
    WOOTEN v. STATE.
    (No. 11401)
    Court of Criminal Appeals of Texas.
    March 28, 1928.
    1. Criminal law &wkey;> 1144(19) — Appeal will not be dismissed for failure of record to show amount of appeal bond was fixed by trial court, there being presumption of legality.
    Appeal from conviction for misdemeanor swindling will not be dismissed for failure of record to affirmatively disclose that amount of appeal bond had been fixed by trial court, for, while statute requires that amount of such bond be fixed, in absence of affirmative showing that it was not fixed by court,- reviewing court will indulge usual presumption of legality.
    2. False pretenses ¡&wkey;>44 — In prosecution for swindling, testimony that bank which refused payment under agreement to limit withdrawals had honored checks exceeding agreed amount held admissible.
    In prosecution for misdemeanor swindling in which bank refused payment of check given by defendant because of agreement not to withdraw more than $20 a month, exclusion of testimony that cheeks had been honored in one month for amount exceeding $20 held, error, since essential element of offense is that accused must have no good reason for believing check will be paid.
    3.False pretenses &wkey;3'44 — in prosecution for swindling, defendant’s evidence that he believed check given would be paid held admissible.
    In prosecution for misdemeanor swindling in which bank refused payment of defendant’s check under agreement to limit withdrawals to $20 a month, exclusion of defendant’s testimony that when he gave check he believed it would be paid when presented because of amount of money he had in bank and because he had been permitted to withdraw more than $20 a month in other months held error.
    Appeal fro-m 'Hunt County Court; N. E. Peak, Judge.
    R. W. Wooten was convicted of swindling, and he appeals.
    Reversed and remanded.
    Ben P. Cowrie, of Greenville, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for misdemeanor, swindling; punishment, a fine of $25 and 60 days in the county jail.

This appeal was dismissed at a former ’ day of this term because of a supposedly defective record. Re-examination of same has led us to the conclusion that the appeal should be reinstated, and it is accordingly done. The basis of the dismissal was the fact that the record failed to affirmatively disclose that the amount of the appeal bond had been fixed by the trial court, and Hardeman v. State, 100 Tex. Cr. R. 358, 273 S. W. 584, was relied upon for authority. In that case we held, in substance, that the record on appeal must affirmatively make apparent the fact that the amount of the bond had been fixed by the trial court prior to the taking of such bond. The only authority cited in our opinion for such holding was Turpin v. State, 86 Tex. Cr. R. 96, 215 S. W. 455. We are of opinion that this court misconceived the effect of the holding in the Turpin Case, supra, for we find on closer analysis of same that the record on appeal in that case affirmatively showed that the amount of the bond was not fixed by the trial court. While the statute requires that the amount of such bond be fixed by the court below, we are of opinion that in the absence of some affirmative showing in the record that the amount of such bond had not been’ fixed by such court, we would indulge the usual presumption of regularity. Such appears the effect of the holding in the Turpin Case, supra. The Wiseman Case, 70 Tex. Cr. R. 477, 156 S. W. 683, which’ is discussed and. cited as authority in the opinion in the Turpin Case, as well as the authorities cited in said Wiseman opinion, seem in accord with the conclusion now announced. We are of opinion that the case of Hardeman v. State, supra, announces an incorrect conclusion, and the same will be overruled. The opinion dismissing this case is withdrawn, the mandate issued on the judgment of dismissal is recalled, the appeal reinstated and now considered on its merits.

Appellant purchased certain articles of merchandise, giving therefor a check' drawn on the First National Bank of Quin-lan, Tex. Prom the record it appears without dispute that he had on deposit with said bank at the time the sum of $77. Upon the proposition that the bank had an oral agreement with appellant by which he bound himself not to draw more than $20 a month for use in purchasing groceries, and that he had already checked out that amount during the current month, the bank refused payment of said cheek. Appellant offered to prove on this trial that subsequent to the date of the alleged agreement referred to his checks on said bank had been honored in one month for an amount exceeding $20. The court excluded this testimony, and in this we are of opinion that error appears. One of the essential elements of this offense is that the accused “has no good reason for believing his check will be paid when presented in the ordinary course of business.” It would appear material to appellant’s contention that he believed the check in question would be paid when presented to prove that other checks, given during the same month, exceeding the amount of $20 had been paid by the bank. As touching his good faith in the transaction, appellant offered to testify that when he gave the check in question he believed it would be paid when presented for payment because of the amount of money he had in the bank and because of the fact that he had been permitted to withdraw more than $20 during some other month. Upon objection he was not allowed to testify to his belief in this regard. This also seems an error.

For the errors mentioned, the judgment will be reversed and the cause remanded. 
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