
    ROBINSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 14, 1911.
    Rehearing Denied Oct. 11, 1911.)
    1. Indictment and Information (§ 137)— Motion to Quash.
    An indictment, alleging the obtaining of money from L., by a false statement of defendant that he was the owner of certain property, and by giving a lien thereon to secure payment of the money so obtained, is not subject to motion to quash because of the deed of trust to C. as trustee, set out in the indictment, given to secure the payment, reciting that it was given for and in consideration of a sum paid by C., trustee; it further reciting that it was given to secure the payment of a note due L.
    [Ed. Note.—For other cases, see Indictment and Information, Dec. Dig. § 137.]
    2. Indictment and Information (§ 169)— Variance.
    A deed of trust to C., trustee, to secure payment of a note due L., being an exact copy of the mortgage set out in the indictment, is not inadmissible as at variance with the mortgage alleged in the indictment, though the indictment alleged the execution of the mortgage to L.
    [Ed. Note.—For other cases, see Indictment and Information, Dec. Dig. § 169.]
    3. Mortgages .(§ 42)—Deed of Trust.
    A deed of trust to C., trustee, to secure payment of a note due L„ is in law a mortgage to L.
    [Ed. Note.—For other cases, see Mortgages, Cent. Dig. § 116; Dee. Dig. § 42.]
    4. False Pretenses (§ 46)—Evidence.
    L., on a prosecution for obtaining money from him on false representations, may testify that, of the sum defendant arranged to borrow from him, he at defendant’s request paid part of it to a bank in payment of defendant’s debt to it, and the remainder to defendant.
    [Ed. Note.—For other cases, see False Pretenses, Dec. Dig. § 46.]
    5. Criminal Law (§ 400)—Best and Secondary Evidence.
    As a person knows as a fact whether he has placed money in a bank, he may on a prosecution for swindling, over objection that the books of the bank are the best evidence, testify that he had money in a bank on which he gave cheeks to defendant.
    [Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 400.]
    
      6. Criminal Law (§ 671)—Trial—State-ment oe District Attorney.
    Defendant having objected to testimony which was admissible, it was not error to permit the district attorney to state his reasons why he thought the testimony admissible.
    [Ed. Note.—For other cases, see Criminal Daw, Cent. Dig. §■§ 1591, 1592; Dec. Dig. § 671.]
    7. Criminal Law (§ 40)—Settlement.
    The crime of swindling having been committed by defendant making false representations, knowing they were false, on which he obtained a loan of L., was not wiped out by his giving L. property to pay the debt in order to prevent a prosecution.
    [Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 40.]
    8. False Pretenses (§ 38)—Indictment and Evidence.
    The allegation of an indictment for swindling that defendant obtained money from L. is supported by evidence that defendant received from L. his check on a bank and immediately cashed it at the bank in L.’s presence.
    [Ed. Note.—For other cases, see False Pretenses, Cent. Dig. §§ 50-53; Dec. Dig. § 38.]
    Appeal from District Court, Williamson County; Chas. A. Wilcox, Judge.
    John Robinson was convicted of swindling, and appeals.
    Affirmed.
    Chas. L. Harty, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was charged by indictment’with swindling, and upon a trial he was convicted and his punishment assessed at three years’ confinement in the state penitentiary.

It appears that appellant was indebted to the First National Bank of Georgetown, and was unable to pay the note; that he went to Mr. F. D. Love and explained to him the circumstances, and that he was the owner of certain' stock and desired to borrow from him the sum of $425, a part of. which to be used in paying the bank, and the .remainder to be paid to appellant to be used by him as he explained to Mr. Love. The bank had a mortgage on certain property of appellant, and Love went with appellant to the bank, and upon investigation agreed to let appellant have the money. A note for $425 was drawn up and signed by appellant payable to Love, and in addition thereto he gave a mortgage on certain personal property named in the mortgage. In drawing the mortgage, a deed of trust form was used, and F. W. Carothers, an officer of the bank, was named as trustee, and the declarations incident to a deed of trust were used, reciting “that for and in consideration of a certain sum paid by Carothers, trustee, he had bargained, sold,” etc., certain property to secure the payment of a note due F. D. Love. This recitation we deem necessary to render clear our holding on the various questions urged in the motion for a new trial.

1. In the first place, a motion is made to quash the indictment on the ground that the deed of trust or mortgage recites that the money was paid by Carothers, trustee, and not by Love. The instrument recites it is executed to secure a note due and payable to F. D. Love; the allegations of the indictment being that the money was obtained from F. D. Love by means of a false statement that defendant was the owner of certain personal property, naming it, and by giving a lien thereon he agreed to secure the payment of said sum so obtained; that said statements were false, and knowingly and fraudulently made for the purpose of obtaining the money. There was no error in refusing to quash the indictment on the grounds named in the motion, and the allegations are sufficient to charge the offense of swindling.

2. The first bill of exception complains of the action of the court in admitting in evidence the mortgage executed by defendant, on the ground that the mortgage did not purport to be executed to F. D. Love, but is at variance with the mortgage alleged in said indictment, in that the indictment alleges the execution of a mortgage to F. D. Love. The mortgage is set out in hsec verba in the indictment, and the instrument offered in evidence is an exact copy of it; and it is recited that it was executed to secure a note due F. D. Love. There is no variance, and the court did not err in admitting it in evidence.

3. In the second bill of exception defendant complains that F. D. Love was permitted to testify that upon the representation of defendant that he was the owner of the property described in the mortgage, and he could give a valid lien thereon, he was induced to loan and deliver to defendant the money; the grounds of the objection being that such testimony was (1) irrelevant and immaterial, (2) there was no allegation in the indictment upon which to predicate the testimony, and (3) if there is any such allegation, it was insufficient to admit the testimony. Defendant’s counsel seems to have proceeded on the theory that to give a deed .of trust or mortgage on property to secure the payment of a note to a given person, if given to a trustee, naming him, to secure the payment of the note, is not a mortgage in favor of the payee in the note. This is not the law as we understand it, but the mortgage or deed of trust is in law given to the person who is shown by the instrument to have the beneficial interest therein.

4. In his third bill of exception defendant complains that of the $425 that defendant arranged to borrow from Mr. Love, on the representation that he was the owner of certain stock, Mr. Love was permitted to testify that at request of defendant he paid so much to the First National Bank of Georgetown in payment of a debt due by

5. In his next bill of exception defendant complains that Mr. Love was permitted to testify that he had money in the bank on which he gave checks, because the books of the bank are the best evidence. A person knows as a fact whether he has placed money in a bank, and it is not error to permit him to so testify. An officer of the bank had testified that Mr. Love had money to his credit at the bank, without objection, and had deposited the same in the bank.

6. When the defendant made the objection to ,the statement of Mr. Love that he had money in the bank, the district attorney stated as a reason why the witness should be permitted to testify, “I want to show that Mr. Love had money in the bank, and the indictment alleges that, by virtue of the pretenses and false representations, he was induced to part with that money. If he sat down in his office and gave the defendant an order on the bank to get the money that he (Love) had in the bank, we think it admissible, especially when Love gets his book he finds that the money is gone.” * When defendant objected to the testimony, which was admissible, we do not think any error was committed when the district attorney was permitted to state and give his reasons why he thought the testimony admissible.

7. In two other bills defendant complains that a witness for defendant, Will Miller, and defendant were not permitted to testify as to the terms of a contract between defendant and Love in which defendant claims he paid Love the amount by deeding him certain lands. The charge of swindling was based on the allegation that defendant had represented that he was the owner of certain cattle and horses, which he did not own, and obtained the money by means of such false representations. If the proof developed that defendant had made said representations, knowing they were false, and thereby obtained the money, the offense was committed. And if he, when charged by Mr. Love with the offense, had given to Mr. Love property to pay the debt in order to prevent a prosecution, this would not wipe out the crime committed. However, in qualifying this bill the court says: “On redirect examination the defendant was permitted to testify, and did testify fully and explicitly as to his alleged settlement with Mr. Love, and his alleged cancellation of his indebtedness, and defendant accepts and files the bill with this qualification.” This presents no error, and we will say that the statement of facts shows that defendant was so permitted to testify.

8. This disposes of all the bills of exception in the case, and in the motion for a new trial the only other ground presented is that the evidence showing that Mr. Love gave to defendant checks on the bank where he had money on deposit, when the indictment alleged that he, by means of the false representations, obtained money, current money of the United -States of America, there was a variance in the proof and the allegations, and the court should have instructed the jury to acquit the defendant.

Article 945 of the Penal Code of 1895, defining swindling, provides: “Within the meaning of ‘money,’ as used in this chapter, are included also bank bills and other circulating medium current as money.”

So it is immaterial as to what character of currency or money he received on the check, as there is no question but what the article received from the bank on the check circulated as money. The only question presented is that, defendant receiving a check on the bank, and which he cashed at the bank, as shown by the evidence, does it support an allegation that he obtained money from E. D. Love? The facts show that defendant and Mr. Love went to the bank, and, after obtaining the information desired, Mr. Love gave checks in payment of a note due by defendant to the bank, and gave him a check for $80, which was immediately cashed by the defendant, in the presence of Mr. Love. We hold that this was obtaining money from Mr. Love as charged in the indictment.

The judgment is affirmed.  