Appellant was convicted in the District Court of Stonewall County of the offense of swindling, and his punishment fixed at two years confinement in the penitentiary.
Appellant moved to quash the indictment herein. Three grounds were laid in said motion which are as follows: "1. That it does not charge the defendant with any offense against the penal laws of the State of Texas. 2. That it does not appear from the face of the same that an offense against the laws was committed by the defendant. 3. Because the said indictment is repugnant, inconsistent, duplicitous and unintelligible and therefore does not charge the defendant with any offense against the penal laws of the State of Texas."
Such a motion presents nothing more than a general demurrer, and should not be sustained unless the indictment fails to state in substantial terms an offense against the laws of this State. The necessary elements of swindling have been often laid down. McDaniel v. State, 63 Tex.Crim. Rep.. They are, — the obtaining of personal or movable property of another, — by false pretenses, — made by the accused, — with intent to defraud. Stripped of verbiage the indictment herein charges "that Byrd Jackson Cochrain . . . unlawfully devising *Page 485 and intending to secure Five Thousand Dollars in money belonging to the Southwestern Life Insurance Company, a corporation, . . . did then and there unlawfully and fraudulently acquire possession of said money, from said corporation . . . by means of false and deceitful pretenses, devices and representations then and there unlawfully, knowingly and fraudulently made by him to said corporation, in this to-wit: . . . that said Cochrain had a life insurance policy in said company payable to his wife, and on March 10, 1919, while said policy was in force, said Cochrain pretended to be dead and falsely pretended and fraudulently represented to the Southwestern Life Insurance Company that he was dead, and by and through his wife and agent did fraudulently represent that he was dead, and that his said wife Ethel B. Cochrain had a right to collect said policy; and he, said Byrd Jackson Cochrain did then and there by means of said false pretense fraudulently induce said Southwestern Life Insurance Company to pay to Ethel B. Cochrain Five Thousand Dollars in money, and said Southwestern Life Insurance Company was thereby induced to part with and did part with title and possession of said money, and did deliver title and possession thereof to said Ethel B. Cochran. Whereas, in truth and in fact said Byrd Jackson Cochrain was not dead, and had not died during the life of said policy, and said Ethel B. Cochrain did not have the right to collect said policy or any part of same," etc. We think these allegations sufficient to charge a violation of the law, and that in the absence of any special exception directed at any particular part of said indictment, the overruling of said general demurrer presented no error.
This is a very remarkable case and accounts of it were made public in which same was called and became known as the "empty grave case." The State's contention, seemingly supported by the facts, is that appellant and his wife, with C.O. Hoggett and Wayne Ussery, two tenants on the farm of appellant, conspired together to fraudulently obtain the money of an insurance company, the fraud being based primarily upon the pretended death of appellant, who was the insured in a policy issued by said company. A substantial statement of the facts shows that on March 10, 1919, appellant "died" suddenly at his home at six o'clock in the morning. His wife and Hoggett were present. Ussery locates himself at the scene a short time after the pretended demise. News of the death was at once disseminated, Hoggett being the most active agent. A coffin was ordered, a grave prepared and other preparations made for the funeral, with the customary religious ceremonies and attendant surroundings. Those who came to the home of appellant on the day of said alleged death, found a grief-stricken widow in tears and lamentation. Apparently a select few were permitted to view the sheeted corpse laid out in the usual form awaiting a coming casket. The face was pale, the eyes half closed and no breathing was observed. These few who were permitted to view the alleged corpse were taken *Page 486 into the front room, and Hoggett and Ussery alone prepared the coffin for its journey to the grave. After a religious service the funeral procession departed, leaving the widow alone (?) at her home. Hoggett and Ussery accompanied the casket to its safe interment. Before leaving home the widow had asked that the coffin be not opened at the grave. The children of appellant were away from home when death came. They were not at the funeral. The widow stated that it was the request of her dead husband that the children be not sent for. The next day after the funeral Hoggett drove away from the house of appellant in a wagon drawn by four mules belonging to appellant. A trailer-wagon was attached to the one driven by Hoggett. A wagon-sheet covered the trailer. Hoggett told two neighbors whom he met that he was going to the Wichita oil fields. Within a few days thereafter appellant, Hoggett and Ussery turned up at Moran in Shackleford County, where they worked in an oil field for some time, appellant going under the name of Hancock and claiming to be a brother of Mrs. Cochrain, and stating that his sister's husband had died suddenly, leaving her with a lot of little children. A week after appellant's "death" his wife wrote the insurance company as follows: "My husband Byrd Jackson Cochrain is dead. He died March 10, 1919. His policy No. 28022. Amount $5,000. Yours truly, Ethel B. Cochrain." Later she filled out a formal proof of death sent her by the insurance company, therein again stating the fact of appellant's death. This was not sufficient, and same was supported by affidavits of Hoggett and Ussery and others, Hoggett asserting his presence when appellant died, and that he and Ussery prepared the body for burial, and that the body of appellant was by them placed in the casket. Ussery swore in his affidavit that he was called to appellant's home about an hour after his death and that he assisted Hoggett in preparing the body for burial, and that the two of them placed said body in the casket. Other affidavits stated that the parties making same saw the casket and saw the body, and that same was that of appellant. On May 1, 1919, the $5,000 was paid by the insurance company to Mrs. Cochrain, $4,400 being deposited to her credit in a bank at Aspermont, Stonewall County, $450 being applied to the payment of some notes of appellant held by said bank, and $150 in cash being then delivered to Mrs. Cochrain. A little later $3,000 was traced to a draft obtained by her from the bank at Aspermont payable to a Fort Worth bank, which was endorsed "Ethel B. Cochrain by J.H. Cochrain," which endorsement was shown to be in appellant's handwriting. Three witnesses testified to seeing appellant in his house in Stonewall County in October, 1919, one of them being the father-in-law of appellant, who testified that he visited his daughter during said month and that while he was there appellant would remain in the house during the day time and go about under cover of night. In January, 1920, appellant, going under the name of J.H. Cochran, went out to Sterling County where he bought a ranch, paying $5,280 *Page 487 in cash on the purchase price and executing notes for the remainder. The deed was made to J.H. Cochrain. In February, 1920 appellant with his family moved to this ranch, where Mrs. Cochrain died in May of said year. Rumors and suspicions were circulating in Stonewall County where the alleged death took place, and in October, 1920 a group of men opened said grave and found therein a casket, empty, and with no signs of having been occupied. This indictment, the arrest and trial of appellant followed.
It is disclosed by the record in this case that there was no denial on the part of appellant of his pretense of death; in fact, in his sworn application for continuance he admitted and asserted such pretense in this regard, setting up at his reason therefor that he was under a ten thousand dollar bond for his appearance before the courts of New Mexico on a murder charge, and that his life had been threatened by influential friends of the alleged murdered men, and that believing if he appeared in response to said bond, his life would be endangered, he made the pretense of death to protect his bondsmen, and also to avoid the danger of death which might result if he went to New Mexico at the time called for his appearance by said bond. Nor was there any denial of the payment of the $5,000 by the insurance company to Mrs. Ethel B. Cochrain, based on their belief that appellant was dead.
The pretense of death being undenied, and the payment of the money of the insurance company to appellant's wife, also being undenied, there remained but the question of whether such pretense was fraudulent, and whether by means of same the insurance company was induced to part with and did part with the title and possession of their said money.
We have stated the main facts. In our opinion a conspiracy between four parties, viz: appellant, his wife, Hoggett and Ussery, was fully established, and in such case the acts and declarations of each of the co-conspirators done and made in pursuance of the common design, to-wit: the getting of said money, and prior to the obtaining of same, were admissible against appellant on his trial, whether same occurred in his presence or otherwise. The rule is too well settled to need citation of authorities. Vernon's C.C.P., pp. 648-643.
To this well known rule and that of principals may be referred most of the complaints of appellant upon this appeal. The question of principals is discussed at length in Middleton v. State, 86 Tex.Crim. Rep., 217 S.W. Rep., 1046. This doctrine is also applicable here. From the moment of the beginning of the acting together of the parties named, appellant was doing his part in the scheme of getting said money, his part being to pretend to be dead. When the money was delivered to and acquired by his wife, appellant was in concealment pretending to be dead. He was going under an assumed name when names were necessary. He was hiding in his own house in the daytime and coming out at night. He was pretending to be the brother of his own wife. *Page 488 When two or more are acting together in the execution of a common design, the fact that only one of them is bodily present when the crime is consummated, does not prevent those who are absent, from being principals, if they are doing their parts at such time. Under the rules above discussed, and without stating needless details, we are of opinion that appellant's bills of exception Nos. 2, 7, 8, 10, 15, 21 and 23, show no error, same relating to acts and declarations of said co-conspirators prior to the payment of said money. That some of said matters were written documents and others oral statements, would not affect the question of their being within the rules mentioned.
A number of bills of exception were taken to the examination of the agent of the insurance company relating to the policy of insurance. There being no sort of contention that the $5,000 called for by said insurance policy upon the life of appellant, was not paid by the Southwestern Life Insurance Company, the alleged injured party in the instant transaction, to Mrs. Ethel B. Cochrain, wife of appellant, on May 1, 1920, we would hold that questions relating to a change of beneficiary, or the payment of premiums on such policy, or who approved such payment, are such matters as would be of no moment, and that errors asserted in regard thereto would be as to immaterial matters. This would dispose of bills of exception Nos. 3, 4, 5, 6 and 9 So also of the affidavits of undertaker Anderson which were sent to the insurance company supporting the claim of appellant's death, as set out in bills of exception Nos. 11 and 13.
Bill of exceptions No. 12 relates to the manner and circumstances of the payment of said money to Mrs. Cochrain; bill No. 16 relates to testimony of a banker as to his opinion that certain signatures, including the endorsement on the $3,000 draft mentioned above, were from his knowledge of appellant's handwriting, the signatures of appellant; bill No. 17 was reserved to a statement of said banker that part of the money obtained from said insurance company was contained in said $3,000 draft (the State contending that this draft was cashed by appellant); bill of exceptions No. 18 was to testimony of the banker that in the summer after the collection of said insurance money, certain notes against appellant came to the bank and were paid by Mrs. Cochrain; bill of exceptions No. 19 was also to the testimony of a banker that he was familiar with appellant's handwriting, and that in his opinion the endorsement of said $3,000 draft was made by appellant; bill of exceptions No. 20 was to the testimony of P.L. Anderson that he had signed a certain affidavit sent to the insurance company relative to the alleged death of appellant, at the request of Mrs. Cochrain; bill of exceptions No. 22 was to the testimony of a witness that he saw appellant in his house in Stonewall county in October, 1919; bill of exceptions No. 23 was to the testimony of witness Westbrook that in his opinion the endorsement on the $3,000 draft mentioned and the signature to a certain check, were in the same handwriting. In our opinion *Page 489 a statement of the contents of these bills of exception obviate the necessity for any discussion of them at length. Matters relating to the receipt of the money, the obtaining of which was the basis of the alleged swindling, and the disposition of same by appellant or his wife were material circumstances bearing upon the fraudulent purpose and intent in the acquisition of said money. The matters pertaining to the $3,000 draft, showing that same was endorsed by appellant, were material for the same purpose. The affidavits and statements of witnesses and persons relating to the supposed death, were matters which could be of no possible harm to appellant in view of the fact that he did not deny the pretense of death, nor the obtaining of the money by his wife, but contented himself with contesting the sufficiency of the facts to show a fraudulent intent and acting together with her in what she did and said after pretended death.
We find ourselves unable to agree with appellant in any contention with regard to the insufficiency of the evidence in this case. The question as to whether his pretended death was for the purpose claimed by him, and in regard to which facts were elicited from a number of the witnesses upon cross-examination tending to show that appellant was under indictment in New Mexico, and that he had repeatedly said that he was afraid he would be killed, and showing the animosity of some of the New Mexico officers toward him, — and all other facts tending to support such defensive theory, were before the jury and fairly submitted to them for their decision by the charge of the court.
Appellant asked for a continuance because of the absence of one Latham and a Mr. and Mrs. Entzminger. We think the application lacking in merit. No diligence was shown as to Latham, and the facts stated as expected from the Entzmingers appear to us to be immaterial. If they had been present and testified that they suggested to Mrs. Cochrain to apply for the insurance money, or that they aided and assisted her in preparing her application therefor, this could in nowise affect the question of the fraud based upon the representation made by her to the insurance company that her husband was dead. It needs no iteration by us of the facts already stated to show irresistibly that Mrs. Cochrain was a party to the alleged fraudulent scheme. She was present in the house at the time of the alleged death of her husband. She was present when Ussery and Hoggett claimed to have prepared the body for burial. She was crying and taking on during the funeral ceremonies at the house. She asked that the casket be not opened. She stated that before her husband died he asked that the children be not sent for. She alone remained at the house when the empty casket was carried away. She wrote a letter a week later stating to the insurance company that he was dead. In the face of these tremendous facts it would be immaterial that anyone suggested to her that she prepare an application the core and pith of which was that her husband *Page 490 was dead, a matter which she was compelled apparently, to know to be false.
A number of exceptions were taken to the charge of the trial court, many of which seem to be based upon an erroneous assumption that the act of one principal cannot be chargeable to another, and that appellant would not be in law held equally guilty for the representations made by his wife to the insurance company for the purpose of obtaining from them their money.
Finding no reversible error in the record, the judgment of the trial court will be affirmed.
Affirmed.
ON REHEARING February 21, 1923.