Presley v. State

• Decision Date: 16 December 1887
• Citation: 6 S.W. 540
• Parties: PRESLEY v. STATE.
• Court: Texas Court of Appeals

6 S.W. 540

PRESLEY v. STATE.

Court of Appeals of Texas.

December 16, 1887.

Appeal from district court, Freestone county; S. R. FROST, Judge.

Indictment for fraudulently disposing of mortgaged property. The defendant, Ben. Presley, was convicted of fraudulently disposing of certain mortgaged property, to-wit, of a horse. The defendant appealed.

Kirven, Gardner & Etheredge, for appellant. Asst. Atty. Gen. Davidson, for the State.

HURT, J.

This conviction was for fraudulently selling, trading, and disposing of certain mortgaged property. It is alleged in the indictment that the property was sold, traded, and disposed of to a certain person whose name is to the grand jurors unknown. Upon the trial, it was shown that the property —a horse — was traded to one Ike Thomas, and this fact was evidently known to the grand jury, or could have been known by the smallest degree of diligence. If the name of the person to whom the property was sold or traded was known to the grand jury, it was essential that it should have been given in the indictment. The assistant attorney general contends that, since the question is the intent to defraud, it matters not to whom the property was sold or traded. While this is true, the indictment should nevertheless inform the accused of the name of the person to whom the property was sold or traded. Bush v. Republic, 1 Tex. 455; Burch v. Republic, Id. 609; State v. Smith, 25 Tex. 64.

The indictment in this case is sufficient; but the proof fails to sustain the allegation that the name of the person to whom the property was sold or traded was unknown to the grand jury. As above stated, the proof shows beyond a doubt that the horse was traded to Ike Thomas, which fact could have been ascertained by the use of any diligence whatever. The judgment is reversed, and the cause remanded.