Warrington v. State

Citations

• 1 Tex. Ct. App. 168

Syllabus

<p>1. Theft by False Pretext.—Indictments for theft, based on the last clause of Article 748 of the Penal Code, should not only set out fully the false pretext, but also by direct averment negative its truth. Pase. Dig., Art. 2385. Similiter, it seems, as to indictments under Article 773 a of the Penal Code, relating to swindling by false pretense, or device, or fraudulent representation. Paso. Dig., Art. 2426.</p> <p>2. Variance—Surplusage.—Indictment for theft of a horse and buggy charged that accused hired them on the false pretext that he wanted them for the purpose of going “to look at land on Bray's bayou.” The evidence proved that the pretext was to go to “a place four miles in the country.” Held, that the descriptive mention of Bray’s bayou cannot be treated as surplusage, and that the variance between the allegation and the proof was material. Note the distinctions discussed in the opinion of the court. ,</p> <p>3. Same.—The evidence further proved that before the accused obtained possession of the property he was required to procure the recommendation of a third party. Held, that the court below did not err in refusing to instruct the jury to acquit the accused if they believed that he got the property on such recommendation, and without it could not have obtained possession of it.</p>