Redding v. State (265 S.W.2d 811, 1954)

WOODLEY, Judge.

Appellant was convicted of felony theft and the jury found that he had been twice previously - convicted of a -felony. The court, thereupon, entered judgment that he be confined: in'the penitentiary for life.. His motion for new trial was heard and overruled and he appeals from the- life sentence pronounced against him. •'

The previous convictions alleged were sufficiently established by the state’s evidence, and no question is raised in regard, thereto.

The statement of facts shows, in regard to the primary offense, the following.

Charles E. Hill, the injured party, operated a used car business in' Houston under the trade name of H & H Motor Company. On February 28,'1953, appellant came-to Hill’s place of business and agreed with Hill upon the purchase of a 1946 Ford automobile for the sum of $500, that being its value.

A check or draft for $500, payable, to H & H Motori Company, was delivered to Hill who in turn gave ,to .'appellant a receipt .in that, amount,. reciting payment1 in full for the automobile, and appellant was permitted to take possession of the automobile in return for. the draft..

The draft was signed by appellant and was drawn on the “Union National Bank”, there being no iurther description of the bank such as its location.

Hill testified that the check dr draft was for the full purchase price of the automobile; that he had a conversation with appellant pertaining to the check before he accepted it; that appellant said the bank was “on' Main Street”; that he said he had the money in the Union National Bank in Houston; that he was relying on the check and appellant’s statement when he took the check, and did not otherwise give his consent or permission for appellant to íáke the automobile; that he carried the check to the bank which appellant said he was drawing it on, the Union National in Houston, and could get no money on it.

The evidence further shows that appellant had never had an account in the Union National Bank in Houston and that the draft was never paid. The Ford automobile was found' in a badly wrecked condition some four days after appellant took possession of it.

Appellant’s brief complains (1) that the evidence is insufficient to show an appropriation of the automobile alleged to have been stolen; (2) that the check given Hill in payment for the automobile was inadmissible in evidence; (3) that the court’s charge was erroneous in that it did not require the jury to find that appellant appropriated the automobile, and (4) that the court erred in refusing to charge the jury not to consider the check offered in evidence.

Appellant’s first point is predicated upon the assumption that he came into possession of the automobile lawfully. The state’s case was. in fact for theft by false pretext, it being permissible to prosecute therefor under an indictment alleging ordinary theft.

The offense of theft by false pretext is the obtaining of possession of próperty by a willing sürrender of the owner induced to deliver such possession by false pretext or device and with the fraudulent intent of accused, at the time he came into possession of the property, to appropriate it to his own use, followed by such appropriation. Maxwell v. State, 134 Tex.Cr.R. 314, 115 S.W.2d 939.

Under some circumstances the offense