
    McGINTY v. STATE.
    (No. 6971.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1922.)
    !. False pretenses &wkey;>3l — Indictment for swindling by presenting bad check must aver that injured party relied upon and was deceived by the representation.
    In prosecution for swindling, as defined by Pen. Code 1911, arts. 1421, 1422, enumerating certain means by which false pretenses may be made, the enactment of Acts 1913, c. 98 (Vernon’s Ann. Pen. Code 1916, art. 1422), adding subdivision 4 to article 1422, declaring that swindling may be accomplished by giving check upon a bank in which drawer has no funds and no reason to believe that the check will be paid, held not to relieve the pleader in drawing an indictment from incorporating therein an averment showing that the injured party relied upon and was deceived by the fraudulent representation, although no averment of verbal representation need be made; it being sufficient merely to state that the check was believed good and its payment relied on.
    2. False pretenses <&wkey;38 — Variance between averment and proof as to person swindled held fatal.
    In a prosecution for swindling by presenting a bad check, naming the owner of a grocery store where the goods were purchased as the party ■ swindled held not supported by proof that the goods were received from the clerk and that the fraudulent check was presented to him and not to the owner.
    3. False pretenses <&wkey;>49(3) — False or fraudulent representation by defendant need not be shown in prosecution for swindling by fraudulent check.
    In a prosecution under Pen. Code 1911, arts. 1421, 1422, for swindling by giving a check upon a bank in which the drawer had no funds and no reason to believe that the check would be paid, it was not ^necessary for the state to prove that some false or fraudulent representation was made by defendant; it being sufficient to show that defendant gave a check when without funds in the bank upon which it was drawn and without good reason to believe that it would be paid.
    ©^jjfor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Wichita Oounty Court, at Law; Guy Rogers, Judge.
    Trossie McGinty was convicted of swindling, and she appeals.
    Reversed and remanded.
    Mathis & Caldwell, of Wichita Falls, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is swindling, a misdemeanor; punishment fixed at a fine of $25 and confinement in the county jail for a period of ten days.

The information charges that the appellant, intending to buy certain personal property, which was described, did then and there, with the intent to defraud, obtain said property, the same then and there being the personal property of C. C. Willard, with the further intent to appropriate the same when so acquired to the use of her, the said Tros-sie McGinty, and the same was so obtained from said owner by said Trossie McGinty by means of giving and drawing a certain check of the- tenor following: (The check was here copied.)

A motion to , quash the information was presented and overruled. One point made is that it does not allege that the person, swindled relied upon any false representations. An “essential element of the offense-is that the party injured in parting with his-property actually relied upon and was deceived by the false pretenses.” McDaniel v. State, 63 Tex. Cr. R. 261, 140 S. W. 233; Blum v. State, 20 Tex. App. 578, 54 Am. Rep. 540; and other cases cited in McDaniel’s-case mentioned.

“Swindling” is defined in article 1421 of the Penal Code, and article 1422 enumerates certain means by which the false-pretenses and fraudulent representations-may be made. In thq Acts of 1913, p. 184, c. 98 (Vernon’s Ann. Pen. Code 1916, art. 1422), subdivision 4 of the present article-1422 was inserted. Its effect is conceived-to have been to simply add a specific declaration that swindling might be accomplished-by giving a check upon a bank in which the drawer has no funds and no good reason to-believe that the check would be paid. It is believed that the insertion of this provision, in article 1422 does not so change the definition of swindling or modify the elements thereof as to relieve the pleader in drawing an indictment for swindling from incorporating therein an averment showing that the injured party relied upon and was deceived; by the fraudulent representation. It is not to be understood that any averment of verbal representation is necessary, but that an averment, in substance, that the cheek was believed good and its payment relied on is deemed essential.

The information contains but one count, and names C. C. Willard as the party-swindled. The evidence showed that the appellant purchased certain goods from a grocery store called the “Pure Pood Grocery,” and that Willard was the owner of this grocery, but that it was in charge of a clerk named Mangum, and that it was from Man-gum that the goods were purchased and to whom the check was delivered. The proof that it was from the possession of Mangum that the goods were received and to him that the fraudulent check was presented did not support the averment that it was Willard who was swindled. In swindling, as in theft, the owner is the person in possession of the property, the person who has care, control, and management of tlie property and from whose possession it is taken by the fraudulent devices. May v. State, 15 Tex. App. 430; Whitaker v. State, 85 Tex. Cr. R. 272; 211 S. W. 787.

There was no error in refusing to give the requested charge that it was necessary for the state to prove that some false or fraudulent representation' was made by the appellant. It was enough under the statute to show that she gave a check when she was without funds in the bank upon which the check was drawn and without good reason to believe that it would be paid. This was sufficient to prove the fraudulent representation. The ease of Brown v. State, 37 Tex. Cr. R. 104, 38 S. W. 1008, 66 Am. St. Rep. 794, relied upon by the appellant in support of his claim that such a charge should have been given, was rendered before the enactment of subdivision 4 of article 1422. It was doubtless in contemplation of the decision in the Brown Case that the Legislature made the change in the article of the statute mentioned.

Because of the error pointed out, the judgment is reversed, and the cause remanded.  