Swindling, as an offense under Article 790, Penal Code, may be predicated upon a negotiable or a promissory, note where its execution has been procured by means of false or deceitful pretenses or fraudulent representations. Before we address ourselves to the questions directly raised on this appeal, and as incidental thereto, we will succinctly state some of the leading rules with regard to indictments for this offense, as laid down in the elementary works and adjudicated cases.
■ A similar offense to the one charged in the indictment before us was prescribed by the fifteenth section of the Act of 1854, defining swindling (Laws 1854, p. 61), which section is now no longer in force; and a full discussion of its meaning and construction was had by our Supreme Court in The State v. Baggerly, 21 Texas, 757. In that case it was said: “The note is the central fact upon which all the other facts in the case must concentrate, and no good reason is seen why it should not be set out or described, as in forgery, so that the particular note may be identified and known. With the most liberal construction, it must be held that it must be so described as that, when presented in evidence, there would be reasonable marks of identity.”
As a general rule, whenever an instrument in writing enters into an offense as a part or basis thereof, or when its proper construction is material, the instrument should be set out in the indictment. (Whiter The State, 3 Texas Ct. App., 605.)
In Alabama, where one was indicted for obtaining the signature to an instrument by false pretenses, its tenor was adjudged necessary to be averred. (Langford v. The State, 45 Ala., 26.) But an indictment for thus obtaining a check for the payment of money, not setting it out at length, was, in Massachusetts, held good. (115 Mass., 481; 2 Bish. Crim. Proc., § 178.) It is in all cases desirable ordinarily to set out the instrument itself. If this is not done hose verba, then in lieu thereof such a description of it must be given as will be sufficient to accurately identify it, and with certainty, when offered in evidence, to support the descriptive allegation. In The People v. Gates, 13 Wend., 311, it was held that, “An indictment for obtaining the signature of a party to a written instrument by false pretenses, etc., must contain all the material facts and circumstances which the public prosecutor will be bound to prove to produce conviction; it must show upon its face that the offense charged has been *338committed; or, in the language of Lord Mansfield, it must be an intelligible story, so explicit as to support itself.”
But even written instruments may be charged in an indictment according to their legal effect, equally as well as by their outward form, and there are two ways of setting' out words, whether written or spoken; the one by their substance, the other by their tenor. Mr. Bishop says, “If the indictment professes to set out a written instrument by its tenor, whether the law has made so exact an averment necessary in the particular case or not, the proof must conform thereto with almost the minutest precision.” (1 Bish. Crim. Proc., 3 ed., 488; 1 Whart. Crim. L., 8 ed., § 737.) If the instrument be set forth hcec verba, or by its “tenor,” or if the averment be “in words and figures following,” then the word “tenor,” or the expression “words and figures following,” bind the pleader to the strictest accuracy in proof. (2 Whart. Crim. L., 6 ed., § 1471; Roberts v. The State, 2 Texas, Ct. App., 4; ex parte Rogers, 10 Texas Ct. App., 663-4; Brown v. The People, 66 Ill., 314; S. C., 1 Hawley, 228.)
In the case under consideration the promissory note is set out “in words and figures following, to wit.”
Again: to sustain a prosecution for obtaining the signature of one by false pretenses to a written instrument, the mere fact of the instrument having been signed is not enough; a delivery must also be shown, because the signing without delivery would harm no one. It seems, however, that an allegation that defendant acquired or unlawfully obtained the signature will be sufficient, though it do not aver a delivery in terms. (Fenton v. The People, 4 Hill, N. Y., 126; People v. Stone, 9 Wend., 182.)
It has been held that an indictment for false pretenses which does not allege that the prosecutor relied on the false pretenses as true, is bad on motion to quash (Jones v. The State, 50 Ind., 473; S. C., 1 Hawley, 218); but the better doctrine seems to be that it is not necessary to allege in express words that the party defrauded relied upon the false representations made, but that this is a necessary implication from the allegation that he was induced by the false representations to part with his goods or money, or do the thing complained of (Norris v. The State, 25 Ohio St., 217; S. C., 2 Hawley, 85; People v. Jacobs, 35 Mich., 102; S. C., 2 Hawley, 102.)
As stated above, the instrument to which the signatures were procured is by averment set out in the indictment “in words and figures following;” then follows the instrument, to all ap*339pearances hcec verba, including the signature of appellant. Signatures of Bell and Stoker, the two parties alleged to have been induced to sign the note, are not attached to the instrument set out, but, following the note as set out, it is alleged that defendant, after signing the note himself, procured them by his false representations, to sign and affix their names thereto as drawers, stating fully the circumstances, and that they, Bell and Stoker, did so sign the note before the same was delivered to the payee. We are of opinion that the allegations are sufficient, and that the pleader could have either set out the note as it appeard after they signed it, or shape his allegations, as he has done, by showing the note as it was before the fraud was perpetrated, and then properly and fully averring the mode, manner and circumstances by which the note was subsequently signed by the injured party or parties.
Considered in the light of the authorities, we are of opinion that the indictment fully and sufficiently states the offense sought to be charged. When, however, the pleader offered in evidence the original note, which was the basis of the prosecution, defendant objected to it, amongst other things, because it varied in several particulars from the instrument declared on; which objection was overruled and the evidence admitted. In this the court erred. It is manifest that the note offered was not a literal and exact duplicate of the one set out in the indictment, in several particulars. Whether these points of difference or variance are material or immaterial is not the question. By his manner of pleading, the prosecutor had declared upon the note by its tenor, and he was held to the strictest and utmost precision in the proof. “Every part of a written contract upon which suit is brought is material to its identity, and a variance in any respect between the instrument described in the petition and that offered in evidence will be fatal.” (Shipman v. Fulcrod, 42 Texas, 248; Waimbish v. Taylor, decided by the Commissioners of Appeals, present term.) If such is the rule in civil, a fortiorari, the same should be the rule in criminal cases.
For error of the court in admitting the evidence, the judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.
Opinion delivered June 2, 1883.