
    ARNOLD v. STATE.
    (No. 3530.)
    (Court of Criminal Appeals of Texas.
    April 28, 1915.)
    1. Larceny <§=^1 — Passing Title — “Theft” —1“Swindling.”
    Where C. paid defendant $10, on her representation that for a fee of that amount she would obtain for him certain employment, which she never did, intending the title of the $10 to pass to her, defendant was not guilty of “theft,” but, at most, of “swindling.”
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 1; Dec. Dig. <g=s»l.
    For other definitions, see Words and Phrases, First and Second Series, Swindling; Theft.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Mrs. Pete Arnold was convicted of theft, and appeals.
    Reversed and remanded.
    Poulter & Johnson, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of misdemeanor, theft, and her punishment assessed at a fine of $10, and one day’s confinement in the county jail.

The most serious question in the case is the contention that the evidence offered in behalf of the state does not constitute theft. J. E. Cunningham testified he was in search of employment; that appellant claimed to be running an employment bureau; that she told him she could secure him employment on a farm, as manager thereof, at $80 per month, and her fee would be $10. He paid her this fee, and she had failed to secure him employment. Upon demand she returned him $8 of the money, but did not return the other $2 until the prosecution was begun. The most favorable light the testimony could be viewed from the state’s standpoint would be that appellant was guilty of misrepresentation in stating she could secure Cunningham employment if he paid her $10. Take it for granted that everything she said was untrue, and the fraudulent representations were made to secure $10 from Cunningham, this would not constitute theft, but swindling; for, when Cunningham paid her the money, he intended for the title of the $10 to pass to Mrs. Arnold. In the recent case of Lewis v. State, 171 S. W. 217, we had this question before us, and we held:

“Pen. Code 1911, art. 1332, provides that, if money be obtained by any false pretense with intent to deprive the owner of the value thereof, and to appropriate it to the benefit of the person taking, such person is guilty of theft. Article 1421 declares that the acquisition of money by any false or deceitful pretense with intent to appropriate it to the use of the person acquiring is swindling. Hold that, where by the fraud practiced the title to money is passed, the offense is ‘swindling,’ and not theft, but, if mere possession is obtained by false pretenses, and title does not.pass, the person acquiring the money is guilty of ‘theft.’ ”

See, also, Underwood v. State, 49 Tex. Cr. R. 2S5, 91 S. W. 572; Bink v. State, 50 Tex. Cr. R. 448, 98 S. W. 863, and cases cited.

The evidence does not support a verdict finding appellant guilty of theft, but of swindling, if any offense, and the judgment is reversed, and the cause remanded. 
      <g=x>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     