
    CLARK v. STATE.
    (No. 9411.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1925.)
    1. False pretenses <&wkey;38 — Proof held at variance with information in prosecution for passing check without funds.
    Where information charged that defendant gave a -cheek as guardian without sufficient funds, and proof merely showed that she had no funds in her personal account, and that payment of check as guardian was refused for different reason, held that there was a variance.
    2. False pretenses <&wkey;49(2) — Defendant’s fraudulent intent to deprive prosecuting witness of value of her property by passing check without sufficient funds held not shown.
    In prosecution for swindling by passing a check without sufficient funds, evidence held not to show defendant’s fraudulent intent to deprive prosecuting witness of her property at time check was given.-
    Commissioners’ Decision.
    Appeal from Harris County Court at Law; Ben E. Wilson, Judge.
    Cora M. Clark was convicted of swindling-, * and she appeals.
    Reversed and remanded. *
    Nichols & Sargent, of Houston, for appellant. .
    Sam D. Stinson, State’s Atty., of Greenville, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The appellant was convicted in the county court at law of Harris county for the offense of swindling. The information charges that she gave a check on the South Texas Commercial National Bank in the sum of $1.10 in payment of two quarts of oil and five gallons of gasoline, and the check was signed Cora M. Clark, Grd., and further charges that in truth and in fact the said defendant at the time of so giving and drawing said check did not have with said bank sufficient funds to pay said check, and then and there had no- good reason to believe that said' cheek would be paid by said bank when the same would be, in the ordinary course of business, presented to said bank for payment, and further charges that said check was, in due course of business presented to said bank, and payment of the same was refused for want of said sufficient funds of said drawer.

The state introduced one of the bookkeepers from the South Texas Commercial National Bank of Houston, and over the appellant’s objection he was permitted to testify that Cora M. Clark individually had no money on deposit at the time the check was presented for payment. On cross-examination, however, this witness testified that Cora M. Clark, guardian, at the time the . check was presented for payment, had the sum of $1,600 . in her account in said bank; that the check was turned down by the bank because Cora M. Clark had no account as an individual, and because the check did not have the counter signature of the bonding company which would have made it subject to payment on •her account as guardian. He also testified that, if the check had been countersigned by the bonding company, it would have been paid out of the account of Cora M. Clark, guardian; that he was not the bookkeeper that opened the account for Mrs. Cora Clark ‘as guardian, and did not know who did open this account for her. He testified that the letters “Grd.” are understood at the bank as the abbreviation for “guardian.” This witness further testified that he did not know whether Mrs. Clark of her own knowledge knew that the cheeks on this account must be countersigned by the bonding company.

The party to whom the check was given testified that her name was Mrs. O. P. Posey, and that appellant came to her filling station, purchased two quarts'of oil and five gallons of gasoline, asked for a check, and, being given one, she filled it out for $1.50, but, upon being told that she only owed the sum of $1.10, she then destroyed the first check and made out the check in controversy. The witness testified that she told appellant that she did not take checks, and that appellant then said, “You will take this check or you will take nothing.” The witness took the check, and appellant drove out. That about a week or so afterwards the check was returned" to her by the bank, not having been paid. That she went to see appellant about it, and found her at a neighbor’s! house, and that together they went over to appellant’s house, and appellant invited her in her house, but she did not go in. The witness then testified as follows:

“She went into her house, and came back out with some money in her hand, and ’said to- me ‘Give me the check.’ I said, ‘No- you give me the money.’ She said, ‘You can give the check to the lady standing with me, and I will give her the money, and she can give it to you.’ I would not do that, and we had some words, and then I left.”

Appellant testified to buying the oil and gasoline, and that she did not know the check had been turned down -until a week or 10 days after she had given it, and that Mrs. Posey came over to a neighbor’s house and asked for her, and that she told her that she was Mrs. Clark, and that they went oter to appellant’s house together, and that the witness told her that tlie check had bee'n turned down, and that she invited the prosecuting witness into her house, but that she was mad and would not come in. That she went in the house herself, and got the money to pay her with, and came back to the front where Mrs. Posey was, and that she told Mrs. Posey that she would give her the money if she would give her the check, hut that Mrs. Posey said she would not give it to her unless she would give her the money first. That appellant’s daughter was standing there, and' appellant told Mrs. Posey to give her the check and. appellant would give her the money, and that she could give the money to Mrs. Posey. This Mrs. Posey refused to do, and got mád, and told appellant that she was going to put her in the penitentiary, so appellant turned around and walked back in the house. That she at no time refused to pay the check, and when it was brought to her knowledge that same had been turned down that she immediately tried to take it up. That she had in the bank as guardian the sum of $1,600, and that she never knew she had to have all the cheeks countersigned by the bonding company.

We think this testimony clearly shows that the allegations and the proof do not correspond. To have met the allegation in the information that the defendant, at the time of giving and drawing the cheek did not have with said bank personally sufficient funds to pay the same, it was necessary for the state to prove that the check given by her was drawn on her individual account. This was not done. On the contrary, the check set out in the information shows on its face that it was drawd on the account of Cora M. Clark, Grd., and the undisputed testimony given by the state’s witnesses is to the effect that the abbreviation “Grd.” was understood by the bank and was recognized by it in its course of dealing with appellant to mean “guardian.” It is further undisputed that at the time the check was given and presented to the bank Cora M. Clark, Grd., had about $1,600 on deposit with the bank. The information also alleges as a reason why said check was not paid was because of insufficient funds. The undisputed proof shows that the check was for $1.10, and that there was about $1,600 on deposit to appellant’s credit as guardian, and that the reason the check was not paid out of appellant’s account as guardian was because it was not countersigned by the bonding company who signed appellant’s bond as guardian. It requires neither argument nor authority to make it manifest that, if the state sought to convict appellant on the theory that she fraudulently passed the check without having it counter signed by the bonding company, then it was under the duty of charging this matter by proper averments in the information, and a mere charge to the effect that she gave a check as guardian and an allegation and proof that she had no funds in her personal account will not support a conviction.

We also think it clear' under the undisputed testimony that the fraudulent intent was lacking in this case. ’ We seriously question the propriety of sustaining a conviction on the proof of fraudulent intent as disclosed by this record, in view of the fact that appellant, as. guardian, had ample funds on hand to pay the check when it was given, and when it was disclosed to her that it had been turned down she immediately went into a house and got the money and offered to give it in exchange for the check. It seems clear that the only reason that the matter was not disposed of in this manner was because she and the woman to whom.the check had been given became engaged in a controversy as to how the exchange should be made, and the interview broke up in harsh feelings between them.

As above stated, we seriously doubt the sufficiency of' this .testimony to show a fraudulent intent to deprive the prosecuting witness of the value of her property at the time the goods were received.

For the errors above discussed, it is our opinion that the judgment should be reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
      (i&wkey;For other oases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes
     