
    KING v. STATE.
    (Court of Criminal Appeals of Texas.
    April 10, 1912.
    Rehearing Denied May 8, 1912.)
    1. False Pretenses (§ 26) — Indictment-Requisites.
    Under Code Cr. Proc. 1895, art. 441, requiring that certainty in an indictment as will enable accused to plead any judgment in bar of any prosecution for the same offense, an indictment alleging that accused fraudulently represented that he owned cattle, and thereby fraudulently induced prosecutor to pay him a specified sum for the cattle, when in truth accused did not own the cattle, and did not have the right to dispose of them, and knew that the representations were false, sufficiently charges swindling as against the objection that it does not allege any sale or delivery of the cattle to prosecutor.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. § 81; Dec. Dig. § 26.]
    2. False Pretenses (§ 38) — Indictment-Issues, Proof, and Variance.
    Under Pen. Code 1895, art. 945, providing that money includes bank bills or other circulating medium current as money, there is no variance between an indictment alleging the obtaining of money by swindling and the evidence that accused received a bank check and cashed it.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. §§ 50-53; Dee. Dig. § 38.]
    3. False Pretenses (§ 49) — Evidence—Sufficiency.
    Evidence held, to support a conviction for swindling.
    [Ed. Note. — For other eases, see False Pretenses, Cent. Dig. § 62; Dec. Dig. § 49.]
    Appeal from District Court, Sabine County; W. B. Powell, Judge.
    W. J. King was convicted of swindling, and be appeals.
    Affirmed.
    Goodrich & Lewis, of Hemphill, and J. H. McGown, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted for swindling, tried, and convicted.

1. Appellant in his motion for new trial complains of the action of the court in overruling his motion to quash the indictment. There is no such motion in the record. However, there is a motion,-in arrest of judgment alleging that “the indictment fails to charge any offense, in that it fails to charge or allege in express terms any sale or delivery of the cattle in question to the injured parties.” The indictment charges, among other things, that “the said W. J. King did then and there falsely pretend and fraudulently represent to the said Booth and Whiteside that he the said W. J. King was then and there the owner of thirty-seven head of cattle of the value of two hundred ($200) dollars, and that he the said W. J. King was the owner of the same, and had the right to dispose of the same, and did thereby then and there fraudulently induce the said Booth and Whiteside to pay him, the said W. J. King, the said one hundred and ninety dollars ($190) for said thirty-seven head of cattle then and there claimed to be owned by him the said W. J. King, when in truth and in fact the said W. J-King did not then and there own said cattle, and did not have the right to dispose of the same, and the said W. J. King then and there knew that said pretenses and representations so made by him to the said Booth and Whiteside were false.” We are cited by appellant to the case of Cummings v. State, 36 Tex. Cr. R. 152, 36 S. W. 266, he claiming that it sustains his contention in this ease. However, by reading the indictment in that ease and the excerpt copied above, it is seen that this indictment contains an allegation that by reason of said false pretenses appellant induced Booth and White-side to pay him, appellant, the said sum for said 37 head of cattle then and there claimed to be owned by him. It is for the want of such an allegation that the indictment in the Cummings Case was quashed. The allegation being that the swindle was perpetrated by a representation that he owned certain cattle, which he did not own, of course, no allegation of delivery could have been made, and an allegation of sale is sufficiently made when it is charged that appellant by reason of the false representations and pretenses induced the parties to pay him the money for the cattle. Article 441 of the Code of Criminal Procedure of 1895 provides : “The certainty required in an indictment is such as will enable the accused' to plead the judgment that may be given upon it, in bar of any prosecution for the same offense.” And it has been held by this-court that, if the offense be charged in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant and with that degree of certainty that will give the defendant notice of the particular offense of which he is charged, it is sufficient. Article 448, Code Cr. Proc.; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302; Hammons v. State, 29 Tex. App. 445, 16 S. W. 99; Martin v. State, 31 Tex. Cr. R. 27, 19 S. W. 434; Earl v. State, 33 Tex. Cr. R. 570, 28 S. W. 469. The allegations in this indictment were sufficient to inform appellant that the offense with which he was charged was that he had represented himself as the* owner of 37 head of cattle when in fact he owned no such cattle, and had by reason of such representation induced the parties named to pay him the money for said cattle.

2. Another contention of appellant is that the indictment alleged that he had obtained money from Booth and Whiteside; whereas, in fact, the testimony shows that he received checks. The court excluded by Ws charge the two checks, one for $50 and one for $70, given by Whiteside, and the ease was tried on the transaction with Booth, and Booth does not say anything about a check, but says he paid the defendant $100 in money on his representation that he had 37 head of cattle which he would deliver on Monday morning. But, if the proof had shown that appellant received a check on a bank which he cashed at the bank, article 945 of the Penal Code provides that “within the meaning of money, as used in this chapter, are included also bank bills or other circulating medium current as money,” and there would be no variance in the proof and the allegation.

3. The evidence would show that appellant was the owner of two head of yearlings, and sold them to Booth and Whiteside, and at the time stated he knew where he could obtain three more head, and he was given a check to cover the price of each head of cattle; that later he told Mr. Whiteside he knew of others he could purchase, and he was given a check for $70 with which to buy them. After getting this amount, he telephoned Mr. Whiteside that he wanted some more money on some cattle he had just bought and partly paid for, and he would deliver them. Monday. He was told to see Mr. Booth, and Mr. Booth says that appellant came to him and told him he had purchased 37 head of cattle and needed $100 to finish paying for them, and he would deliver the cattle Monday, showing him bills of sale for the cattle. Relying upon this representation, he let him have the $100. The evidence further shows that appellant at the time these representations were made did not own 37 head of cattle, and further shows he had not contracted for that number, and did not deliver, or attempt to deliver, that number on Monday or at any other time.

We have carefully considered all the assignments of error in the motion for new trial and none of them present error.

The judgment is affirmed.  