
    BROWN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 26, 1911.
    On Motion for Rehearing, June 21, 1911.)
    1. False Peetenses (§ 9) — Defenses—Constructive Notice — Falsity of Pretenses —“Swindling.”
    A defendant who falsely represented that he was the owner of land free from incum-brance, and purchased personal property on credit, securing the price by- a deed of trust on the land, is guilty of “swindling,” within Pen. Code 1895, arts. 943, 944, though the person swindled had constructive notice by means of the records that the land was incumbered.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. § 14; Dec. Dig. § 9.
    
    For other definitions, see Words and Phrases, vol. 8, pp. 6839, 6840.]
    2. Criminal Law (§ 1144) — Appeals—Continuance — Diligence—Presumptions.
    The appellate court in reviewing the denial of a continuance on the ground of absent witnesses cannot presume that diligence was exercised, where the record fails to show process for such witnesses.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3016-3037; Dec. Dig. § 1144.]
    3. Criminal Law (§ 641) — Trial—Conduct op Trial.
    Where it was a regular rule of the court that the time of the session should be governed by the courthouse clock, and accused’s counsel was aware of that fact, but failed to appear at the hour set for the convening of cojirt after recess, the action of the court in permitting witnesses to testify in the absence of accused’s counsel was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1497; Dec. Dig. § 641.]
    4. Criminal Law (§ 402) — Evidence—Best and Secondary.
    In a prosecution for swindling, where defendant’s title to lands was in issue, and the state served notice upon defendant to produce his title papers, the record copies of these title papers are admissible in evidence.
    [Ed. Note. — For other cases, see Criminal Law, 'Cent. Dig. § 888; Dec. Dig. § 402.]
    5. False Pretenses (§ 45) — Evidence—Admissibility.
    Defendant purchased mules upon credit, giving a deed of trust for the payment of the price upon land to which he claimed to have an unincumbered title. His title in fact was incumbered. Held, that vendors’ lien notes on the land were admissible, as well as evidence that such notes had not been paid.
    [Ed. Note. — For other cases, see False Pretenses, Dee. Dig. § 45.]
    6.False Pretenses (§ 45) — Evidence.
    It was not error in such case to permit the state to show that defendant had made no payments upon his land; the court having instructed the jury that if the land was sufficient to pay both debts defendant would not be guilty of any offense.
    [Ed. Note. — For other cases, see False Pretenses, Dec. Dig. § 45.]
    7. Criminal Law (§ 1172) — Apeeai>-Harmless Error.
    Where a defendant received a minimum punishment, he cannot complain that the court chargéd a different term of punishment.'
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3161, 3162; Dec. Dig. ‘ 1172.]
    8. Criminal Law (§ 1090) — At>peai>-Bill op Exceptions — Necessity.
    Matters complained of in a motion for a new trial cannot be considered on appeal, in the absence of a bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803-2827; Dec. Dig. § 1090.]
    Oh Motion for Rehearing.
    9. Criminal Law (§ 1172) — Appeal—Harmless Error.
    Defendant purchased mules on credit, giving a deed of trust for the price on land which he claimed was unincumbered. The land was subject to vendor’s lien notes. Before the time of defendant’s trial for swindling, he deeded the land to his vendor in payment of those notes. The land upon which he gave a second deed of trust was only part of the land subject to the vendor’s lien. Held, that an instruction that, if the land not subject to the second deed of trust was of cash market value, sufficient to pay off the vendor’s lien notes on the whole, then the verdict should be for the defendant was harmless error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3154r-3163; Dec. Dig. § 1172.]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    C. J. Brown was convicted of swindling, and appeals.
    Affirmed.
    Dallas Scarborough, for appellant.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      Por otner cases see same topic and section NUMBER in Dec. Dig. & Ami Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

In this case the appellant was indicted for swindling, and upon a trial he was convicted and his punishment assessed at two years confinement in the penitentiary.

1. The main contention in this case is presented in the motion to quash the indictment. It appears from the record that defendant met C. D. Robinson in the town of Abilene. Robinson had a pair of mules he desired to sell. Defendant agreed to give him $300 for the mules, and agreed to pay $25 in cash and give a deed of trust on 80 acres of land. Defendant represented that he was the owner of the land, and that it was free of incumbrance. Robinson states he relied on this representation, sold and delivered the mules to defendant, and took a deed of trust on the land. Instead of the land being free of incumbrance, the land had been bought from two men named Cozort, and they . held vendor’s lien notes against this and other land to the amount of $2,960, which was expressed in the deed from the Cozorts to Brown, and which deeds were of record in Taylor county.

Defendant contends that Robinson had constructive notice that the land has a lien against it for this amount, and, although he may have represented that the land had no lien against it, such representation was a noneriminal lie, and swindling could not be based thereon. In this contention we do not agree with defendant, and think the motion to quash the indictment was properly overruled.

In the case of State v. Munday, 78 N. C. 460, it is held: “An indictment for obtaining goods under false pretenses can be maintained against one who sells and conveys land for a price, by falsely representing it to he free from incumbrances and the title thereto perfect, when the land is in fact incumbered with a mortgage known to defendant.”

Again, in Kerr on Fraudulent Conveyances, it is held:

“The allegation of mispresentation may be effectually met by proof that the party complaining was well aware and cognizant of the real facts of the case, but the proof of knowledge must be clear and conclusive. A man who, by misrepresentation or concealment, has misled another, cannot be heard to say that he might have known the truth by proper inquiry; but must, in order to he able to rely on the defense that he knew the representation to be untrue, be able to establish the fact upon ineontestible evidence, and beyond the possibility of a doubt. Boyce v. Grundy, 3 Pet. 210 [7 L. Ed. 655]; Younge v. Harris, 2 Ala. 108; Clopton v. Cozart [Miss.] 13 Smedes & M. 363; Connersville v. Wadleigh, 7 Blackf. [Ind.] 102 [41 Am. Dec. 214]; Anderson v. Burnett, 5 How. (Miss.) 165 [35 Am. Dec. 425].

“If a definite or particular statement be made as to the contents of property, and the statement be untrue, it is not enough that the party to whom the representation was made may have been acquainted with the property. A very intimate knowledge with the premises will not necessarily imply knowledge of their exact contents, while the particularity of the statement will naturally convey the notion of exact admeasurement. Hill v. Buckley, 17 Ves. 394. See King v. Wilson, 6 Beav. 124. The fact that he had the means of knowing, or o'f obtaining information of the truth which he did not use is not sufficient. Lysney v. Selby, 2 Lord Raym. 1118, 1120; Dobell v. Stevens, 3 B. & C. 623; Rawlins v. Wickham, 3 D. & J. 319. It is not indeed enough that he may have been wanting in caution. A man who has made false representations, by which he has induced another to enter into a transaction, cannot turn round on the person whom he has defrauded and say that he ought .to have been more prudent, and ought not to have concluded the representations to be true in the sense which the language used in the prospectus naturally and fairly imports. New Brunswick, etc., Railway Co. v. Muggerridge, 1 Dr. & Sm. 382. Nor is it enough that there may be circumstances in the case which, in the absence, of the representation, might have been sufficient to put him on inquiry. The doctrine of notice has no application where a distinct representation has been made. A man to whom a particular and distinct representation has been made is entitled to rely on the representation, and need not make any further inquiry, although there are circumstances in the case from which an inference inconsistent with the representation might be drawn. Grant v. Hunt, Coop. 173; Van v. Corpe, 3 M. & K. 269; Flight v. Barton [3 M. & K.] 282; Dobell v. Stevens, 3 B. & C. 623; Pope v. Garland, 4 Y. & C. 394; Wilson v. Short, 6 Ha. 366, 377; Drysdale v. Mace, 2 Sm. & G. 225, 230, 5 D. M. & G. 103; Cox v. Middleton, 2 Drew. 209; Grosvenor v. Green, 5 Jur. (N. S.) 117; Rawlins v. Wickham, 3 D. & J. 318; Kisch v. Central Venezuela Railway Co., 3 D. J. & S. 122; Smith v. Reese River Silver Mining Co., L. R. 2 Eq. 264. I-Ie is not bound to inquire, unless something has happened to excite suspicion (Rawlins v. Wickham, 3 D. & J. 304. See Farebrother v. Gibson, 1 D. & J. 602), or unless there is something in the case, or in the terms of the representation, to put him on inquiry. Kent v. Freehold Land & Brickmaking Co., L. R. 4 Eq. 598. The party who has made the representation cannot be allowed to say that he told him where further information was to be got, or recommended him to take advice, and even put into his hands the means of discovering the truth. However negligent the party may have been to whom the incorrect statement has been made, yet this is a matter affording no ground of defense to the other. No man can complain that another has relied too implicitly on the truth of what he himself stated. Reyhell v. Sprye, 1 D. M. & G. 660, 710; Rawlins v. Wickham, 3 D. & J. 318; Smith & Reese River Silver Mining Co., L. R. 2 Eq. 264; Colby v. Gadsden, 15 W. R. 1185. See Harris v. Kemble, 5 Bligh, 730. If a vendor has stated in his proposals the value of the property he cannot, except under special circumstances, complain that the purchaser has taken the value of the property to be such as he represented it to be. Perfect v. Lane, 3 D. F. & J. 369. The effect of what would be otherwise notice may be destroyed, not only by actual misrepresentation, but by anything calculated to deceive or even to lull suspicion upon a particular point. Dykes v. Blake, 4 Bing. (N. C.) 463; Bartlett v. Salmon, 6 D.M. & G. 41.”

This rule is cited with approval in the Am. & Eng. Enc. vol. 12, pp. 836 to 840, and volume 14, p. 24, citing a number of authorities. Also in the Enc. of Pl. & Prac., under chapter entitled “False representations and deceit,” p. 883 et seq.

We are aware of a divergence of opinion in the decisions of this court, but we believe that the great weight of authority is with the majority of the court on this question in La Moyne v. State, 53 Tex. Cr. R. 221, 111 S. W. 950, and we hold there was no error in the refusal of the court to quash the indictment, and that, although a person may have what is termed “constructive notice” under the statute, if he relies on the statement without actual notice, swindling may be based thereon, if a false representá-is made, under articles 943 and -944 of the Penal Code of this state.

2. There was no error in overruling the motion for continuance; the defendant admitting in the testimony adduced on this motion that he had told Robinson there was no lien upon the land, and the qualification of the court showing there was no process attached to the motion for a continuance. There was no diligence shown in the record, and, in the absence of process for a witness, this court cannot presume for or against any defendant.

3. There was no error in permitting a witness to give in detail a conversation with defendant in regard to this transaction prior to his arrest, and the court did not err in matters as shown by bill of exception No. 2.

4. The court did not err in the matters complained of in bill of exception No. 3, as qualified by the court. The court says: “The only clock open to public view in Abilene is the courthouse clock, which has a large face on every one of the court sides of the steeple, and during the whole of the present term of court, which convened August 29, 1910, and during all other terms of court during the past two years, the court had a rule in force that the sessions would be run by the courthouse clock, as every one could see it. This rule was well known to the defendant’s counsel. When court adjourned on the night before, I announced plainly, in the hearing of defendant’s counsel, that recess would be taken until 8:30 o’clock the next morning. On the morning in question, the court was called at exactly 8:30 o’clock, by the courthouse clock, which was the regular time for convening every morning. Defendant was present, but his counsel was absent. The court had the sheriff call said counsel at the window, and then waited five minutes, and then had said counsel called again. After waiting five minutes more, the court proceeded with the business, and in about five more minutes counsel appeared, and the court then had the stenographer read to counsel all the evidence, both questions and answers, which occurred in his absence. When counsel appeared, it was 8:42 by the court’s watch, and 8:47 by the courthouse clock, as the courthouse clock was five minutes faster than the court’s watch. Defendant’s counsel was given the right to object to any and all the testimony heard in his absence, and he made no objection whatever, except merely asking that it be excluded, because he was absent. All the above, except said testimony of Cozort, took place in the absence of the jury; same having been retired.” '

5. There is no error in the matters shown in bill of exception No. 4, as the question of whether or not the Cozorts had a lien upon the land was shown by other testimony, not excepted to, and the court in his qualification shows that, as follows: “The district attorney had given both the defendant and his counsel notice to produce the original deed from the Cozorts to the defendant, covering the land in controversy, and they had failed and refused to produce the same. The state introduced the original deed record book containing the record of said deed in the deed records of Taylor county, Tex., after having properly proven the execution of said deed, and the delivery of same to the defendant.”

6. The court did not err in the matter complained of in bill of exception No. 5; it appearing from the record that the state had given to defendant and his counsel notice to produce the deed from the Cozorts to defendant. Under those circumstances, the deed record was admissible.

7. There was no error in permitting the vendor’s lien notes to be introduced in evidence, it being shown that defendant had represented there was no lien upon the land, and the state had introduced the deed, showing a lien retained to secure the payment of the notes, and there was no error in showing that the notes had not been paid on the date defendant purchased the mules, and who was the- owner of the notes on that date.

8. There was no error in permitting the state to show that in the transaction between the Cozorts and defendant that the consideration was not correctly stated, and that in fact nothing had been paid by defendant, in view of the instruction of the court that if the land was sufficient to pay both debts defendant would not be guilty of any offense.

9. There was no error in permitting the evidence of the witness Posey to be adduced. Defendant not only contended that no indictment could be based on the facts of this case, but, if an indictment could be based thereon, then he alleged that the land was of sufficient value to pay both debts. As the court charged the jury that, if the land was. of sufficient value to pay both debts, they would acquit defendant, there was no error of which defendant could complain.

10. The defendant having received the minimum punishment, if he was guilty of this offense, he cannot be heard to complain that the court charged a different term of punishment.

11. The matters complained, of in the eighteenth ground of the motion for a new trial cannot be considered by this court, inasmuch as it is. not shown that such matters took place. There is no bill of exception in the record, and nothing upon which this court could decide.

The court in his charge fairly presented the case, both from the standpoint of the state and the defendant. The special charges requested by defendant were covered by the court’s charge, and, the evidence in the case being sufficient for the jury' to conclude that the defendant represented that the land was free of incumbrance, that such allegation was untrue, and that same was insufficient to satisfy both liens, the judgment is affirmed.

On Motion for Rehearing.

At a former day of this .term the judgment of the lower • court was affirmed, and appellant has filed a motion for a rehearing, and in it he insists that this court erred in holding that the court’s main charge sufficiently presented the question of whether the property was of sufficient' value to pay both liens. The court charged the jury: “You are charged that, should you believe from the evidence that at the time the defendant gave .to Robinson the deed of trust on the south 80 acres of land the remaining north 80 acres of the quarter section purchased by him from the Cozorts was of the reasonable cash market value, sufficient to pay off the $2,960 notes theretofore given by defendant to said Cozort, if he did give them, then in such event you will acquit the defendant.”

Appellant insists that the court should have instructed the jury that, if the entire 160 acres was of sufficient value to pay both liens, they would acquit the defendant. As the original opinion may be misleading in this respect, we have again considered this question. It appears from the record that prior to this trial appellant had deeded the whole 160 acres back to Cozort in settlement of the $2,960 vendor’s lien notes, and thus Robinson was deprived of all security, unless he was able and willing to pay the Co-zorts the $2,960 and accumulated interest.’ The record being in this condition, no such error was committed as calls for a reversal of the judgment.

All the other questions raised are passed on in the original opinion.

. The motion for rehearing is overruled.  