Arthur Colbert, the appellant, was indicted, tried, and convicted in the district court of Washington county, at its July term, 1876, for swindling, •and his punishment assessed at three years’ confinement in the penitentiary. It is charged in the indictment that the •offense was committed on the 10th day of June, 1876.
The defendant, in the court below, made a motion to ■quash the indictment:
“ 1st. Because it does not charge any offense known to, or defined by, the law.
“ 2d. Because the indictment is too vague, uncertain, and insufficient to put defendant upon trial.”
When the case was called for trial, on the 26th of July, the defendant, Colbert, filed his application for a continuance for the want of the testimony of Albert O’Neal, Robert Lee, and Jack Colbert, who, he states, reside in Washington county, witnesses for the defendant.
Defendant’s motion for continuance and his motion to quash the indictment were overruled by the court, to which •the defendant excepted, and filed his bill of exceptions.
The assignment that the court erred in overruling defendant’s motion for a continuance is shown by the affidavit, motion, and bill of exception to be well taken. This wat a first application for a continuance, and stated everything that was required by Article 2987, Paschal’s Digest.
An examination of the statement of facts will show the materiality of the evidence of the witnesses named for the defendant. He states that the witnesses by whom he •could prove the facts set out in his affidavit were residents •of Washington county; that as soon as he knew that he was indicted he caused subpoenas to issue for said witnesses, •and placed them in the hands of the sheriff, and instructed *320said sheriff to summon said witnesses at once; that he cannot find said subpoenas, and does not know whether the same have been executed or not; that said witnesses are not absent by the procurement or consent of the defendant, and that this application is not made for delay, but that justice may be done.
This was, we believe, due diligence. Until a witness-residing in a county has disobeyed a subpoena, an attachment cannot issue for him. The object of the testimony of the witness, as shown from the affidavit, was to prove an alibi. Whilst the defense of an alibi is frequently resorted to, and is greatly liable to abuse, it is often -the only defense-an innocent man can make against an unfounded charge.
The defendant’s affidavit for a continuance was a compliance with the law, on the first application, and should have been granted as a matter of right.
The counsel of the defendant asked the following special charges, which the court refused to give :
“1st. You are the judges of the evidence in this case,, and you may reasonably inquire : Was the paper offered in. evidence calculated to mislead Mr. Werner, and did it reasonably mislead him ?
“2d. In every business transaction every man is supposed to exercise that amount of prudence ordinarily possessed by prudent men, and if any person presented to Mr. Werner the paper offered in evidence it was his duty to-inspect the same, and act with the same amount of caution that should govern a man of ordinary prudence, and if he-failed to do so he cannot complain.”
Thez’e has been a conflict of ojzinion as to whether the-false pretezises, to be indictable, should be such as would necessarily impose upon a man of ordinary prudence. In New York, Pennsylvania, Arkazisas, azid some of the other-states, it has beezi held that a representation,, though false, is not within the statute making it an offense to obtain *321money or other property under false pretenses, unless calculated to deceive persons of ordinary prudence. In Pennsylvania and New York such is no longer the law, it being now held that it is not less a false pretense that the party imposed upon might by common prudence have avoided the imposition.
We think that it is generally received, both in England and the United States, as the law, that the pretense need not be such an artificial device as will impose upon a man of ordinary prudence or caution; that the pretense need not be such as cannot be guarded against by ordinary caution or common prudence. And this doctrine has been carried so far in England that, where a man passed out to another person for change a bank-note, saying it was for £5, when really it was, as he knew, a £l-note, he was held to have committed the offense, though the person to whom he passed the note could read; and Lord Campbell, C. J., in the opinion says: “We are all of the opinion that the conviction was right. In many cases a person giving change would not look at the note, but, being told it was a £5-note, and asked for change, would believe the statement of the party offering the note, and change it. Then if, giving faith to the false representations, the change is given, the money is obtained by false pretenses.” 2 Bishop on Cr. Law, 435.
Few men of business are ever found so wary as not, at some time of life, to commit a mistake therein which any jury of twelve men would say, on their oaths, could not be done by a man of ordinary prudence and discretion. Courts, with due regard to the facts of human life, should not direct a jury to weigh a pretense, as an inducement to action, in any other light than of its effects. Mr. Wheaton, in his work on American Criminal Law (sec. 2131), uses the following language: “ It is submitted, however, that, whether the prosecutor had the means of detection at hand, or *322whether the pretenses were of such a character as to impose upon him, are questions of fact to be left to the jury, as they must necessarily vary with the particular case.”
Cases might be presented to this court in which a verdict ought to, and would, be set aside if the court felt satisfied the jury had convicted a defendant when the testimony showed that the pretenses used were innocent, and not calculated to deceive. And Catón, J., in an Illinois case, pertinently observed: “ Should an article, the essential value of which consisted in its color, be offered to a person fully possessed of the sense of sight, and with every opportunity for inspection, with the pretense that it was white, when in fact it was black, under such circumstances the false pretense might be very innocent, because it was not calculated to deceive ; while the same pretense made to a blind person would be calculated to deceive, and might be subject to punishment.” 2 Bishop on Cr. Law, 434.
The court properly refused to give the special charges asked by the defendant. This brings us to the consideration of the question as to the sufficiency of the indictment, and we will copy from the indictment all that portion of it which speaks of the presentation of the instrument of writing read in evidence, and the false or deceitful pretense or fraudulent representations about the same that were made by the defendant as the means of swindling A. Werner & Bro., which is as follows, to wit: “That the said Arthur Colbert, having in his possession a certain instrument in writing, which is in words and figures as follows, that is to say: ‘June 10th, 1876, Brenham, Texas. Mr. A. W., please pay to this Freadman, $8.00. Henry Squebbye; ’ which said instrument in writing he, the said Arthur Colbert, then and there well knew to be a deceitful device, did then and there make the following statement and representation, to wit: ‘ Here is an order (meaning the said instrument in writing) from Mr. Quebe’ (meaning one *323Henry Quebe, of said state and county aforesaid) ; all of which was then and there false, deceitful, fraudulent, and pretended, as in truth and in fact he, the said Arthur Colbert, then and there well knew,” etc.
It is nowhere alleged in the indictment to whom said instrument in writing was presented, or to whom said false representations in regard to the same were made. It is not charged that this instrument in writing was presented to one or both of the members of the firm of A. Werner & Bro., or to any agent of theirs. We think the indictment should have alleged to whom said instrument in writing was presented, and to whom said false representations in regard to it were made. The court below committed an error in overruling the defendant’s motion to quash the indictment.
The judgment of the district court in this ease is reversed and the cause dismissed.
Reversed and dismissed.