The judgment was reversed at a former day of this term, and now comes before us on motion for rehearing. The State, represented by the county attorney of Tarrant County, strenuously insists that a rehearing should be granted, and the judgment of the lower court affirmed; but we can see no reason to change the views heretofore expressed in the original opinion, except that we may have used stronger language with reference to our opinion as to the offense being swindling, and not theft, than is borne out by the record. A re-examination of the record suggests that the conviction may be sustained, for either theft or swindling; that is, we mean to say that appellant should be prosecuted under an indictment containing both counts, one for theft and one for swindling, and the issues properly submitted to the jury.
The motion for rehearing is overruled.
Motion overruled.
December 17, 1902.