It is provided by the article of the Penal Code upon which the information and complaint in this case are based, that “If any person shall, with intent to defraud, put into any hogshead, barrel, cask or keg, or into any bale, box or package, containing merchandise or other commodity usually sold by weight, any article whatever of less value than the merchandise with which such bale, box, package, hogshead, barrel, cask or keg is apparently filled, or with intent to defraud shall sell or barter, give in payment or expose to sale, or ship for exportation any such hogshead, barrel, cask, keg, box, bale or package of merchandise or other commodity, with any such article of inferior value concealed therein, he shall be punished by confinement in the county jail not exceeding one year, or by fine not exceeding $1,000.” (Penal Code, art. 470.)
As stated both in the complaint and information, the charge preferred is that “D. A. Bridges, George Bridges, W. W. fleeter, O. F. Ilolbert and J. F. Holden, on or about the 20th day of October in the 3rear of our Lord one thousand eight hundred and eigl^-four, with force and arms, in the county and State aforesaid, did, with intent to defraud, put into a bale containing cotton, a commodity usually sold by' weight, soiled and rotten cotton, and moats and trash mixed with cotton, the same being then and there articles of *105less value than the cotton with which said bale was apparently filled; and that the said B. A. Bridges did then and there sell and dispose of said hale to W. J. Rogers, with the said soiled and rotten cotton and moats and trash mixed with cotton, as aforesaid, concealed therein, with intent then and there to defraud; contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.” (Italics ours.)
A motion was made by defendant (he being alone on trial after severance had) to quash the information upon several grounds, only one of which need be noticed. It is said that the information is vague, indefinite, duplicitous and uncertain; that it charges two offenses in one count, the first of which is a joint offense committed by several parties, and the latter a single, separate and distinct offense committed by one of said parties, without any allegation of complicity in the same upon the part of the other defendants. This motion to quash was sustained by the court in so far as the information charged D. A. Bridges with the offense of selling a bale of cotton falsely packed, with intent to defraud, and was overruled as to the balance or other portions of the information.
This ruling of the court was correct. That portion of the information which the court quashed (and which is shown by the italicised portion above noted) can very properly be stricken out and eliminated from the information as mere surplusage, and the remaining portions charge sufficiently and fully one of the offenses denounced by the statute. The italicised portion is not essential to the description of the offense of “ false packing,” which is an offense within itself. It will be noticed that two offenses are denounced by the statute; the one, to falsely pack with intent to defraud; the other, to sell the falsely packed article with intent to defraud. “Intent to defraud” is the particular intent in either case, and, whilst it is essential that such particular intent must be alleged in charging both or either offense, it was not necessary, nor is it necessary in any such case, to name the party intended to be defrauded. (Code Crim. Proc., art. 423; Morris v. The State, 13 Texas Ct. App., 65.)
It is clear, then, that the averments are divisible and that there is nothing in the italicised portion of the information which was essential to the charge of false packing, and furthermore it is evident that the charge of false packing is complete without the italicised words or any of them. If so, these latter can appropriately be treated as surplusage, and under tvell established rules be expunged or held for naught, without detriment to the remaining portion of the information or indictment. (Warrington v. The State, *1061 Texas Ct. App., 168; Mayo v. The State, 7 Texas Ct. App., 342; Gibson v. The State, 17 Texas Ct. App., 574; The King v. Hollingsberry, 2 Leading Crim. Cases, Bennett & Heard (2d ed.), p. 34, and note.)
Defendant’s first bill of exceptions was as to the admission in evidence, over his objection, of the declarations of D. A. Bridges, a co-defendant, made after he, Bridges, had sold the bale of cotton to Rogers, and nearly two months after it had been packed. The declarations objected to were admissions by D. A. Bridges that the bale of cotton in which the rotten cotton, trash, moats, etc., were found, as testified on this trial by the State’s witnesses, was the identical bale which Bridges had sold to Rogers. It is contended that this evidence was inadmissible because it was an admission by a co-conspirator, after the consummation of the criminal act constituting the conspiracy, and could not be admitted against, nor was it binding upon any one but the party himself making it. There can be no question as to the correctness of the rule invoked, viz., that confessions, admissions or declarations made by one of several persons who -were confederated in an unlawful enterprise, if made after its consummation, are not evidence against the others, without their acquiescence in them. (Allen v. The State, 8 Texas Ct. App., 67; Cox et als. v. The State, 8 Texas Ct. App., 256; Simms v. The State, 10 Texas Ct. App., 131.)
In this case it is proven that the admission wTas made in the presence of defendant, and that he was close enough to have heard it. If that was so, and the admission or declaration was heard by him, unless he at the time repudiated it, it would bind him even though made after the conspiracy was consummated. In this case the admission of Bridges was that he had sold the bale to Rogers, which bale was afterwards found to be falsely packed. How, we might strike out this admission of Bridges entirely and there is ample evidence in the record that positively identifies the bale as the one sold by Bridges to Rogers. But, as stated above, the admission was made in the presence and hearing of this defendant. Defendant had gone there with the others to see about and talk about this bale of cotton. He was close enough to have heard what was said and he said nothing. Under such a state of case the evidence was admissible, and it may well be inferred that he did hear it; and the evidence wras admissible against him even though at that time he had not as yet been charged with or prosecuted for complicity in the crime. (Long v. The State, 13 Texas Ct. App., 211; 2 Whart. Evid. (2d ed.), § 1136.)
As to the sufficiency of the evidence establishing his complicity *107in the crime, several witnesses testify that he was present and aided in ¡tacking the bale of cotton, and the witness Hill testified that he “ was attorney for D. A. Bridges on his trial at Aurora for selling W. J. Bogers a bale of cotton falsely packed. Defendant was present as a witness for defendant Bridges, and testified to helping pack the bale sold to Bogers,” etc. Now, if he was present and helped pack the bale, he could not but know that it was falsely packed, and knowing that and aiding in it made him a principal offender in the crime committed.
The charge given to the jury presented the law, and we cannot see that it was error to refuse the requested instructions. The judgment is affirmed.
Affirmed.
[Opinion delivered April 25, 1885.]