
    GRAYSON v. STATE.
    (No. 9583.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1925.)
    False pretenses <8=^26— Information, in prosecution for swindling by passing worthless check, held fatally defective, where not alleged that drawee had no funds in bank, or that defendant knew it.
    Information, in prosecution for swindling by passing worthless check, which did not authorize bank on which it was drawn to pay it out of funds belonging to defendant, but out of those on credit of a supply company, held fatally defective, where it was not alleged that such company had no funds in bank, or that defendant knew it when cheek was drawn.
    Appeal from Orange County Court; De Witt 0. Bennett, Judge.
    A. M. Grayson was convicted of swindling, and he appeals.
    Reversed, and prosecution ordered dismissed.
    Hies, Stephenson & Dies, of Orange, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   HAWKINS, J.

Appellant is under conviction for misdemeanor swindling, with his punishment assessed at a fine of $10, ánd one hour in jail.

The information upon which the prosecution is based alleges, in substance, that appellant acquired certain property by giving a check upon the First National Bank of Orange, Tex., for the sum of $32.60. The check in question was signed as follows: “Orange Auto Supply Co., per A. M. Grayson.” The complai,nt and information then proceeds as follows:

"And the aforesaid defendant, at the time said check was so given, and at the time when in the ordinary course of business the said check would be presented to the aforesaid bank for payment, did not have sufficient funds in said bank with which to pay the 'said check, and that the aforesaid defendant had no good reason to believe that said check would be paid when in the ordinary course of business said cheek would be presented to said bank for payment; that the aforesaid defendant then and there represented to the s'aid C. C. Gentry that the said check, above described, was good, which representation was false and fraudulently made, and the aforesaid defendant knew said statement and representation was false at the time he so made it, and the aforesaid defendant knew that he did not have, at the time said check was drawn and given, in the aforesaid bank, sufficient funds1 to pay same, and then and.there had no good reason to believe that said check would be paid when the same would be, in the ordinary , course of business, presented to said bank for payment; and the said check was, in due course of business, presented to the aforesaid bank for payment and payment of same-was refused for want of sufficient funds of the aforesaid defendant in said bank to pay said check.”

It will be observed that the check did not authorize the bank on which it was drawn to pay it out of funds to the credit of appellant, but out of those supposed to be to the credit of the “Orange Auto Supply Company.” Nowhere in the information is the allegation made that the Orange Auto .Supply Company had no funds in the bank, nor that appellant knew this when the check was drawn, but alleges that he (appellant) had no funds in the bank, and that payment was refused because ‘of want of sufficient funds of appellant, and not because of lack of funds of the Orange Auto Supply Company.

The information was attacked because of the absence of the allegations suggested. That it is vulnerable to such criticism is supported by James v. State, 96 Tex. Cr. R. 308, 257 S. W. 886, and Clark v. State (Tex. Cr. App.) 277 S. W. 132, (not yet [officially] reported), which appear to be directly in point.

The judgment must be reversed, and the prosecution ordered dismissed, and it is so ordered.  