
    ARNOLD v. STATE.
    (No. 3669.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.
    Rehearing Denied Nov. 17,1915.)
    1. Witnesses <&wkey;337 — Accused as Witness —Impeachment—Previous Chakoes — Evidence.
    In a prosecution for swindling, in which defendant testified on her own behalf, it was proper on cross-examination to question accused as to previous charges of swindling against her.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113,1129-1132, 1140-1142,1146-1148; Dee. Dig. &wkey;337.]
    2. Criminal Law &wkey;>372 — Swindling—Similar Transactions — Evidence.
    Where, in a prosecution against the operator of an employment agency for swindling, accused swore that she did not intend to swindle the prosecuting witness in the transaction with him, or any other persons with whom she had contracts to secure employment, the state could prove similar transactions with other parties about the same time which tended to show the intent of accused and her system of operating.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. <&wkey;> 372.]
    3. Criminal Law &wkey;j447. — Swindling—Contract — Merger—Evidence.
    The written contract whereby accused undertook to secure employment for the prosecuting witness on certain terms did not merge accused’s representations thereunder so as to prevent the state from going behind the contract and showing the true facts.
    [Ed. Note. — For other cases,_ see Criminal Law, Cent.Dig. §§ 1629-1031; Dec.Dig. <&wkey;447.]
    4. False Pretenses <&wkey;49 — Evidence—Sufficiency.
    In a prosecution for swindling against the operator of an employment agency, evidence held sufficient to support a. conviction.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. § 62; Dee. Dig. <&wkey;49.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Mrs. Pete Arnold was convicted of' swindling, and she appeals.
    Affirmed.
    Mays & Mays and John L. Poulter, both of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of swindling J. J. Brown, and her punishment assessed at a fine of $300 and six months in jail.

We will give a summary of what the evidence, though contradictory in some respects, was amply sufficient to establish: On April 20, 1915, and before and after that, she was engaged in running an employment agency in Ft. Worth, and so advertised in the paper. Said Brown was a young man engaged in running dairies and feeding cattle, and was at the time feeding cattle at Corsicana. He saw her advertisement, and called and talked to her over long-distance phone, and told her his qualifications and experience and the position he wanted. She told him she had the very position he wanted waiting for him; that it was as manager of a large farm and dairy. They then agreed that he should go to Ft. Worth and see her about it the next day, which he did. She then repeated her representations to him, and again told him the job was waiting for him, and that the place was managing the farm and dairy where they were milking about 65 dairy cows and had about 1,500 acres planted in wheat; that the position would pay him about $80 per month salary, and he would be furnished a house free. He asked her the name of the party and the location. She refused to divulge this to him until he should pay her $10 in advance and sign one of her printed contracts. He told her that he could then pay her but $5; that he had to have a little money left; and that he would pay her the other $5 when he got the position. He then paid her $5, signed one of her printed contracts, and asked her again who the person was who was going to employ him at the salary and terms and for the purpose she had represented. She then told him it was Mr. R. E. Smith at Sherman. She then showed him a letter from said Smith to her, but she had torn off the place and date of the letter. It had been written nearly a year before. At her instance he then read it, and saw from it that Mr. Smith had no such place as she had represented; she insisting that he had. He then declined to go to Sherman and see Smith without she should further communicate with him over the phone and know that he had the position for him that she represented he had. She phoned Smith and had a talk with him over the long-distance phone. In effect, Smith told her that he had no such position. Brown, after waiting a sufficient time for her to so communicate with Smith, went to see her again, and she told him that she had talked to Smith, and, in substance, Smith told her that he had such position, and for him to come on. He immediately went to see Smith at Sherman. Smith told him, and swore on this trial, that he had no dairy, and never had run a dairy; that he at that time milked only 6 or 7 cows for his own use, and that was a greater number than he had ever milked before; that he wanted no one to manage his farm; he managed it himself, and declined to employ Brown for any such position as she had represented to him Smith then had for him. Brown was then out of money, and had to go to work there to raise sufficient funds to return to Ft. Worth, which he did, working for Smith at $1.75 a day sawing cord wood with a bunch of negroes. He had to support himself out of the $1.75 a day. He worked six days, got his money from Smith, and returned to Ft. Worth and demanded his money back, telling her what he had found out and done with Smith. She refused to repay him his money. He then prosecuted her first for the theft of the money. This court held that it did not amount to theft, but the offense might be swindling. 176 S. W. 159. Thereupon she was prosecuted in this case. The testimony authorized the Jury to believe, and by their verdict they, in effect, did believe, that all of her said representations to Brown in order to get his money were false and known by her and not by him, to be so at the time and that he relied upon them, and was thereby induced to pay her his •money, which she refused to refund.

She testified on the trial. On cross-examination, for the purpose of impeaching her, the court permitted the state, to ask her, and she answered, that she had theretofore been charged with swindling in 10 or 15 cases. Swindling is certainly an offense showing moral turpitude. This evidence was admissible, as has uniformly been held by this court in a large number of cases. Mr. Branch, in his Criminal Law (section 868), so states the rules to be, and collates a considerable number of cases to that effect.

She swore that she did not intend to swindle Brown in the transaction she had with him, and that she did not intend to swindle any other person with whom she had made like contracts under substantially the same kind of representations she had made to Brown. Therefore the question of her intent in this transaction and her system in like transactions was material. The court therefore did not err in permitting the state to prove over her objections several other like transactions she had with different parties about the same time she had this transaction with Brown; for such testimony clearly tended to show what her intent was and the system she used in such transactions. This has been so uniformly decided in this state —and the text-books are all to the same effect—that it seems useless to again cite the authorities, but see Branch’s Criminal Law, % 338, where he collates a large number of cases.

The only other question appellant presents is her claim that the evidence is insufficient to sustain the verdict. Her contention and that of her attorneys on the trial and in the lower court was, in substance, that the printed contract which she had Brown to sign at the time he paid her his money, in effect, merged all of her representations therein, and that the effect of 'the contract was that she did not represent to Brown that Smith would employ him to do the work and at the salary she had stated to him, but that it authorized her, within 30 days if Smith did not give him that position, to get him some other employment of a different or the same kind. We do not so understand the contract, nor that the state nor Brown would be conclusively bound thereby, and not permitted to show the true facts of the transaction. She herself, on cross-examination, testified that she wrote in the body of said contract, and herself signed it, thus:

“It is agreed and understood that in the event this position is not accepted the money is returned.”

And she testified that that was intended to .vary the 30 days stipulation contained in the printed form, and that she meant to return Brown his money if he did not accept the position. Taking the printed signed contract and all the testimony together, it amply shows that she made the said representations in effect as Brown had testified she made them, and got his money on the faith that he would get the position from Smith she told him was waiting for him at the salary she represented, and a house free, and that, if he did not get that identical contract which she said Smith would make with him, he was then, and not in some other contingency, to get his money back. It is certain that he did not get the position; that Smith had no such position at all, nor at the salary she represented he would get.

Her attorney who represented her in this court, but who did not in the court below, now contends that the evidence is insufficient to sustain the verdict on the additional ground, not made in the court below, and for the first time made in this court, to the effect that Brown did not testify: he believed her said representations to be true, and that he relied upon them in parting with the title to his money when he paid it to her. It is true that Brown, in his testimony, did not use that specific language, but, taking his testimony as a whole and his acts, there can be no question, and the jury was clearly authorized to believe, that Brown did believe her said false representations and relied upon them, and paid her his money, based solely on his reliance upon her said representations, which the jury was authorized to believe from the testimony were false. After a careful study of the evidence, we think that it was amply sufficient for the jury to believe therefrom all the essential facts to authorize her conviction. The court so required the jury to believe before they could convict her.

The judgment will be affirmed. 
      &wkey;»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     