
    PRINCE v. STATE.
    (No. 7170.)
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1922.
    Appeal Reinstated and Affirmed Jan. 17, 1923.
    Rehearing Denied Feb. 21, 1923.)
    1. Bail <&wkey;65 — Appeal dismissed where recognizance fails to state punishment.
    On an appeal from a conviction for misdemeanor theft, where the recognizance fails to state the punishment as required by Vernon’s Ann. Code Or. Proc. 1916, art. 919, the appeal will be dismissed on motion of the state.
    i
    On Motion for Rehearing.
    2. False pretenses <&wkey;30 — Averment as to passing worthless check held in accord with statute.
    In a prosecution for obtaining personal property by passing a worthless check, an averment in the indictment charging that, at the time of giving and drawing the check and at the time when, in the ordinary course of business it would be presented at the bank on which it was drawn for payment, the accused did not have sufficient funds with which to pay the check, and had no good reason to believe that the cheek would be paid, was in accord .with Penal Code, art. 1422, subd. 4, on swindling.
    3. False pretenses <&wkey;2 — Statute as to swindling' held constitutional.
    Pen. Code 1911, art. 1422, subd. 4, providing that the obtaining of money or anything of value with intent to defraud by giving a check, draft, or. order on a bank with which the person giving the check, draft, or order has not sufficient funds to pay it, at the time when given, or when it would be presented in the ordinary course of business, and no good reason to believe it would be paid, shall be considered swindling, is not unreasonable or unconstitutional.
    4. False pretenses <&wkey;38 — Proof that cheek was drawn in favor of person other than to whom delivered held no variance.
    In a prosecution for swindling by obtaining goods for a worthless check, in which the cheek was delivered, and the representations as to its worth were made to L., and the indictment averred that the check was drawn in favor of C., proof that the check was so drawn was no variance.
    5. False pretenses <&wkey;49(4)— Evidence held sufficient to support conviction.
    In a prosecution for obtaining goods by passing a worthless check, evidence held sufficient to support an averment of the indictment that, at the time the check was drawn, the accused was without funds in the bank and had no good reason to believe that the check would be paid.
    6. Indictment and information &wkey;>l25(24)— Indictment for false pretenses held not duplicitous.
    In a prosecution for obtaining goods by passing a worthless check, an indictment charging that, by issuance of the check without funds to meet it and without good reason to believe that it would be paid, the goods were obtained, was not rendered duplicitous by accompanying averments that the person who received the check relied upon the representations, since averments in the same count stating the different means by which an offense may have been committed do not render the pleading obnoxious to the rule against duplicity.
    7. Criminal law &wkey;763, 764(1) — Refusal to instruct that state’s case was not made out by testimony that accused's account was withdrawn before presentation of check held proper.
    In a prosecution for obtaining goods by passing a worthless check, where the accused made no claim of having made any deposit besides one which was withdrawn before the check was presented at the bank, on testimony by the cashier of the bank that the books of the bank were correctly kept and showed that the accused had withdrawn all his money on deposit before the check was presented for payment, a refusal to instruct that the state’s case was not proved was proper.
    Appeal from Dallas County Court, at Law; T. A. Work, Judge.
    6. D. Prince was convicted of misdemeanor theft, and he appeals.
    Affirmed.
    Oscar H. Calvert, of Dallas, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for misdemeanor theft; punishment fixed at a fine of $50 and confinement in the county jail for a period of 7 days.

The recognizance is defective, in that it fails to state the punishment. Code of Crim. Proc. art. 919; Yernon’s Texas Crim. Stat. vol. 2, p. 882, Branch’s Ann. Tex. Penal Code, §§ 615 to 617.

The state’s motion to dismiss the appeal is sustained.

On Motion for Rehearing.

A new recognizance having been made, the dismissal is set aside.

The conviction is for swindling, a misdemeanor; punishment fixed at a fine of $50 and a jail sentence of 7 days.

The appellant obtained personal property from the possession of Lavender by means oí a check drawn by the appellant upon the Hallas National Bank,' dated July 25th, for the sum of $25. In the indictment it is charged that, at the time of giving and drawing the check, and at the time when, in the ordinary course of business, said check would be presented at said bank for payment, the appellant did not have sufficient funds with which to pay said check, and had no good reason to believe that said check would be paid. This averment is in accord with subdivision 4 of article 1422 of the Penal Code, on the subject of swindling. The other aver-ments in the indictment comply with article 1421 of the Penal Code. We discern nothing in subdivision 4 mentioned which condemns it as unreasonable or unconstitutional. It has been treated as valid in a number of instances. See Pruitt v. State, 83 Tex. Cr. R. 148, 202 S. W. 81; Moore v. State, 87 Tex. Cr. R. 77, 219 S. W. 1097; McGinty v. State, (No. 6971), 245 S. W. 924.

Lavender was the 'manager of the mercantile establishment from which appellant received the goods. The check was delivered to Lavender, and the representations were made to him. The fact that it was drawn in favor of E. M. Hammond Company was in accord with the averment in the indictment, and proof of it was no variance. McGinty v. State, supra. The check was delivered about 4 o’clock in the afternoon of July 25th. It was delivered at Lancaster, a town situated in the same county as the city of Dallas. It was deposited in a local bank at Lancaster, and in the regular course of business it reached the bank at Dallas, upon which it was drawn, on the 29th of July. At the time of its presentation at the bank at Dallas, the appellant’s account had been closed, and there were no funds to his credit. It was shown that, at some time during the business hours on the 25th of July, there stood to the credit of the appellant in the bank upon which the check was drawn an amount sufficient to pay it, but that during the business hours of that day. other' checks, previously drawn by the appellant, were presented and his account became exhausted. He became aware of the condition of his account on the following day, and, so far as the record reveals, he had neither made nor undertaken-to make any arrangements with the bank to have the check in question paid when it reached the bank upon- which it was drawn. It thus inferentially appears that, at the time the check was drawn at 4 o’clock in the. afternoon of the 25th of July, appellant was without funds in the bank upon which it was drawn, and it affirmatively appears that he had previously issued checks sufficient to exhaust his account. We regard the evidence as quite sufficient to establish the averment in the indictment to the effect that, at the time the check was drawn, appellant was without funds in the bank, and had no good reason to believe that the check would be paid.

The indictment was not duplicitous. It charged but one offense, namely, that by the issuance of the check, without funds to meet it and without good reason to believe that it would be paid, the goods were obtained. There were, as above stated, accompanying averments showing that Lavender relied upon the representations. Averments in the same count stating the different means by which the offense may have been committed do not render the pleading obnoxious to the rule against duplicity. See Branch’s Ann. Tex. Penal Code, § 506.

Touching the status of appellant’s account in the Dallas National Bank, the assistant cashier testified that, in his capacity as an officer of the bank, he was familiar with the bank’s accounts, that the books and accounts were correctly kept, and that they showed that appellant had withdrawn all of his funds in the bank before the check in question was presented. The point is made that the state’s case was not made out in the absence of calling other employees of the bank to negative the fact that other deposits had been made by the appellant. Reference is made to Moore v. State, 20 Tex. App. 233, in support of this proposition. In that case there was a specific claim by Moore that he had on deposit in the bank the sum of $5,000. To establish the falsity of this statement, the state introduced the cashier, who testified that the appellant had never had any money in the bank within his knowledge, and that the books showed no deposit. It was held that this made but a prima facie case and did not overcome the presumption of innocence. In the instant case there was no specific claim of any deposit other than that which the bank’s books showed to have been anade and withdrawn. The books of the bank, which were shown without dispute to have been correctly kept, revealed the status of his account. Under the facts of the instant case, we deem it not incumbent upon the state to introduce further testimony upon the subject. The ease of Pruitt v. State, supra, is by the facts differentiated from this one. Authenticated as the evidence was by the testimony that the .books were correctly kept and showed all transactions with the appellant, and in the absence of any evidence suggesting that he had had other transactions, the trial court was right, we think, in refusing to instruct the jury that the state’s case was not proved. See Wigmore on Evidence, vol. 2, p. 1895, § 1530; Scoggins v. State (Tex. Cr. App.) 244 S. W. 536.

Binding no error in the record, an affirmance of the judgment is ordered. 
      
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