
    HARLIN v. STATE.
    (No. 9076.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.)
    1. False pretenses <@=»38 — •Check held properly introduced in evidence in prosecution for executing and delivering it without having funds subject thereto.
    In prosecution for misdemeanor swindling, for obtaining money by executing cheek drawn on bank in. which defendant had no funds, check was properly introduced in evidence, and testimony of prosecuting witness that defendant executed and delivered check to her did not result in variance, where check was payable to “O. K. Restaurant or bearer,” and information alleged that it was delivered to prosecuting witness, but did not allege it was payable to her.
    2. Criminal law &wkey;>351 (5) — Testimony that defendant went under assumed name properly admitted as pertinent on defendant’s claim that check was given in good faith with belief that he had funds in bank.
    In prosecution for obtaining money and property by executing and delivering check without having funds in bank to pay check, testimony that, when defendant was arrested in another county, he was going under an assumed name, was admissible as being pertinent on defendant’s claim that check was given in good faith based on belief that he had funds in bank.
    Appeal from Hill County Court; W. D. Wray, Judge.
    G. E. I-Iarlin was convicted of misdemeanor swindling, and appeals.
    Affirmed.
    Morrow & Stollenwerck, of Hillsboro, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for misdemeanor swindling. Punishment is by fine of $5, and 40 days’ confinement in jail.

It is alleged that defendant obtained from Mrs. J. II. Whitmire two dozen oysters of the value of 70 cents and $4.30 in money by executing and delivering to her a check for $5 payable to “O. K. Restaurant or bearer,” signed by defendant and drawn on the “Farmers’ National Bank,” and that defendant had no funds in the bank to pay the check, and had no good reason to believe the cheek would be paid when presented in the ordinary course of business.

The facts show that defendant went into the O. K. Restaurant, owned by Mrs. (Whit-mire’s husband, ordered two dozen oysters, executed the cheek in question, delivered it to Mrs. Whitmire, and received in money $4.30. He had no funds in the bank and the check was returned unpaid. He claimed that he had information that funds would be in the bank to his credit sufficient to cover the check.' The court submitted this issue; but the jury found against him on it.<

There was no error in permitting the check to be introduced in evidence, nor to receiving the evidence of Mrs. Whitmire that defendant executed and delivered to her the check in question. There was no va'riance. The check was payable to the ‘‘O. K. Restaurant or bearer,” and the information alleged that it was delivered to Mrs. Whitmire, and upon the faith of the check the money and property were parted with. There is not allegation that the check was payable to Mrs. Whitmire, but only that it was delivered to her. The check is set out in the information.

We observe no impropriety in permitting the officer to testify that when defendant was arrested in another county he was going under an assumed name. The evidence showed that he left the county where the offense was committed immediately, and the testimony of the officer was pertinent upon the defendant’s claim that the check was given in good faith based on the belief that he had funds in the bank.

The judgment is affirmed. 
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