
    PILGRIM v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1912.)
    1. False Pretenses (§§ 28, 32) — Swindling —Indictment.
    An indictment charging swindling must allege the ownership of the property fraudulently acquired by accused and the person from whom it was acquired.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. §§ 33, 42-44; Dec. Dig. §§ 28, 32;]
    2. False Pretenses (§ 32) — Swindling—Indictment.
    An indictment for swindling may allege ownership in an employé having charge and control of the property fraudulently acquired by accused.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. §§ 42-44; Dec. Dig. § 32.]
    3. False Pretenses (§ 38*) — Swindling-4ssubs, Proof, and Variance.
    The allegation of title of the property fraudulently acquired by accused charged with swindling must be proved, and a variance'between the allegation and proof is fatal.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. §§ 50-53; Dec. Dig. § 38.]
    4. False Pretenses (§ 38) — Swindling—Evidence — Instructions.
    Where an indictment for swindling charged that accused fraudulently acquired property from eight persons named, and the proof showed that the title and possession of the property fraudulently acquired by accused was in one of the persons only, a charge authorizing a conviction if accused by fraudulent representations made to one only of .the persons obtained the property was erroneous.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. §§ 50-53; Dec. Dig. § 38.]
    Appeal from District Court, Upshur County; R. W. . Simpson, Judge.
    Dan Pilgrim was convicted of swindling, and he appeals.
    Reversed and remanded.
    Rolston & Ward, of Mt. Pleasant, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
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   PRENDERGAST, J.

The appellant was convicted of swindling. The indictment charges that a life insurance policy or certificate in the Upshur County Home Protection Company was acquired from eight certain persons named, and that the false representations to procure it were made to these eight persons and each and all relied upon and believed the representations; that said eight persons were the trustees and agents of said company, and were authorized and empowered to issue said certificate of membership or policy; that the representations so made to said eight persons induced them and each of them to part with, and they did part with, the title and possession of said instrument and did deliver the title and possession thereof to appellant, which they relied upon and which were false when so made and appellant knew it.

It will be thus seen that the authority to issue and the right and title to said certificate or policy was alleged to be in the said eight certain persons. It seems that the proof was that under the law and terms of this statute the title and possession of said certificate or policy and the authority to issue and deliver the same was in only one of said eight persons. The court in submitting the question to the jury for a finding did not require them to believe that the title and possession of said certificate or policy and the right and authority to issue and deliver it to appellant was in but one of said persons. The point is correctly saved and properly made by the appellant, claiming that the charge submitted a distinctly different state of facts to the jury from that alleged in the indictment.

In the offense of swindling, as in that óf theft, the indictment must clearly and distinctly allege the ownership of the property fraudulently acquired by appellant and the person from whom the same was acquired by him. Burd v. State, 39 Tex. 509; Washington v. State, 41 Tex. 583; May v. State, 15 Tex. App. 430; Mays v. State, 28 Tex. App. 484, 13 S. W. 787; Mathews v. State, 33 Tex. 102.

And an indictment for swindling may allege the ownership to be in one who has charge, possession, and control of the property, though he has in fact no title, or even beneficial interest in it. An employé having charge and control of his employer's money, safe, and funds therein has such ownership. May v. State, supra.

It is also elementary in this state, and needs no'citation to the cases, to show that, where in theft or swindling title and possession of the property is alleged to be in certain persons, it is necessary to prove the allegations, and, unless this is done, there is a fatal variance between tbe allegations and proof.

In our opinion tbe charge of tbe court in tbis case authorized a conviction of appellant upon false representations to only one of the eight persons, and when one only, instead of tbe eight, were tbe owners, and bad title and possession of the certificate or policy, which necessarily results in a reversal of the case. We take it that from the proof in this ease the title and possession of the certificate or policy was in W. F. Shrum, instead of the eight persons named, and that he alone had the right and authority to issue such certificate, instead of all eight of said persons, and that the representations inducing the delivery to appellant of such certificate were made to him alone and not to the other persons. In our opinion the bills of exceptions do not present reversible error, but that, even under this indictment, such proof as was made, shown to have been objected to by said bills, was admissible.

There are some complaints to certain paragraphs of the charge of the court claiming that they shifted the burden of proof from the state to appellant. It is unnecessary for us to pass upon any of these questions. On another trial the court can, by the charge, properly meet such questions if such charge is subject to such objections.

Por the error above pointed out, the judgment is reversed, and the cause is remanded.  