Lutton v. State

White, Presiding Judge. We are of opinion that the motion to quash the indictment should have been sustained, because it is nowhere alleged in the indictment that the check or draft was delivered to or accepted by Baker & Burroughs as the consideration upon which they loaned the money to the appellant. From the manner in which the offense is attempted to be set forth in the indictment, this additional allegation is necessary to make it complete. (See White v. The State, 3 Texas Ct. App., 605; Johnson v. The State, 11 Ind., 481; The State v. Orvis, 13 Ind., 569.) The indictment should allege all the material .facts necessary to be proved to procure a conviction. In The State v. PMlbrick, 31 Maine, 401, an indictment was held insufficient which, whilst it averred that there was a proposed exchange of horses, failed to contain an averment that such exchange was made. (Commonwealth v. Straim, 10 Metcalf, 521; Commonwealth v. Lan [524] nan, 1 Allen, 590.) In The Commonwealth v. Coe, 115 Massachusetts, it was said, “upon procuring the loan the delivery of the certificate completes the security.” (See Whart. Crim. Law, 8 ed., 2 vol., sec. 1215.) It is unnecessary to discuss the other errors complained of, further than to say that it was manifest error, under the circumstances shown by the bill of exceptions, for the court to refuse a postponement until the witness could bring into court the Recount, to produce which he had been served with a subpoena duces tecum, and which, under misapprehension or by instruction of other parties, he failed to bring with him. It was competent for defendant to show the course of dealing between the parties both before and after the date of the alleged crime, as reflecting upon the intent of defendant or throwing light upon the question whether the creditor was using the criminal law to ■enforce the collection of a debt. (The State v. Rivers, 58 Iowa, 102.) Because the indictment is wholly insufficient to charge the proposed offense, the judgment must be reversed and the prosecution dismissed. Reversed and dismissed. Opinion delivered June 27, 1883.