
    JAMES v. STATE.
    (No. 8917.)
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1925.
    On Motion for Rehearing March 4, 1925.)
    1. Criminal law <©==>i086(3) — Failure of record to show conditions justifying election and qualification of special judge requires reversal.
    Judgment of conviction will not be sustained, unless minutes of court show conditions justifying selection of special judge, the manner of his election, and his oath, in view of Vernon’s Ann. Code Or. Proc. 1916, arts. 618, 618a, 620; 622.
    On Motion for Rehearing.
    2. Criminal law <S=>1110(3) — Record corrected, where defects were due to negligence of clerk preparing it.
    Correction of record to show conditions justifying election and qualification of special judge omitted from record by negligence of clerk may be permitted in view of Vernon’s Ann. Code Cr. Proc. 1916, arts. 929, 931, and Rev. St. arts. 1608, 2108, notwithstanding rule 2 of Supreme Court, applying rules in civil to criminal eases arising on certiorari.
    3. Costs <©=>317 — No fee should he allowedi for preparation of defective transcript.
    Clerk of trial court should not be allowed fee for preparation of defective transcript.
    4. False pretenses <©=>38 — Proof of false representations held not variance from aver-ments.
    In prosecution for swindling, proof that false representations were made to salesman of car held not a variance from averments in indictment that they were made to owner, where owner was present and acted on them.
    5. False pretenses <§=>49(4) — Averment that check was not good or believed good by accused held supported by evidence.
    . In prosecution for swindling, evidence held sufficient to support averment that check given for car was not good, and not' believed by accused to be good.
    6. Criminal law <©=>829(I)'«~Refusal of special charge sustained, where embraced in charges given.
    Refusal of special charge requested, adequately embraced in other charges, held not error.
    7. Criminal law <@=>364(2) — Testimony of salesman of car sold to alleged swindler properly admitted.
    Testimony of salesman as to representations by accused to him held properly admitted as part of res gestas, since it was in part upon such representations that owner was induced, to part with property for worthless check.
    8. Criminal law <©=>814(17) — Circumstantial evidence charge in swindling case held properly refused under direct evidence of offense.
    In prosecution for swindling by securing car in exchange for worthless cheek, where accomplice testified directly that check was not good, and that accused knew it, requested charge on circumstantial evidence held properly refused.
    9. False pretenses <©=>51 — Evidence of swindling held to warrant denial of peremptory charge to acquit.
    In prosecution for swindling by receiving car for worthless check, refusal to direct acquittal, held warranted by evidence.
    Appeal from Criminal District Court, Dallas County; Grover C. Adams, Special Judge.
    J. B. James was convicted of swindling, and he appeals.
    Affirmed.
    See, also, 96 Tex. Cr. R. 308, 257 S. W. 886.
    Chaney & Dailey, of Dallas, for appellant.
    Shelby S. Cox, Cr. Dist. Atty., and Wm. McCraw, Asst. Cr. Dist. Atty., both of Dal-la?, and Tom Garrard, States’ Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is swindling; punishment fixed at confinement in the penitentiary for a period of two years. It appears from the record that the case was tried before the honorable Grover C. Adams, special judge, but the record is silent touching the election and qualification of the said special judge.

The statute providing for the selection of a special judge requires that the minutes of the court shall show the conditions justifying his selection, the manner of his election, and his oath. In the absence of these, the judgment is treated as nullity and a reversal is ordered. See C. C. P. arts. 618, 618a, 620, and 622; also, Perry v. State, 14 Tex. App. 166; Reed v. State, 55 Tex. Cr. R. 137, 114 S. W. 834.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Attached to the motion for rehearing is a corrected transcript showing the election of the special judge who tried the case. Opposing the motion of the state to permit the correction of the record, counsel for the appellant refers to rule 2 prescribed by the Supreme Court, in which it is stated in substance that in applications for certiorari the same rules apply to the Court of Criminal Appeals as are applied to the Courts of Civil Appeals. This is .recognized so far as it is applicable, but this court has uniformly pursued the practice of permitting records to be corrected so that they may speak tbe truth. Most often this has occurred upon tbe reguest of tbe accused. Tbe decisions of tbe Courts of Civil Appeals giving effect to tbe rules are based upon statutes touching the method of preparation and forwarding of records which are materially different from those which obtain with reference to the Court of Criminal Appeals. In civil cases the transcript is prepared under the direction of the parties or their attorneys, and after preparation is delivered to the party upon whose application the record is prepared and is forwarded by him to the clerk of the Court of Civil Appeals. R. S. art. 2108. This statutory provision affords an opportunity to ascertain whether the transcript is complete and to bring about its correction before the case is submitted to the court for decision. Moreover, there are no rules forbidding the clerks of the Court of Civil Appeals to place the transcript in the hands of the attorneys for the parties after the record is filed. Article 1608. We understand that under the practice pursued in those courts the records are, upon arrangements with the clerk, delivered to the attorneys in order that they may be used in the preparation of briefs and arguments. These conditions make it practicable for the parties in civil suits to perfect the record before submission.' In criminal cases, however, the transcript is prepared by the clerk of the trial court and forwarded by him to the •clerk of the Court of Criminal Appeals, and under the direction of the court the clerk of the latter court retains the transcript in kis possession at all times after it is filed. For these reasons, this court has established -a liberal policy with reference to the correction of the record, even though it be done after submission or on motion for rehearing. To permit this practice, it entails unnecessary work upon the court and manifests negligence upon the part of the clerk which it is difficult to excuse. However, since the ■duty of preparing the record is placed by law upon the clerk of the trial court, it is ■from his bands and not that of the appellant which the clerk of the Court of Criminal Appeals is entitled to receive it. This court Ras never held that the accused should suffer the eonseguence of the failure of the duty on the part of the clerks in the preparation of the record, but has uniformly afforded an opportunity to make the record speak the truth to the end that the appeal may be decided upon its merits. A like practice has been pursued by this court with reference to the state, and in the present case the corrected record will be considered upon its merits. See article 929, C. C. P., article 931; Vernon’s Tex. Crim. Stat. vol. 2, p. 891, note 13; Mitchell v. State, 1 Tex. App. 725; Gould v. State, 69 Tex. Cr. R. 250, 153 S. W. 326; Lord v. State, 73 Tex. Cr. R. 109, 164 S. W. 1021; Frazier v. State, 88 Tex. Cr. R. 411, 227 S. W. 324; Washington v. State, 86 Tex. Cr. R. 327, 216 S. W. 869.

However, no fee should be allowed the clerk of the trial court for the preparation of a defective transcript.

This is the second appeal, though on the former trial both the -indictment and the evidence were different from those in the present record. See 96 Tex. Cr. R. 308, 257 S. W. 886. The offense in the present case is swindling. The fraudulent device relied upon by the state is the drawing of a check on the Liberty State Bank of Dallas for the sum of $275, payable to the order of E. M. Piper, signed Mrs. Chas. Setrak, and the passage of such check upon the representation that it was good and would be paid, when in fact there were no funds in the bank to the credit of the maker of the cheek, nor was there ground for belief that it would be paid. Upon such representations the title and possession of an automobile was obtained from E. M. Piper.

According to the state’s testimony, C. L. Hurst was an employee of Piper. Appellant came to Piper’s place of business and selected an automobile which was priced by Hurst at $275. Appellant later returned in company with a lady who he said was his sister, and she drew the check mentioned above. At the time of this representation, Piper was present and offered to furnish a blank check, but the lady used her own check book. We understand from the testimony of Hurst that both he and Piper were present at the time the check was received and the automobile delivered to the appellant.

Piper testified that the appellant, after selecting the car and agreeing to the price, returned in company with a lady who was introduced as his sister, Mrs. Setrak, and said that she would give Piper a check for the car. Appellant said that the check was good, and upon the faith of the check Piper parted with the car and the bill of sale thereto. The check was not paid, and the cashier of the bank said that, according to the records, Mrs. Setrak had in the bank upon which the check was drawn no money to her credit; that her account had been previously closed on January 9th. A statement of her account in detail showed that on October 20th she had in the bank a balance of $200, that on November 9th there was a balance of $lg, and on January 9th there was a balance of $2.50. All the money in the bank has been withdrawn by checks issued prior to January 9th, at which time the balance of $2.50 was also withdrawn.

Mrs. Setrak testified that she was not related to the appellant by blood or marriage;, that on a previous occasion the appellant, with the money of the witness, had bought an automobile from Piper, and on the present occasion appellant reguested her to give her signature to the overdrawn check. She objected, and the appellant told her. she needed a drink, that she had lost her nerve. She finally consented,'stating that she knew it was a crime. After the transaction she and the appellant went in the automobile to Durant, Okl., where she was left with the parents of the appellant; he going to Arkansas.

Appellant introduced testimony to the effect that he had never been convicted of a felony, and that his reputation as a law-abiding citizen was good.

The court instructed the jury on the law of swindling, also on the law of principals, and instructed that no conviction could be had upon the testimony of Mrs. Setrak. He also submitted the issue of suspended sentence.

The objections to the charge are based upon the theory that there was a variance, in that the representations made did not sustain the averments in the indictment to the effect that the false representations were made to Piper; also that the evidence was insufficient to prove the averment that the cheek was not good or believed by the appellant to be good.

In the special charges requested by the appellant, the jury was instructed that the mere presence of the appellant at the commission of the offense would not constitute him a principal, and that the conviction would not be authorized, unless it was shown that the appellant knew that the check would not be paid; that is, that there was no money in the bank to the credit of Mrs. Setrak and that appellant had no expectation that the check would be paid when presented in the due course of business, and that this want of knowledge could not be proved by the uncorroborated testimony of Mrs. Setrak.

Complaint is made of the refusal of other special charges. The first of these relates to the elements of swindling which, in our opinion, were adequately embraced in the main charge and the special charge given.

Complaint is made in a bill of exceptions to the receipt in evidence of the witness Hurst, which, in substance, has been detailed, and which we regard as admissible as part of the res gestse for the reason that it was in part upon the representations made by the appellant to Hurst that Piper acted in receiving the check and parting with his property.

The testimony of the cashier of the bank was to the effect that the records of the bank with which he was familiar showed no funds to the credit of Mrs. Setrak at the time the cheek was drawn or subsequently. Mrs. Setrak testified that she did not have any funds at the bank, and that the appellant was aware of that fact.

The complaint of the refusal of the court to charge upon the law of circumstantial evidence is not deemed tenable. Though Mrs.. Setrak was an accomplice, her direct testimony that the pheck was not good and that the appellant was aware of that fact would take the" case out of the domain of circumstantial evidence. In refusing to instruct on circumstantial evidence, the court was not in error. Wampler v. State, 28 Tex. App. 352, 13 S. W. 144, and other cases listed in Branch’s Ann. Tex. P. C. § 1874, subd. 6.

On the evidence before us, the court was not in error in refusing to instruct th,e jury to acquit the appellant.

The motion for rehearing is granted, the reversal set aside, and the judgment of the district court is affirmed. 
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