Jones v. State , 126 Tex. Crim. 469 ( 1933 )

Appellant renews his claim that the indictment is bad because it alleges in several places that by fraudulent pretenses, etc. this appellant didobtain the money of Johnson, — the point being again made that the indictment should have averred that appellant acquired said money. In our former opinion, upon the authority of various sections of accompanying statutes, we said it seemed in the swindling statute that the legislature had used the words acquired and obtained as meaning substantially the same thing. We are still of that opinion. Article 1545, P. C., defining swindling generally, says it is the acquisition of any personal or movable property in the way and by the means set out. The next Art. 1546, P. C., says in two of its defining sections that swindling is the obtaining of the property mentioned by false pretense. Again in Art. 1549, P. C., it is said that where money or property is obtained, etc. Also in Art. 1551, P. C., it is said that any person who shall obtain board, etc., by means of false pretenses, shall be punished.

Examining the meaning of the words under discussion in the Cenutry Dictionary, we find that the word "obtained" is defined as "To get; procure; secure; acquire," etc. The word "acquire" appears in the same authority to have as synonyms "To get;obtain; attain," etc. We also find that the word "acquisition" is defined as the act of acquiring or gaining property; that which is acquired or gained, especially a material possessionobtained by any means. In Brigham v. State, 17 S.W.2d 1073, this court approved a definition given the word "acquire" as follows: "To obtain; to procure," etc. We do not think anything to the contrary appears in Allen v. State, 262 S.W. 502, or in Cannon v. State, 15 S.W. 117, cited in appellant's motion.

We believe that the averment that appellant obtained the property by false pretense in exchange for other property, was sufficient. The peculiar facts in Farmer v. State,85 Tex. Crim. 440, led us to criticise the indictment therein for its failure to allege that the injured party desired to acquire a certificate showing her entitled to a scholarship, but we find no such facts here, this being a case wherein it was alleged that appellant and others represented to Johnson that they had a named quantity of Coca-Cola which they would sell to him for $50.00, and that they delivered to him said purported Coca-Cola in exchange for his $50.00, and that he thereby parted with his title and possession of said money in consideration of their delivery to him of said purported Coca-Cola.

We have examined the other two grounds of appellant's motion, both of which were discussed in our original opinion. The lack of any specific allegation as to ownership of the purported Coca-Cola seems in nowise to legitimately affect the validity of the indictment, which alleged that Jones and others falsely represented to Johnson that they had a barrel of Coca-Cola which they would sell to him for $50.00, and that they delivered to him said purported barrel of Coca-Cola in exchange for his $50.00, which he delivered to them, — as a result of which transaction Johnson parted with the title and possession of said money, believing that he had gotten therefor Coca-Cola, which turned out to be water. In our opinion this sufficiently alleges a swindling upon a false pretext that appellant had for exchange or sale that which in fact he did not have. King v. State, 146 S.W. 543; Faulk v. State,38 Tex. Crim. 79.

If by the false and fraudulent representations of the accused the injured party was induced to surrender his property to the accused, and if such party was thereby made to thus lose his property, the thing made penal by the swindling statute would have been proven. The averment of the ownership of the property had or claimed to be had by the accused and his confederates, which the injured party believed from their representations he was getting, should at least be substantially set up, and we think a sufficient averment of ownership here appears.

Appellant insists that the testimony does not sustain a felony conviction because Johnson only parted with $50.00 in money, and that he got in exchange therefor, to say the least, a barrel, — which appellant insists was worth something, at least enough to make Johnson's loss less than $50.00. The proposition is novel, but we fear not sound. In the absence of a statement of facts we do not know whether the barrel itself was delivered to or obtained by Johnson, or whether the delivery was merely of the amount of fifty-two gallons of purported Coca-Cola from a barrel. Nor is there the slightest evidence that the barrel had any value or that Johnson claimed the barrel.

Appellant's motion for rehearing is overruled.

Overruled.