
    EARLES v. STATE.
    (No. 8640.)
    (Court of Criminal Appeals of Texas.
    June 11, 1924.)
    1. False pretenses @=>29 — Writing relied on as inducement to enter transaction on which prosecution is predicated must be set out in indictment.
    When a -writing, such as a statement by defendant as to his financial condition, forms the basis either in whole or in part of the inducement relied on in a transaction on which a prosecution for swindling is predicated, such writing must be set out in the indictment.
    2. False pretenses @=>38 — Admission in evidence of written financial statement relied on, but not set out in indictment, held reversible error.
    Where, in a .prosecution for swindling W. out of an automobile, based on false statements made by accused as to his financial standing when he bought the car, by giving a worthless check and executing notes, the indictment did not set out the written financial statement signed by accused, nor allege that W. relied on it when he sold the car, admission in evidence of such writtep statement held reversible error, as constituting a variance.
    Appeal from District Court, 'Wilbarger County; Robert Cole, Special Judge.
    W. L. Earles was convicted of swindling, and he appeals.
    Reversed and remanded.
    Bonner & Storey, of Vernon, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin,, for the State.
   DATTTMO'RE, J.

Appellant was convicted in the district court of Wilbarger county of swindling, and his punishment fixed at 2y2 years in the penitentiary.

The fa'ets seem amply sufficient to support a conviction for swindling and probably for forgery. By falsely representing that his name was Phillips, and that he owned a large farm west of Vernon, upon which he had paid $5,000 and only owed $4,000, and that he had $4,500 worth of horses, cows, and machinery, upon which he owed nothing, and that he had $9,000 in a bank, and that his income from his work during the previous year had been $3,500, appellant induced the owner of a new car to sell it to him for $1,000 cash and eight monthly notes of $175 each. Appellant gave a check for $1,001.50, and executed the notes all in the name of Phillips. He did not have the money in the bank, nor did he own the farm, nor the horses, cows, implements, etc. After he got the car he disappeared, and was not seen by the man from whom he got it for three years.

Mr. Works, the man from whom appellant got the car, testified that, after appellant made a verbal statement to him as to his financial condition, he requested appellant to make sainé in writing which he did, signing it “Phillips.” This writing was not set out in the indictment, nor is it alleged therein that same was relied on. Upon the trial this written statement was introduced in evidence over appellant’s objection, and from the bill of exceptions presenting this complaint we quote:

“A financial statement was made to me at the time I was negotiating that deal, with reference to the ownership of property in this county, and I relied on that statement, as well as' the verbal statement, made by the defendant, as to the ownership of the farm, implements, cows, etc.”

Bearing in mind the statement contained in this quotation, we observe that the rule seems well settled that, when a writing forms the basis either in whole or in part of the inducement relied on, such writing should be set out in the indictment. Ferguson v. State, 25 Tex. App. 452, 8 S. W. 479; Hardin v. State, 25 Tex. App. 74, 7 S. W. 534; Dwyer v. State, 24 Tex. App. 132, 5 S. W. 662; Lively v. State (Tex. Cr. App.) 74 S. W. 321. If said writing formed a part of the inducement relied upon by the owner in parting with his property, as he testified it did, it should have been copied in the indictment. Not having been copied in the indictment, the admission of in evidence constituted a variance, which would be fatal to the conviction. .

For the error of the admission of said writing in evidence, the judgment must be reversed, and the cause remanded. 
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