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(248 S.W.) self-defense presented by appellant's declaration.
COCHRAIN. v. STATE. (No. 6463.)
STATE. Because of the error pointed out, the judg. (Court of Criminal Appeals of Texas. Feb. 15, ment is reversed, and the cause remanded.
1922. Rehearing Denied Feb. 21, 1923.) 1. False pretenses 4-Elements of offense
of "swindling” stated. PUGH V. STATE. (No. 7443.)
The necessary elements of "swindling" are (Court of Criminal Appeals of Texas. Feb. 14, by false pretenses, made by the accused with
the obtaining of personal property of another 1923.)
intent to defraud. Criminal law em885-Defendant pleading guil (Ed. Note.-For other definitions, see Words
ty cannot complain that jury did not recom- and Phrases, Second Series, Swindling.) mend suspended sentence.
2. False pretenses 26– Indictment charging Where defendant in a manslaughter prose
offense of obtaining insurance money by falso cution was sufficiently warned and interrogated
pretense of death held sufficient. by the court as a predicate for a plea of guilty and testimony was introduced by the state as is
An indictment charging that defendant unrequired by statute to enable the jury to deter- lawfully and fraudulently acquired possession mine the penalty, he cannot complain that the of money belonging to a life insurance company jury refused to recommend a suspended sen- in which he had a life insurance policy, by pretence as agreed between state's attorney and his tending to be dead, and representing to the attorney.
company that he was dead, and that his wife
had the right to collect the policy, and that by Appeal from District Court, Shelby Coun- means of said false pretense he fraudulently inty; Chas. L. Brachfield, Judge.
duced the company to pay the amount of the
policy to his wife, with denial of the truth of Charlie Pugh was convicted of manslaugh the representations, is sufficient to charge the ter, and he appeals. Affirmed.
offense of swindling. R. G. Storey, Asst. Atty. Gen., for the State. 3. Criminal law w 427(5)-Evidence held to
establish conspiracy to defraud insurance LATTIMORE, J. Appellant was convicted
company. in the district court of Shelby county of man
In a prosecution for swindling a life insurslaughter, and his punishment fixed at two ance company by false pretense of the death of years in the penitentiary.
insured, evidence held to establish a conspiracy There are no bills of exception in the record. between insured, his wife, and two others, so Appellant pleaded guilty, and seems to have that the acts and declarations of each of them been sufficiently warned and interrogated by in pursuance of the common design were adthe court as a predicate for the reception of missible against defendant, whether they ocsuch plea. Testimony was introduced by the curred in his presence or otherwise. state as is required by statute in order to en- 4. Criminal law Oww59(3)-Absent person perable the jury to determine the penalty. The forming his part in conspiracy is principal. only complaint here made is of the fact that When two or more persons are acting tothere was some character of agreement with gether in the execution of a common design, the the prosecuting attorney that appellant should fact that only one of them was bodily present receive a suspended sentence. In appellant's when the crime was committed does not premotion in arrest of judgment appears the vent those who were absent from being prin.
cipals, if they were performing their part of statement that the state's attorney and at the conspiracy at such time. torney for the defendant were both willing that the jury recommend that the defendant's 5. Criminal law m428—Both written and oral
statements of co-conspirators are admissible. sentence be suspended, and it is averred that
The fact that some of the declarations of the jury were not justified in its failure to recommend such suspension. No attempt is does not affect their admissibility against de
co-conspirators were written and others oral made to show that appellant was induced to fendant. enter his plea of guilty by any fraud or misrepresentation on the part of the representa- 6. Criminal law ww 1169 (1)-Admission of evi
dence as to undisputed facts held immaterial. tive of the state. In Cleland v. State, No.
Where there was no contention that insur7253, 247 S. W. 861, opinion rendered December 6, 1922, this court held that one who had of defendant was not paid to his wife, assigned
ance money called for by a policy on the life pleaded guilty, knowing that the jury were errors in the admission of evidence relating to not bound to accept the recommendation of the policy, a change of beneficiary, the payment the prosecuting attorney that he be given a of premiums, or the approval of the payment certain sentence, could not be here heard to to the wife of insured, are immaterial, complain that the jury refused to give him 7. False pretenses w 47-Evidence as to cir. the sentence recommended and agreed to by cumstances of obtaining money and indorsing the prosecution.
draft for proceeds is competent, We find no error appearing in the record
In a prosecution for swindling an insurance in this case and an affirmance is directed. company by false pretense of death, evidence
For other cases see same topio and KEY-NUMBER in all Key-Numbered Digests and Indexes
relating to the receipt of the money by the wife swindling of the company by false pretenses of defendant, its distribution by him or his wife, as, to the death of insured, which alleged that and the indorsement by defendant of a draft the false pretenses were made to the corporaprocured by part of the proceeds, was material, tion was sufficient, since it would be impractical and properly admitted.
to allege the individual names of all the offi. 8. False pretenses 49(1)-Evidence held cers to whom they were made.
sufficient to sustain conviction for obtaining 14. False pretenses Om 29—Indictment must life insurance money by false pretense of set out written instrument which is basis of death.
swindle. Evidence held sufficient to sustain a con When a written instrument is the basis of viction for obtaining the proceeds of a policy a swindle, the indictment should set out the ininsuring the life of defendant by false repre- strument, and, if the indictment reveals on its sentations to the insurance company that he face that such instrument is the basis of the was dead, notwithstanding his claim that he swindle and fails to set it out, it is insuficient made such false representations to avoid ap- to charge the offense. pearing in another state to answer an indict
15. False pretenses On 29, 38 Indictment ment for murder.
need not incorporate proof of death not basis 9. Criminal law em 598(2)-Continuance for of swindle by false pretense insured was dead,
absent witness need not be granted, unless and proof of death was admissible in evi. diligence is shown.
dence. An application for continuance because of The false proof of death is not the basis of the absence of a witness lacks merit, where no
a swindle by which the insurance money was diligence was shown.
collected, where the evidence showed that the
first proof was by letter, followed by formal 10. Criminal law eww595(4)—Testimony of ab- proof, and thereafter by an investigation by the sent witnesses held immaterial.
insurance company's representatives, who took Where the charge was procuring the insur- oral statements, with written affidavits, and ance on the life of accused by false pretenses therefore the indictment was not insufficient, of his death, and the evidence showed that the because it did not incorporate the proof of wife, to whom the policy was made payable, death therein, and the proof of death was admust necessarily have known the pretense was missible in evidence. false, testimony of witnesses for whose absence a continuance was requested that they suggest Appeal from District Court, Stonewall ed to the wife that she prepare an application County; W. R. Chapman, Judge. for the proceeds of the policy was immaterial, so that the denial of the continuance was not
Byrd Jackson Cochrain was convicted of
swindling, and he appeals. Affirmed. On Motion for Rehearing.
See, also, 243 S. W. 465. 11. False pretenses Om 4-Corporation's prop
J. E. Robinson, of Anson, and Stinson, erty is protected by statute.
Coombes & Brooks, of Abilene, for appellant. Under Vernon's Ann. Pen. Code 1916, art.
Joe C. Randel, Dist. Atty., of Hamlin, and 24, providing that, where the general term R. G. Story, Asst. Atty. Gen., for the State. “person" is used to designate the party whose property it is intended to protect, the protec LATTIMORE, J. Appellant was convicted tion shall extend to the property of all private in the district court of Stonewall county of corporations, and article 1421, defining the of the offense of swindling, and his punishment fense of swindling, and designating the party fixed at two years' confinement in the penwhose property the article is designed to pro
itentiary. tect only as “the party justly entitled to the same,” the property of a private corporation
Appellant moved to quash the indictment is within the protection of the statute, since herein. Three grounds were laid in said such corporation may own in its corporate motion, which are as follows: name and hold title to property.
"1. That it does not charge the defendant 12. False pretenses em 28-Indictment may al- with any offense against the penal laws of the
lege representations to corporation, if facts state of Texas. justify it.
"2. That it does not appear from the face of Though it is better practice for an indict. the same that an offense against the laws was
committed by the defendant. ment for swindling a corporation to allege the name of the individual to whom the representa
“3. Because the said indictment is repugtions were made, it may properly be alleged Dant, inconsistent, duplicitous, and unintelligithat the representations were made to the cor ble, and therefore does not charge the defendporation, where the facts justify it.
ant with any offense against the penal laws of
the state of Texas." 13. False pretenses 28-False representation as to death of insured may be charged than a general demurrer, and should not be
(1) Such a motion presents nothing more as made to corporation.
Where the evidence showed that proofs of sustained, unless the indictment fails to state death of insured were submitted to five differ in substantial terms an offense against the ent officers of the insurance company before laws of this state. The necessary elements payment was ordered, an indictment charging of swindling have been often laid down. Mc
(248 S.W.) Daniel v. State, 63 Tex. Cr, R. 260, 140 S. W. tions made for the funeral, with the custom232. They are the obtaining of personal or ary religious ceremonies and attendant surmovable property of another, by false pre- roundings. Those who came to the home of tenses, made by the accused, with intent to appellant on the day of said alleged death defraud.
found a griefstricken widow in tears and  Stripped of verbiage, the indictment lamentation. Apparently a select few were herein charges ;
permitted to view the sheeted corpse, laid
out in the usual form, awaiting a coming "That Byrd Jackson Cochrain, lawfully devising and intending to secure five casket. The face was pale, the eyes half thousand dollars in money belonging to the closed, and no breathing was observed. Southwestern Life Insurance Company, a cor- These few who were permitted to view the alporation,
* did then and there unlaw- leged corpse were taken into the front room, fully and fraudulently acquire possession of and Hoggett and Ussery alone prepared the said money from said corporation, * * by coffin for its journey to the grave. After a remeans of false and deceitful pretenses, devices, ligious service the funeral procession departand representations then and there unlawfully, ed, leaving the widow alone (?) at her home. knowingly, and fraudulently made by him to said corporation, in this, to wit:
Hoggett and Ussery accompanied the casket said Cochrain had a life insurance policy in said to its safe interment. Before leaving home company payable to his wife, and on March 10, the widow had asked that the coffin be not 1919, while said policy was in force, said Coch- opened at the grave. The children of appelrain pretended to be dead and falsely pretended lant were away from home when death came. and fraudulently represented to the Southwest- They were not at the funeral. The widow ern Life Insurance Company that he was dead, stated that it was the request of her dead and by and through his wife and agent did husband that the children be not sent for. fraudulently represent that he was dead, and The next day after the funeral Hoggett drove that his said wife, Ethel B. Cochrain, had a right to collect said policy; and he, said Byrd away from the house of appellant in a wagon Jackson Cochrain, did then and there by means drawn by four mules belonging to appellant. of said false pretense fraudulently induce said a trailer wagon was attached to the one Southwestern Life Insurance Company to pay driven by Hoggett. A wagon sheet covered to Ethel B. Cochrain five thousand dollars in the trailer. Hoggett told two neighbors whom money, and said Southwestern Life Insurance he met that he was going to the Wichita oil Company was thereby induced to part with and tields. Within a few days thereafter appeldid part with title and possession of said moneg, and did deliver title and possession thereof lant, Hoggett, and Ussery turned up at to said Ethel B. Cochrain. Whereas, in truth Moran in Shackelford county, where they and in fact, said Byrd Jackson Cochrain was worked in an oil field for some time, appelnot dead, and had not died during the life of lant going under the name of Hancock, and said policy, and said Ethel B. Cochrain did not claiming to be a brother of Mrs. Cochrain, have the right to collect said policy or any part and stating that his sister's husband had of same," etc.
died suddenly, leaving her with a lot of little
children. A week after appellant's “death," We think these allegations sufficient to charge a violation of the law, and that, in the his wife wrote the insurance company as fol
lows: absence of any special exception directed at any particular part of said indictment, the
"My husband, Byrd Jackson Cochrain, is dead. orerruling of said general demurrer present- | Amount $5,000.00. Yours truly, Ethel He died March 10, 1919. His policy No. 28022.
B. ed no error.
Cochrain." This is a very remarkable case, and accounts of it were made public, in which Later she filled out a formal proof of death same was called and became known as the sent her by the insurance company, therein "empty grave case.” The state's contention, again stating the fact of appellant's death. seemingly supported by the facts, is that ap This was not sufficient, and same was supportpellant and his wife, with C. 0. Hoggett anded by affidavits of Hoggett and Ussery and Wayne Ussery, two tenants on the farm of others; Hoggett asserting his presence when appellant, conspired together to fraudulently appellant died, and that he and Ussery preobtain the money of an insurance company; pared the body for burial, and that the body the fraud being based primarily upon the of appellant was by them placed in the caspretended death of appellant, who was the ket. Ussery swore in his affidavit that he insured in a policy issued by said company. was called to appellant's home about an hour A substantial statement of the facts shows after his death, and that he assisted Hoggett that on March 10, 1919, appellant “died” in preparing the body for burial, and that the suddenly at his home at 6 o'clock in the morn- two of them placed said body in the casket. ing. His wife and Hoggett were present. Other aflidavits stated that the parties makUssery locates himself at the scene a short ing same saw the casket and saw the body, time after the pretended demise. News of and that same was that of appellant. On the death was at once disseminated; Hoggett May 1, 1919, the $5,000 was paid by the inbeing the most active agent. A coffin was surance company to Mrs. Cochrain; $1,400 ordered, a grave prepared, and other prepara-) being deposited to her credit in a bank at
Aspermont, Stonewall county, $450 being ap- Ussery, was fully established, and in such plied to the payment of some notes of appel- case the acts and declarations of each of the lant held by said bank, and $150 in cash co-conspirators, done and made in pursuance being then delivered to Mrs. Cochrain. A of the common design, to wit, the getting of little later $3,000 was traced to a draft ob- said money, and prior to the obtaining of tained by her from the bank at Aspermont, same, were admissible against appellant on payable to a Fort Worth bank, which was in his trial, whether same occurred in his presdorsed “Ethel B. Cochrain, by J. H. Coch- ence or otherwise. The rule is too well setrain,” which indorsement was shown to be in tled to need citation of authorities. Vernon's appellant's handwriting. Three witnesses O. O. P. pp. 648-653. testified to seeing appellant in his house in  To this well-known rule and that of Stonewall county in October, 1919; one of principals may be referred most of the comthem being the father-in-law of appellant, plaints of appellant upon this appeal. The who testified that he visited his daughter question of principals is discussed at length during said month, and that while he was in Middleton v. State, 86 Tex, Cr. R. 307, 217 there appellant would remain in the house S. W. 1046. This doctrine is also applicable during the daytime and go about under cover here. From the moment of the beginning of of night. In January, 1920, appellant, going the acting together of the parties named, apunder the name of J. H. Cochrain, went out pellant was doing his part in the scheme of to Sterling county, where he bought a ranch, getting said money; his part being to prepaying $5,280 in cash on the purchase price tend to be dead. When the money was delivand executing notes for the remainder. The ered to and acquired by his wife, appellant deed was made to J. E. Cochrain. In Feb- was in concealment, pretending to be dead. ruary, 1920, appellant, with his family, moved He was going under an assumed name, when to this ranch, where Mrs. Cochrain died in names were necessary. He was hiding in May of said year. Rumors and suspicions his own house in the daytime, and coming were circulating in Stonewall county, where out at night. He was pretending to be the the alleged death took place, and in October, brother of his own wife. When two or more 1920, a group of men opened said grave and are acting together in the execution of a found therein a casket, empty, and with no common design, the fact that only one of signs of having been occupied. This indict them is bodily present when the crime is ment, and the arrest and trial of appellant, consummated does not prevent those who are followed.
absent from being principals, if they are It is disclosed by the record in this case doing their parts at such time. Under the that there was no denial on the part of ap- rules above discussed, and without stating pellant of his pretense of death; in fact, needless details, we are of opinion that appelin his sworn application for continuance he lant's bills of exceptions Nos. 2, 7, 8, 10, 15, admitted and asserted such pretense in this 21, and 23 show no error; same relating to regard, setting up as his reason therefor that acts and declarations of said co-conspirators he was under a $10,000 bond for his appear- prior to the payment of said money. ance before the courts of New Mexico on a  That some of said matters were written murder charge, and that his life had been documents, and others oral statements, would threatened by influential friends of the al- not effect the question of their being within leged murdered men, and that, believing, if the rules mentioned. he appeared in response to said bond, his life  A number of bills of exceptions were would be endangered, he made the pretense taken to the examination of the agent of the of death to protect his bondsmen, and also insurance company relating to the policy of to avoid the danger of death, which might insurance. There being no sort of contention result if he went to New Mexico at the time that the $5,000 called for by said insurance called for his appearance by said bond. Nor policy upon the life of appellant was not paid was there any denial of the payment of the by the Southwestern Life Insurance Com$5,000 by the insurance company to Mrs. pany, the alleged injured party in the inEthel B. Cochrain, based on their belief that stant transaction, to Mrs. Ethel B. Cochappellant was dead.
rain, wife of appellant, on May 1, 1920, we The pretense of death being undenied, and would hold that questions relating to a the payment of the money of the insurance change of beneficiary, or the payment of company to appellant's wife also being un- premiums on such policy, or who approved denied, there remained but the question of such payment, are such matters as would be whether such pretense was fraudulent, and of no moment, and that errors asserted in whether by means of same the insurance com- regard thereto would be as to immaterial pany was induced to part with and did part matters. This would dispose of bills of exwith the title and possession of their said ceptions Nos. 3, 4, 5, 6 and 9. So, also, of money.
the affidavits of Undertaker Anderson,  We have stated the main facts. In which were sent to the insurance company, our opinion a conspiracy between four par- supporting the claim of appellant's death, as
(248 S.W.)  Bill of exceptions No. 12 relates to the , that he had repeatedly said that he was manner and circumstance of the payment of afraid he would be killed, and showing the said money to Mrs Cochrain; bill No. 16 animosity of some of the New Mexico officers relates to testimony of a banker as to his toward him, and all other facts tending to opinion that certain signatures, including the support such defensive theory, were before indorsement on the $3,000 draft mentioned the jury, and fairly submitted to them for above, were, from his knowledge of appel- their decision by the charge of the court. lant's handwriting, the signatures of appel (9, 10] Appellant asked for a continuance lant; bill No. 17 was reserved to a statement because of the absence of one Latham and a of said banker that part of the money obtain- Mr. and Mrs. Entzminger. We think the ed from said insurance company was con application lacking in merit. No diligence tained in said $3,000 draft (the state contend- was shown as to Latham, and the facts stating that this draft was cashed by appellant); ed as expected from tbe Entzmingers appear bill of exceptions No. 18 was to testimony to us to be immaterial. If they had been of the banker that in the summer, after the present, and testified that they suggested to collection of said insurance money, certain Mrs. Cochrain to apply for the insurance notes against appellant came to the bank and money, or that they aided and assisted her were paid by Mrs. Cochrain; bill of excep- in preparing her application therefor, this tions No. 19 was also to the testimony of a could in no wise affect the question of the banker that he was familiar with appellant's fraud based upon the representation made by handwriting, and that in his opinion the in- her to the insurance company that her husdorsement of said $3,000 draft was made by band was dead. It needs no iteration by us appellant; bill of exceptions No. 20 was to of the facts already stated to show irresistithe testimony of P. L, Anderson that he had bly that Mrs. Cochrain was a party to the signed a certain affidavit sent to the insur- alleged fraudulent scheme. She was presance company relative to the alleged death of ent in the house at the time of the alleged appellant, at the request of Mrs. Cochrain; death of her husband. She was present bill of exceptions No. 22 was to the testi- when Ussery and Hoggett claimed to have mony of a witness that he saw appellant in prepared the body for burial. She was cryhis house in Stonewall county in October, ing and taking on during the funeral cere1919; bill of exceptions No. 23 was to the tes- monies at the house. She asked that the timony of witness Westbrook that in his opin- casket be not opened. She stated that before ion the indorsement on the $3,000 draft men her husband died he asked that the children tioned and the signature to a certain check be not sent for. She alone remained at the were in the same handwriting.
house when the empty casket was carried In our opinion a statement of the contents of away. She wrote a letter a week later, these bills of exceptions obviates the neces- stating to the insurance company that he was sity for any discussion of them at length. Mat-dead. In the face of these tremendous facts, ters relating to the receipt of the money, the it would be immaterial that any one suggestobtaining of which was the basis of the alleg- ed to her that she prepare an application, the ed swindling, and the disposition of same by core and pith of which was that her husband appellant or his wife, were material circum- was dead, a matter which she was comstances bearing upon the fraudulent purpose pelled, apparently, to know to be false. and intent in the acquisition of said money. A number of exceptions were taken to the The matters pertaining to the $3,000 draft, charge of the trial court, many of which showing that same was indorsed by appellant, seem to be based upon an erroneous assumpwere material for the same purpose. The tion that the act of one principal cannot affidavits and statements of witnesses and be chargeable to another, and that appellant persons relating to the supposed death were would not be in law held equally guilty for matters which could be of no possible harm the representations made by his wife to the to appellant, in view of the fact that he did insurance company for the purpose of obnot deny the pretense of death, nor the ob- taining from them their money. taining of the money by his wife, but con Finding no reversible error in the record, tented himself with contesting the sufficien- the judgment of the trial court will be afcy of the facts to show a fraudulent in- firmed. tent and an acting together with her in what
On Motion for Rehearing. she did and said after said pretended death.  We find ourselves unable to agree with
HAWKINS, J. Appellant complains of appellant in any contention with regard to certain language in our opinion as subject the insufficiency of the evidence in this case. to the interpretation that we are applying the The question as to whether his pretended rules of pleading in civil cases to indictments, death was for the purpose claimed by him, thereby in effect holding that an indictment and in regard to which facts were elicited subject to attack by special exception would from a number of the witnesses upon cross- nevertheless be held good in the absence examination, tending to show that appellant thereof. If our language was só unhappily was under indictment in New Mexico, and chosen as to be reasonably subject to such