Pincus v. State

*189 HAWKINS, Judge. — Conviction is for “untrue advertising,” the punishment being a fine of ten dollars. Prosecution was under article 1554, P. C. (1925), which, so far as applicable here, reads as follows: “Whoever with intent to sell * * * merchandise * * * which he owns or of which he has control * * * to the public, * * * makes, publishes * * * circulates * * * in a newspaper, or * * * circular * * * an advertisment of any sort regarding merchandise, as to its character or cost, * * * which advertisement contains any assertion, representation or statement of fact which is known by said person or could have been known by use of reasonable diligence or inquiry to be untrue, deceptive or misleading in any material particular as to such * * * things so advertised, shall be fined not less than ten nor more than two hundred dollars.” No statement of facts accompanies the record. The appeal is predicated on two propositions, one being that the law in question is invalid because of uncertainty, the other that if the statute is upheld the complaint and information is insufficient to charge the offense. On the first proposition we express the opinion that such part of the statute as undertakes to penalize one who “could have known by use of reasonable diligence or inquiry” that the advertisement was untrue is of doubtful validity. It undertakes to make a criminal of one who might be guilty of negligence only in the absence of any willful wrong in connection with an act which results in no harm to anyone. Overt v. State, 97 Texas Crim. Rep., 202, 260 S. W., 856. Likewise, the term “deceptive or misleading” seems to be vague and fraught with uncertainty. Surely in an attempted practical application much difficulty would be experienced both in averments which would be necessary and in proof to sustain them. We enter upon no long discussion as to whether that language of the statute mentioned may be disregarded without affecting the remainder, but cite as persuasive Anderson v. State, 118 Texas Crim. Rep., 450, 21 S. W. (2d) 499; Williams v. State, 100 Texas Crim. Rep., 50, 271 S. W., 628. If, — disregarding those two parts of article 1554 heretofore mentioned, — the remaining part may be upheld so that a criminal prosecution can be based thereon, then we express the view that the allegations in the complaint and information do not charge an offense. It is alleged that appellant made and published an “advertisement to-wit, a circular and bill * * * said advertisement, circular and bill being hereto attached, marked Exhibit ‘A’ and made a part hereof, etc.” Said advertisement *190 is not set out in the information and neither is it attached thereto. The general rule is that when a written or printed document is the basis of the offense charged, such as in swindling, it is necessary to set such document out in the indictment or information. See Cochrain v. State, 93 Texas Crim. Rep., 483, 248 S. W., 43, and cases therein cited. According to the information, the things in the advertisement which were claimed to have been untrue were the very basis of the alleged offense. The advertisements should have been set out. That portion claimed to be false should be designated with an averment that such designated parts were as to “material particulars” regarding the thing advertised, pointing out in what manner they were material, and this should be accompanied by an affirmative averment that they were untrue, and that accused knew they were untrue when he published the advertisement or circular. We observe what appear to be contradictory averments regarding the advertisement. In one place in the information it is described as a “circular and bill” and in another place it is averred that “said advertisement was a part of an issue of the San Antonio Light.” For the reasons heretofore stated, the judgment is reversed and the prosecution ordered dismissed. Reversed and remanded.