Appellant was convicted of swindling, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.
What purports to be a statement of facts found in the record does *Page 332 not appear to have been approved by the judge who tried the case; consequently we can not consider it.
Appellant made a motion to quash the indictment on the ground that it failed to charge the offense of swindling. He contends that article 948, Penal Code, under which the indictment is drawn, makes the conversion of property merely the offense, when articles 943 and 944 in the same chapter, which define the offense of swindling, require that the property must be acquired in the first instance by some fraudulent pretense. We quote said article 948 as follows: "If any executor, administrator, or guardian having charge of any estate, real, personal or mixed, shall unlawfully, and with intent to defraud any creditor, heir, legatee, ward or distributee, interested in such estate, convert the same, or any part thereof, to his own use, he shall be deemed guilty of the offense of swindling." It must be conceded that this article eliminates an essential element of the offense of swindling, as defined in the preceding articles of said chapter. That is, all of the authorities hold that, in order to constitute the offense of swindling, as defined in said articles, the property must be acquired in the first instance by some fraudulent or deceitful pretense or representation, and that the indictment must set out the false pretenses or representations. White's Ann. P.C., sec. 1639, sub. 4; French v. State, 14 Texas Crim. App., 76; Blum v. State, 20 Texas Crim. App., 578.
Furthermore, appellant contends, in this connection, that article 34, Penal Code, requires that every offense must be defined, and that the definition of the offense, as constituted under article 948, contravenes the definition of swindling, as found in the preceding articles, in that no false pretenses need be resorted to to acquire the property; but that, if one of the enumerated trustees shall convert the property of the heir, etc., he shall be guilty — making the guilt of such person depend solely on conversion of property that may have come to his hands.
The act as to swindling appears to have been passed in 1858, and article 948 was a part of the original act, and was embodied along with the other articles in the several codes that have been passed since that time. So that it does not occur to us that it is a matter that can be considered under the caption of the original bill; and is simply a question as to whether or not the Legislature was authorized to make conversion by a guardian of the trust funds of his ward the offense of swindling — having previously defined what constituted swindling and given it an essential element not contained in said article 948. We know of but one case decided under said article, and that is Moody v. State, 24 Texas Crim. App., 458. But the question here presented was not raised in that case.
We are now asked for the first time to pass on the legality of the article with reference to the preceding definition. Undoubtedly, under the definition of swindling, as given in articles 943 and 944, the mere conversion of funds by a guardian would not constitute the offense of swindling, but rather, under our view, be embezzlement; yet we know of *Page 333 no authority which would inhibit the Legislature from creating or making the conversion by a guardian of the funds of his ward swindling, and punish it as such, independent of the preceding subdivisions defining swindling, and notwithstanding said article does not embrace an essential ingredient contained in the preceding definition. It appears that they did make it an offense, and it is so written in plain terms. We hold that the indictment is correctly framed under said article, and charges the offense of swindling named therein. Accordingly, the court did not err in refusing to quash the indictment. In the absence of the statement of facts, we can not review the charge of the court. There being no errors pointed out by the assignments requiring a reversal, the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING. This case was affirmed at a former day of this term, and now comes before us on appellant's motion for rehearing. We held in the original opinion that the statement of facts, not being approved by the judge, could not be considered.
Appellant has filed a motion setting up the diligence used by him, or rather showing why the statement of facts was not approved by the judge. Appended to the motion is the affidavit of the district clerk, stating that he received the statement of facts by mail, accompanied by letter from Judge Benjamin H. Denton, who tried the case, instructing him, when the attorneys for defendant had signed the same, to file the statement of facts. The judge, in his affidavit, which is appended, states that he had no recollection whatever of receiving the statement of facts, or sending it to the clerk of Red River County, though he might have done so; that, if such statement was sent to him by the district attorney, and agreed to and signed by him, and he sent the same to clerk of the District Court of Red River County with instructions to file it, then it was an oversight on his part if not approved by himself. These two affidavits leave the matter in confusion. The clerk does not say that he ever received the statement of facts and letter from the judge, but the affidavit is open to the construction that he must have received the same from the attorneys, because the statement of facts in the record is signed by the attorneys. The judge was not authorized to approve the statement of facts in advance of the agreement of the attorneys representing the State and defendant that it was a correct statement. So we take it that the attorneys must have received a letter from the judge, as stated by the clerk; and that they then, either the district attorney or defendant's attorney, agreed on statement of facts and signed the same and forwarded it with the judge's letter to the clerk; whereas they should then have forwarded said statement to the judge for his approval. The judge himself appears to have no recollection of having *Page 334 seen the statement at all, and, if he sent such statement and his approval was left off, it was by inadvertence or mistake.
In accordance with the decisions, the onus was on appellant to show by his supporting affidavits to the motion that the want of diligence was not his, but that of the judge. Appellant or his counsel should have made it appear distinctly in some affidavit that, after the district attorney and defendant's counsel had agreed to the statement of facts, and signed the same, it was forwarded to the judge who tried the case, and he forwarded it to the clerk — failing to place his approval thereon. If such had been the showing, it would have come under the case of Yawn v. State, 37 Tex.Crim. Rep.. The burden being on appellant to show the facts, and the affidavits here presented not showing the failure to use diligence was the fault of the judge, and not that of appellant, we can not presume in his favor, and supply a statement not contained in the affidavits. We hold, therefore, that the statement of facts can not be considered as a part of the record. We see no occasion to review the matters heretofore discussed in the original opinion. The motion for rehearing is overruled.
Overruled.