
    WALKER v. STATE.
    (No. 6094.)
    (Court of Criminal Appeals of Texas.
    April 13, 1921.)
    1. False personation <&wkey;>4 — Information must set out pretense with particularity.
    An information for false personation of an officer must set out the pretense charged with sufficient particularity to enable accused to know what office he is charged with assuming.
    2. False personation <&wkey;5 — Charge held not supported by evidence that accused pretended he was “officer.”
    An information, charging defendant with falsely pretending to be an executive officer of the state, county, and city, to wit, a deputy sheriff, a constable, deputy constable and a policeman, was not supported by proof that he said he was an “officer”; there being many other officers besides state officers.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Officer.]
    3. False personation <&wkey;2 — Sinister motives insufficient.
    That defendant’s motives in going to a house which had been burglarized and asking permission to see if anything had been stolen may have been sinister, and that he may have been a confederate of the burglar will not justify conviction for false personation of an officer.
    
      4. False personation <§=>2 — Not necessary that thing done was official act.
    If one falsely pretends to be a designated officer and in such character does an. act claiming it to be official, be is guilty of false per-sonation, whether the act be one which the officer might legally do, or be called upon to do, or not.
    Appeal from Ellis County Court; P. L. Wilson, Judge.
    Prank Walker was convicted of falsely personating an officer, and he appeals.
    Reversed and remanded.
    Clyde P. Winn, of Waxahachie, for .appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORB, J.

Appellant was convicted in the county court of Ellis county of falsely personating an officer, and his punishment fixed at a fine of $500.

The facts bearing upon the issue upon which this case is decided are practically undisputed. Some one had entered and rummaged the house of Mrs. Phillips. Later, on the same day, appellant went to said house, and asked permission of Mrs. Phillips to look through and see if anything had been stolen. She told him that she had already carefully examined, and that nothing had been taken. After remaining on the porch where the conversation took place, for a short time, appellant left the premises. Before he went away Mrs. Phillips asked hirm if he was an officer, and he said yes.

The information charged appellant with falsely pretending to be an executive officer of the state of Texas, and of Ellis county, and of the city of Waxahachie, to wit, by falsely pretending to be a deputy sheriff, and a constable and deputy constable of Ellis county, and a policeman of the city of Waxahachie; and that he went to the Phillips house and demanded to be allowed to search same by right of being such officer.

Appellant asked a special charge that if the evidence failed to show that he had falsely pretended to be .a deputy sheriff, or a constable, or deputy constable of Ellis county, or a policeman of the city of Waxahaehie, he should be acquitted. This charge should have been given. The state’s pleading must set out the pretense charged with sufficient particularity to enable the accused to know therefrom what office he is charged with assuming. This was done in the instant case, but was the allegation followed by proof which responded? Butts v. 'State, 47 Tex. Or. R. 494, 84 S. W. 586. We do not think an allegation that one falsely pretended to be a deputy sheriff, or constable, or policeman, is met by proof that he said he was an officer. This will not do. There are officers of churches, corporations, lodges, and other concerns besides state officers, and the unsupported statement that appellant said he was an officer does not meet the legal requirement that the offense described in the information, and that described by witnesses, be identical; in other words A. says to B., “I am an officer.” Should B. then undertake to state on oath that A. said he was a deputy sheriff of a particular county, no reasoning would be needed to make it plain that A. said no such thing. So of the other descrip-tivos, to wit, constable, deputy constable, and policeman.

Appellant’s 'motives may have been sinister in going to the house in question; he may have been a confederate of the other entrant into same, but tnis would not justify his conviction on this charge. The requested charge should have been given, and, unless there be more proof on another trial to meet the allegations set out in the complaint, a conviction could not stand.

We do not think it necessary, in order to warrant a conviction of one falsely pretending to be an officer, that the thing he did in such capacity must be only something which such officer might legally do or be called upon to do. If one in fact falsely pretended to be any designated officer, and in such character do an act claiming same to be official, the law is violated, whether said act be or be not one which would be required of such officer, or be legal if done by him in a bona fide official capacity. In the instant case if appellant had said that he was a deputy sheriff, and wished to search the premises of Mrs. Phillips, and had proceeded with such search upon consent so given, we think a case would have been made out for falsely personating a deputy sheriff.

For the error indicated, the judgment will be reversed, and the cause remanded. 
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