Raymond v. State , 116 Tex. Crim. 595 ( 1930 )

The soundness of the opinion on the original hearing is challenged upon the ground that the indictment was bad for the reason that it failed to set out the written instrument. In the indictment found in the record it appears that the appellant made certain verbal representations, among which are the following:

"* * * that said Emmet A. Jones, as President, had legal authority to execute binding contracts for said Corporation; that if said John H. Sedwick, W. R. Nail, W. G. Webb, John F. Sedwick, Thomas L. Blanton, Jr. and W. Graham Webb, Jr. would pay to said 'General Neon Sign Corporation' $1,625, each, or the sum of $9,750, that such Corporation by a legal contractwould grant to said parties paying said money, and othersassociated with them, the exclusive right to sell in the Stateof Texas, excepting 25 counties named, etc."

In the motion for rehearing, in quoting that part of the indictment italicized, the word "did" appears in place of the word "would." Obviously, the indictment as copied in the record sets forth but verbal representations of the appellant and contains no averment embraced in a written contract. From the averments of the indictment, it appears that the ultimate design and purpose of the alleged false representations was to acquire $9750.00 in money, and the check was but an incident to that end. The indictment in several places states that the representations were the moving cause which actuated the injured parties in each of them parting with $1625.00 of theirown, money aggregating $9750.00. The acquisition of the$9750.00 in money being the ultimate object of the alleged fraudulent representations and the check being but one of the means to which resort was had in accomplishing the design, the averment of the value of the check was unnecessary. A different rule would prevail if the offense described in the indictment was the fraudulent acquisition of a check. See Luce v. State, 88 Tex.Crim. R.. Under such an averment, proof of the value of the check would be essential. The statute on swindling, Art. 1547, P. C., declares that money, as used in that chapter, includes also "bank bills or other circulating medium current as money." We understand that when the object of the fraudulent representation is to acquire a sum of money, the presumption will be indulged, in the absence of an averment to the contrary, that by the term "money" is meant United States money such as that described in the statute quoted above, and that under such circumstances no proof of the value of the money is required further than to designate the sum in dollars and cents. Such designation specifically appears in the indictment under consideration. Courts have judicial knowledge of the value of United States money. See Kimbrough v. State, 28 Tex. Ct. App. 367; Branch's Ann. Tex. P. C., Sec. 2620; Berry v. State, 46 Tex.Crim. R., and other cases collated in the section mentioned. See also Ferrell v. State, 68 Tex.Crim. R.; Hatfield v. State, 147 S.W. 237; Branch's Ann. Tex. P. C., Sec. 2488. It was said by the Supreme Court of the United States in the case of United States v. Williams, 282 Fed. Rep. 324 that "money is the standard of value, as well as the medium of exchange." See also the case of Juilliard v. Greenman, 110 U.S. 421, and collation of authorities in United States v. Williams, supra. As a common-sense proposition, money being the standard of value and the statute on swindling declaring that the term "money" means money of the United States, it would be difficult to state more accurately the value than to give the number of dollars, as was done in the present case.

Specific reference to the other matters raised in the motion for rehearing is deemed unnecessary as they were sufficiently discussed and properly disposed of in the original opinion.

The motion is overruled.

Overruled.