41 Tex. 563 | Tex. | 1874
The defendants were indicted, charged with swindling under art. 2426, Pas. Dig.
The exceptions to the indictment were sustained, and the cause dismissed.
The District Attorney brings the case before us on appeal, and the question presented is the sufficiency of the indictment.
The charge in the indictment is that “E. L. Levi and one S. Hilbron, both late of said county, did unlawfully, fraudulently, and feloniously, and by means of a false and deceitful pretense and fraudulent representation then and there made by the said E. L. Levi and the said S. Hilbron to one H. A. Wright, to the effect that he, the said E. L.
The indictment is defective in charging the offense. There is no distinct negative averment that the pretense was untrue. It is not sufficient to state that the pretense was false and deceitful, and that it was a fraudulent representation of the coffee being so placed on Wright’s wagon.
Although the false pretenses be set out in the indictment in the exact words of the statute, it will not “ dispense with the necessity of an independent averment that the pretenses were false. In other words, the pretense must be negatived by distinct averment.” (2 Bishop’s Cr. Proced., sec. 168.) This the indictment failed to do, and is consequently defective.
The averment that defendants then and there well knew that the coffee had not been placed on the wagon of said Wright, does not supply the omission, of the negative averment. This latter charge, that they well knew, &c., &c., is necessary7 as a distinct and separate averment in the indictment. (2 Bishop’s Cr. Proced., sec. 172.)
The charge in the indictment, that “ by means of said fraudulent representation and false and deceitful pretense then and there made by said H. A. Wright,” (if not a mis
There is no error, in the judgment, and it is affirmed.
Affirmed.