
    BERRY v. STATE.
    (No. 10057.)
    (Court of Criminal Appeals of Texas.
    April 7, 1926.
    Rehearing Denied June 2, 1926.)
    False pretenses <@=320.
    Facts held to show theft by false pretext, and not swindling.
    Commissioners’ Decision.
    Appeal from McLennan County Court; Jas. R. Jenkins, Judge.
    C. C. Berry was convicted of misdemeanor theft, and he appeals.
    Affirmed.
    McNamara & Scott, of Waco, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRY, J.

The offense is misdemeanor theft, and the punishment is a fine of $50 and five days in jail.

The prosecuting witness testified that on Sunday night, about the 11th of July, 1925, he saw the appellant in a battery station on Washington street in Waco; that witness was there for the purpose of getting some batteries changed in his car; that the battery people required a deposit of $5 before they would exchange the battery for his; that, after he could get no one to identify him, and as he had only $1 in his pocket, the appellant came up to the front, and inquired for witness, and said he was going to assist him in getting the $5; that appellant then proposed to witness that he had a little bill to pay off, and that he would furnish the money for witness to deposit with the station, and take a check on witness; that, after appellant paid his bill; he said he did not have enough to furnish the $5 they required, so he asked witness to make the check to him personally, and he would take it and would go to a café somewhere and get the change and be back in a few minutes; that witness made the check payable to appellant, and waited about two hours, and did not see appellant any more that night, and never saw him any more until the day the complaint was filed. Witness testified that the check was paid at the bank, and that he was deprived <of $5 as a result of this transaction.

Appellant' seriously contends that these facts are insufficient to show the offense of theft; it being his contention that, if anything, it was swindling. We have carefully examined the authorities, and have reached the conclusion that these facts are sufficient to constitute theft by false pretext. Gibson v. State, 85 Tex. Cr. R. 462, 214 S. W. 341; Porter v. State, 23 Tex. App. 295, 4 S. W. 889; Rundell v. State, 90 Tex. Cr. R. 410, 235 S. W. 908; Lee v. State, 81 Tex. Cr. R. 117, 193 S. W. 313.

Believing that the facts are entirely sufficient to support the verdict, the judgment is in all things affirmed.

PER OURIAM.

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.

On Motion for Rehearing.

MORROW, P. J.

We have re-examined the record in. the light of the appellant’s motion for rehearing, and express the opinion that the proper disposition of the case has been heretofore made.

The motion is overruled.  