
    TRIPP v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    1. Criminal Law (§§ 419, 420) — 1-Iearsax Evidence.
    An unsworn statement of a person who was not independently shown to have ever been connected with an underwriters’ association, made to a third person in a letter, that the association did not have a. certain capital, was not admissible in evidence.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.*]
    2. False Pretenses (§ 26) — Allegations of Indictment — Sufficiency.
    .Allegations of the indictment in a prosecution for swindling, that accused represented that he was the agent of an underwriters’ association, and falsely represented the amount of the capital, etc., thereof, and that prosecuting witness was induced to pay the agent $30 for a receipt set out in the indictment, did not sufficiently allege the offense of swindling, and should have alleged that prosecuting witness, by reason of such representations, was induced to take out an application for insurance, and pay $30 “as a premium on said policy,” etc.; it being the policy, and not the receipt, for which he was induced by the false representations to pay out his money.
    [Ed. Note. — Eor other cases, see False Pretenses, Cent. Dig. § 31; Dee. Dig. § 26.]
    Appeal from Dickens County' Court; O. S. Ferguson, Judge.
    Thomas C. Tripp was convicted of swindling, and appeals.
    Reversed, and prosecution ordered dismissed.
    B. D. Glasgow, of Spur, and Chapman & Coombes, of xlnson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Ain. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of swindling in an amount less than $50, in that he represented to Mr. Farmer that he was agent of the Reciprocal Underwriters, an insurance company, of Kan-, sas City, Mo.; - that said company had $1,-000,000 capital, and had been in business for 17 years; that said company had a permit to do business in this state, issued by the commissioner of insurance — when in fact and in truth the said company did not have $1,-000,000 in capital, had not been in business for 17 years, and did not have a permit to do business in this state and under such representations Mr. Farmer was induced to pay the agent $30 for a receipt set out in the indictment.

There is no proof in this record that the Reciprocal Underwriters did not have the capital stated, unless by inference to be drawn from letters written by Miss Beatrice Bess, who, in the letters, states she now resides in Houston, Tex. These letters were not written to Mr. Farmer but to Mr. 1-Iam. Except from the contents of the letters, it does not appear from the record that Miss Bess was ever connected with the Reciprocal Underwriters, and we cannot see by what rule of law these ex parte and unsworn statements of hers, made to a third person in a letter, became admissible against appellant. Eliminate these two letters, which were inadmissible, and there is no evidence showing the allegations as to the company were false. If Miss Bess would so testify under oath to these facts, she is in reach of the process of the court.

Again, the facts would show that by reason of the representations made, Mr. Farmer was induced to make an application for an insurance policy, and paid $30 as the premium on the policy; yet there are no such allegations. The allegations are that he paid $30 for a receipt for his money, and: the receipt is copied in the indictment. If he paid $30 for the receipt, he got it, but that was not what he contracted to pay his money for; he was induced to pay the money for a policy of insurance, not the receipt, and the receipt is only evidence that he paid the money as a premium on the policy. The allegations in the indictment are too indefinite to charge the offense of swindling. The facts as sworn to by Mr. Farmer, that by reason of the false representations alleged, etc., would support an indictment for swindling, if properly drawn. It should allege that by reason of these representations he was induced to make an application for insurance on his home in the sum of $2,500, and pay to Mm the said sum of $30 as premium on said policy, which money was obtained by means of said false representations, pretenses, etc. It was not the receipt but a policy of insurance he was induced to pay out his money for, and, the allegations in the complaint and information being so indefinite, it will be necessary to quash them, and the above remarks are made so that a new complaint can be filed, if it is desired to do so.

The Judgment is reversed, and the prosecution ordered dismissed.  