Dwyer v. State , 24 Tex. Ct. App. 132 ( 1887 )

Hurt, Judge.

This is a conviction for swindling. , The indictment alleges, that appellant Dwyer, Edward Eglinton and J. L. Larkin perpetrated the swindle, and that the money charged to have been obtained “by means of false pretenses and divers misrepresentations” was the property of J. C. Brown and L. A. Sheldon. The proof shows that the money was obtained from H. E. Phillips, the agent of Brown and Sheldon, .with proper authority to pay the money.

The indictment alleges that Edward Eglinton, appellant’s co-defendant, presented to Phillips the discharge certificate, making certain false statements at the same time and receiving the money. It then alleges “that the whole of said transaction on the part of the said Dwyer, Eglinton and Larkin was a false and fraudulent combination, scheme and device to cheat, swindle and defraud the aforesaid receivers of said railroad company.”

How, the property charged to have been obtained was twenty-six dollars and twenty cents. The indictment alleges that this money was obtained by Eglinton, a co-defendant. There is no allegation directly charging all the defendants with the commission of the acts constituting the offense. This is done in a very indirect and inferential manner.

The indictment must allege directly, not inferentially, the commission of the acts by the accused. Pleading the evidence instead of the acts will not suffice; and allegation is a matter quite different from the proof thereof. There is no direct allegation in this indictment which charges appellant and Larkin with committing or doing the acts constituting the offense for which appellant stands convicted. It is true that a conspiracy and acting together in .making false representations to Brown and Sheldon is alleged, but the representation so made is not averred, and this allegation is therefore insufficient.

When Eglinton made the verbal representations to Phillips, they were directed to, or in relation to, a written document presented by him to Phillips. This document is called a “discharge certificate,” and is as follows:

Opinion delivered October 29, 1887.

“No. 3. Bonham.

$26.20. Maintenance of Wat. No. 50.

The Texas & Pacific Railway Company,

October 27, 1886.

The bearer, Robert Kingston, is entitled to pay for 23 days service as laborer on Sec. No. 80, in month of October, 1886, at $1.15 per day...................................................$26.45

Less board due to hospital ($ .25)........................ 25

Balance due him Twenty-six -gfo dollars...................$26.20

The above has been duly authorized, and will appear on the proper roll for the above month.

John W. Parks.”

Without this “discharge certificate” Phillips had no authority to pay the money to Eglinton, and it is therefore evident that this certificate was the real and paramount inducement for Phillips to part with the money. >No verbal statements made by Eglinton, be they ever so fraudulent and false, could have induced Phillips to pay out the money in the absence of the certificate. The rule upon this subject is that the indictment must set out the words used by the accused which induced the party to part with his property; whence it follows that, if in writing, the words and figures therein contained are the inducement, or a part thereof, and the voucher must be set but as in forgery. (The State v. Edwin Green, 7 Wis., 571, followed by this court in White v. The State, 3 Texas Ct. App., 605.)

The motion in arrest of judgment should have been sustained. The judgment is reversed and the prosecution dismissed.

Reversed and dismissed.