
    GORDON v. STATE.
    (No. 5415.)
    (Court of Criminal Appeals of Texas.
    June 18, 1919.
    Rehearing Denied Oct. 15, 1919.)
    1. Larceny 14(1) — Acquiring property BY FALSE PRETENSES, WITH INTENT TO APPROPRIATE, “THEFT.”
    Under Pen. Code 1911, art. 1332, the acquisition of the possession of property by false pretext is “theft,” if done with the intention to appropriate, followed by an appropriation.
    [Ed. Note. — For other definitions, see Words and Phrases, First, and Second Series, Theft.]
    2. False pretenses <®=»20 — Larceny <§=14 (1) — Evidence showing “theft,” and not “swindling.”
    Where defendant’s accomplice called complainant’s attention to the fact that defendant was in the act of picking up a pocketbook, and it was agreed that the contents of the pocketbook be divided equally between the three, and defendant represented that the pocketbook contained a $500 bill and a $100 bill, and that it was necessary to have additional money to make change, so that the division might be effected, and complainant delivered $200 to defendant, defendant remarking, “You will get your money back and the $200,” the $200 being appropriated by the defendant and his accomplice, the offense was “theft,” under Pen. Code 1911, art. 1332, and not “swindling.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Swindling.]
    3. False pretenses <§=5 — Purpose of SWINDLING To ACQUIRE TITLE.
    In swindling, the purpose and effect of the false pretenses is to acquire the title.
    4. Criminal law <§=507(1) — Complainant NOT “ACCOMPLICE,” AND CONVICTION COULD REST ON HIS TESTIMONY.
    Where an accomplice of defendant called complainant’s attention to the fact that defendant was picking up a pocketbook, and it was agreed that the contents of the pocketbook be divided equally between the three, and defendant represented that the pocketbook contained a $500 bill and a $100 bill, and that it was necessary to have additional money to make change, so that the division might be effected, and complainant delivered $200 to defendant, defendant saying, “You will get your money back and the $200,” the complainant was not an “accomplice” of defendant in a prosecution under Pen. Code 1911, art. 1332, for having appropriated the $200 delivered by complainant, and a conviction could rest upon his testimony alone; the theft of the money, which was supposed by complainant to be in a stolen pocketbook, being but an imaginary offense.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Clarence Gordon was convicted of theft, and appeals.
    Affirmed.
    Thos. R. Bond, of Terrell, for appellant. E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

This conviction is for theft. The state’s theory is that the appellant and one Gibson were acting together, and obtained the possession of $200 from one Williams by means of a false pretext. In article 1332, P. C., it is said, concerning theft:

“The taking must be wrongful, * * * but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.”

It was the state’s theory that the possession was acquired in the manner condemned by this statute. The evidence shows that Gibson called Williams’ attention to the fact that appellant was in the act of picking up a pocketbook; that it was agreed that the contents of the pocketbook be divided equally between the appellant, Gibson, and Williams; that the appellant represented that the pocketbook contained a $500 bill and a $100 bill, and that it was necessary to have additional money to make change, so that the division might be effected; that to this end Williams delivered to the appellant $200. During the negotiations leading to appellant’s consent to deliver the $200, Gibson said, in the presence of the appellant, “You will get your money back and the $200.” The $200 was not returned, but was appropriated by the appellant and Gibson.

The sufficiency of the evidence is'attacked on the ground that, if an offense was committed, it was swindling, and not theft. In swindling, the purpose and effect of the false pretenses is to acquire the title. In theft, the acquisition of the possession by the false pretext is sufficient, if done with the intent to appropriate, and followed by an appropriation. The sufficiency of the evidence is also assailed upon the proposition that Williams was an accomplice, and that the conviction cannot rest upon his testimony alone. The basis of this view is that Williams was a party to a conspiracy to steal the money which he believed to be in the pocketbook which ■ was found. The theft of the money which was supposed by him to be in the stolen pocketbook was but an imaginary offense. The pocketbook was not lost, and if it contained money, which was not shown, it was not lost money. Both it and the pocketbook were but decoys, used by the appellant and his confederate to lead Williams into the belief that their pretenses were true, . and thereby to deceive him. There was no conspiracy to steal the lost pocketbook, or the lost money therein, for the reason that no such intent existed in the minds of either appellant or Gibson. Their intent was to obtain the possession of Williams’ money, to deprive him of the value of it, and appropriate it to their own use. The pretense that the pocketbook was lost, that it contained money, that it would be divided, and that Williams’ money was needed for the purpose of making change, was but the means which they used to entrap him, and he was not an accomplice in the design to steal his own money. He expected that to be returned. He did not intend to part with the title to it, and was by the false pretext induced to surrender its possession.

This is a companion case to that of Gibson v. State, 214 S. W. 341, No. 5416, this day decided, and in it the questions of law and the facts involved are more elaborately dealt with. From the conclusion reached therein, it follows that an affirmance should be ordered of the judgment herein, which is accordingly done. 
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