Mathena v. State

White, Presiding Judge. As a charge for the crime of swindling, as defined in our statute (Penal Code, Art. 790), the information in this case is fatally defective in several material respects, and the motion in arrest of judgment should have been sustained. 1. The information does not set out the false pretenses. 2. It does not allege that the pretenses were known by the defendant to be false, or that, being false, he knowingly made them. 3. It does not allege that the injured party was induced to part with his property by means of said false pretenses. Other objections might be urged to the sufficiency of the information, which we will not notice because not so prominent as those mentioned. Mr. Bishop says: “The indictment must set out a pretense or pretenses which it alleges to be false, and known by defendant to be so, made to a person named for the purpose of defrauding him or another, by means whereof he obtained from the defrauded person some specified thing of value, of a sort included in the statutory inhibition. * * * To charge simply in the statutory words that the thing was obtained by ‘ false pretenses,’ is not adequate. What the particular pretenses were must be stated, both as notice to the defendant of what he is to answer to, and as enabling the court to discern their indictable quality.” (2 Bish. Crim, Proc., 3 ed., secs. 163, 1C5.) Even the common sense indictment bill required the false pretences to be stated. (Gen. Laws 1881, p. 62, form 22.) [475] Opinion delivered March 1, 1884. In Maranda v. The State, 44 Texas, 442, it was held that in an indictment for obtaining money or property on false pretenses, it is necessary that it be alleged that the false representations were “knowingly” made. Whilst it may not be necessary to allege that the prosecutor relied on the false pretenses, nevertheless it has been settled by the best authorities that it is necessary to allege that he was induced by the false representations to part with his goods or money, or to do the thing complained of. (Baker v. The State, 11 Texas Ct. App., 332; Buckalew v. The State, 11 Texas Ct. App., 352; Desty’s Amer. Crim. Law, sec. 149a; Epperson v. The State, 42 Texas, 79.) “A judgment on an indictment for obtaining property under or by reason of false pretenses, which indictment does not con.tain an allegation that the party was induced to part with the' ownership of the property by reason of the alleged false pretenses, will be arrested.” (Pendry v. The State, 18 Fla., 191.) Because the court erred in not sustaining the motion in arrest, the judgment is reversed; and, because the information is so fatally defective that it charges no offense, the prosecution is dismissed. Reversed and dismissed.