Marwilsky v. State

Hurt, J. The appellant was prosecuted, with one M. Litman, for swindling. They severed, and were both convicted, and appealed separately to this court. The information charged the pretence by which the property was obtained as follows: “That she, the said Priscilla Hall, had, by purchase of goods from them, the said M. Litman and A. Marwilsky, become indebted to them in the sum of nine dollars.” The proof upon this point is as follows : Brownfield, for the State, says that the defendant “ said we had traded all that was over the amount paid to us, and six dollars besides, which we owed him.” The witness goes on to state “ithat Priscilla paid him the money — the six dollars.” On this point Priscilla states the false pretence to have been this : “ Now you owe me six dollars.” This proof evidently fails to support the charge. This must be done. The charge setting forth the pretences must be proved as laid in the information, or a portion of the charge, if that which is proven makes a case of swindling. Warrington v. The State, 1 Texas Ct. App. 169 ; Hill v. The State, 41 Texas, 253; Collins v. The State, 43 Texas, 577; The Commonwealth v. Atwood, 11 Mass. 93 ; Gorman v. The State, 42 Texas, 221; 1 Whart. Cr. Law, sect. 629. By the first bill of exceptions it appears that the State proposed to prove by McFarland a statement made by Lit-man (a co-defendant) after the offence had been completed. The defendant not having been present, counsel for defendant objected, and the objection was sustained by the court; whereupon the State withdrew the witness, and placed witness Hunt upon the stand, who stated that while a woman — who, he thinks, was a mulatto — was trading in the store of defendant and Litman, defendant, who was walking about, sometimes in the store and sometimes out, said to him : “It is a hard time to trade with freedmen so as to make any margin on our goods, after buying their cotton.” The State [380] recalled McFarland, who was permitted (over the objections of defendant) to relate all that occurred between Litman, Brownfield, and witness in regard to the whole transaction. There are two objections to this evidence: First, it was too late, even if the predicate had been laid by Hunt. The offence being consummated, the acts, declarations and doings of a co-conspirator are not admissible against his accomplice. Second, the evidence of Hunt fails to show the conspiracy. This remark may have been made as well at any other time as that. There was no connection shown between the remarks of defendant and the woman; there was a perfect want of relation to the woman or her transactions in the store; it was general, and applied to all freedmen as well as the woman. , We do not think the objections to the information are well taken, but we suggest that from the statement of facts it appears that the inducement and false pretences are blended. The inducement is for the purpose of setting forth the circumstances which make an act an offence, but these circumstances are distinguishable from the act. 1 Bishop’s Cr. Proc., sect. 555. We respectfully refer the pleader to Archb. Cr. Pr. & PL, p. 275, for this principle. “The charge must be laid positively, and not inferentially, or by way of recital merely.” Whart. Cr. Law, 703; Phillips v. The State, 6 Texas Ct. App. 383 ; The State v. Dean, 13 Ired. 63 ; The State v. Theobeau, 30 Vt. 100 ; Davis v. The State, ante, p. 363, and other authorities there cited. The court erred in admitting the evidence of the witness McFarland, and also in not granting defendant a new trial upon the ground of failure of the evidence to prove the pretences as charged in the information ; for which the judgment must be reversed and the cause remanded, jReversed and remanded.