a witness was allowed to testify about a telephone conversation he had with the defendant, although he did not identify the voice as the defendant’s until he met him a year later
How later courts described this case
- a witness was allowed to testify about a telephone conversation he had with the defendant, although he did not identify the voice as the defendant’s until he met him a year later
Written by the judges who cited it.
The opinion
ON APPELLANT'S motion for rehearing.
DAVIDSON, Judge.
Appellant renews his insistence that the facts do not warrant the conviction. He insists that the facts show only the relation of debtor and creditor and that the false representation that a check was then in the mail to cover prior purchases and that he would send a check by the truck driver for the order he was then making did not alter or change the legal effect of the purchase, nor did it constitute such a false pretext as would authorize this conviction.
Whether the facts show theft by false pretext or swindling need not be determined, for the state was authorized to maintain this prosecution for theft by false pretext upon facts which might also show swindling. Art. 1549, Vernon’s P. C.; King v. State, 152 Tex. Cr. R. 255 , 213 S. W. 2d 541 .
So then if the facts show swindling — that is, the acquisition of personal property by some false pretenses with intent to *57 appropriate the property so acquired (Art. 1545, Vernon’s P. C.), this conviction for theft by false pretext under Art. 1413, Vernon’s P. C., will be sustained.
The correctness of appellant’s contention that the purchase of goods on credit does not constitute either theft by false pretext or swindling is not questioned.
Here, the false representation by the appellant that he had already forwarded a check in payment of a prior credit purchase constituted such a pretext, when relied upon by the injured party in parting with his property, as would constitute swindling. Burck v. State, 132 Tex. Cr. R. 628 , 106 S. W. 2d 709 .
We remain convinced that the facts warranted the conviction, and that a correct conclusion was reached originally.
Other matters presented in the motion for rehearing but challenge our original conclusion, with nothing new presented in connection therewith.
The motion for rehearing is overruled.
Opinion approved by the court.