
    COCHRAIN v. STATE.
    (No. 6463.)
    (Court of Criminal Appeals of Texas.
    Feb. 15, 1922.
    Rehearing Denied Feb. 21, 1923.)
    1. False pretenses <©=>4 — Elements of offense of “swindling” stated.
    The necessary elements of “swindling” are the obtaining of personal property of another by false pretenses, made by the accused with intent to defraud.
    (Ed. Note. — For other definitions, see Words and Phrases, Second Series, Swindling.]
    2. False pretenses <@=326 — Indictment charging offense of obtaining insurance money by false pretense of death held sufficient.
    An indictment charging- that defendant unlawfully and' fraudulently acquired possession of money belonging to a life insurance company in which he had a life insurance policy, by pretending to be dead, and representing to the company that he was dead, and that his wife had the right to collect the policy, and that by means of said false pretense he fraudulently induced the company to pay the amount of the policy to his wife, with denial of the truth of the representations, is sufficient to charge the offense of swindling.
    3. Criminal law <@=3427(5) — Evidence held to establish conspiracy to defraud insurance company.
    In a prosecution for swindling a life insurance company by false pretense of the death of insured, evidence held to establish a conspiracy between insured, his wife, and two others, so that the acts and declarations of each of them in pursuance of the common design were admissible against defendant, whether they occurred in his presence or otherwise.
    4. Criminal law <@=359(3) — Absent person performing his part in conspiracy is principal.
    When two or more persons are acting together in the execution of a common design, the fact that only one of them was bodily present when the crime was committed does not prevent those who were absent from being principals, if they were performing their part of the conspiracy at such time.
    5.'Criminal law <@=3428 — Both written and oral statements of co-conspirators are admissible.
    The fact that some of the declarations of co-conspirators were, written and others oral does pot affect their admissibility against defendant.
    6. Criminal law <@=3l I69(i) — Admission of evidence as to undisputed facts held immaterial.
    Where there was no contention that insurance money called for by a policy on the life of defendant was not paid to his wife, assigned errors in the admission of evidence relating to the policy, .a change of beneficiary, the payment of premiums, or the approval of the payment to the wife of insured, are immaterial.
    7. False pretenses <@=347 — Evidence as to circumstances of obtaining money and indorsing draft for proceeds is competent.
    In a prosecution for swindling an insurance company by false pretense of death, evidence relating to the receipt of the money by the wife of defendant, its distribution by him or his wife, and the indorsement by defendant of a draft procured by part^of- the proceeds, was material, and properly admitted.
    8.False pretenses <@==>49(0 — Evidence held sufficient to sustain conviction for obtaining life insurance money by false pretense of death.
    Evidence held sufficient to sustain a conviction for obtaining the proceeds of a policy insuring the life of defendant by false representations to the insurance company that he was dead, notwithstanding his claim that he made such false representations to avoid appearing in another state to answer an indictment for murder.
    9. Criminal law <@=>598(2) — Continuance for absent witness need not be granted, unless diligence is shown.
    An application for continuance because of the absence, of a witness lacks merit, where no diligence was shown.
    10. Criminal law '<@=>595(4) — Testimony of absent witnesses held immaterial.
    Where the charge was procuring the insurance on the life of accused by false pretenses of his death, and the evidence showed that the wife, to whom the policy was made payable, must necessarily have known the pretense was false, testimony of witnesses for whose absence a continuance was requested that they suggested to the wife that she prepare an application for the proceeds of the policy was immaterial, so that the denial of the continuance was not error.
    On Motion for Rehearing.
    11. False pretenses <@=>4 — Corporation’s property is protected by statute.
    Under Vernon’s Ann. Pen. Code 1916, art. 24, providing that, where the general term “person” is used to designate the party whose i property it is intended to protect, the protec- j tion shall extend to the property of all private corporations, and article 1421, defining the of- j fense of swindling, and designating the party I whose property the article is designed to pro- | tect only as “the party justly entitled to the j same,” the property of a private corporation is within the protection of the statute, since such corporation may own in its corporate name and hold title to property.
    12. False pretenses <§=>28 — Indictment may allege representations to corporation, if facts justify it. •
    Though it is better practice for an indictment for swindling a corporation to allege the name of the individual to whom the representations were made, it may properly be alleged that the represtentations were made to the corporation, where the facts justify it.
    13. False pretenses <@=>28 — False representation as to death of insured may be charged as made to corporation.
    Where the evidence showed that proofs of death of insured were -submitted to five different officers of the insurance company before payment was ordered, an indictment charging swindling of the company by false pretenses as to the death of insured, which alleged that the false pretenses were made to the corporation was sufficient, since it would be impractical to allege the individual names of all the officers to whom they were made.
    14. False pretenses <@=>29 — Indictment must set out written instrument which is basis of swindle.
    When a written instrument is the basis of a swindle, the indictment should set out the instrument, and, if the indictment reveals on its face that such instrument is the basis of the swindle and fails to set it out, it is insufficient to charge the offense.
    15. False pretenses <@=>29, 38 — Indictment need not incorporate proof of death not basis of swindle by false pretense insured was dead, andf proof of death was admissible in evidence.
    The false proof of death is not the basis of a swindle by which the insurance money was collected, where the evidence showed that the first proof was by letter, followed by formal proof, and thereafter by an investigation by the insurance company’s representatives, who took oral statements, with written affidavits, and therefore the indictment was not insufficient, because it did not incorporate the proof of death therein, and the proof of death was admissible in evidence.
    Appeal from District Court, Stonewall County; W. R. Chapman, Judge. #
    Byrd Jackson Cochrain was convicted of swindling, and he appeals.
    Affirmed.
    See, also, 243 S. W. 465.
    J. E. Robinson, of Anson, and Stinson, Coombes & Brooks, of Abilene, for appellant.
    Joe C. ’Handel, Dist. Atty., of Hamlin, and R. G. Story, Asst. Atty. Gen., for the State.
    
      
       Rehearing penfling.
    
   LATTIMORE, J.

Appellant was convicted in the district court of Stonewall county of the offense of swindling, and his punishment fixed at two years’ confinement in the penitentiary.

Appellant moved to quash the indictment herein. Three grounds were laid in said motion, which are as follows:

“1. That it does not charge the defendant with any offense against the penal laws of the state of Texas.
“2. That it does not appear from the face of the same that an offense against the laws was committed by the defendant.
“3. Because the said indictment is repugnant, inconsistent, duplicitous, and unintelligible, and therefore does not charge the defendant with any offense against the penal laws of the state of Texas.”

Such a motion presents nothing more than a general demurrer, and should not he sustained, unless the indictment fails to state in substantial terms an offense against the laws -of this state. The necessary elements of swindling'have been often laid down. Me-Daniel v. State, 63 Tex. Cr. R. 260, 140 S. W. 232. They are tlie obtaining of personal or movable property of another, by false pretenses, made by the accused, with intent to defraud.

Stripped of verbiage, the indictment herein charges:

“That Byrd Jackson Cochrain, * * * unlawfully devising and intending to secure five thousand dollars in money belonging to the Southwestern Life Insurance Company, a corporation, * * * did then and there unlawfully and fraudulently acquire possession of said money from said corporation, * * * by means of false and deceitful pretenses, devices, and representations then and there unlawfully, knowingly, and fraudulently made by him to said corporation, in this, to wit: * * * That said Cochrain had a life insurance policy in said company payable to his wife, and on March 10, 1919, while said policy was in force, said Coch-rain pretended to be dead and falsely pretended and fraudulently represented to the Southwestern Life Insurance Company that he was dead, and by and through his wife and agent did fraudulently represent that he was dead, and that his said wife, Ethel B. Cochrain, had a right to collect said policy; and he, said Byrd Jackson Cochrain, did then and there by means of said false pretense fraudulently induce said Southwestern Life Insurance Company to pay to Ethel B. Cochrain five thousand dollars in money, and said Southwestern Life Insurance Company was thereby induced to part with and did part with title and possession of said money, and did deliver title and possession thereof to said Ethel B. Cochrain. Whereas, in truth and in fact, said Byrd Jackson Cochrain was not dead, and had not died during the life of said policy, and said Ethel B. Cochrain did not have the right to collect said policy or any part of same,” etc.

We think these allegations sufficient to charge a violation of the law, and that, in the absence of any special exception directed, at any particular part of said indictment, the overruling of said general demurrer presented no error.

This is a very remarkable case, and accounts of it were made public, in which same was called and became knowh as the “empty grave case.” The state’s contention, seemingly supported by the facts, is that appellant and his -wife, with C. O. Hoggett and Wayne tissery, two tenants on the farm of appellant, conspired together to fraudulently obtain the money of an insurance company; the fraud being based primarily upon the pretended death of appellant, who was the insured in a policy issued by said company. A substantial statement of the facts shows that on March 10, 1919, appellant “died” suddenly at his home at 6 o’clock in the morning. His wife and Hoggett were present tissery locates himself at the scene a short time after the pretended demise. News of the death was at once disseminated; Hoggett being the most active agent A coffin was ordered, a grave prepared, and other preparations made for the funeral, with the customary religious ceremonies and attendant surroundings. Those who came to the home of appellant on the day of said alleged death found a griefsfcricken widow in tears and lamentation. Apparently a 'select few were permitted to view the sheeted corpse, laid out in the usual form, awaiting a coming casket. The face was pale, the eyes half closed, and no breathing was observed. These few who were permitted to view the alleged corpse were taken into the front room, and Hoggett and Ussery alone prepared the coffin for its journey to the grave. After a religious service the funeral procession departed, leaving the widow alone (?) at her home. Hoggett and Ussery accompanied the casket to its safe interment. Before leaving home the widow had asked that the coffin be not opened at the grave. The children of appellant were away from home when death came. They were not at the funeral. The widow stated that it was the request of her dead husband that the children be not sent for. The next day after the funeral Hoggett drove away from the house of appellant in a wagon drawn by four mules belonging to appellant. A trailer wagon was attached to the ono driven by Hoggett. A wagon sheet covered the trailer. Hoggett told two neighbors whom he met that he was going to the Wichita oil fields. Within a few days thereafter appellant, Hoggett, and Ussery turned up at Moran in Shackelford county, where they worked in an oil field for some time, appellant going under the name of Hancock, and claiming to he a brother of Mrs. Cochrain, and stating" that his sister’s husband had died suddenly, leaving her with a lot of little children. A week after appellant’s “death,” his wife wrote the insurance company as follows :

“My husband, Byrd Jackson Cochrain, is dead. He died March 10, 1919. His policy No. 28022. Amount $5,000.00. Yours truly, Ethel B. Cochrain.”

Later she filled out a formal- proof of death sent her by the insurance company, therein again stating tho fact of appellant’s death. This was not sufficient, and same was supported by affidavits of Hoggett and Ussery and others; Hoggett asserting his presence when appellant died, and that he and Ussery prepared the body for burial, and that the body of appellant was by them placed in the casket. Ussery swore in his affidavit that he was called to appellant’s home about an hour after his death, and that he assisted Hoggett in preparing- the body for burial, and that the two of them placed said body in the casket. Other affidavits stated that the parties making same saw the casket and saw the body, and that same was that of appellant. On May 1, 1919, the $5,000 was paid by the insurance company to Mrs. Cochrain; $4,400 being deposited to her credit in a bank at Aspermont, Stonewall county, $450 being applied to tie payment of some notes of appellant Iield by said bank, and $150 in cash being then delivered to Mrs. Cochrain. A little later $3,000 was traced to a draft obtained by her from the bank at Aspermont, payable to a Fort Worth bank, which was indorsed “Ethel B. Cochrain, by J. H. Coch-rain,” which indorsement was shown to be in appellant’s handwriting-. Three witnesses testified to seeing appellant in his house in Stonewall county in October, 1919; one of thenf being the father-in-law of appellant, who testified that he visited his daughter during said month, and that while he was there appellant would remain in the house during the daytime and go about under cover of night. In January, 1920, appellant, going under the name of J. H. Cochrain, went out to Sterling county, where he bought a ranch, paying $5,280 in cash on the purchase price and executing notes for the remainder. The deed was made to J. H. Cochrain. In February, 1920, appellant, with his family, moved to this ranch, where Mrs. Cochrain died in May of said year. Rumors and suspicions were circulating in Stonewall county, where the alleged death took place, and in October, 1920, a group of men opened said grave and found therein a casket, empty, and with no signs of having been occupied. This indictment, and the arrest and trial of appellant, followed.

It is disclosed by the record in this case that there was no denial on the part of appellant of his pretense of death; in fact, in his sworn application for continuance he admitted and asserted such pretense in this regard, setting up as his reason therefor that he was under a $10,000 bond for his appearance before the courts of New Mexico on a murder charge, and that Ms life had been threatened by influential friends of the alleged murdered men, and that, believing, if he appeared in response to said bond, his life would be endangered, he made the pretense of death to protect his bondsmen, and also to avoid the danger of death, which might result if he went to New Mexico at the time called for his appearance by said bond. Nor was there any denial of the payment of the $5,000 by the insurance company to Mrs. Ethel B. Cochrain, based on their belief that appellant was dead.

The pretense of death being undenied, and the payment of the money of the insurance company to appellant’s wife also being un-dented, there remained but the question of whether such pretense was fraudulent, and whether by means of same the insurance company was induced to part with and did part with the title and possession of their said money.

We have stated the main facts. In our opinion a conspiracy between four parties, viz. appellant, his. wife, Hoggett, and Ussery, was fully established, and in such case the acts and declarations of each of the co-conspirators, done and made in pursuance of the common design, to > wit, the getting of said money, and prior to the obtaining of same, were admissible against appellant on his trial, whether same occurred in his presence or otherwise. The rule is too well settled to need citation of authorities. Vernon's O. O. P. pp. 648-653.

To this well-known rule and that of principals may be referred most of the complaints of appellant upon this appeal. The question of principals is discussed at length in Middleton v. State, 86 Tex. Cr. R. 307, 217 S. W. 1046. This doctrine is also applicable here. From the moment of the beginning of the acting together of the parties named, appellant was doing his part in the scheme of getting said money; his part being to pretend to be dead. When the money was delivered to and acquired by his wife, appellant was in concealment, pretending to be dead. He was going under an assumed name, when names were necessary. He was hiding in his own house in the daytime, and coming out at night. He was pretending to be the brother of his own wife. When two or more are acting together in the execution of a common design, the fact that only one of them is bodily present when the crime is consummated does not prevent those who are absent from being principals, if they are doing their parts at such time. Under the rules above discussed, and without stating needless details, we are of opinion that appellant’s bills of exceptions Nos. 2, 7, 8, 10, 15, 21, and 23 show no error; same relating to acts and declarations of said co-conspirators prior to the payment of said money.

That some of said matters were written documents, and others oral statements, would not effect the question of their being within the rules mentioned.

A number of bills of exceptions were taken to the examination of the agent of the insurance company relating to the policy of insurance. There being no sort of contention that the $5,000 called for by said insurance policy upon the life of appellant was not paid by the Southwestern Rife Insurance Company, the alleged injured party in the instant transaction, to Mrs. Ethel B. Coch-rain, wife of appellant, on May 1, 1920, we would hold that questions relating to a change of beneficiary, or the payment of premiums on such policy, of who approved such payment, are such matters as would be of no moment, and that errors asserted In regard thereto would be as to immaterial matters. This would dispose of bills of exceptions Nos. 3, 4, 5, 6 and 9. So, also, of the affidavits of Undertaker Anderson, which were sent to the insurance company, supporting the claim of appellant’s death, as set out in bills of exceptions Nos. 11 and 13.

Bill of exceptions No. 12 relates to the manner and circumstance' of the payment of said money to Mrs Oochrain; bill No. 16 relates to testimony of a banker as to his opinion that certain signatures, including the indorsement on the $3,000 draft mentioned above, were, from his knowledge of appellant’s handwriting, the signatures of appellant ; bill No. 17 was reserved to a statement ■of said banker that part of the money obtained from said insurance company was contained in said $3,000 draft (the state contending that this draft was cashed by appellant); bill of exceptions No. 18 was to testimony of the banker that in the summer, after the collection of said insurance money, certain notes against appellant came to the bank and were paid by Mrs. Oochrain; bill of exceptions No. 19 was also to the testimony of a 'banker that he was familiar with appellant’s handwriting, and that in his opinion the indorsement of said $3,000 draft was made by appellant; bill of exceptions No. 20 was to the testimony of P. L. Anderson that he had signed a certain affidavit sent to the insurance company relative to the alleged death of appellant, at the request of Mrs. Oochrain; bill of exceptions No. 22 was to the testimony of a witness that he saw appellant in his house in Stonewall county in October, 1919; bill of exceptions No. 23 was to the testimony of witness Westbrook that in his opinion the indorsement on the $3,000 draft mentioned and the signature to a certain check were in the same handwriting.

In our opinion a statement of the contents of these bills of exceptions obviates the necessity for any discussion of them at length. Matters relating to the receipt of the money, the obtaining of which was the basis of the alleged swindling, and the disposition of same by appellant or his wife, were material circumstances bearing upon the fraudulent purpose and intent in the acquisition of said money. The matters pertaining to the $3,000 draft, showing that same was indorsed by appellant, were material for the same purpose. The affidavits and statements of witnesses and persons relating to the supposed death were matters which could be of no possible harm to appellant, in view of the fact that he did not deny the pretense of death, nor the obtaining of the money by his wife, but contented himself with contesting the sufficiency of the facts to show a fraudulent intent and an acting together with her in what she did and said after said pretended death.

We find ourselves unable to agree with appellant in any contention with regard to the insufficiency of the evidence in this case. The question as to whether his pretended death was for the purpose claimed by him, and in regard to which facts were elicited from a number of the witnesses upon cross-examination,, ten ding to show that appellant was under indictment in New Mexico, and that he had repeatedly said that he was afraid he would be killed, and showing the animosity of some of the New Mexico officers toward him, and all other facts tending to support such defensive theory, were before the jury, and fairly submitted to them for their decision by the charge of the court.

Appellant asked for a. continuance because of the absence of one Latham and a Mr. and Mrs. Entzminger. We think the application lacking- in merit. No diligence was shown as to Latham, and the facts stated as expected from the Entzmingers appear to us to be immaterial. If they had been present, and testified that they suggested to Mrs. Oochrain to apply, for the- insurance. monqy, or that they aided and assisted her in preparing her application therefor, this could in no wise affect the question of the fraud based upon the representation made by her to the insurance company that her husband was dead. It needs no iteration by us of the facts already stated tb show irresistibly that Mrs. Oochrain was a party to 'life alleged fraudulent scheme. She was present in the house at the time of the alleged death of her husband. She was present when Ussery and Hoggett claimed to have prepared the body for burial. She was crying and taking on during the funeral ceremonies at the house. She asked that the casket be not opened. She stated that before her husoand died he asked that the children be not sent for. She alone remained at the house when the empty casket was carried away. She wrote a letter a week later, stating to the insurance company that he was dead. In the face of these tremendous facts, it would be immaterial that any one suggested to her that she prepare an application, the core and pith of which was that her husband was dead, a matter which she was compelled, apparently, to know to be false.

A number of exceptions were taken to the charge of the trial court, many of which seem to be based upon an 'erroneous assumption that the act of one principal cannot be chargeable to another, and that appellant would not be in law held equally guilty for the representations made by his wife to the insurance company for the purpose of obtaining from them their money.

Einding no reversible error in the record, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant complains of certain language in our opinion as subject to the interpretation that we are applying the rules of pleading in civil cases to indictments, thereby in effect holding that an indictment subject to attack by special exception would nevertheless be held good in the absence thereof. If our language was so unhappily chosen as to be reasonably subject to such interpretation, we now disclaim such to have been our intention. We intended to say only that the motion to quash the indictment was general in its terms, not pointing out specifically wherein it was claimed not to charge an ofíense, hut that in our opinion the indictment did charge an offense, and was therefore not subject to the motion to quash.

But it is urged that, because the indictment alleged that appellant intended to swindle and defraud, and did swindle and defraud, a corporation, to wit, the Southwestern Life Insurance Company, and alleged that the false representations were made to the corporation, and did not name the particular persons or agents of the same to whom the said representations were made, that the indictment, for such failure, does not charge an offense, and that our former opinion is therefore erroneous, and in conflict with Pruitt v. State, 83 Tex. Cr. R. 148, 202 S. W., 81. Consideration of article 24 of our Pfeil Code will aid in the solution of this question. It reads:

“Whenever any property or interest is intended to be protected by a provision of' the penal law, and the general term ‘person,’ or any other general term, is used to designate the party whose property it is intended to protect, the provision of such penal law, and the protection thereby given, shall extend to the properly of the state, and of all public or private corporations.”

Reference to article 1421, P. C., defining the offense of swindling, will reveal that the only “general term” used to designate the party whose property that article is designed to protect is “the party justly entitled to the same.” A corporation may own in its corporate name and hold title to property, and is “justly entitled thereto.” We quote from the opinion in Modica v. State, 250 S. W. - (No. 6868, delivered February 14, 19231):

“In the fifth count, the owner was named as the Beaumont, Sour Lake & Western Railway Company, a corporation. There is no rule of law which inhibits the naming of a corporation as the owner in an indictment for theft. There is nothing in the cases of Green v. State, 199 S. W. 623; Hartman v. State, 213 S. W. 939; White v. State, 28 Tex. Cr. R. 231, or other cases cited by appellant, which is opposed to this rulo. On the contrary, the cases of White v. State, 24 Tex. App. 231, and Thurmond v. State, 30 Tex. App. 539, cited by appellant recognize the sufficiency of an indictment naming the corporation as the owner: They suggest that a better practice would be to place the ownership in an individual. The practical value of this suggestion is referable to the proof rather than the averment, in that the proof of want of consent is much easier when the averment places the ownership in an individual. On this subject, see Osborne v. State, 245 S. W. 929; also Bishop’s New Crim. Proc. § 138; Cyc. of Law & Proc. vol. 25, p. 95; Wharton’s Crim. Law, § 1180.”

The authorities cited will, we think, demonstrate the soundness of the proposition announced. Where one obtains property belonging to a corporation by fraudulent representations made to a particular individual, who has control of the property so acquired, the better practice is always to allege the name of the person to whom the representations were made; but, where the facts justify it, we believe it may propqrly be alleged that the representations were made to the corporation, and that such allegation charges an offense. It is true that corporations must act through individuals, and it is necessary for some person for the corporation to act upon the representations; but it does not follow that the representations must be directed to any particular person.

As we understand the record in the instant case, all communications reporting appellant’s death, the proof thereof, and affidavits relating thereto, were all directed to the Southwestern Life Insurance Company. It was a matter of small concern to appellant into whose hands they ultimately fell, or what particular agent of the corporation passed upon them. The facts show they were acted upon, not by one, but by many, officers of the company. Upon this point we quote from the testimony of Mr. Mather:

“I had access to or possession of the policies of the company while acting in the official capacity of secretary for the Southwestern Life Insurance Company in the year 1919. As to who the party was who usually passed upon proof of death of claims under the policies, there are several; all of the officers pass on the proofs of death. They first come to me and are gone over carefully, and then tliey are referred to the medical director and are by him gone over, then to the general attorney, and from there back to the president, and, if approved by all these, they come back to me for final approval and payment.”

We believe the facts shown by the foregoing evidence will demonstrate that if the proposition contended for by appellant — that the indictment, to be valid, must allege the name of the person to whom the representations were made — should be upheld, it would be practically impossible to draw a good indictment or secure a conviction under suc-h a state of facts as is disclosed by this record. All the officers passed upon “proof of death claims." Would it be necessary to allege that the representations were made to all of them, the secretary, the medical director, the genera] attorney, and the president? If not, then to which one? The law does not require impossible or impracticable things. In so far as Pruitt v. State, 83 Tex. Cr. R. 148, 202 S. W. 81, contains expressions contrary to the views here expressed, it is modified to that extent.

It is further contended in the motion for rehearing that the indictment is bad for failure to set out the written proof of death forwarded by appellant’s wife to the insurance company, and that in the absence of such instrument in the indictment appellant’s objection on that ground should have been sustained when it was offered in evidence by the state. We find ourselves unable to agree to either proposition. Authorities cited in support of the contentions are White v. State, 3 Tex. App. 605; Dwyer v. State, 24 Tex. App. 132, 5 S. W. 662; Hardin v. State, 25 Tex. App. 74, 7 S. W. 534; Ferguson v. State, 25 Tex. App. 451, 8 S. W. 479; Salter v. State, 36 Tex. Cr. R. 501, 38 S. W. 212; Lively v. State (Tex. Cr. App.) 74 S. W. 321; Doxey v. State, 47 Tex. Cr. R. 503, 84 S. W. 1061, 11 Ann. Cas. 830. We deem it unnecessary to review them in detail. They announce the correct doctrine that, when a written instrument is the basis of a swindle, that 'instrument should be set out in the indictment, and that where the indictment upon its face reveals this to be true it will be held bad for the failure to incorporate it.

What was the basis for the swindle in the instant case? The act on the part of appellant of simulating death? He was fraudulently representing to the world that he was dead and buried. The insurance policy as we find it in the record did not require written proof of death, and, if so, the requirement could have been waived, by the company. The beneficiary could have reported the (supposed) death of her husband by telephone, in person, or by private messenger to the company. She did write a letter so advising; later the proof of death was furnished. The insurance company, for some reason, not being satisfied, sent an agent, who had a personal interview with appellant’s wife and others relative to appellant’s supposed death; he also secured affidavits of two co-conspirators, and of some friends who had attended the fake funeral, and who appear to have been imposed upon, as well as the insurance company. Could it be contended that the indictment should have set out all of the documents sent to the company or secured by it? What was the effect of all of them? To cause the company to believe that appellant was dead, the false simulation of which was, to our minds, the basis of the whole swindle and conspiracy. If it had been alleged that the company relied on the written proof of death, then it could have been urged with plausibility that this was not true, because the company sent an agent to make further investigation, and secure additional affidavits. The letter, proof of death, and various affidavits introduced over appellant’s objection were only evidence pertinent in making out the state’s case, and the means whereby the pretended death was established as a real event. It is never necessary to set out any part of the evidence in an indictment, unless a written document used as evidence be the basis of the offense charged. Not being required to set out the written instruments in the indictment, we believe the objection to their introduction, because not so averred, was properly overruled.

Presiding Judge MORROW agrees that the indictment was not obnoxious to the motion to quash, but is inclined to the view that, there being no averment in the indictment that written representations entered into the offense, the admissibility of the written proof of death is doubtful, under the Rudy Case, 81 Tex. Cr. R. 272,195 S. W. 187, and authorities there cited.

The motion for rehearing is overruled. 
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