
    BEAM v. STATE.
    (No. 10799.)
    (Court of Criminal Appeals of Texas.
    March 16, 1927.)
    False pretenses <@=>26 — Fraud <$=>69 — Information for swindling and untrue advertisement held insufficient where no benefit to accused or detriment to public was alleged (Pen. Code 1925, arts. 1545, 1,554).
    Information alleging that accused invited public to show at which free prizes should be distributed, and that advertisement as to capital prize was false, but not showing that accused was to receive any benefit or pubiie to part with- anything of value, failed to charge offense of untrue advertisement under Pen. Code 1925, art. 1554, or offonse of swindling as defined by art. 1545.
    Appeal from Shackelford County Court; Bichard Dyess, Judge.
    Billie B. Beam was convicted of swindling by false advertising, and he appeals.
    Reversed, and prosecution ordered dismissed.
    Howsley & Kuykendall, of Albany, for appellant.
    Sám D. Stinson, State’s A tty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   MORROW, P. J.

Appellant was adjudged guilty of swindling by false advertising; punishment fixed at a fine of $150:

The information contains the following averments:

“ * * * That B. B. Beam, acting for a show known as Arthur’s Comedians, * * * did then and there unlawfully and fraudulently, with the intent to cheat and swindle the public who might attend a certain show then showing in Moran, Tex., known as Arthur’s Comedians, did make and cause to be made and circulated a circular and notice stating that on that night at the show 50 free prizes, ‘the grand capital prize, 1926 model Ford touring car, or winner’s choice of $350 in gold.’ That said advertisement and circular were false and untrue, and no holder of numbers at the show had a chance at said grand capital prize, but that the number drawing said grand capital prize had, prior to the time said show was given and the lucky number drawn from the receptacle in which numbers had been placed, been given by the said B. B. Beam to Mrs. L. Harris in person, with the express understanding and agreement by and between the said B. B. Beam and L. L. Harris and Mrs. L. L. Harris that the number so given to the said Mrs. L. L. Harris would win the said grand capital prize, and for which the said Mrs. L. L. Harris was to receive a sum of money much less than amount advertised.”

We infer that this is an effort to'charge the offense of swindling and the violation of article 1554, P. C. 1925, from which we quote:

“Whoever with intent to sell or in any way dispose of merchandise, securities, service, or anything offered by such person, or by any firm, corporation or association which he owns or of which he has control directly or indirectly, to the public for sale or distribution, or with intent to increase the consumption thereof, or to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or any interest- therein, makes publishes, disseminates, circulates or places before .the public, * * * an advertisement of any sort regarding merchandise, as to its character or costs, securities, service, or anything so offered to the public, which advertisement contains any assertion, representation or statement of fact which is known by said person * * * to be untrue, deceptive op-misleading in any material particular as to such matters or things so advertised,” etc.

Swindling is defined in article 1545, P. C. 1925, as follows:

“ ‘Swindling’ is the acquisition of any personal or movable property, money or instrument of writing conveying or securing a- valuable right, by means of some false or deceitful pretense or device, or fraudulent representation, with intent to appropriate the same to the use of the party so acquiring, or of destroying or impairing the right of the- party justly entitled to the same.”

The elements of the offense and the requisites of the indictment to charge that offense are found discussed in many precedents collated in Vernon’s Tex. P. O. 1925, vol. 3, p. 268. Without going into detail, we content ourselves with the statement that the averments in the information are not sufficient to charge the offense of swindling under the statute last quoted. In failing to quash that part of the information which attempts to charge swindling (if in fact that is what is intended), and in failing to eliminate the subject of swindling from his charge in accord with the exceptions and requests of the appellant, the court was in error. If article 1554, supra, is intelligible to a degree that a criminal prosecution may be founded upon it, covering an act of the nature of that described, the averments in the information are not deemed sufficient to charge an offense, in that there is a failure to aver that the appellant was to receive any benefit or that the public was to assume any obligation or part with anything of value. What we learn from the averments in the information is that the appellant, by circular, invited the public to a show, telling them that he would distribute 50' free prizes, the capital prize being an automobile; that as to.the capital prize the advertisement was false. It was not shown that the public nor any member of it was expected to pay anything for a chance on the automobile nor, in fact, that anything was expected from the public to whom the circular was addressed, except that they attend the show and participate in the free distribution of prizes.

Por the reasons stated, the judgment of conviction is reversed, and the prosecution ordered dismissed. 
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