In his motion and argument for rehearing, appellant contends that we should have held the State's pleading bad, because it did not set out the mortgage alleged to be against the property which he disposed of. He insists that the Rudy case, supra, in effect overruled those cases heretofore handed down by us, in which it was held that if the offense charged be disposing of mortgaged property, the indictment need not set out in extenso the mortgage. The principle involved in the Rudy case, as we understand it, was different from that in the instant case. The indictment in that case was for sending of an obscene letter through the mails, and in all such transactions where the instrument itself and its contents, present the bone of contention, the pleading should set out the same, either in haecverba, *Page 499 or in substance. Whatever discussion might have been had in that case of cases wherein the charge was disposing of mortgaged property, was but argumentative and obiter dicta, as far as its application to the instant case is concerned. When a written instrument is but an incident, or ancillary to the issue in a transaction, it is not required that it be set out at length in the pleading. A charge of theft of a filed paper, or a title bond, or a book, would not necessitate setting out the document at length in the indictment. Dignowitty v. State, 17 Tex. 521; Green v. State, 28 Texas Crim. App., 493. It is not believed that an indictment for theft of a valuable letter or document of any kind, would require more description of the stolen property than would be sufficient to identify and distinguish the same. In Pye v. State, 74 Tex.Crim. Rep., 171 S.W. Rep., 741, we held that to charge theft of a vendor's lien note, it was not necessary to set out the note in the indictment. We think the principle in the case just mentioned and that of the instant case, the same, but that there is a clear distinction between such cases where the gist of the offense is the theft, or the fraudulent disposition of the property, — that is to say, where the instrument is but incidental; — and those cases where the instrument itself and its contents, constitute the chief issue, as in forgery, sending threatening letters, etc. Judge HENDERSON, in Haile v. State, 43 S.W. Rep., 999, uses the following language, which we think a correct announcement of the law: "The charge that the said `A.H. Haile having theretofore, to-wit, on June 22, 1895, executed and delivered to the said Charley Richardson a valid mortgage, in writing,' etc., is sufficient. The making of the mortgage is not the offense. That is mere inducement. The offense is the sale or disposition of the property after the person has mortgaged it."
We are unable to agree that the long line of decisions upholding our original opinion, is incorrect, and the motion for rehearing will be denied.
Overruled.