
    (85 Tex. Cr. R. 272)
    WHITAKER v. STATE.
    (No. 5381.)
    (Court of Criminal Appeals of Texas.
    May 7, 1919.)
    1. Indictment and Information <©=>101 — Drawing Check Without ITunds — Status of Bank.
    An affidavit and information for swindling, by giving a check on a bank in which defendant had no funds, or any reasonable prospects of having funds, need not allege that the bank, which was not the injured party, was an incorporated bank or a copartnership.
    2. False Pretenses <©=328 — Worthless Check — Information — Name of Injured Party.
    If party injured by giving of a worthless check is alleged to be a bank, the indictment is bad if it fails to allege whether it is an ini dividual, partnership, corporation, or joint-stock company.
    3. False Preténses <©=>28 — Indictment — Party Injured.
    If the party injured by the giving of a worthless check is an individual, it is only necessary to allege his name; but if the injured party is a corporation, that fact must be alleged.
    4. False Pretenses <©=338 — Name of Injured Party — Proof and Variance.
    If the name only of the party injured by the giving of a worthless check is alleged, -it is proper and sufficient to prove that the injured party was an individual; but if the proof under such allegations should show that the injured party was a corporation, there would be a variance.
    5. False Pretenses <©=338 — Name of Injured Party — Proof and Variance.
    Where information for swindling by giving a worthless check alleged that one C. was the injured party from whom property was obtained, and was owner of- property, it was necessary to prove that he was the owner and that •it was obtained from him as his property, and proof that some other party was swindled by transaction would be a variance, defeating state’s case.
    6. False Pretenses <©=>38 — Information — Name of Injured Party — Variance.
    An information charging the swindling of one O. out. of $10 by giving a worthless check, and alleging O. to be owner of property obtained, was not sustained by evidence that C., as an employer of a company, cashed the cheek with the company’s money, where it was not shown that he was a special owner, having exclusive possession and management of such money.
    7. Criminal Law <©=>723(3) — Remarks of Prosecutor — Frequency of Offenses.
    In prosecution for swindling by giving worthless check, wherein defendant testified that he expected to deposit funds in time to meet it and was prevented from doing so, prosecutor’s statement that it was a frequent offense and that there were many poor checks in district attorney’s office, notwithstanding statement of defendant’s attorney that defendant h.ad said he had offered to pay check, was unjustified.
    Appeal from Dallas County Court, at Law; T. A. Work, Judge.
    W. H. Whitaker was convicted of swindling by giving a check on a bank in which he had no funds, or reasonable prospect of having funds, and he appeals.
    Reversed and remanded.
    John T. Spann, of Dallas, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The affidavit and information charge that on the 31st of August, 1918, appellant swindled W. Coffee, Jr., out of $10 by means of giving a check on the central State Bank of Dallas, when appellant had no funds in said bank, or reasonable prospects of having funds to meet the check. Coffee is alleged to be the owner of the property obtained, and it was obtained for the purpose of swindling him. The cheek given was as follows:

“Dallas, Texas, 8 — 31, 1918.
“Central State Bank of Dallas, Member of Federal Reserve Bank:
“Pay to Stewart Products Co. or bearer $10/00 ten dollars. W. H. Whitaker.”

There are various exceptions taken to the affidavit and information — among others, that they did not charge that the bank was an incorporated bank or a copartnership. We think this was not necessary. The bank was not the injured party, and it was not necessary, therefore, to allege that it was an incorporated bank. The authorities hold that, if the injured party is alleged to be a bank, the indictment is bad if it fails to allege whether the bank was an individual, partnership, corporation, or joint-stock company. Nasets v. State, 32 S. W. 698. It is also held .that, if the injured party be an individual, it is only necessary to allege his name; but, if the injured party was a corporation, that fact must be alleged. If the name only of the injured party is alleged, it is proper and sufficient to prove that the injured party was an individual; but, if the proof under such allegation should show that the injured party was a corporation, there would be a variance. See Faulk v. State, 38 Tex. Cr. R. 78, 41 S. W. 616; Spurlock v. State, 45 Tex. Cr. R. 284, 77 S. W. 447. In this instance the allegation was that Coffee was the injured party, and from whom the property was obtained, and that he was the owner of the property so obtained. It would be necessary under this allegation in the information to prove that Coffee was the owner of the property, and that it was obtained from him as his property ; in other words, that he was the party who was swindled. If the proof should show that some party other than Coffee was swindled by- the transaction, that would constitute a variance between the allegation and the facts. The state’s case would thereby be defeated.

The evidence of Coffee, the alleged swindled party, is that he cashed a check for the defendant on the 31st day of August, 1018, paying him the cash for it. lie was an employs of the Stewart Products Company’s service station, and took the money out of the cash register, and gave it to appellant for the check. “It was the Stewart Products service station money I paid him. for the check.” This does not meet the allegation in the information that it was Coffee’s property. The state’s testimony shows the money belonged to the Stewart Products Company, and not to Coffee. There is no attempt to show that Coffee was the special owner, and had exclusive posession, control, and management of the property, but as an employe of the Stewart Products Company he took their money and cashed this check. Under this record it was the Stewart Products Company that was swindled, if there was a swindle, and not Coffee. This matter is presented in various ways, and specially by two bills of exception.

There is another bill of exceptions reciting statements of the prosecuting officer, which were not warranted by the facts and not supported by any evidence in the record, and the evidence was not before the jury, and in no way connected with this case, and would not have been legitimate evidence. The bill recites the prosecuting officer used £he following language:

“Now, men, this is a common everyday case of check swindling. We have a lot of trifling no-account fellows here in town that depend, on writing bum checks and putting them off on their acquaintances for a living, and actually get by with it, and when they get pulled for it they expect to pay the check and get the case dismissed. I can show you a stack of bum. checks in the district attorney’s office this high (indicating with his hand a height of about three feet), where honest hard-woi’king men have had to go down in their pockets and pay their money out on bum checks. Now it is up to you men to stop it.” '

The court qualifies this bill by stating that the attorney for defendant made the statement that the defendant stated that be bad offered to pay the check as evidence of good faith. In replying to this argument the prosecuting attorney made substantially the statement set out in the bill, further stating that the evidence showed that defendant never at any time offered to pay the check until after complaint was filed.. The qualification of the trial court does not detract from the illegality of the statements indulged. There was no evidence before the jury of any checks being in the district attorney’s office, nor the number of them, nor was there any evidence in the ease to show that other parties had been issuing checks of a similar character and offering subsequently to pay them. The defendant’s testimony was to the effect that he gave the check in question, and that, while he did not have money in the bank at the time he gave the check, which was Saturday evening, that he would have it there before the check would reach the bank Monday. Substantially Ms defensive testimony was that he had been employed by certain parties to sell an auto and had made the sale, and that a check had been given for $300 for the purchase price of the auto, and it was late Saturday evening and he could not cash the check, the banks being closed, and that he expected to deposit the money before the $10 check in question would reach the bank Monday. Monday came, however, and the party had disappeared with the auto, and his friend, who was operating with him in the sale of the auto, who had received the check, ascertaining that the purchaser had gone, followed him to Sherman, ‘and the purchaser failing to pay for the auto he took it back, which prevented payment of the check, and for this reason he was unable to meet it. This was substantially the defendant’s testimony. The statements of the prosecuting officer were not justified under the condition of this record.

The judgment is reversed, and the cause remanded. 
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