Roberts v. State

Conviction in district court of Potter county of swindling; punishment, two years in the penitentiary.

The record is before us without any statement of facts and a discussion of the facts must be omitted. There is a matter appearing in the record which seems to us to be so fundamental as to necessitate a reversal of the case, even without a statement of facts. There are three counts in the indictment and only the third was submitted to the jury. The charge is swindling, and in order for the indictment to be valid it must appear that the property obtained by the appellant was of some value, and the indictment must allege such value. The indictment in this case is long and somewhat involved and attempts to charge that by representing himself as the owner of certain lands in various parts of the country appellant obtained from the injured party a deed to certain other land. We find nothing in the third count in the indictment alleging the value of the deed so obtained. We are of the opinion that there must be such allegation, and that because of the failure of the pleading in this particular same must be held fundamentally bad. Luce v. State, 88 Tex. Cr. 46.

Being of opinion that the indictment is not in such form as that a legal judgment of guilt could be predicated upon it, and that this is such matter as calls for our attention, even if raised in the appellate court for the first time, we are impelled to conclude that this judgment must be reversed and the prosecution dismissed, and it is accordingly so ordered.

Reversed and dismissed.