State v. Levi
| Decision Date | 01 January 1874 |
| Citation | 41 Tex. 563 |
| Parties | THE STATE v. E. L. LEVI AND S. HILBRON. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Marion. Tried below before the Hon. M. L. Crawford.
George W. Smith, for the State.
The defendants were indicted, charged with swindling under art. 2426, Pas. Dig.
The exceptions to the indictment were sustained, and the cause dismissed.
The District Attorney brings the case before us on appeal, and the question presented is the sufficiency of the indictment.
The charge in the indictment is that “E. L. Levi and one S. Hilbron, both late of said county, did unlawfully, fraudulently, and feloniously, and by means of a false and deceitful pretense and fraudulent representation then and there made by the said E. L. Levi and the said S. Hilbron to one N. A. Wright, to the effect that he, the said E. L. Levi, and he, the said S. Hilbron, had placed seventy pounds of coffee, bought by the said N. A. Wright at the store of said Hilbron, upon the wagon of him, the said N. A. Wright, and by means of said fraudulent representation and false and deceitful pretense then and there made by said N. A. Wright, they, the said E. L. Levi and the said S. Hilbron, did acquire of and from said N. A. Wright the sum of fifteen dollars and seventy-five cents in money, the corporeal personal property of him, the said N. A. Wright, with intent to appropriate the same to the use of him, the said E. L. Levi, and of him, the said S. Hilbron, and to deprive said Wright of the same, the said E. L. Levi and the said S. Hilbron then and there well knowing that said coffee had not been placed upon the wagon of him, the said N. A. Wright, against,” &c.
The indictment is defective in charging the offense. There is no distinct negative averment that the pretense was untrue. It is not sufficient to state that the pretense was false and deceitful, and that it was a fraudulent representation of the coffee being so placed on Wright's wagon.
Although the false pretenses be set out in the indictment in the exact words of the statute, it will not (2 Bishop's Cr. Proced., sec. 168.) This the indictment failed to do, and is consequently defective.
The averment that defendants then and there well knew that the coffee had not been placed on the wagon of said Wright, does not supply the omission of the...
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Mathis v. State
...and substance can be known from the averment. There is in this information no direct averment that the false pretense was untrue. State v. Levi, 41 Tex. 563. There is no allegation that the accused knew the pretense, etc., to be false when he made same. Doxey v. State, 47 Tex. Cr. R. 506, 8......
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Moore v. State
...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, w......
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Sasse v. State
...were false and fraudulent when they made them. An indictment for swindling should directly allege that the pretenses were false. In State v. Levi, 41 Tex. 563, it was held that an averment in the indictment to the effect that the then and there well knew the pretenses to be false did not su......
- State v. Hartman