Boscow v. State , 33 Tex. Crim. 390 ( 1894 )

1. The court did not err in permitting Dr. Adolph Herff to testify that he was not associated with defendant in the practice of medicine himself, nor was his son so associated with said defendant. A part of the false pretenses upon which appellant is alleged to have obtained the money from the witness Dunn, who employed him to cure his wife, was that he (appellant) was a member of a medical institute in San Antonio, in which there were twelve physicians, Dr. Herff being one, and he (defendant) was associated with Dr. Herff in the practice of medicine. The witness was shown to be fully qualified to disprove these statements.

2. The remarks of the county attorney were highly improper. There is no case in which invective and abuse on the part of the officer of the State to the defendant is ever justifiable. But surely in a case like this, where the very strength of the testimony against defendant was its best comment, all that could have been necessary was a fair presentation of the case; but, strange to say, the remarks were not excepted to, nor was any instruction asked in reference thereto. It is true that a bill of exceptions was taken at sometime afterwards, but the court says his attention was not called to the language at the time, nor was an exception taken. Under these circumstances, we do not think the case ought to be reversed. Attorneys should be prompt in protecting their clients in the methods pointed out by the law.

3. Appellant insists that because the information charges, as a part of the false pretenses relied upon, that he was to perform certain acts in the future, to wit, to cure the wife of the witness Dunn, the same can not be made the basis of swindling. It is true, that if the witness Dunn had relied alone on the promise it could not be swindling; but where the promise is connected with the false pretense of an existing fact, as that he was a physician, and at that very time associated with other physicians known to Dunn, and he thereby obtained a credit and influence with the said Dunn that he could not otherwise have obtained, it would support the charge. 2 Bish. Crim. Law, 424.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.