The offense is swindling, a felony; the punishment, confinement in the penitentiary for two years.
The indictment is based on subdivision 4 of Art. 1546, Penal Code, which denounces as swindling the obtaining of property by the giving *Page 539 or drawing of a check, etc. A motion to quash the indictment was duly presented to the court, and overruled. The indictment is fatally defective. It fails to set out directly the intent with which the property was acquired. It must be "with the intent to appropriate the same to the use of he party so acquiring." Article 1545, Penal Code; Stringer v. State, 13 Texas App., 520. It is not alleged that the check was delivered to the owner of the property. Mathis v. State, 113 Tex. Crim. 164,18 S.W.2d 920. There is no direct and positive allegation that appellant did not have on deposit with the drawee bank sufficient funds to pay said check. We do not undertake to say that the indictment is not defective in other particulars.
The judgment is reversed and the prosecution ordered dismissed.
Reversed and dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.