
    ESCUE v. STATE.
    (No. 6019.)
    (Court of Criminal Appeals of Texas.
    Jan. 5, 1921.
    Rehearing Denied Feb. 9, 1921.)
    1. Indictment and information <&wkey;203 — Verdict of guilty upheld although one of two counts is defective.
    Where the indictment contains two counts, and there is a general verdict of guilty, the verdict applies to either of the counts, and, if one is defective, the verdict will be upheld under the other.
    2. False pretenses &wkey;>9 — Defendant guilty of swindling in procuring drafts by false representations.
    If the owner of drafts of the value of $2fc-500 was induced to part with them on his faith in the false and fraudulent representations made by defendant, defendant was guilty of swindling!
    3. False pretenses <&wkey;43(l) — Drafts procured by swindling admissible.
    In a prosecution for swindling by obtaining drafts through false pretenses, the trial court did not err in admitting such drafts in evidence, they having been described in the indictment, and the material question being whether, or not they were of value and acquired by defendant by the means alleged.
    4. False pretenses &wkey;>38 — Proof of execution of drafts procured by swindling admissible under allegation of value.
    In a prosecution for swindling by obtaining drafts by false pretenses, if it became necessary, in- order to sustain the allegation of value of the drafts, to prove their execution by a bank or some person having authority from it, such proof was admissible under the general allegation of value of the instruments in the indictments.
    5. False pretenses <&wkey;43(l) — Mortgage on which injured party relied admissible despite defects in description.
    In a prosecution for swindling by obtaining drafts by false representations, the mortgage given by defendant on certain animals was admissible, though the description of the property in the mortgage was not such as to make out a flawless contract; the mortgage in fact having been relied upon and accepted by tjie injured party in handing over his property.
    6. Criminal law &wkey;>1097(4) — Insistence verdict contrary to evidence not considered in absence of statement of facts.
    Defendant’s insistence that verdict of guilty was contrary to the evidence because the evidence showed his insanity cannot be considered by the Court of Criminal Appeals in the absence of a statement of facts.
    7. Criminal law <&wkey;l097(4, 5) — In absence of statement of facts, court cannot determine whether charges called for or evidence objectionable.
    In the absence of a statement of facts, the Court of Criminal Appeals cannot decide whether refused special charges were called for or evidence admitted was objectionable.
    8. False pretenses &wkey;>29 — Description of mortgage and note in indictment held root fundamental error.'
    In a prosecution for swindling through obtaining drafts by false pretenses, the fact that the mortgage given by defendant to the injured party mentioned a note as secured by the mortgage, which note was described as due November 20, 1920, while the indictment, after setting out the mortgage, further alleged that defendant executed a note, also set out in the indictment,- the due date of which was November 20, 1919, held not fundamental error.
    On Motion for Rehearing.
    9. False pretenses i&wkey;>7(4) — Instrument on which injured party relied need not have been such as would stand scrutiny of courts.
    It is not necessary for a written instrument to be such as would stand the scrutiny of the courts to make it sufficient as a pretense on which one has been induced to part with his property in a swindling case; it bei$g enough if the injured party relied on the in-strumeiit, and was thereby induced to part with his property.
    10. Criminal law <&wkey;l 133 — Court cannot withhold mandate should motion for rehearing be overruled on showing of adjudication of insanity.
    Defendant, who sends to the Court of Criminal Appeals with his motion for rehearing copy of a judgment of the county court entered since the appeal adjudging defendant insane, cannot thereby procure that the court shall withhold its mandate should the motion for rehearing be overruled; Pen. Code 1911, art. 39, providing that one becoming insane after conviction cannot be punished, and the appellate court apprehending that on sufficient showing judgment will be held up and the case disposed of as provided in Code Cr. Proc. 1911, arts. 1017-1030.
    Appeal from District Court, Shackelford County; W. R. Ely, Judge.
    S. W. Escue was convicted of swindling, and he appeals.
    Judgment affirmed.
    Ivy & Stollenwerck, of Hillsboro, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State. 4
   LATTIMORE, J.

Appellant was convicted in the district court of Schaekelford county of the offense of swindling, and his punishment fixed at confinement in the penitentiary for a term of five years.

The case is- before us without any statement of facts. The indictment contains two counts; and, inasmuch as there is a general verdict of guilty, under our well-established practice, such verdict would apply to either of said counts, and if one of the same should be defective, said verdict would be upheld under the other count.

Appellant made a lengthy motion to quash the first count, and the court is inclined to think that a part of said motion alleges such defects as would render said count defective. In his motion to quash the second count there is only one ground set up, which is that the drafts described in the indictment, and( which are alleged to be the property fraudulently obtained by the accused, were not shown by the pleading to be executed by either Mr. Hayward or the First National Bank of Moran; they being the alleged injured parties. In our opinion it was not necessary to allege that said drafts were executed by either Hayward or the bank. They were set out in hasc verba in the indictment, and it was alleged that the drafts so set out were of the value of $2,500. If the proof was sufficient to establish such value, and the further fact that the alleged owner was induced to part with said drafts upon his faith in the false and fraudulent representations made by appellant, the latter would be guilty of the offense charged. The motion to quash the second count was properly overruled.

Nor did the trial court err in admitting in evidence the said drafts. They were described in extenso in the indictment, and the material question being whether or not drafts, such as were described in the indictment, were of value and were acquired by 'the appellant by the means alleged, it was material and proper to admit said drafts in evidence. If it became necessary in order to sustain the allegation of value to prove the execution of said instruments by the bank or some person having authority from the bank, this was also admissible under said general allegations of value of said instruments.

Objection was also made to the introduction of the mortgage given by appellant on said property, the ground of said objection being that the description of the property in the mortgage was not sufficiently definite to identify the particular animals therein described. It is not necessary that the description of the property be such as would make out a flawless contract. If the mortgage, as given, was relied upon and accepted by the injured party, and did in fact^induce him to part with his property, and thus accomplish the object intended, the substantial requirements of the law would be met. In a civil suit between parties to enforce the mortgage in question the description of the property would be aided by extraneous allegations and proof introduced of other matters not contained in the mortgage.

Appellant’s insistence that the verdict was contrary to the evidence because same showed his insanity cannot be considered by us in the absence of a statement of facts.

There are several assignments of error, based upon the refusal of special charges and the admission of certain evidence, but we are unable to decide, in the absence of a statement ot facts, whether such charges were called for or such evidence objectionable.

Appellant here presents as fundamental error, not raised in any way in the trial, the fact that in the mortgage set out in the indictment a note is mentioned as secured by said mortgage,; which note is described as one due November 20, 1920; attention being now called to the fact that said indictment, after setting out) said mortgage containing the note just mentioned, further alleged that the appellant executed a note which is also set out in the indictment, and the due date of which wa's November 20, 1919. We do not think this affects the case or constitutes any fundamental .error. If appellant executed a mortgage to secure a note due a year after the date thereof, and then by agreement between the parties to the said instrument at the time it was decided to make a 'note due at an earlier date than agreed upon, this would be a matter which might have been explained if objection had been made thereto upon the trial. It might have been made to appear that when the mortgage was prepared the parties had agreed upon a loan which was to run for one year, but that later they agreed that the note might be for a shorter period, and by renewal be extended for a year. We do not regard this as such fundamental error as would justify the reversal of this case.

This disposes of all the contentions raised by appellant, and, finding no reversible error in the record, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

It is not necessary for a written instrument to be such as would stand the scrutiny of the courts in order to make it sufficient as the pretense upon which one is induced to part with his property in a swindling ease. If alleged and proven that the injured party relied on the efficacy of same; and was thereby induced to part with his property, this is enough. May v. State, 17 Tex. App. 216; Harrison v. State, 44 Tex. Cr. R. 244, 70 S. W. 421; Brown v. State, 62 Tex. Cr. R. 592, 138 S. W. 604.

We do not think the second count in the- indictment bad. Appellant sends here with his motion for rehearing a copy of a judgment of the county court of Travis county, entered since this appeal, adjudging appellant insane, and asks that we withhold our mandate herein should this motion be overruled. This is beyond our power. Our law provides that one who becomes insane after he is found guilty cannot be punished for his offense while insane. Article 39, P. O. We apprehend that upon sufficient showing to the trial court herein of the fact of such insanity judgment the execution of the judgment of guilty herein will be held up by said court and disposition made of the case as is provided in chapter 1, title 12, of our C. C. P.

Motion is overruled. 
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