating it. Article 877 provides, wherever property is obtained by contract of borrowing or other bailment, and the property is subsequently appropriated, it constitutes theft. But under these statutes and all of the law of theft, the distinction between that crime and swindling is found in this, that in theft the title to the property is not an issue. In swindling the passing of the title is necessary. The rule may be stated in this way: The true distinction between theft and swindling, where the property is acquired by means of false pretenses, is this: if the owner was induced to part with his property finally by means of the false pretenses, the offense is swindling. But where the possession delivered by the owner was obtained in a manner not sufficient to pass title
to the property, the owner only intending to part with the possession and custody and not the title to his property, and the party so acquired possession then and there entertaining the fraudulent intent to appropriate it and did appropriate it, the offense is theft. In this State this is the distinction made by the statutes in regard to swindling and theft, and has been recognized by all the decisions in an unbroken line, commencing with White v. State, 11 Texas, 769; see also State v. Vicker, 19 Texas, 326; Cline v. State, 43 Texas, 494; Pitts v. State, 5 Texas Crim. App., 122; Hudson v. State, 10 Texas Crim. App., 215; Frank v. State, 30 Texas Crim. App., 381; Curtis v. State, 31 Texas Crim. Rep., 39; Taylor v. State, 32 Texas Crim. Rep., 110.”
It is thus made plainly manifest that if by the fraud practiced the
title
to the property passed to the person obtaining it, the offense is swindling and not theft; on the other hand, if the
mere possession
of the property was obtained by the fraud practiced, and the
title
to the property did not pass to the person obtaining it, such acts constituted theft under the provisions of the Code hereinbefore cited. So the question in this case is, does the evidence offered in behalf of the State show that the mere possession of the property passed to appellant, or does it show that the title to the property passed to appellant? If the title passed, the conviction can not be sustained; if the mere possession of the money passed and not the title to it, the acts constituted theft and not swindling. The law is thus made plain, and it only remains to be determined what the facts would show. Hattie Bullock testifies that the $75 was obtained from her by appellant by the representation that the bond of Ida Childress had been increased, and that she gave him the money to be deposited in lieu of a bond, to be returned to her in sixty days. Annie Baxter also so testifies. Under this testimony the title to the money did not pass to appellant—merely the possession of it, to be deposited in lieu of a bond, and the prosecution, if maintained at all, was necessarily brought under the article of the Penal Code charging appellant with theft of the money by fraudulent pretext, for the identical money was to be returned in sixty days. The evidence does not raise the question of a loan to appellant. He says this $75 was paid to him as a fee in the Ida Childress case, and at the request of appellant the court instructed the jury that if the money was paid to appellant as a fee they would acquit him. This was a submission of the defensive theory of the case, and the jury found adversely to him.
The contention that the court erred in overruling the application for a continuance can not be sustained. The application shows the materiality of the testimony of the absent witnesses beyond question, but it fails tó show that process of any character had been issued to secure their attendance. (Art. 608, Code of Criminal Procedure.) The indictment in this case was returned March 26, 1914, and the trial was not had until May 13, 1914. Ho process had been issued for the absent witnesses; no application'made for process to issue for them, and no reason stated in the application for continuance why process had not
been issued; nor applied for. Under such circumstances the court did not err in overruling the application for a continuance, for the law is that the application must not only show the materiality of the testimony, but must also show the diligence used to secure the attendance of the witnesses, or state the reason why process had not been applied for. Snodgrass v. State, 36 Texas Crim. Rep., 207; Sykes v. State, 53 Texas Crim. Rep., 165, 108 S. W. Rep., 1179; Townsend v. State, 41 Texas, 134; Hill v. State, 36 Texas Crim. Rep., 438. As the application for continuance does not show that any process had ever been issued for the absent witnesses, nor any reason shown why process had not been issued, it is insufficient in law, and the court did not err in overruling it.
There is in the record no exception to the admissibility or rejection of any testimony introduced on the trial of this ■ cause. The record does not disclose that there was any objection made to the charge of the court as given at the time it was submitted to counsel for their inspection. The special charges requested and not given were fully covered by the court in his charge to the jury, and under such circumstances we can only affirm the judgment of the trial court.
The judgment is affirmed.
Affirmed.