19 S.W. 604 | Tex. Crim. App. | 1892
Appellant was indicted for the offense of swindling G.W. Hawkins out of a mule of the value of $110, by means of false pretenses. He was convicted, and his punishment assessed at two years in *40 the penitentiary. Motions for new trial and in arrest of judgment were overruled, and defendant appealed.
There is only one question that need be considered, and that is the sufficiency of the indictment. The indictment alleges that defendant, by means of false pretenses, knowingly and fraudulently made by him to G.W. Hawkins, did induce said Hawkins to deliver to defendant, and defendant did acquire from Hawkins, a certain mule, of the value of $110, with intent to appropriate the same to his (defendant's) use, in this, to-wit: That defendant did faslely pretend and represent to said Hawkins that he (defendant) had sold to J.M. Porter his land and improvements on Fish Creek for $250, which would be due November 15, 1891, when in truth defendant had sold no land and improvements on Fish Creek to J.M. Porter, and J.M. Porter did not owe defendant $250, due November 15, 1891, and defendant knew said representations were false when he made them.
We are of opinion that the motion in arrest of judgment should have been sustained. It does not appear from said indictment whether the said Hawkins was induced to part with the possession only, or the possession and title also — whether it was theft or swindling. Pitts' Case, 5 Texas Ct. App. 122[
The indictment should allege all the material facts necessary to be proved to convict the defendant, and not leave them to inference and argument. White's Case, 3 Texas Ct. App. 608[
Reversed and dismissed.
Judges all present and concurring. *41