
    NOBLITT v. STATE.
    (No. 10031.)
    (Court of Criminal Appeals of Texas.
    March 31, 1926.)
    1. Criminal law &wkey;>656(9), I i66</2(12) — Comment by court, in prosecution for swindling, as to meaning of notation on bad check, was improper as expressing view on weight of evidence, but not prejudicial where matter was undisputed.
    In prosecution for swindling, comment by court as to meaning of notation on check given for goods without account in bank was improper as expressing view on weight to be given testimony, but was not prejudicial in view of lack of ambiguity about check or controversy on matter commented on.
    2. Criminal Law <&wkey;>l 169(1) — In prosecution for swindling by passing bad check, admission in evidence of instruction by bank officer to employee as to notations on check held not reversible error.
    In prosecution for swindling by drawing cheek in payment of goods on bank in which defendant had no account, admission in evidence of instruction by officers of bank through which check passed to employee with reference to placing nptátions on check held- not reversible error.
    3. False pretenses <&wkey;l49 (3)— Giving check for goods without being known or having account in drawee bank held to make out offense of swindling.
    Undisputed evidence that defendant gave check in payment for goods received by him without having account in bank or being known by it held, to make out offense of swindling.
    Commissioners’ Decision.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    J. A. Noblitt was convicted of swindling, add he appeals.
    Affirmed.
    Umphres, Mood & Clayton, of Amarillo, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is swindling, and the punishment is two years in the penitentiary.

The record discloses that the appellant bought a watch and a diamond ring from the City Pharmacy, a drug store owned by D. R. Gass, and gave in payment therefor a check for $110 and represented to Mr. Gass’ agent that the check was good. This check was drawn on the First National Bank of Lam-esa, Tex. The vice president of this bank testified that the appellant did not have any account with the bank at the time the check was drawn, nor at any other time. The testimony further shows that said check was not paid.

There is a complaint contained in the record at the court commenting on what is meant by “2.13” as contained on the check. We think this is not a matter of sufficient importance to require a reversal of the case. There seems to be no ambiguity about the check, and the court’s statement was eoncern-ing a matter that seems to be without controversy in the testimony. It is never proper for the court to express his views as to the weight to be given to the testimony, and the practice in this instance is not to be commended ; but we think it could have had no prejudicial effect on the appellant’s case, in view of the record as we find it.

There is also some complaint made at the court’s action in permitting the state’s attorney to ask the witness Fuqua as to the instructions given by him to the officers of such bank with reference to placing notations on the check which was offered in evidence. We think this testimony was not of such prejudicial nature as to require a reversal of the case. The record as before us is undisputed to the effect that the appellant gave this check in payment for the goods received by him, and that at the time he gave it he had no account with and was unknown to the bank on which the same was drawn. We hardly see how it could be seriously contended that this within itself did not make out the offense. The details as to how the check was transmitted from Canyon to the bank on which it was drawn are not important, and it certainly cannot be said that the mere statement of one of the bankers in the string of banks through which it passed as to instructions given his employees, and as to the custom in the bank, is reversible error.

We have considered the other complaints , contained in the record and think they are without merit.

Finding no error in the record, the judgment is in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

MORROW, P. J., absent. 
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