Tex.)

(248 S.W.)

self-defense presented by appellant's declaration.

Because of the error pointed out, the judgment is reversed, and the cause remanded.

PUGH v. STATE. (No. 7443.)

I. False pretenses

of "swindling" stated.

The necessary elements of "swindling" are the obtaining of personal property of another (Court of Criminal Appeals of Texas. Feb. 14, by false pretenses, made by the accused with

1923.)

Criminal law 885-Defendant pleading guilty cannot complain that jury did not recommend suspended sentence.

Where defendant in a manslaughter prosecution was sufficiently warned and interrogated by the court as a predicate for a plea of guilty and testimony was introduced by the state as is required by statute to enable the jury to determine the penalty, he cannot complain that the jury refused to recommend a suspended sentence as agreed between state's attorney and his

attorney.

intent to defraud.

[Ed. Note.-For other definitions, see Words and Phrases, Second Series, Swindling.]

2. False pretenses 26—Indictment charging offense of obtaining insurance money by false pretense of death held sufficient.

An indictment charging that defendant unlawfully and fraudulently acquired possession of money belonging to a life insurance company in which he had a life insurance policy, by pretending to be dead, and representing to the 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.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J. Appellant was convicted in the district court of Shelby county of manslaughter, and his punishment fixed at two years in the penitentiary.

There are no bills of exception in the record. Appellant pleaded guilty, and seems to have been sufficiently warned and interrogated by the court as a predicate for the reception of such plea. Testimony was introduced by the state as is required by statute in order to enable the jury to determine the penalty. The only complaint here made is of the fact that there was some character of agreement with the prosecuting attorney that appellant should receive a suspended sentence. In appellant's motion in arrest of judgment appears the statement that the state's attorney and attorney for the defendant were both willing that the jury recommend that the defendant's sentence be suspended, and it is averred that the jury were not justified in its failure to recommend such suspension. No attempt is made to show that appellant was induced to enter his plea of guilty by any fraud or misrepresentation on the part of the representative of the state. In Cleland v. State, No. 7253, 247 S. W. 861, opinion rendered December 6, 1922, this court held that one who had pleaded guilty, knowing that the jury were not bound to accept the recommendation of the prosecuting attorney that he be given a certain sentence, could not be here heard to complain that the jury refused to give him the sentence recommended and agreed to by the prosecution.

We find no error appearing in the record in this case and an affirmance is directed.

offense of swindling.

3. Criminal law 427 (5)-Evidence held to establish conspiracy to defraud insurance company.

In a prosecution for swindling a life insurance company by false pretense of the death of insured, evidence held to establish a conspiracy between insured, his wife, and two others, so that the acts and declarations of each of them in pursuance of the common design were admissible against defendant, whether they occurred in his presence or otherwise.

4.

Criminal law 59(3)-Absent person performing his part in conspiracy is principal.

When two or more persons are acting together in the execution of a common design, the fact that only one of them was bodily present when the crime was committed does not prevent those who were absent from being principals, if they were performing their part of the conspiracy at such time.

5. Criminal law 428-Both written and oral statements of co-conspirators are admissible.

The fact that some of the declarations of co-conspirators were written and others oral does not affect their admissibility against defendant.

6. Criminal law 1169(1)-Admission of evidence as to undisputed facts held immaterial.

Where there was no contention that insurance money called for by a policy on the life of defendant was not paid to his wife, assigned errors in the admission of evidence relating to the policy, a change of beneficiary, the payment of premiums, or the approval of the payment to the wife of insured, are immaterial. 7. False pretenses 47-Evidence as to circumstances of obtaining money and indorsing draft for proceeds is competent.

In a prosecution for swindling an insurance company by false pretense of death, evidence

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[1] Such a motion presents nothing more than a general demurrer, and should not be 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

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(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

[2] Stripped of verbiage, the indictment lamentation. Apparently a select few were herein charges:

un

"That Byrd Jackson Cochrain, lawfully devising and intending to secure five thousand dollars in money belonging to the Southwestern Life Insurance Company, a corporation,

*

That

permitted to view the sheeted corpse, laid
out in the usual form, awaiting a coming
casket. The face was pale, the eyes half
no breathing was observed.
closed, and
These few who were permitted to view the al-
did then and there unlaw-leged corpse were taken into the front room,
and Hoggett and Ussery alone prepared the
coffin for its journey to the grave. After a re-
ligious service the funeral procession depart-
ed, leaving the widow alone (?) at her home.
Hoggett and Ussery accompanied the casket
to its safe interment. Before leaving home
the widow had asked that the coffin be not
opened at the grave. The children of appel-
lant were away from home when death came.
They were not at the funeral. The widow
stated that it was the request of her dead
husband that the children be not sent for.
The next day after the funeral Hoggett drove
away from the house of appellant in a wagon
drawn by four mules belonging to appellant.
A trailer wagon was attached to the one
driven by Hoggett. A wagon sheet covered
the trailer. Hoggett told two neighbors whom
he met that he was going to the Wichita oil
fields. Within a few days thereafter appel-

fully and fraudulently acquire possession of
said money from said corporation, *by
means of false and deceitful pretenses, devices,
and representations then and there unlawfully,
knowingly, and fraudulently made by him to
said corporation, in this, to wit:
said Cochrain had a life insurance policy in said
company payable to his wife, and on March 10,
1919, while said policy was in force, said Coch-
rain pretended to be dead and falsely pretended
and fraudulently represented to the Southwest-
ern Life Insurance Company that he was dead,
and by and through his wife and agent did
fraudulently represent that he was dead, and
that his said wife, Ethel B. Cochrain, had a
right to collect said policy; and he, said Byrd
Jackson Cochrain, did then and there by means
of said false pretense fraudulently induce said
Southwestern Life Insurance Company to pay
to Ethel B. Cochrain five thousand dollars in
money, and said Southwestern Life Insurance
Company was thereby induced to part with and
did part with title and possession of said mon-
ey, and did deliver title and possession thereof
to said Ethel B. Cochrain. Whereas, in truth
and in fact, said Byrd Jackson Cochrain was
not dead, and had not died during the life of
said policy, and said Ethel B. Cochrain did not
have the right to collect said policy or any part
of same," etc.

We think these allegations sufficient to charge a violation of the law, and that, in the absence of any special exception directed at any particular part of said indictment, the overruling of said general demurrer presented no error.

lant, Hoggett, and Ussery turned up at Moran in Shackelford county, where they worked in an oil field for some time, appellant going under the name of Hancock, and claiming to be a brother of Mrs. Cochrain, and stating that his sister's husband had died suddenly, leaving her with a lot of little children. A week after appellant's "death," his wife wrote the insurance company as follows:

"My husband, Byrd Jackson Cochrain, is dead. He died March 10, 1919. His policy No. 28022. Amount $5,000.00. Yours truly, Ethel B. 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. O. Hoggett and ed 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 affidavits 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; $4,400 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 C. C. P. pp. 648-653. testified to seeing appellant in his house in Stonewall county in October, 1919; one of them being the father-in-law of appellant, who testified that he visited his daughter during said month, and that while he was there appellant would remain in the house during the daytime and go about under cover of night. In January, 1920, appellant, going under the name of J. H. Cochrain, went out to Sterling county, where he bought a ranch, paying $5,280 in cash on the purchase price and executing notes for the remainder. The deed was made to J. H. Cochrain. In February, 1920, appellant, with his family, moved to this ranch, where Mrs. Cochrain died in May of said year. Rumors and suspicions were circulating in Stonewall county, where the alleged death took place, and in October, 1920, a group of men opened said grave and found therein a casket, empty, and with no signs of having been occupied. This indictment, and the arrest and trial of appellant, followed.

It is disclosed by the record in this case that there was no denial on the part of appellant of his pretense of death; in fact, in his sworn application for continuance he admitted and asserted such pretense in this regard, setting up as his reason therefor that he was under a $10,000 bond for his appearance before the courts of New Mexico on a murder charge, and that his life had been threatened by influential friends of the alleged murdered men, and that, believing, if he appeared in response to said bond, his life would be endangered, he made the pretense of death to protect his bondsmen, and also to avoid the danger of death, which might result if he went to New Mexico at the time called for his appearance by said bond. Nor was there any denial of the payment of the $5,000 by the insurance company to Mrs. Ethel B. Cochrain, based on their belief that appellant was dead.

The pretense of death being undenied, and the payment of the money of the insurance company to appellant's wife also being undenied, there remained but the question of whether such pretense was fraudulent, and whether by means of same the insurance company was induced to part with and did part with the title and possession of their said money.

[3] We have stated the main facts. In our opinion a conspiracy between four parties, viz. appellant, his wife, Hoggett, and

[4] To this well-known rule and that of principals may be referred most of the complaints of appellant upon this appeal. The question of principals is discussed at length in Middleton v. State, 86 Tex. Cr. R. 307, 217 S. W. 1046. This doctrine is also applicable here. From the moment of the beginning of the acting together of the parties named, appellant was doing his part in the scheme of getting said money; his part being to pretend to be dead. When the money was delivered to and acquired by his wife, appellant was in concealment, pretending to be dead. He was going under an assumed name, when names were necessary. He was hiding in his own house in the daytime, and coming out at night. He was pretending to be the brother of his own wife. When two or more are acting together in the execution of a common design, the fact that only one of them is bodily present when the crime is consummated does not prevent those who are absent from being principals, if they are doing their parts at such time. Under the rules above discussed, and without stating needless details, we are of opinion that appellant's bills of exceptions Nos. 2, 7, 8, 10, 15, 21, and 23 show no error; same relating to acts and declarations of said co-conspirators prior to the payment of said money.

[5] That some of said matters were written documents, and others oral statements, would not effect the question of their being within the rules mentioned.

[6] A number of bills of exceptions were taken to the examination of the agent of the insurance company relating to the policy of insurance. There being no sort of contention that the $5,000 called for by said insurance policy upon the life of appellant was not paid by the Southwestern Life Insurance Company, the alleged injured party in the instant transaction, to Mrs. Ethel B. Cochrain, wife of appellant, on May 1, 1920, we would hold that questions relating to a change of beneficiary, or the payment of premiums on such policy, or who approved such payment, are such matters as would be of no moment, and that errors asserted in regard thereto would be as to immaterial matters. This would dispose of bills of exceptions Nos. 3, 4, 5, 6 and 9. So, also, of the affidavits of Undertaker Anderson, which were sent to the insurance company, supporting the claim of appellant's death, as set out in bills of exceptions Nos. 11 and 13.

Tex.)

(248 S.W.)

[7] Bill of exceptions No. 12 relates to the manner and circumstance of the payment of said money to Mrs Cochrain; bill No. 16 relates to testimony of a banker as to his opinion that certain signatures, including the indorsement on the $3,000 draft mentioned above, were, from his knowledge of appellant's handwriting, the signatures of appellant; bill No. 17 was reserved to a statement of said banker that part of the money obtained from said insurance company was contained in said $3,000 draft (the state contending that this draft was cashed by appellant); bill of exceptions No. 18 was to testimony of the banker that in the summer, after the collection of said insurance money, certain notes against appellant came to the bank and were paid by Mrs. Cochrain; bill of exceptions No. 19 was also to the testimony of a banker that he was familiar with appellant's handwriting, and that in his opinion the indorsement of said $3,000 draft was made by appellant; bill of exceptions No. 20 was to the testimony of P. L. Anderson that he had signed a certain affidavit sent to the insurance company relative to the alleged death of appellant, at the request of Mrs. Cochrain; bill of exceptions No. 22 was to the testimony of a witness that he saw appellant in his house in Stonewall county in October, 1919; bill of exceptions No. 23 was to the testimony of witness Westbrook that in his opinion the indorsement on the $3,000 draft mentioned and the signature to a certain check were in the same handwriting.

that he had repeatedly said that he was afraid he would be killed, and showing the animosity of some of the New Mexico officers toward him, and all other facts tending to support such defensive theory, were before the jury, and fairly submitted to them for their decision by the charge of the court.

[9, 10] Appellant asked for a continuance because of the absence of one Latham and a Mr. and Mrs. Entzminger. We think the No diligence application lacking in merit. was shown as to Latham, and the facts stated as expected from the Entzmingers appear to us to be immaterial. If they had been present, and testified that they suggested to Mrs. Cochrain to apply for the insurance money, or that they aided and assisted her in preparing her application therefor, this could in no wise affect the question of the fraud based upon the representation made by her to the insurance company that her husband was dead. It needs no iteration by us of the facts already stated to show irresistibly that Mrs. Cochrain was a party to the alleged fraudulent scheme. She was present in the house at the time of the alleged death of her husband. She was present when Ussery and Hoggett claimed to have prepared the body for burial. She was crying and taking on during the funeral ceremonies at the house. She asked that the casket be not opened. She stated that before her husband died he asked that the children be not sent for. She alone remained at the house when the empty casket was carried away. She wrote a letter a week later, stating to the insurance company that he was dead. In the face of these tremendous facts, it would be immaterial that any one suggest

core and pith of which was that her husband was dead, a matter which she was compelled, apparently, to know to be false.

In our opinion a statement of the contents of these bills of exceptions obviates the necessity for any discussion of them at length. Matters relating to the receipt of the money, the obtaining 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 appellant or his wife, were material circumstances bearing upon the fraudulent purpose and intent in the acquisition of said money. The matters pertaining to the $3,000 draft, showing that same was indorsed by appellant, were material for the same purpose. The affidavits and statements of witnesses and persons relating to the supposed death were matters which could be of no possible harm to appellant, in view of the fact that he did not deny the pretense of death, nor the obtaining from them their money. taining of the money by his wife, but contented himself with contesting the sufficiency of the facts to show a fraudulent intent and an acting together with her in what she did and said after said pretended death.

A number of exceptions were taken to the charge of the trial court, many of which seem to be based upon an erroneous assumption that the act of one principal cannot be chargeable to another, and that appellant would not be in law held equally guilty for the representations made by his wife to the insurance company for the purpose of ob

Finding no reversible error in the record, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

HAWKINS, J. Appellant complains of [8] We find ourselves unable to agree with appellant in any contention with regard to certain language in our opinion as subject to the interpretation that we are applying the the insufficiency of the evidence in this case. 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 If our language was so unhappily examination, tending to show that appellant thereof. was under indictment in New Mexico, and chosen as to be reasonably subject to such