160 S.W. 72 | Tex. Crim. App. | 1913
Appellant was convicted of swindling. The indictment charges appellant with swindling Mrs. Youngblood, the allegation being, in substance, that she was the owner and in possession of four vendor lien notes each dated September 20, 1909, and payable respectively on the 1st day of October, 1910, 1911, 1912 and 1913, for the sum of $100, each drawing 10 per cent interest annually. The notes were executed on the 20th day of September, 1909, by one S.V. Lott, *385 and being given in part payment for forty-eight acres of land, a part of the Wm. Williams league in Newton County, and being the J.H. Booker farm, containing the dwelling and improvements, and that theretofore, towit, on or about the 23rd day of February, 1912, T.J. Windham in said county and State, for the purpose of acquiring and obtaining from Mrs. Youngblood said vendor's lien notes, did fraudulently and wilfully promise and agree to make and deliver to her, the said Mrs. Youngblood, a deed of conveyance to the forty-eight acres of land, a part of the Wm. Williams league in Newton County, being the land for which the said notes were given in part payment thereof, and by reason of such fraudulent representations and agreements induced Mrs. Youngblood to deliver to him the aforesaid vendor's lien notes which were of the value of $100 each, and the said T.J. Windham did then and there and by means aforesaid acquire from Mrs. Youngblood said vendor's lien notes, the same being the property of the said Mrs. Youngblood, with the intent then and there to appropriate the same to the use of him, the said T.J. Windham, when in truth and in fact the said T.J. Windham did not convey the said forty-eight acres of land to her, Mrs. Youngblood, but instead of so doing he, the said T.J. Windham, did fraudulently, wilfully and knowingly make and execute and deliver a deed of conveyance to Mrs. Youngblood, which is as follows. It is unnecessary to set out the field notes in the deed executed by defendant, but after giving the field notes it recites that it contains fifty-six acres of land, more or less, with the usual clause. The grand jury further said that this above mentioned deed was fraudulently, wilfully and knowingly delivered to the said Mrs. Youngblood by appellant without her consent and without her knowledge, in that she, the said Mrs. Youngblood, relied upon the representations made to her that she was to receive a deed of conveyance to the forty-eight acres of land first mentioned herein and that she, Mrs. Youngblood, believed at the time the notes were delivered that it was a deed to said forty-eight acres of land, and but for such false and fraudulent representations so made by appellant, Mrs. Youngblood would not have given and delivered the notes to appellant, and that the deed so delivered to her by appellant was worthless, being of no value, and was delivered to Mrs. Youngblood with the intent to defraud her of the value of said notes; and that appellant then and there knew that said pretenses and representations so made by him to Mrs. Youngblood were false.
Many reasons are assigned why this indictment is vicious. It certainly is a very vague and indefinitely written document. Besides, in the last clause just above it does not show or allege what pretenses and representations made by appellant to Mrs. Youngblood were false, — whether they were original pretenses or representations to obtain the notes, or whether pretenses and representations with reference to the deed he did deliver. It is also vague, indefinite and uncertain in that it does not, except in a most inferential way, undertake to exclude the *386
idea that the forty-eight acres about which the first conversation occurred were not included in the field notes for the fifty-six acres. That the pleader may have intended to convey the idea that the forty-eight and fifty-six acres were different tracts of land, doubtless may be true, but the allegations do not, except in a most inferential way, so show. But there is beyond all this a fatal defect that goes to the very gist of the whole matter. The representations as alleged were as to some future matter, — not as to some past occurrence or then existing matter. If he obtained the notes by fraudulent representations that he would convey a title to forty-eight acres of land, this was an occurrence to take place at some future time, not even specified in the representations or mentioned in the indictment. But the notes were transferred not as to a past matter or existing fact, but on something to be done by the appellant at some time in the future. This would not constitute the offense of swindling, and can not be made under our statute to do so, for the statute expressly excludes matters of that sort as forming the basis of swindling. In addition to the statute, see Johnson v. State,
There are several other questions of importance in the case, but under the view taken we do not purpose to discuss or decide them further than to say several of them are reversible in their nature, but under the allegations contained in the indictment the State has not alleged a case upon which a conviction can be predicated for swindling.
The judgment is reversed and the prosecution is ordered dismissed.
Reversed and dismissed.