Ferguson v. State

• Decision Date: 23 May 1888
• Citation: 8 S.W. 479
• Parties: FERGUSON v. STATE.
• Court: Texas Court of Appeals

8 S.W. 479

FERGUSON v. STATE.

Court of Appeals of Texas.

May 23, 1888.

Appeal from district court, Smith county; FELIX J. McCORD, Judge.

The defendant, Henry Ferguson, was convicted of swindling, and sentenced to three years' imprisonment. From the judgment he brings this appeal.

J. F. Onion, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

This conviction is under an indictment which undertakes to charge the offense of swindling by means of certain false representations made by the defendant concerning his ownership and right to dispose of certain personal property, and by means of a chattel mortgage, in writing, upon said property, executed and delivered by him to the alleged injured party. A motion in arrest of judgment was made by the defendant; the ground of said motion being that the indictment was fatally defective because it neither set forth the alleged mortgage in his verbis nor substantially. Said motion was overruled, and in said ruling we are of opinion the court erred. It is plain from the allegations in the indictment that the swindle, if one was accomplished, was by means of the alleged mortgage, accompanied by verbal representations as to the defendant's ownership of the property. Said alleged mortgage entered into the offense charged, as a part of the basis thereof, and, in conformity with the general rule, should have been set out in his verbis in the indictment, or good reason should have been stated why it could not be set forth, and in such case it should have been set forth substantially. Willson, Tex. Crim. Laws, §§ 1383, 1995.

Because the indictment is defective in matter of substance in the particular above stated, the judgment is reversed, and the prosecution is dismissed.