Appellant predicates his motion in part on a renewed claim that our original opinion is erroneous in some particulars; believing the questions discussed have been properly decided we see no reason to again review them. The burdens resting upon this court are already so demanding on the time at our disposal that we deem it impractical to write at length on rehearings where views already expressed are adhered to.
Appellant calls attention to the fact that one ground upon which the indictment was attacked by motion in arrest of judgment was not adverted to in our original opinion. The point made is that the averments of the indictment disclose that Underwood, by fraudulent representations of appellant, was induced to become an "accomodation endorser" on the note for $880.00 which was falsely represented to have been made by appellant and his wife payable to the *Page 552 Motor Supply Corporation in payment for an automobile; that as an "accommodation endorser" Underwood incurred no liability as long as the note was in the hands of the payee, but under the express provision of the civil statute (R. C. S., Art. 5936, Sub-division 3 of Sec. 64) he only became liable to subsequent parties; by reason of this appellant claims that the indictment is fatally defective in failing to allege that the note was transferred to a third party after Underwood's endorsement thereon was obtained.
The contention seemed plausible, and challenged our attention, but after mature consideration we have concluded it cannot be sustained. If the note which Underwood was induced to endorse represented a bona fide transaction appellant's position might be stronger although we regard its soundness even under those circumstances as open to grave doubt. As was said by Judge Henderson writing in Speer v. State, 50 Tex. Crim. 273 :
"The main question in a case of this character is the intentto defraud. Of course the intent to appropriate to some one's use is incidental, and the statute uses that language. But after the intent to defraud is once established the law is not particular in ascertaining to whom the benefit is to accrue; nor does it split hairs in order to determine that fact."
The "intent to appropriate" is not indispensable, the fraud may consist in "impairing the right of the party" upon whom the fraud is practiced. (See the definition of swindling, Art. 1545, P. C.) In determining the sufficiency of the indictment, or in appraising the facts relied upon to sustain it, Art. 1548, P. C., may not be overlooked. It reads as follows:
"It is not necessary in order to constitute the offense of swindling, that any benefit shall accrue to the person guilty of the fraud or deceit, nor that any injury shall result to the person intended to be defrauded, if it is sufficiently apparent that there was a wilful design to receive benefit or cause an injury."
The indictment avers that appellant advised Underwood if he would endorse the note in question that appellant "could and would negotiate same." After the endorsement was placed on the note it immediately became possible for an injury to result to Underwood, and the averments of the indictment taken altogether make it sufficiently apparent that there was a wilful design on the part of appellant "to receive benefit (to himself) or cause an injury" to Underwood by reason of said endorsement. In Baxter v. State, 51 Tex.Crim. R., accused with another executed a note to a bank, *Page 553 and made false representations by which they received from the bank $1,000.00. It was insisted that the indictment was defective for failing to allege that the note had not been paid. This court said:
"This is not a necessary allegation in an indictment for swindling since Art. 946 (now 1548) provides that it is not necessary in order to constitute the offense that any benefit accrue to the party guilty of the fraud or deceit, or injury to the person intended to be defrauded."
In the present indictment the intent to injure and defraud is alleged, and sufficient averments are incorporated to show that Underwood was induced to do a thing which put it within the power of appellant to consummate the injury. Proof of the fact that appellant did transfer the note to a third party simply evidenced the continuance of a fraudulent intent, and the consummation of such intent which is averred to have been entertained by appellant when the deceit was practiced. In Corpus Juris, Vol. 25, page 606, is found the following general statement applicable here:
"The property obtained (in the present case the endorsement of the note) must be such that the deprivation of it may, by possibility at least, be a cause of loss to the prosecutor."
The averments of the present indictment are in our opinion sufficient.
The motion for rehearing is overruled.
Overruled.
ON SECOND MOTION FOR REHEARING.