In his motion for rehearing appellant insists that the court erred in submitting the case to the jury in that, while he gave a charge only under the fifth count of the indictment, he did not tell the jury that the other counts were withdrawn. In fairness, and for the purpose of placing the issues to be considered by the jury before them and to eliminate any confusion, this practice is recommended. We cannot say, however, that it is required.
Further contention is made that in the fifth count, under which appellant was convicted, there is no allegation that the prosecuting witness W. C. Buzan relied upon the false representations alleged, and that he parted with his money because of such reliance. The court's charge told the jury that the allegations in the fifth count were to the effect that appellant unlawfully, knowingly, and fraudulently, by means of false pretenses and devices and fraudulent representations known to him to be false, * * * did induce the said W. C. Buzan to deliver to him, the said Otis Atwood, alias W. M. Wood, and * * * did then and there by the same means aforesaid,acquirefrom the said W. C. Buzan $397.50 in lawful U.S. money, * * *." (Emphasis added.) We find no wording saying that Buzan did rely on such representation. We think, however, that the allegations that he induced him to deliver the money and that he, by said means acquired said money from Buzan made clear the charge lodged against the appellant. The question seems to have been settled at an early date and consistently followed. See Fairy v. State, 50 Tex. Cr. R. page 396, 97 S.W. 700; Bennett v. State, 253 S.W. 289; and Templeton v. State,105 S.W.2d 1100.
Other questions in the cause were sufficiently discussed in the original opinion.
The motion for rehearing is overruled. *Page 32