
    LEON et al. v. STATE.
    (No. 7797.)
    (Court of Criminal Appeals of Texas.
    June 13, 1923.)
    1. Criminal law <&wkey;970(9) — Information not subject to attack by motion in arrest of judgment, unless defective in matter of substance.
    An information cannot be attacked by a motion in arrest of judgment, except it be defective in a matter of substance.
    2. Criminal law <&wkey;970 (7) — I «.formation charging swindling held fatally defective for failure to allege exchange, sale, or delivery of property involved to prosecuting witness.
    An information jointly charging two defendants with swindling, in connection with representations made concerning a watch, which failed to allege the exchange, sale, or delivery of the watch to prosecuting witness by defendants, held, fatally defective, and subject to attack by motion in arrest of judgment.
    Appeal from El Phso County Court, at Law; J. M. Deaver, Judge.
    I. Leon and A. J. Roberts were convicted of swindling, and they appeal.
    Reversed, and prosecution ordered dismissed.
    W. Joe Bryan, of El Paso, for appellants.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellants were convicted in the county court at law of El Paso county of misdemeanor swindling, and their punishment fixed at a fine of $250 each.

The information under which the conviction was had, omitting formal parts, is as follows;

“In said county of El Paso, and state of Texas, I. Leon and' A. J. Roberts, devising and intending to secure the unlawful acquisition of $26 in money, of the value of $26, the personal property of W. B. Arens, and with the intent to appropriate said money to their own use and benefit, did then and there unlawfully and fraudulently acquire possession thereof, from the said W. B. Arens, by means of false, and deceitful' pretenses, devices, and fraudulent representations unlawfully, knowingly, and fraudulently then made by them, the said I. Leon and A. J. Roberts, to the said W. B. Arens, in this: That they then and there did falsely pretend and fraudulently represent to the said W. B. Arens that a certain wrist watch, which they were then and there offering for sale to th'e highest bidder, was made of white, gold, and was of the ordinary retail value of $32, and thereby induced the said W. B. Arens to part with his $26 and deliver title and possession thereof to them, the said I. Leon and A. J. Roberts; whereas, in truth and in fact, the wrist watch, then and there offered for sale, to the highest bidder by the said X, Leon and A. J. Roberts, was not made of white gold, and was not of the ordinary retail value of $32, and said pretenses and representations so made, and devices so used, were false, and fraudulent, and they, the saijd I. Leon and A. J. Roberts, then and there well knew that the said pretenses, devices, and representations were false and fraudulent when so made and used, against the peace and dignity of the state.”

No motion was made to quash the information, and it was not attacked until a motion was made in arrest of judgment. Such motion would come too late, except the pleading be defective in matter of substance, but if the information in fact charged no offense against the laws of this state, the defect could he reached by motion in arrest. Almost an exact counterpart of this information was before this court in the case of Cummings v. State, 36 Tex. Cr. R. 162, 36 S. W. 266, and held bad. An examination of the information above set out will disclose that it nowhere alleges that the watch or anything of value was sold and delivered by appellants to the prosecuting witness. A man may not part with his property upon mere false representations of another, and a prosecution be legally supported for such act or upon such allegation. We might as well say that A. falsely and fraudulently represented to B. that the moon was made of green cheese, and thereby induced B. to deliver to him (A) $100 in money, which representations were false and fraudulent and known to be such when A. made them. See Hurst v. State, 39 Tex. Cr. R. 196, 45 S. W. 573; Albertson v. State, 84 Tex. Cr. R. 574, 208 S. W. 923; Farmer v. State, 85 Tex. Cr. R. 440, 213 S. W. 669.

The information herein/failing to allege the exchange, sale, or delivery to the prosecuting witness by appellants of any property falsely described, is deemed fatally defective under said authorities.

the judgment will be reversed, and the prosecution ordered dismissed. 
      ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     