Mays v. State , 28 Tex. Ct. App. 484 ( 1890 )

Willson, Judge.

This conviction is for the offense of swindling, and the indictment is, we think, fatally defective because it does not allege the ownership of the instrument in writing averred to be the property acquired by the swindle. It might be inferred from the allegations in the indictment that the person who executed said instrument, and who delivered the same to the defendant, was at the time the owner of it. But inferences can not be indulged in passing upon the sufficiency of an indictment. In the offense of swindling, as in that of theft, the indictment must clearly and directly allege the ownership of the property fraudulently acquired by the defendant. May v. The State, 15 Texas Ct. App., 430.

Without discussing the defendant’s plea of former jeopardy, we will say that, in our opinion, it did not state facts which constituted that defense, and the exceptions to the plea were properly sustained.

Because the indictment is substantially defective, the judgment is reversed and the prosecution is dismissed.

Reversed and dismissed.

Judges all present and concurring.