
    ARRINGTON v. STATE.
    (No. 10873.)
    Court of Criminal Appeals of Texas.
    April 27, 1927.
    Rehearing Granted June 1, 1927.
    On Motion for Rehearing.
    False pretenses @==>14 — Swindling held not shown where defendant issuing check without funds voluntarily offered repayment before check could be presented (Pen. Code 1925, art. 1546, subd. 4).
    Evidence held insufficient to sustain conviction for swindling by giving check with intent to defraud as prohibited by Pen. Code 1925, art. 1546, subd. 4, where defendant, issuing the check with knowledge that there were no funds to cover it, Voluntarily offered repayment before the check could have been presented 'for cash.
    Appeal from Ellis County Court; H. R. Stovall, Judge.
    A. J. Arrington was convicted of swindling by giving a check with intent to defraud under Pen. Code 1925, art. 1546, subd. 4, and he appeals.
    Reversed and remanded.
    Tom P., Whipple, of Waxahachie, for appellant.
   MORROW, P. J.

The offense is swindling by giving a check with intent to defraud, as denounced by article 1546, subd. 4, P. C. 1925; punishment fixed at a fine of $5.

The evidence is. sufficient to support the verdict. No complaint of the procedure is made by way of bills of exceptions. We have been furnished with no brief pointing out any reason for a reversal of the judgment, and we have perceived none.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant insists that under the undisputed evidence this conviction should not be permitted to stand. In his motion for reheáring he analyzes the testimony and calls attention to dates and circumstances which escaped us on our former consideration of the case, there being no brief for appellant in the record at that time. The trial was had before the county judge without the aid of a jury. Appellant offered no evidence, apparently relying upon his contention that the state had failed to make out a case.

The facts are as follows: J. A. Pox was in the mercantile business. I-lis son J. G. Pox was a clerk in the store. On Priday night, December 24th, appellant bought from J. G. Pox $1.95 worth of merchandise, giving a check on the First State Bank & Trust Company for $6.95, receiving therefor the merchandise and $5 in money. Later on the same night young Fox met the assistant cashier of the bank and learned from him that appellant had no funds in the bank, his account there having been closed on December 18th. J. A. Pox was apprised of the transaction by his son on Saturday, December 25th, and the check turned over to him, and on this date he filed a complaint against appellant before the county attorney. For some reason not appearing from the record, no information was ever filed on that complaint. On Sunday night appellant went to the home of J. A. Pox, taking with him a statement from the bank and presumably his returned checks. He told Pox he had no funds in the bank and the statement verified this information. He further told Pox he wanted to fix the matter of the check up, and at Pox’s suggestion appellant met him at the store at 7:30 o’clock on Monday morning. He then paid Pox $3 and promised to pay the balance of $3.95 during the week, which he did. If appellant had been arrested at that time, or had any information that complaint had been made against him, or that Pox had information that appellant had no funds in the bank, or that any inquiry was on foot regarding the cheek he had given on Priday night, the record is entirely silent regarding it. In the absence of proof to the contrary, the presumption in appellant’s favor would be that his visit to Pox was voluntary and for the purpose of making arrangements to protect the check. On January 5th, at the request of the county attorney, J. A. Pox signed and swore to another complaint based upon the check in question, and on that date the complaint and information upon which the trial proceeded were filed. At the time the last complaint was made, the entire amount of $6.95 called for by the check had been paid by appellant to Pox.

The statute upon which this prosecution is based (article 1546, subdivision 4, P. C.), reads as follows:

“The obtaining by any person of any money or other thing of value with intent to defraud by the giving or drawing of any check, draft .or order upon any bank, person, firm or corporation with which or with whom such person giving or drawing said check, draft or order has not at the time of the giving or drawing said check, draft or order, or at the time when in the ordinary course of business such check, draft or order would be presented to the drawee for payment, sufficient funds to pay same, and no good reason to believe that such check, draft or order will be paid. * * * ”

Appellant’s contention is that under the facts the state has failed to make out a case under the statute. The check was given on the night of the 24th of December. The 25th was a legal holiday and the 26th was Sunday. The earliest possible moment that the check could have been presented to the bank for payment was at the beginning of banking hours on Monday the 27th day of December. The facts show that appellant knew when he drew the check that he had no funds in the bank and' that his account there had been closed, but conceding this to be true, we believe under the statute if appellant had appeared at the bank on Monday morning and tendered a deposit to protect the check when it might be presented, the state would have had no case. Instead of doing this, appellant of his own accord, without knowledge of any investigation or threatened prosecution so far as this record shows, went on Sunday night to the man in whose favor the check was drawn, repaid him part of the money, promised the payment of the remainder, and redeemed his promise.

We would not be understood as holding that under a state of facts very similar to the ones here stated that the intent to defraud would not be inferable. Especially would this be true if appellant’s subsequent act in redeeming the check was the result of pressure from known prosecution commenced or threatened, but it is our opinion that under the facts appearing in the record the present conviction cannot be sustained and that we were in error in affirming the judgment.

The motion for rehearing is granted, the af-firmance set aside, and the judgment of the lower court is now reversed and the cause remanded. 
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