King v. State

• Decision Date: 10 April 1912
• Parties: KING v. STATE.
• Court: Texas Court of Criminal Appeals

146 S.W. 543

KING v. STATE.

Court of Criminal Appeals of Texas.

April 10, 1912.

Rehearing Denied May 8, 1912.

Appeal from District Court, Sabine County; W. B. Powell, Judge.

W. J. King was convicted of swindling, and he appeals. Affirmed.

Goodrich & Lewis, of Hemphill, and J. H. McGown, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted for swindling, tried, and convicted.

1. Appellant in his motion for new trial complains of the action of the court in overruling his motion to quash the indictment. There is no such motion in the record. However, there is a motion in arrest of judgment alleging that "the indictment fails to charge any offense, in that it fails to charge or allege in express terms any sale or delivery of the cattle in question to the injured parties." The indictment charges, among other things, that "the said W. J. King did then and there falsely pretend and fraudulently represent to the said Booth and Whiteside that he the said W. J. King was then and there the owner of thirty-seven head of cattle of the value of two hundred ($200) dollars, and that he the said W. J. King was the owner of the same, and had the right to dispose of the same, and did thereby then and there fraudulently induce the said Booth and Whiteside to pay him, the said W. J. King, the said one hundred and ninety dollars ($190) for said thirty-seven head of cattle then and there claimed to be owned by him the said W. J. King, when in truth and in fact the said W. J. King did not then and there own said cattle, and did not have the right to dispose of the same, and the said W. J. King then and there knew that said pretenses and representations so made by him to the said Booth and Whiteside were false." We are cited by appellant to the case of Cummings v. State, 36 Tex. Cr. R. 152, 36 S. W. 266, he claiming that it sustains his contention in this case. However, by reading the indictment in that case and the excerpt copied above, it is seen that this indictment contains an allegation that by reason of said false pretenses appellant induced Booth and Whiteside to pay him, appellant, the said sum for said 37 head of cattle then and there claimed to be owned by him. It is for the want of such an allegation that the indictment in the Cummings Case was quashed. The allegation being that the swindle was perpetrated by a representation that he owned certain cattle, which he did not own, of course, no allegation of delivery could have been made, and an allegation of sale is sufficiently made when it is charged that appellant by reason of the false representations and pretenses induced the parties to pay him the money for the cattle. Article 441 of the Code of Criminal Procedure of 1895 provides: "The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it, in bar of any prosecution for the same offense." And it has been held by this court that, if the offense be charged in ordinary and concise language in such a manner as to enable...