
    (86 Tex. Cr. R. 484)
    KRAFT v. STATE.
    (No. 5554.)
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1920.
    On Motion for Rehearing, Feb. 11, 1920.)
    1. False pretenses <®=>49(1) — Evidence not-SUFFICIENT TO SUSTAIN CONVICTION.
    In a prosecution for swindling, where it was charged that defendant had acquired and cashed swindled person’s check, and had thereby obtained money belonging to swindled person, evidence showing that the check received had in fact been the check of such person’s -mother and' had been drawn against the mother's funds, and failing to show that defendant had collected money thereon, held not to sustain a conviction; there being no proof that defendant had received the money which the pleading charged him with receiving.
    2. False pretenses <&wkey;38 — Check other. TIIAN THAT DESCRIBED IN INFORMATION NOT ADMISSIBLE.
    In a prosecution for swindling, where information charged defendant with having acquired and cashed swindled person’s check, the check of swindled person’s mother, drawn against the mother’s money and signed in mother’s name by the swindled person, held inadmissible, not being the check described in the information.
    On Motion for Rehearing.
    3. Criminal law <&wkey;1133 — Motion fob rehearing MUST BE MADE WITHIN 15 DAYS-AFTER JUDGMENT.
    Motion for rehearing, under the rules of the-court, must be made not more than 15 days after rendition of judgment.
    4. False pretenses &wkey;>39 — State must shot THAT DEFENDANT COLLECTED MONEY ALLEGED TO HAVE BEEN COLLECTED FROM SWINDLED-PERSON.
    In prosecution for swindling, the state must-prove that defendant in fact collected the money which the information alleges that he collected-from swindled person.
    
      -5. False pretenses <&wkey;38 — Allegation oe PROCURING SWINDLED PERSON’S CHECK IN--SUEEICIENT TO SUPPORT PROOE OE SWINDLED PERSON’S MOTHER’S CHECK.
    In prosecution for swindling, allegations that defendant procured swindled person’s cheek, and procured money thereon, did not support pi-oof of swindled person’s mother’s check .made payable to certain newspaper and clrawn against mother’s funds; there being a distinct variance between such proof and allegations.
    Appeal from Travis County Court; D. J. Pickle, Judge.
    D. B. Kraft was convicted of swindling, and lie appeals.
    Reversed and remanded.
    Henry Faulk and Monroe & Patterson, all -of Austin, for appellant.
    Alvin M. Owsley, Asst Atty. Gen., for the -State.
   MORROW, J.

The appellant was convicted of swindling B. C. Haehnel out of $7 by falsely representing himself as agent of a •certain newspaper establishment; the aver-ments, so far as Is necessary to quote, being as follows:

“Did induce said B. .0. Haehnel to pay to the said D. B. Kraft,.and {he said D. B. Kraft did then and there by the means aforesaid acquire from the said B. C. Haehnel, the sum of $7, as -evidenced by a certain check of the said B. C. Haehnel, which the said D. B. Kraft later cashed and obtained thereon the sum of $7, current money of the United States of the value of $7,. the same being the personal and movable property of the said B. C. Haehnel,”

The evidence shows that the appellant received from B. C. Haehnel, in consideration for a 'year’s subscription to the newspaper, a ■check for $7, which check was signed Mrs. B. Haehnel per B. C. Haehnel. B. Haehnel had no money in the bank, but had authority to ■sign his mother’s name; the money against which the check was drawn belonging to her. The proof fails to show that appellant collected the check or obtained any money in the transaction, and further shows that B. G. Haehnel received the newspaper according to contract. It also appears that the appellant had been in the employ of the newspaper named, but that on the day immediately preceding the transaction his relation with it had terminated.

We are of the-opinion that the proof is not sufficient to support the conviction, for the reason that it does not prove that the appellant received the money which the pleading charges him with receiving. We are •also of the opinion that there was error in admitting in evidence the check. As stated in the indictment, the check entered into the ■offense in a maimer requiring that proof of it agree with the allegation. The check introduced in evidence was not the chéck described in the information. Johnson v. State, 57 Tex. Cr. R. 347, 123 S. W. 143; Wilson v. State, 80 Tex. Cr. R. 623, 193 S. W. 669; Rudy v. State, 81 Tex. Cr. R. 274, 195 S. W. 187, for additional citation of eases.

The judgment is reversed -and the cause remanded.

On Motion for Rehearing.

DAVIDSON, P. J.

This is a motion for rehearing by the state alleging error in the reversal of the judgment, which occurred on a former day of this term. The motion for rehearing is filed too late under the rules; more than 15 days having elapsed after the rendition of the opinion. In view of the contention in the motion for rehearing that the court erroneously declared the law applicable to the case, 'it is thought advisable, however, to review the record. This view is enhanced!, in the mind of the writer, by reason of the fact that a wrong opinion should not pass into the jurisprudence of our state. The law should be correctly decided.

Without definitely reviewing the contention of the state that the evidence is sufficient to support the conviction, suffice it to state we are still of opinion that the evidence does not support the conviction.* While there are circumstances indicating that appellant may have collected the $7 mentioned in the complaint and information, yet it is not clear. Upon another trial this matter should be made to appear definitely. The record shows this can be done. Viewed in another light, the evidence is clearly insufficient, in that it does not support the charges made in the pleading. If it be conceded that appellant collected the $7 mentioned, still the evidence does not sustain the pleading. There is a distinct variance. As stated in the original opinion, it was averred in the complaint that appellant-induced B. O. Haehnel to pay him, appellant, and that by the means aforesaid he did acquire from Haehnel, the sum of $7, as evidenced by a check of said B. G. Haehnel, which appellant later cashed and obtained thereon the sum of $7, current money of the United States, and that same was the personal and movable property of said B. O. Haehnel. These allegations are correctly set out in quotation in the original opinion. The evidence discloses that appellant had been representing the Austin American, a newspaper, in distributing it among subscribers, and had been collecting money by the month from these -subscribers, and that on this occasion when he sought to collect from Haehnel, payment for the paper for the month he informed Haehnel that the price of' the paper had been raised, and that it would be $7 a year for subscription. Haehnel thereupon wrote a check, which is set out in the statement of facts, not in the complaint and information; The check in question was dated December 9,1918. Among other things, it reads as follows:

“Pay to the order of American $7.00, Seven no/100 dollars. Mrs. B. Haehnel,
“Per. B. 0. Haehnel.
“To the Austin National Bank, Austin, Texas.”

The complaint and information charge that this money was the property of B. C. Haehnel, not Mrs. Haehnel. It alleges that appellant represented himself as the agent and collector of the Austin American, and had a right to collect said check of $7, and that he did thereby acquire from Haehnel for the Austin American this money, and that he had no right' so to do. An inspection of this check does not support the allegation set forth in-the complaint and information. It does not show upon its face that it was for the payment of a subscription to the Austin American, but if it represents anything with reference to this matter it was to pay to the order of the American. So the evidence from any standpoint does not correspond with the allegations in the complaint that the check was given for a subscription to the Austin American, or that it was the personal property of B. C. Haehnel. The facts show it was the property of Mrs. Haehnel. B. C. Haehnel signed the check as the agent of his mother, as he testifies, using her name, and he testified he had the authority so to do, but it was not his property. This is so clearly at variance, it occurs to the writer, that it would hardly he the subject of discussion. There are quite a number of decisions, some of which are cited in the original opinion, to the effect that where the swindle was perpetrated by means of an instrument, as in this case, and not by the reception of money, the instrument must he set out in hsec verba if it can be obtained, and, if not, then some reasons given why it was' not. This question came for revision in Wilson v. State, 80 Tex. Cr. R. 623, 193 S. W. 669; Rudy v. State, 81 Tex. Cr. R. 274, 195 S. W. 187; Johnson v. State, 57 Tex. Cr. R. 347, 123 S. W. 143. These opinions review this question quite elaborately and correctly. This was not only not done as required under the law, but in undertaking to set .out and describe the matter of the alleged swindling it fails to make those allegations even correspond with the actual transaction, or conform to the check upon which the alleged swindling was based. In the respects mentioned, especially, there is a variance between the allegation in the complaint and the testimony offered in support of it. We have nob undertaken to review the testimony in detail, but have said enough to show that the case as alleged and that proved are at variance with each other. We might also cite in this connection the case of Lieske v. State, 60 Tex. Cr. R. 276, 131 S. W. 1126.

. The ■ motion for rehearing has been reviewed, although filed too late,,but, believing the grounds to be insufficient to justify this court in changing or modifying the views already expressed in the original opinion, the motion will be overruled. 
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