set out the matter alleged to be false, and the matter thus alleged, being material and descriptive, must be proved as alleged. The alleged false matter, however, may be set out by its substance, or by its tenor. If set out by its tenor, the proof must conform strictly to the allegations; but if by its substance, then it is only necessary to prove the allegations substantially. Thus, when the alleged false representation was, that the defendant had "a large amount of money on deposit in the Dallas National Bank," proof that the representation was that he "had $5,000 on deposit" in said bank, was held sufficient. It was further held that the allegation that the defendant fraudulently obtained the sum of $106 was supported by proof that he obtained $109-the variance being immaterial, it only being necessary to prove that he so obtained money of the value of $20 or more. This case is distinguished from Marwilski v. S. 9 App. 377, and Litman v. S. Id. 461. Moore v. S. 20 App. 233. The fact that the indictment alleges facts which constitute theft, will not vitiate it. By the same act the defendant may have committed both theft and swindling, and the State had its election to prosecute him for either offense, but a conviction of one would bar a prosecution for the other. Sims v. S. 21 App. 649. But, it has been held, contrary to the doctrine of the last cited case, that where the indictment alleged facts which showed that the defendant had committed the offense of uttering a forged instrument, it was a bad indictment. Hirshfield v. S. 11 App. 207. An essential ingredient of swindling is the intent with which the property is acquired. It must be acquired with the intent to appropriate the same to the use of the person acquiring it, and this intent must be alleged in the indictment. Stringer v. S. 13 App. 520, overruling upon this point Tomkins v. S. 33 Tex. 228. Where the swindling alleged consists in obtaining a person's signature to an instrument in writing, it must be alleged that the instrument, after being signed, was delivered. Baker v. S. 14 App. 332. So, when it was alleged that the swindle was accomplished by means of a false draft, it was held that the indictment was bad, because it did not allege that said draft was delivered to or accepted by the injured party. Lutton v. S. 14 App. 518. Where the alleged swindle was perpetrated by means of a written instrument, the written instrument should be set out, as in the case of forgery, or good reason should be alleged for not so setting it out. S. v. Baggerly, 21 Tex. 757; Ante, § 740; Baker v. S. 14 App. 332; White v. S. 3 App. 605; May v. S. 15 App. 430. Where it was charged that the swindling was by means of a "writing obligatory," which the defendant knew to be valueless, it was held that the indictment must show wherein the said writing was valueless. S. v. Dyer, 41 Tex. 520. The ownership of the property acquired by the defendant by the swindle must be alleged, and the same rules apply in respect to ownership as are applicable in a prosecution for theft. May v. S. 15 App. 430; Ante, § 1258. The value of the property acquired must be alleged, as in theft, Ante, § 1257-1285. See an indictment which was held bad for uncertainty, because it did not clearly appear therefrom whether the pleader intended to charge that the defendant swindled the injured party out of an organ, or out of a chance in a raffle for said organ. If the latter, swindling could not be based upon it, a "chance in a raffle" not being property. Rosales v. S. 22 App. 673. It has been held that a conviction may be had for this offense under an ordinary indictment for theft. Ante, § 1263. $1384-"False pretense" etc., defined.—The false pretense, etc., to constitute this offense, must be as to some existing fact, or past event. Mere false promises, or false professions of intention, although acted upon, are not sufficient. Matthews v. S. 10 App. 279; Allen v. S. 16 App. 150; Blum v. S. 20 App. 578; Johnson v. S. 41 Tex. 65. It is not necessary that the pretense, etc., should be in words; there may be a sufficient false pretense, etc., in the acts and conduct of the party, without any verbal representation of a fraudulent nature. Blum v. S. 20 App. 578. It need not be such an artificial device as would impose upon a man of ordinary prudence and caution, nor need it be such that cannot be guarded against by ordinary caution. But if the pretense was absurd or irrational, or if the injured party knew its falsity, or had the means of instantly detecting it, it will not be such a pretense as will constitute this offense. Buckalew v. S. 11 App. 352; Colbert v. S. 1 App. 314; May v. S. 20 App. 213.

$1385-Distinction between swindling and theft. When the possession of property is acquired by false pretenses, the true distinction between theft and swindling is this: when by such pretenses the owner is induced to part with the property finally, the offense is swindling; but when possession is obtained in a manner not adequate to pass title to the property, but merely the interim custody, and the property is then appropriated in pursuance of the original fraudulent intent, it is theft. White v. S. 11 Tex. 769; S. v. Vickery, 19 Tex. 326; Cline v. S. 43 Tex. 494; Pitts v. S. 5 App. 122. Swindling may be committed without destroying or impairing the rights of the party justly entitled to the property, and may be perpetrated upon one who is not even justly entitled to the property. It may be committed with either of two intents: 1. With the intent to appropriate the property. 2. With the intent to destroy or impair he rights of the party justly entitled to the property, or, both these intents may enter into the offense. Theft is not constituted unless the two intents exist and accompany the taking of the property. May v. S. 15 App. 430.

$1386-Elements of swindling. Decisions defining the offense. Mathews v. S. 10 App. 279; May v. S. 15 App. 430. Swindling comprehends four elements, all of which must concur to constitute the offense. 1. There must be an intent to defraud. 2. There must be an actual act of fraud committed. 3. False pretenses must have been made by the accused. 4. The fraud must have been accomplished by means of the false pretenses made use of for the purpose. Blum v. S. 20 App. 578. To constitute this offense, some false pretense, etc., as to an existing fact, or a past event, must have been made. Mere false promises, or false professions of intentions, although acted upon are not sufficient. Johnson v. S. 41 Tex. 65. Mathews v. S. 10 App. 279; Allen v. S. 16 App. 150; Blum v. S. 20 App. 578. See further as to false pretense, Ante, § 1384. The title to money or property must be obtained by the accused, or must pass from the injured party. Cline v. S. 43 Tex. 494; S. v. Vickery, 19 Tex. 326; May v. S. 15 App. 430. An essential

element of the offense is, that the party injured, in parting with his property, actually relied upon and was deceived by the false pretenses, etc., of the accused. Buckalew v. S. 11 App. 352; Ervin v. S. Id 536. Swindling may be predicated upon a promissory note when its execution has been procured by means of faise or deceitful pretenses or fraudulent representations. Baker v. S. 14 App. 332. The purchase of property upon the faith and credit of some other person, upon the false pretense that such other person has given the accused the right to use his name or credit in making the acquisition, is swindling. Sherwood v. S. 42 Tex. 498. An essential element of this offense is the intent with which the defendant acquires the property. Stringer v. S. 13 App. 520; May v. S. 15 App. 430.

$1387-Evidence. To sustain a convicion the facts charged must be proved; and if the charge be that the accused passed spurious money, representing it to be good, the spuriousness of the money must be satisfactorily proved. Brown v. S. 29 Tex. 503. So where the property was acquired by means of a representation that the defendant had money on deposit in a bank, it must be satisfactorily proved that he had no such deposit. Moore v. S. 17 App. 233. The notarial certificate of the protest of a draft made in another State is admissible in evidence to prove the matters stated in such certificate, but is not evidence to prove any fact not stated in said certificate. May v. S. 15 App. 430; S. C. 17 App. 233. Other swindles perpetrated by the defendant, about the same time and in the same manner as the one for which he is on trial, are admissible to establish the identity and the fraudulent intent of the defendant. Davison v. S. 12 App. 214. The value of the property must be proved, as in theft. Ante, § 1285. Evidence that the property was of the value of fifteen dollars will not support a conviction for the felony grade of this offense. Mathews v. S. 10 App. 279. Where two persons are jointly indicted for this offense, evidence that one of them, with the knowledge, approbation, concurrence and direction of the other, made the false pretenses charged, warrants the conviction of both. Blum v. S. 20 App. 578. But to make one defendant amenable for the acts and declarations of his co-defendant, proof of complicity between them, in the commission of the offense, must be adduced. Marwilski v. S. 9 App. 377. See a state of case wherein the defendant should have been permitted to show the course of dealing between himself and the alleged injured parties, both before and after the date of the alleged offense, as reflecting upon the intent of the defendant, or throwing light upon the question whether or not the creditor was using the criminal law to collect a debt. Lutton v. S. 14 App. 518. Evidence that the defendant delivered the property to the wife of the person whose name was used as a basis of credit, is competent for the defendant. Bozier v. S. 5. App. 220. But, that the defendant at the time he acquired the property intended to repay the same, cannot operate to relieve the act of its criminal character, and evidence of such intent, and the defendant's ability to make the repayment, is not competent. Buntain v. S. 15 App. 515.

§1388-Variance. Where the indictment alleged that the property acquired was "good, lawful and current money of the United States of America, being currency bills," it was held that this description, though unnecessarily particular, should have been strictly proved. Childers v. S. 16 App. 524. Where the indictment charged that the property acquired was nine dollars, and the proof was that it was six dollars, the variance was held to be fatal. Marwilski v. S. 9 App. 377; Litman v. S. Id. 461. But see Moore v. S. 20 App. 233, explaining the cases last cited, and holding that where the indictment charged that the defendant obtained $106, but the proof showed he obtained $109, there was no variance. It was also held in the same case, that where the indictment alleged the false representation to be that the defendant had "a large amount of money on deposit in the Dallas National Bank," it was not a variance to prove the representation to be that he "had $5,000 on deposit" in said bank. An indictment which alleged the ownership of the property to be in B. K. & Co., was held to be not supported by proof that B. & K. were the owners. Mathews v. S. 33 Tex. 102. The false pretense, etc., must be proved precisely as alleged. Warrington v. S. 1 App. 168.

$1389.-Charge of the court. — See a charge devolving the burden of proof upon the defendant held to be harmless and immaterial error in view of the facts in the case. Sherwood v. S. 42 Tex. 498. See a case where the trial court properly refused to charge the law relating to circumstantial evidence, and also properly refused to instruct the jury that if the defendant at the time he acquired the property intended to repay it, he would not be guilty. Buntain v. S. 15 App. 515. §1390-ART, 792. "Money" includes bank bills. Within the meaning of "money,' as used in this chapter, are included also bank bills, or other circulating medium current as money. [O. C. 773c, Act Feb. 12, 1858, p. 183.

See Childers v. S. 16 App. 524.

§1391-ART. 793. -No benefit need accrue to defendant. — It is not necessary, in order to constitute the offense of swindling, that any benefit. shall accrue to the person guilty of the fraud or deceit, nor that any injury shall result to the persons intended to be defrauded, if it is sufficiently apparent that there was a willful design to receive benefit or cause an injury. C. 773d, Act Feb. 12, 1858, p. 183.]

§1392 ART. 794.—If the act constitutes any other offense.

[0.

. Where property, money or other articles of value enumerated in the definition of

swindling, are obtained in such manner as to come within the meaning of theft, or some other offense known to the law, the rules herein prescribed with regard to swindling shall not be understood to take any such case out of the operation of the law which defines any such other offense. [O. C. 773e, Act Feb. 12, 1885, p. 183.]

See Hirshfield v. S. 11 App. 207; Mathews v. S. 33 Tex. 192. Contra, Sims v. S. 21 App. 649. $1393-ART. 795.- Executor, etc., converting estate, guilty of swindling. If any executor, administrator or guardian having charge of any estate, real, personal or mixed, shall unlawfully, and with intent to defraud any creditor, heir, legatee, ward or distributee interested in such estate, convert the same or any part thereof to his own use, he shall be deemed guilty of the offense of swindling. [O. C. 7736, Act Feb. 12, 1858, p. 183, amended

by Act April 10, 1883, p. 66.]

The amendment is by inserting the word "creditor." Indictment, Willson's Cr. Forms, 518. §1394-ART. 796. —Punishment. Every person guilty of swindling shall be punished in the same manner as is provided for the punishment of theft, according to the amount of the money or the value of the property or instrument of writing so fraudulently acquired. [O. C. 773g, Act Feb. 12, 1858, p. 183.]

See Ante, §§ 1282, 1283.

II. FRAUDULENT DISPOSITION OF MORTGAGED PROPERTY.

§1395 — ART. 797. — Fraudulent disposition of mortgaged property. — If any person has given, or shall hereafter give any mortgage, deed of trust or other lien, in writing, upon any personal or movable property or growing crop of farm produce, and shall remove the same or any part thereof out of the State, or shall sell or otherwise dispose of the same with intent to defraud the person having such lien, either originally or by transfer, he shall be punished by imprisonment in the penitentiary not less than two nor more than five years. [O. C. 773, Act Feb. 12, 1858, p. 183, amended by Act March 31, 1885, p. 85.]

The amendment inserts "or growing crop of farm produce." Indictment, Willson's Cr. Forms, 519, approved in Glass v. S. 23 App. 425.

§1896-Decisions relating to preceding article. Prior to the amendment of the preceding article, it was held that a growing crop of cotton was not movable property, nor was it personal property until ready to be harvested, and hence could not be the basis of this offense. Hardeman v. S. 16 App. 1. But the article as amended expressly includes "growing crops.' Honeycut v. S. 23 App. 71. The indictment must allege that the property was personal or movable property, or a growing crop of farm produce, at the time of the execution of the mortgage or lien upon it. The sale or other disposition of real property on which the owner had executed a written lien is not an offense. Hardeman v. S. 16 App. 1. It must be alleged that the mortgage, deed of trust, or other lien in writing, was valid, subsisting and unpaid at the time of the sale, removal or disposition of the property. Satchell v. S. 1 App. 438. If the instrumentis conditional, it must be averred that the condition has happened. S. v. Deveraux, 44 Tex. 383. Neither the value of the property, nor its liability to forced sale need be alleged, and the title may be laid in the administrator of a deceased mortgagee. S. v. Maxey, 41 Tex. 524. The fraudulent intent must be averred and proved. Satchell v. S. 1 App. 438; Robberson v. S. 3 App. 502. It must be alleged that the mortgage or other lien was in writing, and that the injured party was the holder of the same. Moye v. S. 9 App. 88. The indictment should describe the property as it is described in the mortgage or other written lien, but it will be sufficient if the decription is sufficient to identify the property as that described in the mortgage or other lien. Glass v. S. 23 App. 425. The preceding article makes it a penal offense: 1. To remove out of the State the property upon which a lien in writing has been given. 2. To sell such property. 3. To otherwise dispose of such property, with the intent in either case to defraud the holder of the lien. A removal of the property from one county to another in the State, does not constitute the offense. The term "otherwise dispose of" does not include a removal, or a sale, but does include any other mode of placing the property beyond the reach of the holder of the lien. Robberson v. S. 3 App. 502. Where the evidence raised the issue that in exchanging the mortgaged property, the defendant stipulated that the title to the same should not pass to and vest in the vendee, until he, the defendant, had satisfied the mortgage, the court should have submitted this issue in its charge, and should have directed the jury that such a disposition of the property would not have been with a fraudulent intent. Glass v. S. 23 App. 425.

OF OFFENSES AGAINST PROPERTY.

§§1397-1399

CH. 18.-OF OFFENSES COMMITTED IN ANOTHER COUNTRY

OR STATE.

§1397-ART. 798.-Bringing stolen property into this State. If any person who shall have committed an offense in any foreign country, State, or territory, which if committed in this State would have been robbery, theft, or receiving of stolen goods or property, knowing the same to have been stolen, shall bring said property into this State, he shall be deemed guilty of robbery, theft or receiving of stolen goods, knowing the same to have been stolen, as the case may be, and shall be punished as if the offense had been committed in this state. [O. C. 774.]

Indictment, Willson's Cr. Forms, 520.

—

§1398-ART. 799. Requisites of guilt under preceding article. To render a person guilty under the preceding article, it must appear that by the law of the State or territory from which the property was taken and brought to this State, the act committed would also have been robbery, theft or receiving of stolen goods. [O. C. 775.]

§1399-Decisions under preceding articles. -For a sufficient indictment, and evidence held sufficient to support a conviction, see Cowell v. S. 16 App. 57. See the same case for the manner of proving the laws of an Indian nation. The law of the foreign country or State is an element of the offense and an issuable fact to be alleged and proved. But it need not be averred that the defendant was amenable to, or punishable by, the laws of said foreign country or State. Article 2250 of the Revised Statutes provides how laws shall be proved, and is applicable in criminal cases. Cummins v. S. 12 App. 121. But it must be averred that the act was an offense under the laws of such foreign country or State. S. v. Morales, 21 Tex. 298; Carmisales v. S. 11 App. 474. It must be shown that the defendant committed the theft and brought the property into this State, or, at least, that he had possession or control over it after it came into this State. But if the defendant not only aided in the original theft, but furnished the means for bringing the property into this State, and then came to this State himself in pursuance of an agreement with the other thief, and here received his portion of the fruits of the theft, he brought the property into the State within the meaning of the law. In a case arising under the preceding articles, all the facts and circumstances bearing upon the transaction, whether transpiring in this State or out of it, are admissible in evidence, and may be considered by the jury. See charges held correct, and evidence held sufficient to support conviction. Sutton v. S. 16 App. 490. The evidence must show that the defendant brought the property into the county of the prosecution, or took possession and control of it after it reached said county. Carter v. 37 Tex. 362. S.

290

commit offense in this. Decisions as to conspiracy.

1409

$1400-ART. 800.-Definition. A " conspiracy" is an agreement entered into between two or more persons to commit any one of the offenses hereafter named in this chapter. [O. C. 776, Act Oct. 26, 1871, p. 15.] Indictment, Willson's Cr. Forms, 521-522.

$1401-ART. 801.-When offense complete. The offense of conspiracy is complete, although the parties conspiring do not proceed to effect the object for which they have so unlawfully combined. [O. C. 777, Act Oct. 26, 1871, p. 15.]

§1402-ART. 802.-Agreement must be positive. Before any conviction can be had for the offense of conspiracy, it must appear that there was a positive agreement to commit one of the offenses hereafter named in this chapter. It will not be sufficient that such agreement was contemplated by the parties charged. [O. C. 778, Act Oct. 26, 1871, p. 15.]

§1403-ART. 803. Mere threat not sufficient. —A threat made by two or more persons acting in concert will not be sufficient to constitute conspiracy. [O. C. 779, Act Oct. 26, 1871, p. 15.]

$1404-ART. 804.-What crimes the subject of.-The agreement to come within the definition of conspiracy must be to commit one or more of the following offenses, to wit: Murder, robbery, arson, burglary, rape, or any other offense of the grade of felony, [O. C. 780, Act Oct. 26, 1871, p. 15, amended by Act Feb. 5, 1884, p. 25.]

The amendment leaves out the words "theft and forgery" adding in their stead, "or any other offense of the grade of felony."

$1405 ART. 805.-Punishments.- Conspiracy to commit murder shall be punished by confinement in the penitentiary not less than two nor more than ten years. Conspiracy to commit any one of the other offenses named in the preceding article shall be punished by confinement in the penitentiary not less than two nor more than five years. [O. C. 781, Act Oct. 26, 1871, p. 15.]

§1406- ART. 806. To kill, same as murder. A conspiracy to kill a human being shall be deemed a conspiracy to commit murder. [Ó. C. 782, Act Oct. 26, 1871, p. 16.]

§1407 ART. 807.- Conspiracy to commit an offense in another State. A conspiracy entered into in this State for the purpose of committing any one of the offenses named in article 804, in any other of the States or territories of the United States, or in any foreign territory, shall be punished in the same manner as if the conspiracy so entered into was to commit the offense in this State. [O. C. 783, Act Oct. 26, 1871, p. 16.]

Indictment, Willson's Cr. Forms, 623.