Mathews v. State

Citations

• 33 Tex. 102

Syllabus

<p>1. Article 1471, Paschal’s Digest, disallowing a motion lor a'new trial after amotion in arrest of judgment, was repealed by the enactment of’the Code of Criminal Procedure, so far as criminal causes were concerned. Hence, the case of The State v. Mann, 13 Texas, 62, has ceased to be authority to the effect that a motion for a new trial in a criminal cause cannot be heard after a motion in arrest of judgment. As the law now stands, it was error to refuse to entertain a motion for a new trial in a criminal cause, because a motion in arrest had been previously made and overruled.</p> <p>2. Appellant was indicted for swindling, under Article 2426, Pasebal’s Digest. The facts were, briefly, that appellant applied to purchase goods on credit from a merchant, stating that she lived with a planter, and had cotton in bis possession, out of which she would pay for the goods. The merchant refused to sell her the goods except on an order from the planter, whereupon she went out and soon returned with an order purporting to have been signed by tbe planter, but alleged to be a forgery. On presentation of tbe order the goads were wrapped up and placed on the counter for her, hut before they passed into' her manual possession the fraud was discovered, and the merchant replaced the goods on his shelves. The evidence was clear to the effect that the sale was agreed to by the merchant solely upon the credit of the supposed order, and in no degree upon the representations of the appellant. Held, that the indictment should not have been for swindling, hut lor attempting to pass a forged instrument, knowing it to be a forgery, as provided for m Article 2103.</p> <p>. 3. Indictment for swindling a firm styled B., K. & Co.; the evidence showed the style of the firm to be B. & K. Held, that there was a fatal vaiiance between the allegation and the proof, and the court below should have instructed the jury to acquit on account of it.</p>