
    The State v. Robert Small.
    In an indictment for swindling, under article 113 of the Penal Code, it is necessary to aver that the offense was committed feloniously. (Paschal’s Dig., Art. 2425.)
    Appeal from Houston. The case was tried before Hon. Samuel L. Éarl, one of the district judges»
    The defendant was indicted for swindling, under the 773d article of the code, for that, &c., &c., he did fraudulently sell and dispose of one yoke of oxen of the value of $40, after having made or given a mortgage in writing on said oxen to Edward Hill, &c. The defendant demurred to the indictment, and assigned various causes of insufficiency.
    The indictment was quashed, and the state appealed.
    
      J2. B. Turner, Attorney General, for the state.
    Ho brief for the appellee has been furnished to the Re;porter.
    
   Caldwell, J.

— The defendant is indicted for selling mortgaged property with intent to defraud the mortgagee. It omits to charge the offense as having heen done feloniously.

The offense with which the defendant is accused is, under the code, a felony, and must be so charged, or it will be fatal. (18 Tex., 387.)

Judgment affirmed.  