
    LLOYD v. STATE.
    (No. 8538.)
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1924.)
    False pretenses <&wkey;>7(l) — Issuing check, under agreement to defer presentment for payment until later date, is not swindling.
    Issuing check, under agreement not to present same for payment, where no more representations were made than implied by delivery of check and request that its presentation be delayed, that there would be no funds in bank until that date, held not to constitute swindling, under Vernon’s Ann. Pen. Code 1916, art. 1422, subd. 4, as to obtaining property upon giving check without reason to believe that it would be paid when presented.
    Appeal from Harris County Court at Law; Murray B. Jones, Judge.
    J. L. Lloyd was convicted of swindling,
    and he appeals.
    Judgment reversed and remanded.
    F. O. Fuller, of ^Houston, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is swindling, a misdemeanor; punishment fixed at confinement in the county jail for a period of six! months.

Appellant had his automobile repaired at a garage. An employee performed the service. The value of the parts furnished and the work done was $30.80. A check for that amount was delivered to Mack, the employee in charge. At the time of the delivery of the check, appellant requested that it be not presented until a later day named, for the reason that at present there were not sufficient funds in the bank. Mack, upon receiving the chock, agreed to defer presentation until the time mentioned. Contrary to this agreement, however, he, in company with his employer, presented the check upon the following morning, and the banker declined to pay it.

The record fails to show that any representations were made further than implied by the delivery of the cheek and the request that its presentation be delayed. From this the inference would be fairly deducible that appellant would make arrangements with the bank to pay the cheek at the time of presentation agreed upon. There being no misrepresentation of an existing fact, the conviction cannot be supported under any of the provisions of article 1422, P. C., defining swindling, unless it be subdivision 4, under which the obtaining of property upon the giving of a check without funds and without reason to believe that it would be paid when presented in the ordinary course of business, is denounced as swindling. The facts of the present case, in our judgment, do not bring it within the purview of that subdivision of the statute, for the reason that under the uncontroverted evidence, there was no express or implied representation that there were funds or arrangements giving the assurance that the check would be paid upon presentation in the ordinary course of business. In the judgment of this court, the evidence does not show the commission of the offense charged. See Vernon’s Tex. Crim. Stat. vol. 1, p. 917; Pruitt v. State; 83 Tex. Cr. R. 148, 202 S. W. 81; Moore v. State, 87 Tex. Cr. R. 77, 219 S. W. 1097.

The judgment is reversed, and the cause remanded. 
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