Whitehead v. State , 81 Tex. Crim. 278 ( 1917 )

On a former day of this term the judgment herein was affirmed. Appellant has since filed a motion for rehearing setting up several reasons why this court was in error in the affirmance. It is urged that the trial court committed error in his original charge and refusal to give requested instructions. In order to review this question in the light of appellant's motion it may be necessary to make a statement of some of the facts.

Miss Karnes, the alleged injured party, testified, that she had a conversation with R.S. Whitehead, brother of defendant, with reference to selling him a mare and a mule. There were two of these conversations. Appellant was not present at either. Some time after these conversations to meet the agreement between herself and R.S. Whitehead a note was prepared to be signed by R.S. Whitehead, appellant, and she says she understod that another brother, Rollie Whitehead, would also sign the note. On the 4th of November, 1914, the note was signed at the bank by appellant. She testified that at the time of the signing of the note she had a conversation with appellant. She said: "I read the note and told Grady that I wanted Rollie on the note. He said he didn't understand it that way; said Rollie would go on it all right, but there wasn't any use of it as he had five or six head of mules, seventy-five or one hundred head of hogs, a big crop and didn't owe anything. When he made these statements to me I thought he was telling me the truth and I took their note, Grady and Bob's note; they signed it and I gave the note to Mr. Nutt and went back to work. That is the note. Q. Was there anything said in that conversation about where the mare and mule colt were at that time? A. When I told Grady that I wanted Rollie on the note Bob said that he had done got the mare and mule; that he thought it was settled and he had done taken them to his place. I didn't know before that time that he had taken them. I had not authorized him to do so. This note has never been paid, and nothing has been paid on it. These representations were made to me here at the First National Bank in Granbury, Hood County, Texas. I believed what Grady told me about his financial condition. I would not have taken their unsecured note for this property if he had not made those statements to me." From the facts it appears that R.S. Whitehead had already signed the note.

Appellant testifying to this phase of the case stated: "I have heard the testimony in regard to a certain note that I executed to Miss Ada Karnes on the 4th of November, 1914. I signed that note in the First National Bank here. I did not have any conversation with Miss Ada Karnes at the time or prior to the time I signed the note regarding the purchase of the property. I very likely saw her the day I signed the note. I usually see her every time I am in town. I did not that day or any other day undertake to tell her how much stuff I had. I did not tell her how many horses, mules, cattle or hogs that I had. I did not tell her how much I owed nor how much Bob owed. I did not tell her how much stuff, such as mules, horses, etc., that Bob owned. I made no statement similar to that. I had no conversation with her prior to the note about what she would require as security. I had no conversation with her about the note. I signed the note in the First National Bank and I think I was standing near the stove at a part of the desk that is near there. Jeff Nutt handed me the note and I signed it and I think handed it back to him. I had no intention at that time of defrauding her or swindling her out of the value of this property. Prior to that time I had been buying mules and horses and stock and dealing in them all my life."

Jeff Nutt was not placed upon the stand and his testimony in regard to the transaction in the bank is not in the record. The conversations she had had about the trade prior to this transaction in the bank were had with R.S. Whitehead in the absence of appellant. Further testifying, Miss Karnes stated: "The matter was finally consummated in the First National Bank. He said that he and Grady would make the note. Jeff Nutt drew up the note and Grady brought it into the lobby of the bank and I read it and asked him for Rollie on the note, and when he made these statements about having five or six mules and seventy-five or one hundred head of hogs and owed nobody I accepted them on the note."

In this connection another phase of the testimony may be necessary to mention in order to understand the issue brought into the case by reason of the court's charge and refusal to give requested instructions. Miss Karnes testified: "I talked to Dr. Lancaster and Henry Zweifel in regard to the sale. I didn't talk to Mrs. Rosa Blake about this sale or in her presence. I may have said something to Mike Luring about it. I was working at Luring's store at the time, the Famous. I asked him what he thought about it and he said he thought it was perfectly safe to sell them. I asked Mr. Luring about my selling Bob and Grady this mule and horse; he said he thought it was perfectly safe. I stated a while ago that up to the consummation of the note I thought I was going to get Rollie on it. Q. How came you to ask Luring what he thought about selling this property to them and taking their note? A. Just because I asked him. Although I was expecting to get Rollie on the note, I asked Mr. Luring about taking the note because I wanted his advice. I consulted with him some time after my first conversation with Bob. It was between the first and second conversations that I talked with Uncle Mike. I don't remember talking to him any more about the transaction. I don't remember asking Uncle Mike in that conversation whether or not he knew Grady owed anything. He told me he thought it was perfectly safe to take Bob and Grady's note for the stock. He thought they were safe. I don't know that I relied on his advice. I went to him through force of habit. Q. Is it not a fact that you would not have gone to him and asked his advice if you were not willing to rely on it? A. Yes, sir; I did. I was working for him at the time this note was consummated, selling goods. Yes, sir; I stated that Grady told me at the time he signed this note that he didn't owe anything. I knew there was something on the books at Mr. Luring's against Grady, not much. Q. If he stated that he didn't owe anything, now you say that you knew he did owe Mr. Luring? A. I knew he owed some, not how much. I just stated the facts of the case. I knew he owed Mr. Luring some, not how much. If I had thought of it that way, I would have known his statement to me was not true. I did rely on his statements, just like I told you a while ago. I had sold Grady some goods and had charged them to him I think. I don't think I sold him numbers of times. Grady did not do most of his trading with me. I know that he got some things on a credit there. I relied on Grady's statement when he told me he didn't owe anything; I knew at that time he owed a little something at the store, but I didn't think of it. Q. If it was not true you could not rely on it, if he made that statement to you that he didn't owe anything and you knew at the time that he did owe Mr. Luring, you didn't rely on his statement? A. I did; yes, sir; knowing that it was not true, because I didn't think of it at the time" Her testimony goes further and shows that she talked with Mr. Zweifel and Dr. Lancaster before the note was executed. In reference to Dr. Lancaster Miss Karnes testified "I talked to Dr. Lancaster before the note was executed I asked Dr. Lancaster about selling them and he said that he had done the same thing or was going to do the same thing or had sold them, I don't know which; and that they were not involved; that they told him they were not involved. I knew they had an account at Luring's store I didn't know they owed anybody else. I had never heard their credit questioned. I relied on what Dr. Lancaster said. He advised me that he believed they would pay me. I had that in mind when I took their note and was relying on it at the time. I don't remember who else I advised with about the matter. I talked to Dr. Lancaster and Mr. Zweifel and Mr. Luring and relied on their advice. I believed what they told me and I had that in mind and was relying on it at the time I took the note." On re-cross this same witness testified: "Yes, sir; I was relying on the statements of these other people at the time I made this sale, but I would not have sold to them with Rollie on the note if Grady hadn't told me that. I don't know whether I asked Dr. Lancaster anything about Rollie or not. I don't remember to have asked Mike Luring and Henry Zweifel about Rollie. Bob and Grady were the ones I was asking about."

The court charged the jury as follows: "If you do not so believe and find, beyond a reasonable doubt, you will acquit the defendant, or if you have a reasonable doubt as to whether or not Ada Karnes believed the said representation, if any, made to her by the said H.G. Whitehead, to be true and was induced thereby to part with the possession and title to said mule and horse, then, and in that event you will likewise acquit the defendant.

"Again, if you have a reasonable doubt as to whether or not the said H.G. Whitehead made the representations to the said Ada Karnes alleged in the indictment or if he did make them, and you believe they were false and the said Ada Karnes knew they were false when she parted with the title and possession of said mule and horse, then in either event you will acquit the defendant."

Preceding the charges above quoted the court, in substance, without setting it out, charged that if appellant fraudulently represented to Miss Karnes that he was not indebted to any person, and that by means of such false and fraudulent representations, if any, the said Ada Karnes was induced to sell and deliver to the said H.G. Whitehead and Bob Whitehead the title and possession of one horse and one mule, and to accept for the animals a promissory note unsecured and signed by H.G. and R.S. Whitehead, and they further should believe that H.G. Whitehead was indebted to other persons and was not solvent and that Bob Whitehead was insolvent, and that said representations made, if any, by H.G. Whitehead were false, and that in truth and in fact he was largely indebted and owed large amounts aggregating more than five thousand dollars, and that the said Ada Karnes, in parting with the title and possession of the said mule and horse, believed said representations, if any were made, to be true and was induced thereby to part with the possession and title to said property, and that the value of said property was more than fifty dollars, and so on, they should convict. Appellant excepted to the charge above quoted and requested the court to charge the jury as follows:

"Gentlemen of the jury, in this cause I charge you at the request of defendant's counsel that if you find and believe that the prosecuting witness, Ada Karnes, before accepting the note set out and described in the indictment herein, advised with Henry Zweifel, Mike Lewin and J.R. Lancaster, or either of them, about selling the property described in said indictment to the defendant, Bob Whitehead, and accepting their unsecured note for the price of same and that she acted on said advice, if any, at the time she accepted said note, if she did, or if you have a reasonable doubt as to whether she did so act on said advice, if any, you will acquit the defendant and say by your verdict not guilty."

This charge was refused. It is unnecessary to set out the facts further than has been stated. The court's qualification to the bill of exceptions reserved is as follows: "The court charged the jury, in substance, that before the defendant could be convicted they must believe beyond a reasonable doubt that in parting with the title of her property to the defendant she must have relied upon and been induced by the statement alleged to be false before a conviction could be had, and in substance gave the special charges requested by the defendant and met all the exceptions to the charge save and except the possible one embodied in a special charge to the effect that Ada Karnes must have relied solely and alone upon the statements made to her by the defendant. The statement contained in the bill as to testimony of the witness Ada Karnes on cross-examination in so far as set out in question and answer form is certified to as correct, but that portion of her testimony appearing in the bill of exceptions which is not in question and answer style I do not certify as being correct but refer to the statement of facts on this point." The writer is of opinion, after reading the record, that the bill of exception does correctly state her testimony about which the court refers to the statement of facts. The court in his qualification seems to have misconceived the charge requested by appellant in using the language that that special charge suggested that Miss Karnes "must have relied solely and alone upon the statements made to her by the defendant." The charge has been quoted, and the court in that qualification certainly misunderstood the charge, because it does not ask that the jury be instructed to rely solely upon the statements of the defendant made to Miss Karnes. The charge simply asked the court to instruct the jury as stated by its terms, that if she relied upon the statements and representations of the three gentlemen named, or there was a reasonable doubt about it, appellant was entitled to an acquittal. This charge was called for by the facts heretofore stated. She testified she talked with these gentlemen and relied upon what they told her, and this occurred before the execution of the note. This advice, which she says was at her own suggestion from those gentlemen, indicated that she was not willing to trust defendant on their statements and sought the advice of the other named parties. This charge should have been given. It was an issue in the case. If appellant had requested the court to charge that she must rely solely and alone upon the statements of defendant, we would have had the question presented in a different light, but as that question is not presented by the requested charge, it is not discussed.

There is another bill of exceptions reserved to the introduction of evidence to the effect that appellant bought a farm for seven thousand dollars. He paid nothing on the seven thousand dollars in cash, but gave vendor's lien notes for that amount and in addition executed a mortgage on his stock. Whether this horse and mule were included in that is not shown, unless it be under the general statement that he gave a mortgage on all of his stock. In this connection the evidence shows that this debt was cancelled later by deeding the farm back to his brother and receiving a release of the mortgage given on the stock. Some of the reasons urged why this matter should not have gone before the jury should have been sustained. The facts show and the bill shows that this indebtedness accrued months after the execution of the note to Miss Karnes, which was for $175, and could not have had any effect upon the indebtedness of appellant at the time he bought the horse and mule from Miss Karnes. This case is based upon the proposition: that is, the court only submitted the theory that appellant was insolvent at the time he made the purchase, or rather at the time he made the representations to Miss Karnes, which she claimed to have been made by him, to the effect that he did not owe anything. The court did not submit the statements that he owned five or six mules and seventy-five to one hundred hogs. These were excluded, and were not even mentioned in the charge. He certainly did not owe this amount at that time, because the facts show plainly that that transaction occurred months after he executed the note to Miss Karnes. Just how this could affect the insolvency of appellant at the time he executed the note is not readily explainable. Where a party is solvent at the time of the contract and subsequently becomes insolvent, the subsequent insolvency would generally not enter into prior statements of solvency. It would hardly be held that appellant entered into this contract with his brother some months afterward for seven thousand dollars with a view of beating Miss Karnes out of $175 that he owed her; but if he did, that would not be swindling, because the contract and swindling, if any, had already occurred and the property had passed to appellant. Having acquired the property he had the right to use it; it became his when he gave the note for it. The fact that he may have used it subsequently in trading, making contracts, etc., would not render him insolvent at the time he purchased the mule and horse. He did not then owe the seven thousand dollars. That debt was cancelled long before the maturity of the Karnes note. This matter upon another trial should not be permitted to go to the jury.

There is another question, towit: the introduction of a great number of items in the schedule filed in the bankruptcy proceedings which were filed by appellant and his brother Bob over a year after the purchase of the horse and mule. This bill is very lengthy and recapitulates and recites a great number of transactions some of which appellant owed at the time of the purchase of the horse and mule and execution of the note therefor. A great number of the items were debts contracted long subsequent to the transaction with Miss Karnes. In the original opinion we passed this out with the statement that the items to which objections were made must be specifically specified, otherwise the court will not look through to ascertain which were and which were not admissible. This is based upon the rule that where some of the testimony mentioned in a bill is admissible and some not the bill must particularize the matters to which objection was urged. Recognizing that rule the writer is of opinion that this bill, while not technically pointing out all these different illegitimate items, is sufficient to present the question. Among other exceptions stated to the introduction of this evidence this is found: The contract upon which the defendant is charged by indictment with swindling was entered into between the parties prior to the date of the items shown on the schedule, and the prosecuting witness knew at the time she entered into the contract that he, the defendant, did owe something, and further that she was relying not on these statements as the indictment alleges but on the testimony of three different parties, towit: Dr. J.R. Lancaster, Mike Lewin and Henry Zweifel; that, therefore, the testimony can not be offered for any purpose in view of the assignments in the indictment and under the law except for the purpose of prejudicing the minds of the jury against the defendant, and that the items taken from said schedule and the schedule itself were not admissible on account of being an ex parte proceeding. This is one of the grounds. Another ground is that the items shown in said schedule were evidences of debt created after the execution of the note given by the defendant to the prosecuting witness, Ada Karnes, which note and the transaction out of which it grew are the basis of this prosecution; and because the proof shows that these items of debt were not in existence at the time of the execution of said note; and because said testimony is immaterial and does not sustain any charge made in the indictment, and are immaterial to any issue in the case and could serve no purpose except to prejudice the minds of the jury against the defendant; that the items objected to were created after the execution of the note given to Ada Karnes, and because said testimony could not in any manner have influenced the prosecuting witness, Ada Karnes, when she sold the property to the defendant and took his note therefor. These are just mentioned in passing. The writer is of the opinion that these, while not very specific, were sufficiently so though to call the court's attention to the fact that the items to which he was objecting were those debts created since the transaction between himself and Miss Karnes. The trial court qualifying the bill, among other things, stated he did not feel called upon to go through all the schedule, which was rather an extensive one, and cull out the items of debt which occurred between appellant and Miss Karnes after the transaction. It was not necessary for him to do so. He was the presiding judge; he heard the testimony read to the jury and the dates of the items as they were called in reading the matter to the jury. Appellant while not specifying each item, in a general way called his attention to the fact he was objecting to all those items in which debts occurred after the transaction alleged in the indictment. The date of this transaction was the 4th of October, 1914. Many of the items occurred at varying times during a year or more after the transaction declared upon in the indictment. The writer is of the opinion that that was specific enough to call the court's attention to the fact that these items were referred to in the objections by appellant. The court could have required the State to eliminate such items at the time they were read to the jury, and could also have confined the State to debts existing at the time of the execution of the Karnes note, and if the schedule in bankruptcy was admissible at all for any purpose, then certainly no other items as this record presents it should have been admitted except those specifying debts that were in existence at the time of giving Miss Karnes the note relied upon in this transaction. But if he is in error in regard to the sufficiency of the bill to present these matters, then upon another trial all such matters occurring subsequent to the transaction set out in the indictment should be excluded. The matter at issue was whether or not appellant owed anything at the time he made the statement to Miss Karnes. This was the theory upon which the case was tried under the court's charge. Certainly it could not be held to be proper to introduce evidence of indebtedness incurred by appellant after the execution of the note. He did not and could not have owed subsequent debts at the time of the execution of the note; therefore, it could not have been a misrepresentation as to such subsequent debts.

These matters have been treated in a general way in view of the motion for rehearing. There are many other facts and details in evidence which would throw light upon these matters which are not herein mentioned or discussed. The writer does not believe that the facts show a case of swindling. To his mind this is just a credit sale evidenced by the note mentioned by the witness Miss Karnes. I do not care to go into a detail of the facts bearing on it further than as stated. This note was executed on the 4th of November, 1914, and matured before the bankruptcy proceedings were instituted which occurred in December, 1915. This indictment was not preferred until the 25th of April, 1916. That appellant's credit was good at the bank and in the community where he was dealing seems not to be questioned, and the unfortunate matters occurring during 1915, and the reduction of the price of cotton and matters of that sort, forced appellant into bankruptcy. He had always sustained a high rating as a business man up to the time of the bankruptcy, or just before it, and it is shown that he raised in 1915 something over one hundred bales of cotton, but on account of existing circumstances, the war in Europe and matters of that sort, cotton was reduced to a very low value. It seems to be not questioned that if the cotton had sold at the subsequent high prices he would have been able to have avoided bankruptcy and paid his debts. To the mind of the writer this record does not show evidence which would justify the conclusion that appellant in signing the note or buying the horse and mule intended to defraud Miss Karnes. It was a credit sale and not a swindle.

For the reasons indicated the motion for rehearing is granted, the judgment of affirmance set aside, and the cause reversed and remanded.

Reversed and remanded.

PRENDERGAST, JUDGE (dissenting).