44 Tex. 442 | Tex. | 1876
The motion in arrest of judgment should have been sustained. Knowledge of the false pretense by means of which money or property is fraudulently obtained is an essential constituent of the offense with which appellants are charged. Without proof that they knew that the pretense was false, evidently they should not be convicted. And although the word “knowingly” is not one of the statutory words used in defining the offense, still, as the offense, as defined by the statute, clearly requires that it shall be proved, we think, by the rules of correct pleading, it should be averred in the indictment. And so it is held by courts of the highest authority and standard commentators. (Regina v. Philpotts, 1 Car. & Kir., 112; 2 Bish. Cr. Pro., sec. 172.)
The necessity for such an averment in the indictment has been clearly recognized by this court in the opinion of Mr. Justice Devine in the case of The State v. Levi, (41 Tex., 563.)
The judgment is reversed and the cause remanded.
Reversed and remanded.
