
    TAYLOR v. STATE.
    (No. 6304.)
    (Court of Criminal Appeals of Texas.
    May 19, 1921.
    Rehearing Denied June 22, 1921.)
    I."Criminal law <§=»l 144(7)— Presumption allegations of motion to postpone trial pending disposition of another case not proved.
    In a prosecution for swindling, where the court overruled a motion to postpone trial until after the disposition of another case, pending against accused in the same court, on the ground the latter was founded upon fictitious allegations, and the indictment was found to prevent a suspended sentence in the swindling case, the motion being simply a pleading as "basis for proof, the presumption on appeal is that the allegations were not proved.
    2. Criminal law <⅜=>982, 1166(8) — Pendency of another indictment alleged to have been found to prevent suspended sentence harmless, and no impediment to suspended sentence.
    In a prosecution for swindling, where defendant did not seek the suspension of his sentence, where the court overruled a motion to postpone trial pending the disposition of another case against him alleged to have been founded on fictitious allegations, and the indictment found to prevent a suspended sentence, the pendency of such ease on the docket would be harmless, unless used against him, and the pendency of such indictment would be no impediment to his availing himself of the Suspended Sentence Law (Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 6095c et seq.).
    3. False pretenses <®=n38 — Not essential to prove quantity of money received that named in indictment.
    In a prosecution for swindling, it was not essential to prove that the quantity of money received was that named in the indictment; any amount over $50 being sufficient to classify the offense as a felony.
    4. False pretenses <§te>39, 42 — Testimony that car for which bill of lading issued was empty admissible to show fraudulent intent; state has burden of proving fraudulent intent.
    Where defendant, accused of swindling, procured a bill of lading for a carload of pipe by representing to the agent of a railroad company that a car set aside for his use was so loaded, exchanged the bill for another, and attached the latter to a draft, which he deposited with a bank for collection, and thereafter forged a telegram from the bank’s correspondent, advising that the draft had been paid, thereby procuring advancements, testiihony of a freight conductor that he failed to pick up the car because it was empty was relevant; the burden being on the state to show fraudulent intent.
    5. Criminal law ®=»II69(2) — Admission of testimony not reversible error where proved by another witness.
    Where one accused of swindling procured a bill of lading on a carload of pipe, and exchanged the same for another, to which he attached a draft, which he deposited with a bank for collection, and thereafter procured advancements by presentation of a forged telegram from the bank’s correspondent, advising that the draft had been paid, testimony of a freight conductor, in connection with his statement that he did not pick up the car because it was empty, that he had orders from the agent issuing the bill of lading to pick up the car, will not work a reversal, the declaration, if not a part of the res gestae, not being harmful; the same fact having been proved by another witness.
    On Motion for Rehearing.
    6. False pretenses <S=u7(l) — Issuance of bill of lading in exchange for bill fraudulently obtained substitution of one fraudulent bill for another.
    Where one charged with swindling by falsely representing to a railroad agent that he had loaded a car with pipe, thereby obtained a bill of lading, thereon, every step thereafter based on such bill was fraudulent, so that when he presented it to the agent at the point of destination the issuance by the latter, believing the bill was genuine, of another bill for reshipment to a consignee at a third point was but a substitution of one fraudulent bill for another.
    7. False pretenses <®=»7(4) — Representations sufficient to show injured party induced to part with property by fraudulent representations.
    Where a swindler falsely represented to a railroad agent that he had loaded a ear with pipe, and thereby procured a bill of lading, which he exchanged for another, showing a second shipment by himself to a consignee at another point, attaching to the latter a draft on such consignee, which he deposited with his bank for collection, and thereafter procured advancements against the draft by means of a forged telegram from the bank’s correspondent, that the draft had been paid there was a sufficient compliance with the demand of the law that the injured party must have been induced to part with his property by false and fraudulent representations.
    8. Criminal law <®=>97(l)— Liability for fraudulent representations in another state does not defeat jurisdiction of state in which subsequent fraudulent transactions took place.
    Where a swindler obtained a bill of lading by falsely representing that he had loaded a car with pipe to be shipped to a point in another state, where he exchanged the bill for another, showing a second shipment to another point, and deposited with such bill a draft on the consignee for collection, and obtained advancements against such draft by means of a forged telegram, advising that the draft had been paid, the fact that a prosecution might have been had in the state where the original bill was obtained did not prevent the courts of the state wherein the subsequent fraudulent transactions occurred from having jurisdiction.
    9. False pretenses <§=>14 — No defense that party whose property obtained repaid.
    In a prosecution for obtaining money by fraudulent representations, it is no defense that the injured party was not deprived of his property because he recovered from defendant and his kindred the money so obtained.
    10. False pretenses <§=349(1) — Where evidence direct as to fraudulent representations no occasion to resort to circumstantial evidence.
    In a prosecution for swindling, evidence held to show defendant’s guilt; and, where there was direct evidence that defendant obtained a bill of lading by falsely representing to a railroad company’s agent that he had loaded a car with pipe, that he made false representations to his bank as to a bill of lading and a draft attached thereto presented by him and as to a telegram received by him from his bank’s correspondent certifying that the draft had been paid, there was no occasion to resort to circumstantial evidence.
    11. False pretenses <§=»7(l) — State not estop-ped to set up fraudulent character of bills of lading issued'by agents of company.
    Where a swindler obtained a bill of lading from a railroad company’s agent by falsely rep-f resenting that he had loaded a car with pipe and subsequently exchanged it for another the j state was not -estopped from setting up their false and fraudulent character on the ground they were in fact issued by agents of the company, and were to that extent genuine, the company being bound only to transport property in fact delivered to them; bills of lading carelessly issued by its agents upon false representations not being binding upon it.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    G. W. Taylor was convicted of swindling, and he appeals.
    Affirmed.
    Motion for rehearing overruled.
    S. M. Adams, of Nacogdoches, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for swindling ; punishment fixed at confinement in the penitentiary for four years.

The facts from the state’s point of view, disclose that the appellant represented to the railway station agent at Logansport, La., that he possessed and desired to ship to Nacogdoches, Tex., a carload of pipe which was situated at a switch near Logansport. A car having been placed for,him, he reported to the agent that it was loaded, and obtained from him a bill of lading showing the shipment. This bill of lading he later exchanged at Nacogdoches, Tex., for another, showing reshipment of the car to his own order at another point.’ He attached this new bill of lading to a draft for the sum of $1,374.20, which he deposited with the bank at Nacog-doches for collection. The bank sent the draft to its correspondent at Beaumont, where the drawees resided. The appellant afterwards exhibited to the bank at Nacog-doches a forged telegram, purporting to be from the bank at Beaumont, advising that the draft, less $200 reserved for freight, had been paid. The bank at Nacogdoches then advanced him against the draft $850 in money; advancements having been made in various sums and of different dates.

Preliminary to the trial, appellant, by motion, sought to have another case, which was pending against him in the same court, disposed of before going to trial in this one. In his motion he claimed that the other case was founded upon fictitious allegations; that the indictment found and held against him was for the purpose of preventing a verdict recommending a suspended sentence in this case. The motion was overruled, and, so far as disclosed by the record, none of the alleged facts were established by proof. The motion setting up facts, while sworn to, was simply a pleading as basis for proof, and in support of the ruling of the trial court the presumption must be indulged that the allegations were not proved. It may be added, however, that the pendency of the indictment in the other case would have been no impediment to appellant’s availing himself of the Suspended Sentence Law. It does not appear that he sought the suspension of his sentence. Any supposed wrong done him in maintaining the other case upon the docket would have been harmless, unless used against him.

It is charged that the sum of money named in the indictment was $1,374.20. The proof fixed the amount obtained at $850. This was not a material variance. Pones v. State, 43 Tex. Cr. R. 201, 63 S. W. 1021; Green v. State, 86 S. W. 332; Jones v. State, 44 S. W. 152; Harris v. State, 34 Tex. Cr. R. 497, 31 S. W. 382; Cyc. of Law & Procedure, vol. 25, p. 102; Grissom v. State, 40 Tex. Cr. R. 146, 49 S. W. 93; Davis v. State, 32 Tex. Cr. R. 377, 23 S. W. 794. It was not essential that the proof establish that the quantity of money received was that named in the indictment. The amount taken being over $50, classified the offense as a felony.

It was, in our judgment, competent to prove that the car which the appellant represented to the agent that he loaded with pipe was, in fact, not loaded at all, ¡and circumstances were available to the state upon this issue. The testimony of the conductor, who was ordered to pick up the car, that he failed to do so because it was empty, was relevant. The appellant had obtained a bill of lading for a car of a certain number loaded with pipe. The bill of lading was issued upon his statement without inspection by the agent of the company. The substitute for this bill of lading, issued at Nacogdoches, describing the same car, was the basis of the alleged fraud. The burden was upon the state to show the fraudulent intent, and upon this point the testimony of the conductor that the car was empty, and for that reason he refused to put it in his train was obviously admissible. That in connection therewith he stated that he had orders from the agent at Logansport to pick up the car would not work a reversal. If the declaration was not a part of the res gestae, it could not have been harmful, for the reason that the same fact was proved, without objection, by the witness Price. The testimony of the conductor, describing the conditions surrounding the car indicating that it had not been loaded, were circumstances admissible upon the same principle that his direct statement that it contained no load became relevant.

Finding no error justifying a reversal, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant has presented an exhaustive motion for rehearing, urging various grounds of error in our original opinion, which were fully considered and passed upon therein.

It would be difficult to arrive at any other conclusion, based on the facts in evidence, than that of the guilt of the accused. It appeared without contradiction that he asked the station agent at Logansport, La., that an empty car or cars be placed at Funs-ton- switch a few miles out from Logansport, in order that he might have them loaded with six-inch pipe; that shortly thereafter he presented himself to said agent, told him he had loaded a car, and obtained trom said agent a bill of lading, showing the delivery to the railroad company of 105 joints of six-inch pipe, which the railroad company agreed to transport to Nacogdoches, Tex., same being consigned to appellant himself at said destination. It was abundantly proven that neither appellant nor any one for him placed any pipe in said car,.and that his representations of .such fact were false and his right to such bill of lading, spurious. We think it would necessarily follow that each and every step thereafter taken by appellant, based on the validity of said bill of lading, would also be without legal support, and would be fraudulent in so far as same were based upon the actual delivery to the railroad company of said pipe and its shipment by said company to appellant at Nacogdoches, or to any other person to whom he might direct its pretended consignment. It follows that we are of opinion that, when appellant presented himself to the agent of said railway company at Nacogdoches with said bill of lading so fraudulently obtained by him from the agent at Logansport, and, on the belief of the agent at Nacogdoches that said bill of lading was genuine and had foundation in fact, obtained from the agent at Nacogdoches another bill of lading, supposed to represent the contract for shipment of said pipe from Nacogdoches and from appellant as a consignor to the Brooks Supply Company at Beaumont as the consignee, this was but a substitution of one fraudulent bill of lading for another.

We are also of opinion that the evidence abundantly shows that the representations made by appellant to the Stone Fort National Bank at Nacogdoches, based on said fraudulent bill of lading and based upon a forged telegram, were of such false and fraudulent character as to make them a sufficient compliance with a demand of the law that the injured party must have been induced to part with his property by false and fraudulent representations made by the accused. While a prosecution may have been had in Louisiana under some provisions of the statutes of that state, growing out of the obtaining by appellant of said first bill of lading by false and fraudulent representations to the agent at Logansport, still we do not think this would prevent the courts of this state from having jurisdiction of a prosecution of appellant when said false and fraudulent bill of lading or another obtained as a substitute therefor, is shown to have been used in some of tlie jurisdictions of .this state as a means directly or indirectly of obtaining the money and property of persons within this state. We are wholly unable to find anything in this record that would justify this court in concluding for an instant that the accused was the victim of untoward circumstances, or any character of combination to unfairly deprive him of his good name or liberty.

Nor are we able to agree with appellant’s counsel in the contention that, because the Stone Fort National Bank recovered from appellant and his kindred the money paid by it to him, relying upon the fraudulent representations made by him, therefore, they were not deprived of their property, and no offense was committed. The same' plea would exculpate and free from punishment every thief who was pursued and found in possession of the stolen property if same was recovered, or if the injured owner was repaid, after detection by the thief or some one for him.

We are not in accord with the contention that this is a case of circumstantial evidence. The testimony of the witnesses to the fact that appellant made representations in order to obtain the first bill of lading from the railway company’s agent at Bogansport, and of the facts which showed the falsity and fraudulent character of such representations, was positive and direct; also the testimony that appellant made certain representations to the Stone Fort National Bank, both as to the bill of lading presented to them by him and attached to his draft on the Brooks Supply Company, and also as to the telegram received by him from the First National Bank of Beaumont, certifying that the draft in question had been paid. There was no occasion to resort to circumstantial evidence when these matters mentioned were testified to directly by the witnesses, and were the facts which showed the character of his representations, their falsity, and the obtaining by him of the money of the said Stone Fort National Bank.

Appellant’s urgent insistence that because two bills of lading were in fact issued by agents of the railroad company, and were therefore to that extent genuine instruments, the state was in a measure estopped from setting up the false and fraudulent character of •said documents, is not sound. The railroad company was only bound to transport for appellant the property in fact delivered by him to them, and bills of lading carelessly issued by agents upon representations whose falsity is not questioned by appellant herein would not bind said railroad company, and we are unable to see how appellant could claim that transactions based in part on such bills of lading could be upheld as having support upon genuine, valid, and enforceable documents.

We have considered each of the matters presented by the distinguished counsel for the appellant, but regret our inability to agree to the soundness thereof. The motion for rehearing will be overruled. 
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