
    SCOTT v. STATE.
    (No. 5940.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1920.
    Rehearing Denied March 30, 1921.)
    1. Indictment and information &wkey;>7l — Whole indictment looked to to ascertain whether it lacks certainty.
    The whole indictment must be looked to to ascertain whether it lacks certainty.
    2. False pretenses <&wkey;26 — indictment held sufficient.
    Indictment charging swindling alleging that “S. [defendant] did falsely pretend and fraudulently represent to the said J. [prosecuting witness] that he had in his possession a certain valid writing obligatory, * * * and did then and there, by means of said false pretense and fraudulent representation, fraudulently induce the said J. * * * to exchange his said $84.-15 for the said pretended writing obligatory,” held sufficient against objection that it was indefinite and uncertain as to whom the pronouns “he” and “his” related.
    3. False pretenses <&wkey;4l — Testimony as to difficulty of employer in keeping time record inadmissible in prosecution for sale of time check for excessive amount.
    In a prosecution for swindling by selling an 85-cent time check for $84.15, where there was no testimony that any time checks had been lost, and there was testimony that the check was for services rendered during two weeks in January, that defendant had been sick for two weeks in January and had received his wages for other two weeks thereof, and that defendant in sale of check to prosecuting witness had made no statement as to the amount that was due Mm, exclusion of employer’s testimony as to whether time checks were often lost or misplaced, and as to whether it sometimes took employer months to straighten out the record, and as to whether it was probable that defendant could have had more coming than was shown by the record, held proper.
    4. Criminal law &wkey;j829(l) — Refusal of charge not error where covered by main charge.
    Refusal of special charge was not error, where the substance thereof, in so far as correct, was given in the main charge.
    5. False pretenses <&wkey;9 — Defendant not guilty if prosecuting witness in parting with money knew value of check given him therefor.
    Defendant, charged with swindling by selling an 85-cent time check for $84.15, was not guilty if the prosecuting witness knew, when he parted with Ms money, that the check given him was for only 85 cents.
    6. Criminal law <&wkey;780(2)— Evidence held not to call for instruction as to accomplice testimony.
    In prosecution for swindling by selling an 85-cent time check for $84.15, testimony that defendant had first offered the check to a third person, whom he convinced that the cheek was for $85, whereupon the tMrd person stated to prosecuting witness that the check was for $85, held insufficient to call.for an instruction that such third person was or might be an accomplice.
    7. Criminal law <&wkey;l 1701/2(3) — Inquiry as to whether defendant had been confined as a delinquent child held not ground for reversal.
    In prosecution for swindling, action of prosecuting attorney in asking defendant if he had not been confined in the reformatory as a delinquent child held harmless, where objection to question was sustained, and where defendant was . given the lowest penalty for the crime charged against Mm, and where it was not affirmatively shown that the prosecuting attorney knew that such evidence was not admissible.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    W. M. Scott was convicted of swindling, and he appeals.
    Affirmed.
    Farmer & Farmer, of Waco, for appellant. Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted, in the Fifty-Fourth district court of McLen-nan county, of the offense of swindling of more than the value of $50, and his punishment fixed at two years’ confinement in the penitentiary.

It was alleged in the indictment as follows;

“The said W. M. Scott did falsely pretend and fraudulently represént to the said Jim De Grazier that he had in Ms possession a certain valid writing obligatory, * * * and did then and there, by means of said false pretense and fraudulent representation, fraudulently induce the said Jim De Grazier .* * • to exchange his said $84.15 for the said pretended writing obligatory,” etc.

A motion to quash said indictment was made upon the ground that it was indefinite and uncertain, in that it was not clear to whom the pronouns “he” and “his,” as above set out, related. The whole indictment must be looked to, if it be claimed that any part thereof lacks certainty, in order to determine whether there be merit in such claim. Without setting out the indictment at length, we observe that in other parts thereof it is fully set out that by means of false pretenses De Grazier was induced to part with his said money, and that he did receive from the said Scott said written instrument, falsely represented by the said Scott as valid and valuable. We do not think the indictment •either so vague and indefinite as not to put .appellant upon notice, or as not to afford him a basis for a plea of Jeopardy or former conviction, if needed. We find no variance between the pretense alleged and that proven. It was both alleged and proven that appellant represented that the draft or time check, which was set out in the indictment and offered in evidence, was for $85, when in fact it was for only 85 cents.

By cross-examination of the state’s witness Shook, appellant undertook to show that the railroad company which issued to him the draft or time check for 85 cents might •have owed him more money than that amount. Said witness was asked as follows:

«Ib it not a fact that you oftentimes have time checks lost or misplaced, and that it takes you months to straighten same out, and that it is probable that Scott could have had more time coming than is shown by your books?”

The inquiry in this case was as to the value of the particular check or draft in question, and ms to what representations were made by appellant concerning same. The record descloses no claim advanced by him that he made any statement to De Gra-zier as to what amount the company owed him, or that he had any reason to believe that they owed him $85. Appellant testified that he was sick a part of January, 1920. The employes of the company for which he was working were paid semimonthly. Mr. Shook, who had charge of the books of said company, testified that the gross amount due appellant on January 31, 1920, for the preceding half month was $29.60, from which had to be deducted meal tickets signed for by appellant to the amount of $26, leaving an amount due appellant of $3.60, and that $2.75 of that amount was due him as a switchman and 85 cents thereof as a brakeman; that, it being the custom to keep the pay rolls separately, one time check for $2.75 as switchman and one time check for 85 cents as brakeman were issued to appellant. Mr. Shook also said that the records of his oifice showed that appellant worked one day in January, to wit, the 31st, as brakeman. The record shows that appellant was arrested about February 20, 1920, and that the instant trial was had during the latter part of April of said year. More than two months had elapsed, during which time, appellant admitted on the witness stand, he made no claim that more money was due him by the said company, nor did he introduce any witness, or make any effort to establish said fact on his trial.' Mr. Shook had the books of the company for the entire month of January, and no effort appears to have been made to show therefrom that any more money was due appellant than testified to by said witness. The fact that some time checks might be lost would be of no value to appellant, in the absence of any evidence making it appear probable that a time check due him had been lost. The fact that sometimes months were required to straighten out lost time checks would avail appellant nothing, in the absence of something upon which to predicate a claim of a lost time check due him. The objection to the question as asked was properly sustained.

The special charge asked by appellant was not a correct presentation of the law involved. The substance of the same, in so far as it was correct, was given in the main charge, wherein the trial court told the jury that if the prosecuting witness knew when he parted with his money that the check given him by appellant was for only 85 cents, or if the jury had a reasonable doubt thereof, they should acquit appellant.

Nor was any error committed in failing to instruct the jury as to accomplice testimony, relative to the witness Sorce. Both Sorce and De Grazier were foreigners, and barbers in the city of Waco; the former working in the shop of the latter. Appellant seems to have presented his 85-cent time check first to Sorce, and after some argument convinced the latter that the same was for $85; whereupon both Sorce and appellant made representations to De Grazier relative to the value and amount of said cheek. There ivas no sort of pretense of criminality on the part of Sorce. lie seems to have been barely able to read a little English. Nothing in the record called for a charge that he was or might be an accomplice.

Error is assigned upon the fact that the prosecuting attorney asked the appellant, when on the witness stand, if he had not been confined in the reformatory as a delinquent child. This was objected to, and the objection was sustained. The jury were instructed both then and in the charge not to consider said question. The language of article 1197 of our Code of Criminal Procedure is not clear as to whether the fact of conviction as a delinquent child, is admissible against an accused after he ceases to be such child, but inasmuch as the evidence in the matter before us was not admitted, it is not necessary for us to discuss that question here. We are unable to' see any error in the matter as presented.

It is urged that the evidence is not sufficient to make out a case. Appellant claims that when he passed the check to De Grazier, representing the same to be for $85, he believed it to be for that amount. The trial court fully instructed the jury upon this issue, telling them that if from the evidence they found that appellant so believed at the time he passed the check to De Grazier, and acquired the money of the latter, they should acquit. The jury found against appellant’s contention, and we are not inclined to- hold their verdict without support in the testimony.

The judgment of the trial court will be affirmed.

On Motion for Rehearing.

It is urged that we were in error in our disposition of appellant’s complaint, as set forth in his bills of exception Nos. 5 and 9, of the refusal of the trial court to allow the witness Shook to answer, on cross-examination, whether time checks were not sometimes misplaced and lost and did not show on his books, and that it took months to straighten out such matters, and that it was probable that appellant could have more time coming than was shown by said books. We repeat that appellant did not claim, while on the witness stand, to have lost'any time slips or checks, nor did any other witness testify to such fact, and we therefore hold the offered evidence properly rejected as shedding no light on any issue in the case. It is urgently insisted by appellant that our statement of this fact was incorrect, and that said bills of exception showed our error in this regard. An examination of said bills may make it appear that the matter therein stated, which is relied upon by appellant as being contrary to our statement, appears in that part of said bills in which are stated the inducement or reasons presented by appellant to the trial court for the introduction of the evidence then offered and now in controversy. This court has uniformly held that the certificate of the trial judge approving a bill of exceptions is not to be taken as a statement of the truth of the matters of inducement stated in such bills. Hardgraves v. State, 61 Tex. Cr. R. 325, 135 S. W. 132.; Woods v. State, 68 Tex. Cr. R. 105, 151 S. W. 296; Hennessy v. State, 23 Tex. App. 340, 5 S. W. 215; McKinney v. State, 41 Tex. Cr. R. 434, 55 S. W. 341.

An examination of the statement of facts in this case, for the purpose of ascertaining what appellant did testify regarding the above matters, makes it clear that he nowhere claimed to have lost any time slips or checks. He testified that he, in common with other employes, was paid every 15 days, and it was shown that the amount due for any given half month was not paid until 15 days after same became due; that is, on the 1st of February the employés were paid for the first half of January, and on February 16th they were paid for the last half of January. Appellant began work in December, and under the rules made a number of student trips in order to learn his business, for which he was to receive no pay. His pay began January 1st, and under the rules mentioned he was not due to receive his pay for the first half of January until on February 1st. He testified that one payment had been made to him prior to his receipt of the check which forms the basis ,of this swindling. This would make it obvious that said prior payment was for the first half of January, and that he did not receive same until February 1st. Appellant testified that he did not know the amount of such prior payment, lie also admitted that he lost two weeks from work in January because of sickness. It thus appears that appellant had been paid for the first half of January without complaint as to the amount, and that he had lost almost, if not quite, half of said month from illness, and that when he received the check in question he knew it was for a balance due him for the last half of January, after deducting for illness and the amount drawn by him for meal?. To these observations may be added the fact that he was arrested for this offense on February 20th, and the instant trial was had more than two months after the date of said arrest, during which time no effort is shown on his part, or any one for him, to ascertain or establish any fact showing that the check in question did not represent the full amount due him, or to obtain any evidence to corroborate the proposition that he had reason for thinking himself entitled to a check for $S5 for the last half of January. We are unable to agree with the earnest contention made by appellant’s counsel in regard to this matter.

Nor can we sustain the contention that the mere asking of a question, the answer to which would involve a matter not admissible as evidence, would necessitate a reversal. If this were the rule there would not be many affirmances, as it is almost impossible for a case to be tried without a greater or less number of questions being asked by the parties, the answers to which are objectionable. It was not shown affirmatively in this case that with knowledge of the illegality of the proposed evidence the prosecuting attorney sought to prejudice the case of appellant by inquiry of him if he had not been sent to the reformatory as a delinquent, and unless such fact be made to affirmatively appear, or the matters stated in the inquiry be so necessarily harmful as to make injury apparent, we would not hold the asking of such question reversible error. Appellant received the lowest penalty for the crime charged against him, which seems contradictory of appellant’s theory that the jury was inflamed or prejudiced against him by reason of said question.

Being unable to agree with the grounds set up and urged for rehearing, the motion will be overruled. 
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