Rundell v. State

Appellant was convicted of felony theft in the Criminal District Court of Harris County and her punishment fixed at five years confinement in the penitentiary. The indictment in this case was in the ordinary form for a felony theft, it being charged therein that appellant took from Dora Wilson a check of the value of one thousand dollars with intent to deprive said Wilson and to appropriate same to her own benefit. The facts show that about September 18, 1919, appellant, in Houston, Texas, represented to Dora Wilson that she, appellant, had a secret connection with an oil driller in the Burk Burnet oil field who would give her inside information about wells in process of drilling and just before same were completed, and that she was able by means of said information to double and treble any money turned over to her to be invested in such ventures, and that appellant urged the Wilson woman to let her have five thousand dollars to be so used, promising a return of said money together with double and treble its amount as earnings within sixty days; also that Miss Wilson declined to let appellant have at that time but one thousand dollars, a check for which amount was turned over to appellant. The latter promised to double this at least for Miss Wilson within sixty days. Later and on pretense that the first money turned over had doubled itself and earned variously stated sums, appellant got from Miss Wilson amounts totaling $4600, telling her that her money and its earnings should be returned to her or checked out by November 15th, or not later than Thanksgiving day of that year, at which time appellant represented that her connection with the oil business would cease. Just before *Page 413 Thanksgiving she represented to Miss Wilson that her $4,600 had earned $25,000. About Thanksgiving Day or night appellant disappeared, and was arrested in Chicago some two months later and brought back to Houston where she was tried and convicted of theft. She never at any time paid to Miss Wilson any part of the original $4,600 or any earnings thereof. During the cross-examination of Miss Wilson it was developed that upon the witness expressing some doubt as to the safety of her money, appellant said she would stand between her and the money, or as the witness stated in another place, appellant said she would guarantee witness not to lose her money, and gave to witness her note for a thousand dollars, which note and its successors were torn up at each subsequent advancement and one made for the total sum received up to that time. The note was due a year after date, and was a plain note of hand. Miss Wilson said nothing was ever said about the money being paid back a year thereafter, but it was all to be paid pack at the date in November, 1919, when appellant said she would "check out." During the trial the lower court permitted in evidence transactions with other persons occurring about the same time, in which appellant got from them considerable money under various pretexts, which transactions will be referred to later herein. Appellant insists that a case of theft is not made out by these facts. In Gibson v. State. 85 Tex.Crim. Rep., 214 S.W. Rep., 341, we said: "In order to constitute theft under our general statute, the taking of the property must be wrongful and without the owner's consent but in Article 1332, Penal Code, our Legislature specifically provides that, though the taking be with the owner's consent, yet, if such consent be obtained by any false pretext, or if the taking be obtained with any intent to deprive the owner of the value thereof and to appropriate the same to the use and benefit of the taker, and the property is so appropriated, then the offense of theft is complete." It will be observed by examining said Article 1332 referred to that it pointedly states that if possession of the property be obtained by any false pretext, or be obtained with an intent inthe mind of the taker at the time to deprive the owner of thevalue thereof and to appropriate it to the benefit of the taker, the offense is complete. It became a question of fact for the jury to decide primarily, whether there existed such intent in the mind of appellant at the time the property passed into her possession. The appellant offered no evidence, and the jury under appropriate instructions has decided that at the time the thousand dollars came into appellant's possession she intended to deprive Miss Wilson thereof and to appropriate it to her own use and benefit. It would serve no useful purpose to elaborate the evidence here. We are of opinion that the jury were justified in their conclusion. In the Gibson case, supra, we discussed at length the difference between theft of this character and swindling, and reference is here made to such discussion. The thousand dollars were delivered *Page 414 to appellant upon apparent faith in her promise as to what she could and would do with said money, and that it would be returned to Miss Wilson together with its earnings within sixty days. We do not think this would be swindling. Nor do we think the facts bring the case within the definition of theft by bailee as appears in Article 1348 of our Penal Code. No evidence suggested a contract of hiring, borrowing or other bailment for the benefit of appellant. On the trial the State proved, over appellant's objection, sundry other transactions of herself occurring about the same period as that covered by the one with Miss Wilson, in each of which appellant obtained from different people sums of money varying from a few hundred dollars to as much as nine thousand, all being obtained by her upon representations of some character, in substance, that she would return the parties from whom she got the same their money together with a large increase within a short time. In three of said transactions the matters stated by appellant as inducement to obtain said sums, were almost identical with those appearing in the instant case. The trial court instructed the jury that they should consider the testimony relating to said other transactions for no other purpose except as shedding light, if they thought it did so illumine the intent of appellant with regard to the check alleged to have been taken in the instant case. The substance of the objections to this testimony was that it was immaterial, no part of the transaction involved in this case, an offense in no way connected with that herein charged, and prejudicial to appellant. The principal issue in the instant case was the intent of appellant in the acquisition of the check, the theft of which was charged. By a vigorous cross-examination of Miss Wilson, appellant sought to show that the transaction in question was one in which the money or check in question was loaned to appellant, or else one in which appellant received the money as a bona fide agent for the purpose of making investments. Authorities are too numerous to need citation, that as affecting the intent, when an issue, evidence of other disconnected transactions becomes admissible. In each of said extraneous cases proven herein, it was shown that after making frequent and positive promises of speedy returns in order to get money from her victims, nothing was forthcoming. Appellant's promised returns never materialized. Her promises to some of the said parties were to be redeemed at the same time as those made to Miss Wilson, but when that time came appellant had imitated the Arabs who fold their tents and silently steal away. We see no ground for a contention that the proof as to said extraneous matters was not of complete offenses, and are of opinion that same were clearly admissible as affecting her intent in the instant transaction. Miss Wilson testified that during her connection with appellant, the latter told her that she owned a fine home in Memphis, Tennessee, and when she checked out she was going there. This witness also testified *Page 415 that in November appellant shipped her furniture from Houston in the name of Stacey. Thereafter the State introduced an employee of a railway company at Houston, who testified that in November, 1919, a car load of household furniture was entered at Houston for shipment to Portland, Oregon, by one L.C. Stacey, a white man, but said witness was unable to say whether the party entering same was the husband of appellant or not. Appellant objected to this testimony as being in no way material or relevant, but we cannot agree to this, for if appellant stated her intention to go to Memphis, when in fact she was going to Portland, Oregon, this would be evidence both of flight and concealment. The shipment of her furniture to Portland would be a circumstance evidencing such flight. Nor is the objection made to the introduction of a bill of lading or copy thereof borne out by the facts as stated in the bill of exceptions. Therefrom it appears that the witness was permitted to refresh his memory from a copy of the bill of lading in his possession, and that said witness testified from memory as to the facts stated by him. Objection was made to certain argument of the district attorney, that it was a reference to the failure of appellant to testify. The objectionable statement was as follows: "The State's case stands before you unimpeached in any manner; the defendant has failed to produce a single witness to combat the testimony of the State." We do not think this such reference to the failure of appellant to take the stand as would call for a reversal. Appellant did not ask written instructions to the jury not to consider same. Also the trial court qualifies the bill in such way as to show the statement was a reply to argument of appellant that the State had failed to produce certain witnesses, who were available, and who might have testified. Appellant also contends that the relation of debtor and creditor was created by the transaction between appellant and Miss Wilson, and that by the acceptance of the notes of the former by the latter any question of theft was eliminated from such transaction. We do not so conclude. See Anderson v. State,77 Tex. Crim. 31; Gibson v. State, 85 Tex.Crim. Rep., 214 S.W. Rep., 341. If the facts be conclusive of the intent to deprive the owner of the property and to appropriate the same to the use and benefit of the taker at the time the possession of such property was obtained, then the giving of notes which were not demanded or asked by Miss Wilson, but on the contrary were volunteered by appellant as an inducement apparently to greater confidence on the part of Miss Wilson, would not operate to remove the element of crime from the transaction. Appellant asked and the court gave the following special charge: "Gentlemen of the Jury: If from the testimony in this case you believe that the defendant did not appropriate the property, that is, the thousand dollars check, or the proceeds thereof, and did not intend to appropriate it to her own use and benefit, and did not intend to deprive the owner of the value of the same, or if you have a reasonable *Page 416 doubt upon said proposition, or either of them, you will acquit the defendant and say by your verdict not guilty." Nor do we think the case one of circumstantial evidence. We have held that when the direct evidence in a theft case showed the taking of the property from the owner, a charge on circumstantial evidence is not necessary because of the fact that the fraudulent intent is sought to be shown by circumstances. Roberts v. State, 44 Tex.Crim. Rep.; Houston v. State, 47 S.W. Rep., 468; Flagg v. State, 51 Tex.Crim. Rep.; Burton v. State, 65 Tex.Crim. Rep., 146 S.W. Rep., 186. This disposes of the contentions made on behalf of appellant, and finding no error in the record the judgment of the trial court is affirmed. Affirmed.