
    JAMES v. STATE.
    (No. 8096.)
    (Court of Criminal Appeals of Texas.
    Jan. 9, 1924.)
    I. False pretenses <&wkey;>26 — Indictment for swindling held demurrable.
    In a prosecution for swindling under Pen. Code, art. 1422, subd. 4, an indictment alleging that accused obtained possession of an automobile by false pretenses and fraudulent representations in giving and drawing a cheek on a named bank without sufficient funds therein to pay such check, and setting out a check signed by another, but failing to allege that accused indorsed the cheek or that the drawer had no funds in the bank, or that accused represented that she did, held vulnerable to demurrer.
    2. False pretenses <&wkey;38 — Evidence held insufficient to sustain allegation of indictment for swindling.
    In a prosecution for swindling, under Pen. Code, art. 1422, subd. 4, where the indictment alleged that accused obtained possession of an automobile by giying and drawing a check on a bank without sufficient funds therein to pay it, evidence that the cheek was drawn by another in the presence of the owner of the automobile, and that it was not given nor drawn by accused, held insufficient to sustain the allegations of the indictment.
    Appeal from Criminal District Court, Dallas County; Felix D. Robertson, Judge.
    J. B. James was convicted of swindling, and lie appeals.
    Judgment reversed, and prosecution ordered dismissed.
    Howard H. Dailey and A. J. Harper, both of Dallas, for appellant.
    Shelby S. Cox, Crim. Dist'. Atty., of Dallas, Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   HAWKINS, J.

Appellant is under conviction for the offense of swindling, his punishment having been assessed at four years’ confinement in the penitentiary.

Appellant appears to have been unrepresented by counsel .at the time of trial, but after conviction a motion in arrest of judgment was filed attacking the sufficiency of the indictment. Subdivision 4 of article 1422 of our Penal Code denounces as swindling:

“The obtaining by any person of any money or other thing of value with intent to defraud by the giving or drawing of any cheek, draft or order upon any bank, person, firm or corporation, with which or with whom such person giving or drawing said check, draft or order has not at the time of the giving or drawing of such check, draft or order, or at the time when in the ordinary course of business such check, draft or order would be presented to the drawee for payment, sufficient funds to pay same, and no good reason to believe that such check, draft or order will be paid.”

The indictment in the instant case is based upon the subdivision of the Code just quoted. It alleges that appellant obtained possession of an automobile by means of false pretenses, devices', and fraudulent representations in giving.and drawing á certain check upon the Liberty State Bank of Dallas. The check set out in the indictment is payable to one Í3. M. Piper for $275, and signed by one Mrs. Charles Setrak. There is no allegation that appellant even indorsed this cheek. The only indorsement thereon as it appears from the indictment is that of E. M. Piper, the payee. The indictment alleges that appellant did not have at the time said check was drawn,- or at the time when in the ordinary course of business it would be presented to said bank for payment,' sufficient funds to pay said check, and had no good reason to believe that the check would be paid, and that he falsely represented that said check was a “valid, legal and valuable obligation." It will be observed that nowhere in the indictment is there an allegation that Mrs. Set-rak had no funds in the bank; neither is it alleged' that appellant represented that she did. The averment that he represented the check to be a “valid and legal obligation” would not suffice as an allegation that he represented that. MI'S. Setrak had money in the bank. In" our opinion the indictment is vulnerable to the attack made upon it and is defective in not charging that Mrs. Setrak hadmo funds in the bank, and that this fact was known to appellant at the time he represented that she did have funds in the bank, if in fact he made such representation. Pruitt v. State, 83 Tex. Cr. R. 148, 202 S. W. 81; Krueger v. State, 82 Tex. Cr. R. 404, 199 S. W. 629; Dawson v. State, 79 Tex. Cr. R. 371, 185 S. W. 875.

We further observe that the proof does not sustain the allegations in the indictment. It alleges that appellant obtained possession of the automobile by giving and drawing the check in question. The evidence shows that Mrs. Setrak herself personally drew the check in the presence of Mr. Piper, the owner of the car, and that it was not given or drawn by appellant.

Por the reasons stated, the judgment must be reversed, and the prosecution ordered dismissed. 
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