“Swindling is the acquisition of any personal or movable property, money, or instrument of writing convey*522ing 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. 790.)
One of the essential ingredients of the crime, and the most important, according to this definition of swindling, is the intent with which the property is acquired. It must be “with the intent to appropriate the same to the use of the party so acquiring.” Without this allegation the indictment does not charge the offense.
We are aware that a contrary doctrine was held in Tomkins v. The State, 33 Texas, 228. In that case the court say: “The indictment sets out with great precision and particularity all the facts going to constitute the crime, and it is but in accordance with the rulings of this court that, when the facts going to make out the case are well pleaded, the law will infer the intent of the accused to commit the crime, as sane men are presumed to intend the plain and obvious consequences of their acts. The pleader may, if he prefer, charge the conclusion of law, and prove the facts from which the legal conclusion is derived and is the proper and necessary sequence.” No authority is cited in support of the rule announced in the last sentence, and in our opinion the well settled authority is now all the other way. .
A deduction, or inference and presumption of intent from acts is permissible only after the evidence has been adduced on the trial, and cannot apply to allegations in criminal pleadings. In criminal pleadings “it is in every case desirable to attend with the greatest nicety to the words contained in the act creating and defining the offense, for no others can be so proper to describe the crime. But if the description embraced in the statute be departed from in any material respect, and any ingredient in the definition of the offense be omitted, the indictment will be void.” (Bush v. The Republic, 1 Texas, 458; State v. Hall, 27 Texas, 334; State v. Moreland, 27 Texas, 728; Banks v. The State, 28 Texas, 644; Clark’s Crim. L., pp. 421 and 422, and notes. For a full discussion of the subject see Williams v. The State, 12 Texas Ct. App., 395.)
Tomkins v. The State, 33 Texas, 228, is hereby overruled. And, because the indictment before us fails to charge that the property acquired by appellant was so acquired with intent to appro*523priate the same to his use, and is therefore fatally defective, the judgment is reversed and the prosecution dismissed.
Reversed and dismissed.
Opinion delivered February 24, 1883.