Appellant was convicted of swindling, and his punishment assessed at a fine of $25, and two days' confinement in the county jail, and he prosecutes this appeal. On the trial of the case, the judge charged the jury: "It is not necessary in law that the pretenses used by a person in acquiring property should be in words. There may be sufficient false pretenses in the acts and conduct of the person, without any verbal representations of a fraudulent nature. The giving of a check upon a bank is a representation by the maker of the check that he has either funds or credit at such bank to meet such a check." This is not only a charge upon the weight of the testimony, but is not the law. We have no statute making it an offense for persons to draw a check on a bank with which they have no funds or credit. Our statute on swindling provides that "swindling is the acquisition of any personal or movable property, money, or instrument of writing, conveying or securing a valuable right, by means of some false or deceitful pretense or device or fraudulent representation, with intent to appropriate the same to the use of the party so acquiring, or of destroying or impairing the rights of the party justly entitled to the same." Penal Code, Art. 943. In Martin v. State, 36 Tex.Crim. Rep., this court used the following language, where the question was as to the validity of the indictment as charging the offense of swindling: "In our opinion, before a defendant could be convicted of the offense of swindling, there must be a distinct and certain representation of an existing fact, and the indictment must show such certain and distinct representation of the fact, either past or present. And sometimes it may occur that representations, in order to be rendered certain and distinct, should be accompanied by appropriate innuendoes." In that case the representation upon which the swindling was predicated was to the effect that, in connection with the delivery of the draft, appellant stated to payee that lie would have no trouble in getting his money; and we held in that case that even this language was not equivalent to representing that he (appellant) then had money in said bank, or that he was authorized to draw against it. The charge in this case was clearly erroneous. Without such a charge, unquestionably the appellant would not have been convicted; for, when we look to the evidence, all that appellant did was to draw a check for five dollars against the State National Bank of Ft. Worth and sign it. He gave this check to his brother, and his brother presented it to the cashier of the Hotel Worth, and he cashed it; that is, he received, as a part consideration, the payment of the hotel bill incurred by himself and appellant, and the balance, of $1.70, in money. He made no representations whatever to the cashier at the *Page 3 hotel, Mr. J.W. Bicknell. His brother (appellant) was not present at the time, and, of course, made no representations in regard to the check — whether he had funds in the bank or credit there. Under such a state of case, there was no violation of any law, and the conviction for swindling could not be sustained. The judgment is reversed, and the cause remanded.
Reversed and Remanded.