
    MOORE v. STATE.
    (No. 4549.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1917.)
    1. False Pretenses &wkey;>29, 30 — Indictment —Description of False Pretense and Falsity op Pretense.
    In a prosecution for swindling by selling personal property on the false representation that it was free from incumbrance, a mortgage on the property was not a .false pretense, required to be set out literally, but was merely evidence of the falsity of the pretense; and while it was necessary to negative the truth of the pretense, and to set out the mortgage with sufficient particularity to accurately describe it, it was not necessary to set it out in full. .
    2. False Pretenses i&wkey;30 — Indictment — Falsity oe Pretense.
    It was essential that the existence and validity of the mortgage be directly averred, and to accomplish this an allegation of the existence of the debt was imperative to show that the allegation that the property was unincum-bered was false.
    3. Indictment and Information <&wkey;70 — Inferential Allegations — Falsity of Pretense.
    An inferential allegation, such as that defendant knew that the debt secured by the mortgage was unpaid, was not a sufficient allegation that the mortgage was existent and unpaid; and the failure to make a direct averment to this effect was fatal to the validity of the indictment.
    4. Indictment and Information <&wkey;132(5)— Election Between Counts — Necessity.
    Where an indictment in one count charged defendant with swindling by selling personal property on the false representation that it was free from incumbrance¡ and in another count with the fraudulent disposition of mortgaged property, there was no error in failing to require an election between the two counts, since, when the evidence supporting two counts is identical, an election is .not required.
    5.-Indictment and Information <&wkey;132(5)— Election Between Counts — Acts Constituting.
    Where only the count charging swindling was submitted to the jury, this was equivalent to an election.
    6. False Pretenses <&wkey;26 — Indictment — Requisites.
    An indictment for swindling by selling personal property on the false representation that it was free from incumbrance should specifically allege that the money for the property was acquired by defendant.
    
      7. False Pbetenses <&wkey;31 — Indictment — Requisites.
    Such indictment should definitely allege the connection between the false pretense and the acquisition of the money by defendant.
    Appeal from District 'Court, Wichita County; Wm. N. Bonner, Judge.
    M. L. Moore was convicted of an offense, and he appeals.
    Reversed, and case ordered dismissed.
    T. F. Hunter and Walter Nelson, both of Wichita Falls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of swindling on account of the acquisition of $600 in money in the sale of certain personal property on the false representation that it was free from incumbrance.

The facts are sufficient to support the verdict, but the indictment is assailed upon several. grounds. It was charged that the property sold was mortgaged to secure a debt of $621. Appellant claims that the rule which requires a false pretense to be specifically averred, and where such false pretense is in whole or in part in writing, or based on a written instrument, that the writing or instrument should be set out, would require the mortgage which constituted the alleged incumbrance upon the property to be set out in hsae verba in the indictment; citing Wilson v. State, 193 S. W. 669, and other cases.

The mortgage was not false pretense, but was a part of the evidence that the representations made were untrue. The law requires the truth of the pretense to be negatived. Wharton’s Criminal Law, § 1491. The negative allegation should be specific, but the cases relied on by appellant do not support the contention that, in order to allege that the statement that the property was unincumber-ed was untrue, it would be necessary to set out the mortgage in htee verba. It should be set out with sufficient particularity to accurately describe it, but not necessarily in full. It is essential that the existence and validity of the mortgage should be directly averred. To accomplish this, the allegation of the existence of the debt was imperative, in order to show that the allegation that the property was unincumbered was false. McElroy v. State, 67 Tex. Cr. R. 603, 150 S. W. 797; Robberson v. State, 3 Tex. App. 505; Satchell v. State, 1 Tex. App. 438; McCaskill v. State, 68 Ark. 490, 60 S. W. 234. The indictment contained no direct allegation that the debt which it was charged was secured by the mortgage was existent and uni>aid. 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, we think, fatal to the validity of the indictment.

There was a count in the indictment charging fraudulent disposition of mortgaged property, which was not submitted to the jury. Appellant claims there was error in failing to require an election by the state as between the two counts. When, as in this case, the evidence supporting the two counts is identical, an election by the state is not required. Goode v. State, 57 Tex. Cr. R. 220, 123 S. W. 597; Branch’s Ann. P. O. p. 233, and cases listed. Moreover, the submission only of the count charging swindling was equivalent to election. Weathersby v. State, 1 Tex. App. 646; Betts v. State, 57 Tex. Cr. R. 391, 124 S. W. 424; Branch’s Ann. P. C. p. 232, and cases cited.

In writing another indictment the mortgage should be more fully and accurately described, the existence of the debt should be alleged, the allegation that the money was acquired by appellant should be more specific. Robinson v. State, 60 Tex. Cr. R. 354, 132 S. W. 354; Epperson v. State, 42 Tex. 79. The connection between the false pretense and the acquisition of the money should be more definitely alleged. Johnson v. State, 57 Tex. Cr. R. 347, 123 S. W. 143; Vernon’s P. C. art. 1421, note 8, p. 911, and cases cited.

Other points made by appellant have been examined, and they fail to disclose error.

Because the indictment is insufficient, the judgment is reversed, and the ease ordered dismissed. 
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