Escue v. State

*449 LATTIMORE, Judge. Appellant was convicted in the District Court of Shackelford County of the offense of swindling, and his punishment fixed at confinement in the penitentiary for a term of five years. The case is before us without any statement of facts. The indictment contains two counts, and inasmuch as there is a general verdict of guilty, under our well established practice, such verdict would apply to either of said counts, and if one of the same should be defective, said verdict would be upheld under the other count. Appellant made a lengthy motion to quash the first count, and the Court is inclined to think that a part of said motion alleges such defects as would render said count defective. In his motion to quash the second count there is only one ground set up, which is that the drafts described in the indictment, and which are alleged to be the property fraudulently obtained by the accused, were not shown by the pleading to be executed by either Mr. Hayward or the First National Bank of Moran, they being the alleged injured parties. In our opinion it was not necessary to allege that said drafts were executed by either Hayward or the Bank. They were set out in haec verba in the indictment, and it was alleged that the drafts so set out were of the value of $2,500. If the proof was sufficient to establish such value, and the further fact that the alleged owner was induced to part with said drafts upon his faith in the false and fraudulent representations made by appellant, the latter would be guilty of the offense charged. The motion to quash the second count was properly overruled. Nor did the trial court err in admitting in evidence the said drafts. They were described in extenso in the indictment, and the material question being whether or not drafts, such as were described in the indictment, were of value and were acquired by the appellant by the means alleged, it was material and proper to admit said drafts in evidence. If it became necessary in order to sustain the allegation of value to prove the execution of said instruments by the Bank or some person having authority from the Bank, this was also admissible under said general allegations of value of said instruments. Objection was also made to the introduction of the mortgage given by appellant on said property, the ground of said objection being that the description of the property in the mortgage was not sufficiently definite to identify the particular animals therein described. It is not necessary that the description of the property be such as would make out a flawless contract. If the mortgage, as given, was relied upon and accepted by the injured party, and did in fact induce him to part with his property, and thus accomplish the object intended, the substantial requirements of the law would be met. In a civil suit between parties to enforce the mortgage in question the description of the property would be aided by extraneous allegations and proof introduced of other matters not contained in the mortgage. *450 Appellant’s insistence that the verdict was contrary to the evidence because same showed his insanity cannot be considered by us in the absence of a statement of facts. There are several assignments of error, based upon the refusal of special charges and the admission of certain evidence, but we are unable to decide in the absence of a statement of facts whether such charges were called for or such evidence objectionable. Appellant here presents as fundamental error, not raised in any way in the trial, the fact that in the mortgage set out in the indictment a note is mentioned as secured by said mortgage, which note is described as one due November 20, 1920; attention being now called to the fact that said indictment, after setting out said mortgage containing the note just mentioned, further alleged that the appellant executed a note which is also set out in the indictment, and the due date of which was November 20, 1919. We do not think this affects the case or constitutes any fundamental error. If appellant executed a mortgage to secure a note due a year after the date thereof, and then by agreement between the parties to the said instrument at the time it was decided to make a note due at an earlier date than agreed upon, this would be a matter which might have been explained if objection had been made thereto upon the trial. It might have been made to appear that when the mortgage was prepared the parties had agreed upon a loan which was to run for one year, but that later they agreed that the note might be for a shorter period, and by renewal be extended for a year. We do not regard this as such fundamental error as would justify the reversal of this case. This disposes of all the contentions ■ raised by appellant, and finding no reversible error in the record, the judgment of the trial court will be affirmed. Affirmed.