Jacobs v. State (91 S.W.2d 348, 1936)

LATTIMORE, Judge.

Conviction for unlawfully plating a bale of cotton; punishment, a fine of $350.

The facts show that appellant and his wife were the chief stockholders in a corporation engaged in the business of ginning cotton. Appellant was giving his personal time, attention, and supervision to the conduct of said business. According to the testimony of a witness, appellant agreed with said witness to rebuild for him a number of light-weight bales of cotton, the apparent purpose of said rebuilding being to enable the witness to secure a government loan upon the cotton. From the record it is shown that thirteen bales of said cotton were rejected or turned down, but later ten of said thirteen bales were accepted by another office of the government and a loan placed against them. The remaining three built-up bales seem to have been sold, and one of them enters into the prosecution of this case.

The indictment charged appellant with unlawfully, and with intent to deceive, plating a certain bale of cotton, referred to with definiteness enough to identify it, by then and there willfully and knowingly placing on the outside of said bale a grade and quality of cotton known as middling bright cotton, with a staple of 2⅜2 of an inch; the grade on the inside of said bale being a grade and quality of low middling with a staple of 1¾6 -of an,inch, said cotton so placed on the outside of said bale being of a better grade and quality than that on the inside of said bale; and that this was done for the purpose of deceiving persons dealing therewith, and for the purpose of making said bale of cotton appear to be a better grade and quality than it actually was.

Appellant moved for an instructed verdict at the close of the testimony on the ground that there was a variance between the allegation and proof as to the kind and quality of cotton used in the false plating of said bale. We have set out above the description of same in the indictment. Looking to the proof, we find three witnesses who gave testimony on the point. One, a Mr. McBride, testified that he worked in the gin of which appellant' was apparently the manager at about the time of this alleged plating, and that at appellant’s direction he rebuilt the bale of cotton in question. He testified that he had taken a sample from one side of said bale which he would class as strictly low middling of 15A