Lumpkin, Justice.
An accusation was preferred .in the city court against Jones and Martin; The accused severed, and Jones was put on trial and convicted. He did not move for a new trial, but, by a direct bill of exceptions, alleges that the court erred in allowing, over his.objection, an amendment to the accusation, and in overruling a general demurrer, made orally, to the accusation as amended. The reporter’s statement sets forth in substance the original accusation and the amendment.
Assuming that Jones did the acts alleged in the accusation, it is, to our minds, a palpable case of being a *553common cheat and swindler under the provisions of section 4595 of the code. lie certainly used deceitful means and artful practices by which Holstein was defrauded and cheated. It was insisted that if the accused was guilty of any offence, it was simple larceny, inasmuch as the sale was never completed and the property never actually delivei’ed to the accused, and the taking of it from the custody of the owner was without his consent. It may be that some of the elements of larceny were involved in this transaction; but taking as true the allegations of the original accusation, it affirmatively appears that, by his falsehoods and artifice^, Jones did obtain from Holstein a bill of sale to the property, and it is also quite certain that it was a part of the scheme of himself and his confederate by a fraudulent trick to get possession of Holstein’s wagon and team, with or. without his free consent, and to dishonestly dispose of the same to his in) ury, and that they succeeded fully in so doing. Although the conduct of Jones and Martin may have amounted morally, or even legally, to stealing, it was nevertheless, beyond doubt, cheating and swindling of the most iniquitous character. We therefore think the accusation was sufficient without the amendment. The judge having intimated that he would sustain a demurrer to the original accusation — probably upon the idea that, as it then stood, it charged only the offence of simple larceny, if it charged any offence at all, — the amendment was offered to relieve the accusation of this objection, by alleging that after the property had gone out of the actual possession of the prosecutor, he ratified the taking of it by Jones, but that the latter, in taking the property, was only carrying out the original scheme devised by himself and his confederate to cheat and swindle the prosecutor. The objection to the amendment in tbe trial court was general, and not based upon any distinct ground. In the argument here no question was raised *554as to the power of the court to allow an amendment. Indeed, that was virtually conceded, but it was insisted that there was nothing in the accusation to amend by, and that the amendment offered made a new and distinct case. We think the accusation was good without the amendment, and .also are of the opinion that the amendment did not chai’ge a new and distinct, offence, but was simply an amplification of the facts embraced in the transaction as a whole. In our .opinion it was unnecessary, but certainly it was harmless.
As the accused did not move for a nejv trial, there can be no doubt that the charges made in the accusation were supported by evidence, and we have no hesitation in sustaining the conviction. Judgment affirmed.