If the question were an open one, I would be disposed to hold that the averments in the indictment should contain, in haecverba or substance, enough of the mortgage to enable the trial judge, in passing upon the motion to quash, to determine that the instrument declared on was, in law, a mortgage. It seems, however, that the indictment in the instant case is sufficient, when tested by the rule declared and adhered to in former decisions of this court. (See Martin v. State, 28 Texas Crim. App. 364, and other cases cited in Wilson's Criminal Forms, page 225). From these cases it appears that in this particular character of offense a statement of the conclusion of the pleader that the instrument relied upon is a valid and subsisting mortgage, accompanied by averments showing the parties thereto, the date of its execution, and the property covered, constitutes a sufficient description. *Page 500
It was in deference to these decisions that I understand the original opinion and that overruling the motion for rehearing were made, and while I believe, as above stated, that the rule is not the best that could be made, it is not defective to a degree that would warrant its overturning.
Overruled.