Moore v. State
| Decision Date | 03 October 1917 |
| Docket Number | (No. 4549.) |
| Parties | MOORE v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Wichita County; Wm. N. Bonner, Judge.
M. L. Moore was convicted of an offense, and he appeals. Reversed, and case ordered dismissed.
T. F. Hunter and Walter Nelson, both of Wichita Falls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
Appellant was convicted of swindling on account of the acquisition of $600 in money in the sale of certain personal property on the false representation that it was free from incumbrance.
The facts are sufficient to support the verdict, but the indictment is assailed upon several grounds. It was charged that the property sold was mortgaged to secure a debt of $621. Appellant claims that the rule which requires a false pretense to be specifically averred, and where such false pretense is in whole or in part in writing, or based on a written instrument, that the writing or instrument should be set out, would require the mortgage which constituted the alleged incumbrance upon the property to be set out in hæc verba in the indictment; citing Wilson v. State, 193 S. W. 669, and other cases.
The mortgage was not false pretense, but was a part of the evidence that the representations made were untrue. The law requires the truth of the pretense to be negatived. Wharton's Criminal Law, § 1491. The negative allegation should be specific, but the cases relied on by appellant do not support the contention that, in order to allege that the statement that the property was unincumbered was untrue, it would be necessary to set out the mortgage in hæc verba. It should be set out with sufficient particularity to accurately describe it, but not necessarily in full. It is essential that the existence and validity of the mortgage should be directly averred. To accomplish this, the allegation of the existence of the debt was imperative, in order to show that the allegation that the property was unincumbered was false. McElroy v. State, 67 Tex. Cr. R. 603, 150 S. W. 797; Robberson v. State, 3 Tex. App. 505; Satchell v. State, 1 Tex. App. 438; McCaskill v. State, 68 Ark. 490, 60 S. W. 234. The indictment contained no direct allegation that the debt which it was charged was secured by the mortgage was existent and unpaid. An inferential allegation, such as that appellant knew the debt was unpaid, will not suffice. State v. Dyer, 41 Tex. 520; State v. Levi, 41 Tex. 563; Wills v. State, 24 Tex. App. 400, 6 S. W. 316; Vernon's P. C. p. 912; 19 Cyc. p. 427. The failure to make such direct averment was, we think, fatal to the validity of the indictment.
There was a count in the indictment charging fraudulent disposition of mortgaged property, which was not submitted to the jury. Appellant claims there was error in failing to require an election by the state as between the two counts. When, as in this case, the evidence supporting the two counts is...
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