Gray v. State , 143 Tex. Crim. 22 ( 1941 )

GRAVES, Judge.

Appellant was indicted for theft of property over the value of fifty dollars, by means of a false pretext, and given a sentence of two years in the penitentiary.

The facts show that Victor Williams was a truck and tractor dealer; that he had obtained some hegari in a trade with John Abbey, and this feed was left in Abbey’s field in stacks, with instructions from Williams to Abbey to sell the same for the sum of $5.00 per ton. Appellant finally offered to buy about 25 tons of this feed, and with the consent of Mr, Abbey he hauled away about 25 tons thereof. It was contended by Abbey that appellant promised to pay Williams for this feed, as he obtained it; Williams contended that Abbey was to collect for such feed as same was taken away or sold. It inferentially appears from the record that neither had received any pay therefor, nor had appellant ever paid for any of same. There is also some intimation in the facts that at least á portion of such feed was moldy and worthless.

Evidently the state relied upon the obtaining of possession of this property by means of a false pretext, and that pretext was that appellant would pay Williams for the feed after he had gotten it.

It is also only shown by inference that Mr. Williams was . not paid for his feed. There is no absolute statement to that effect.

We do not think these facts are sufficient to predicate a verdict upon, showing beyond a reasonable doubt that at the time possession of this property was taken by appellant he did not intend to pay for the same, as set forth in the latter portion of Art. 1413, P. C.

The judgment is reversed and the cause remanded.