In the indictment it is alleged that the defendant obtained the money from Tong by means of false and fraudulent representations, as follows, to wit: “ that he, the said Moore, was possessed of certain large sums of money then deposited in the Dallas National Bank, in Dallas, Texas, and that said Dallas National Bank would honor and pay any checks or drafts made by him, the said Moore, upon and on said bank; . . . that the said Moore had then deposited in the said bank and subject to said check, a large amount of money sufficient for the payment of the same.” It is alleged that at the time of making said representations the defendant presented a check drawn by him upon said bank for $123.60, and by means of said check and said representations obtained from Tong the sum of $106.
As to the representations made by defendant to Tong, it is insisted by his counsel that there is a fatal variance between those alleged as above, and those proved by the evidence. Tong testifies that the defendant represented to him that “ he had $5,000 deposited in the Dallas National Bank, of Dallas, Texas, subject to the order of defendant, and that the Dallas National Bank would honor and pay any draft or check drawn by defendant on said bank; . . . that he had money in said bank sufficient to pay off said check.” By comparing the representations, as alleged, with those proved, it will be seen that the only difference between them is that, as alleged, the defendant said he had certain large sums of money deposited in said bank, while, as proved, he said he had $5,000 on deposit there. Does this constitute a variance between allegation and proof, such as will set aside the conviction?
In indictments for this offense, the matter alleged to be false must be fully set out and described. (State v. Baggerly, 21 Texas, 758; Warrington v. The State, 1 Texas Ct. App., 168; Mathena v. The State, 16 Texas Ct. App., 473.) And the matter thus alleged is material; it is descriptive of the offense, and must be proved as alleged. Mr. Bishop says: “ Wherever there is a necessary allegation which cannot be rejected, yet the pleader makes it unnecessarily minute in the way of description, the proof must satisfy the description as well as *240•the main part, since the one is essential to the identity of the other.” (1 Bish. Cr. Proc., § 485; Warrington v. The State, supra; Davis v. The State, 13 Texas Ct. App., 215.) But is it essential to prove precise!y, word for word, the representations as alleged? Is it not sufficient to prove them substantially?
There are two ways of setting out words, whether written or oral; the one by their substance, the other by their tenor. If the indictment professes to set them out by their tenor the proof must conform thereto with almost the minutest precision. (Baker v. The State, 14 Texas Ct. App., 332.) But where the indictment, as in this instance, professes merely to give the substance of the representations made by the defendant, we understand the rule to be that it is sufficient to prove the substance of. them. It is not necessary in such case to prove them with minute exactness, but only with that degree of certainty which will serve satisfactorily to identify the representations proved with those alleged. If this be done, there is in law no variance. Thus, in a prosecution for oral slander, it is essential to allege in the indictment the slanderous words, but it is not required to prove the precise words alleged. It is held sufficient to prove them substantially. (Conlee v. The State, 14 Texas Ct. App., 222.) The same rule obtains in perjury. (2 Bish. Cr. Proc., § 915.) ' And in a prosecution at common law for cheat and false pretense, it was in general sufficient to allege and prove substantially the false pretense, the tenor thereof not being required. (2 Bish. Cr. Proc., § 178.)
In the case we are considering we are of the opinion that the representations proved are substantially the same as those alleged. The defendant is alleged to have represented that he had certain large sums of money on deposit in the bank. It was proved that he represented that he had $5,000 on deposit in said bank. Five thousand dollars is regarded as a large sum of money, and so in substance the alleged and the proven representations are the same.
Again it is insisted that there is a fatal variance between the allegation of the amount of the money alleged to have been obtained by the defendant, and the proof in regard thereto. The indictment alleges the amount to have been $106, while the evidence shows that he obtained $109. We do not regard this as a fatal variance. It was not essential to prove the amount obtained precisely as alleged. It was sufficient to prove that the amount exceeded, $20 in value. This case is unlike the case of Marwilsky v. The State, 9 Texas Ct. App., 377, cited by counsel for appellant. In that case the variance had reference to the allegation and proof *241of the false pretense and not to the amount of money obtained by such false pretense. Mr. Bishop says: “Subject to exceptions resting on the form which the allegation either needlessly or necessarily assumes, the doctrine seems to be almost universal that, to avoid a variance, the substance only of the issue need be proved, thus: Where the punishment is bj7 law greater or less according as the value of a thing is above or below a particular sum, the indictment must show to which class the case belongs; and the common method is to charge its value to be so many dollars. But, in proof, the exact sum thus set down need not appear; any value calling for the same punishment as that in the indictment being adequate. (1 Bish. Cr. Law, § 488b.)
Several objections are urged to the charge of the court, all of which we have duly considered, and, without taking time to discus's the objections in detail, we deem it sufficient to say that in our opinion none of said objections are well grounded. We regard the charge as a correct exposition of the law of the case, and in no wise unfair or illiberal to the defendant. As to the special charges requested by the defendant and refused, we think they were sufficiently embraced in the main charge given to the jury.
In one particular, we are of the opinion that the conviction is not supported by the evidence. It was proved that there were attending to the business of the Dallas National Bank a cashier, two bookkeepers, a teller and á corresponding clerk. Beardon, the cashier, was a witness in behalf of the State on the trial. He testified that these persons were each authorized to and frequently did receive money from the hands of depositors, and that the corresponding clerk received all money sent by mail or express to the bank from depositors abroad; that the bank kept a deposit book which was kept by one of the book-keepers, and on this book all deposits, of customers were entered, or supposed to be entered, in the regular business of the bank. He stated that defendant had never deposited any money in the bank within his knowledge; that the books of the bank showed no deposit by defendant. He could not state whether or not the other employees in the bank had received any money from defendant on deposit. None of the other employees testified in the case.
Now, if the defendant had in fact money on deposit in said bank sufficient to pay the check drawn in favor of Tong, he is not guilty of the offense of swindling. It matters not that the deposit was not entered upon the books of the bank. The law presumes, in favor of the innocence of the defendant, that he stated the truth when he *242represented to Tong that he had money on deposit in said, bank sufficient to pay said check. This presumption of innocence is not overthrown by evidence on the part of the State establishing prima facie, merely, that he had no such deposit. This is not that character of case in which prima facie evidence of guilt shifts the burden •of proof to the defendant. The presumption of innocence must be overcome by evidence which establishes guilt beyond a reasonable doubt. A case in point upon this subject is Strong v. The State, 18 Texas Ct. App., 19, where the rule is fully discussed and clearly declared. It was incumbent upon the State in this cause to prove in some manner, either by the testimony of the other employees of the bank, or by circumstances, the falsity of defendant’s representations, beyond a reasonable doubt. Such proof was not adduced on the trial; and, because of a failure to adduce it, the judgment cannot stand, and is therefore reversed and the cause is remanded.
[Opinion delivered February 3, 1886.]jReversed and remanded.