
    C. S. Glover v. State.
    No. 24482.
    December 21, 1949.
    No attorney for appellant of record on appeal.
    
      George P. Blackburn, State’s Attorney, Austin, for the state.
   GRAVES, Judge.

Appellant was convicted of giving a check to another in payment of $4015.28 without having sufficient funds in the bank upon which such check was drawn to pay the same. He was assessed a term of two years in the state penitentiary from which conviction he appeals.

The record shows that appellant purchased $4015.28 worth of cattle from the Athens Commission Company, offering in payment therefor a check upon the First Security State Bank of Cranfills Gap, Texas, in such sum. The uncontradicted testimony shows that he had no funds in such bank on the date the check was executed, nor had he had any funds therein for some time prior thereto. He soon sold these cattle and did not apply the proceeds therefor to the payment of such check.

Appellant testified herein and admitted getting the cattle. He also admitted that he gave the check therefor and stated that at the time he executed the check, he did not have an account in the bank on which the check was drawn.

There is but one bill of exception herein and it relates to the hearing on the motion for a new trial. In such hearing appellant endeavored to introduce in evidence the petition in a certain civil suit wherein the Athens Commission Company entered such suit against the appellant, the basis of which seemed to be an effort to recover for such cattle as were sold to appellant and paid for by this check upon which payment was refused because of insufficient funds, the appellant’s contention being “for the reason the plaintiff in this case elected to file a civil suit, and they abandoned the civil suit and brought criminal prosecution.” This testimony was not allowed by the, trial court, and we think correctly so. The fact that one who has been defrauded tries by means of a civil action to recoup his losses should not protect appellant from any prosecution in the original transaction, if such criminality existed. The gist of the present offense is the giving of a check on a bank in which there were no sufficient funds with which to pay such check.

No error appearing herein, the judgment is affirmed.  