In argument on this motion for a rehearing it was contended that the note and mortgage, the basis of this offense, were not introduced in evidence, but were merely offered in evidence, and that such an offer would not amount to an introduction thereof. We notice that such note is found in the statement of facts and also the mortgage. We also note that appellant's attorneys as well as those of the State signed the agreement at the end of the statement of facts that the same was a true and correct statement of the facts in such cause. It is also noted that the county clerk of Coryell County, Mr. Ellis, testified *Page 191 that the document handed to him was a part of the record in his office. "That is the mortgage that has been introduced in this case, which Mr. Ellis has identified, being a part of the records of his office," the above quotation being the last paragraph in the statement of facts. We think it plain that the note and the mortgage were introduced in evidence.
The further proposition is raised that because it was not shown that appellant did not also own the sheep mentioned in the mortgage, and because of the fact that such sheep might have, upon possession and sale upon the part of the bank, liquidated the bank's demand, then it was not made evident that the bank had been defrauded. We do not think such to be the law. The gist of this offense of swindling is the false representations as to any material existing fact; if part of such statement be true and part false, and the complaining party relied upon the whole statement, the portion thereof that was false would tinge the whole transaction with fraud.
In Branch's Criminal Law, Sec. 758, we find the following:
"The value of prosecutor's property obtained by defendant determines the degree of offense, and it is immaterial that prosecutor was protected in part by part of the property received by him from defendant; representations of defendant being false as to some of the property claimed to be owned by him. La Moyne v. State, 53 Ohio App. 221, 111 S.W. 950."
The above case overruled Gaskins v. State, 38 S.W. 470; Lively v. State, 74 S.W. 321, and Perry v. State, 39 Tex. Crim. 495,46 S.W. 816, and properly so we think.
The La Moyne case, supra, holds that the gist of the offense of swindling is the false representations, not the loss of the thing obtained by the representations, and cites Art. 1548, P. C., which says:
"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." Also see Robinson v. State, 148 S.W.2d 205, and cases there cited. *Page 192
We think that upon an acceptance of a mortgage, and a reliance upon representations therein, a mortgagee has the right to rely upon all the material representations therein, and not merely upon enough of them in order to properly receive his money therefrom. He would be entitled to all of his security, and could not be compelled to marshal his assets as to the truthful representations first, and failing to receive his advanced amount, then only would a prosecution ensue. This is not a criminal defense.
It is also contended that the testimony does not show that these cattle shown the man Dolan, who inspected them for the bank, were not in appellant's pasture. We think that it was shown that such cattle were in the pasture of another. Mr. Dolan testified that he knew the Green pasture. That "I examined the cattle first, and the cattle I looked at were located north of Mr. Green's ranch house. They were not on Mr. Green's ranch that he owned. * * * I, myself, know the ranch that he owns." While Green and Dolan were looking at the cattle a boy came by and saw them, and Homer Mills was produced before Dolan and he said that looked like the boy whom he saw that day when inspecting the cattle. Homer Mills then testified that he lived on Culberson's place in May 1940, and in that month he saw appellant and another man in the Culberson's pasture in a car and rode up to them on horseback. Culberson testified that his pasture was just north of Green's place across a road, and Mills worked for him in May, 1940. We think this testimony is sufficient to show that Dolan and Green were in the Culberson pasture where Culberson's 52 cows and 49 calves were located.
It is also noted that the trial court charged the jury upon the law of circumstantial evidence, evidently in answer to paragraph five of appellant's objections to the trial court's charge as first prepared.
We are of the opinion that this cause was correctly decided in our original opinion herein, and the motion for a rehearing is therefore overruled. *Page 193