In a second motion for rehearing, appellant, through his counsel, advances the contention (not heretofore discussed) that there was no averment in the indictment of the value of the indorsement of the note and that in the absence of such averment there was no basis for the jury to determine whether the offense was a felony or a misdemeanor. In the indictment it is averred as follows:
". . . the said P. R. Underwood relying upon said false and fraudulent pretenses and representations and believing them to be true, was induced to and did endorse and place his signature upon said above described note, said note above described being an instrument of writing, conveying and securing a valuable right, of the value *Page 554 of $880.20, with intent on the part of him, the said Otis O. Fleenor, and with the willful design to cause an injury to him, the said P. R. Underwood, and to destroy and impair the right of the said P. R. Underwood, as endorser on said note."
The statement of the value of the note as above quoted and the connection in which it appears are deemed sufficient averments of the value of the indorsement. An inquiry into the solvency or insolvency of Underwood would not be a pertinent inquiry. Neither the benefit to the accused nor injury to Underwood was an essential element of the transaction. P. C., Art. 1548. Evidence, however, was received upon the trial showing that the transfer of the note was contemplated at the time of the indorsement and consummated before the maturity of the note, which was subsequently paid by Underwood. The facts before the court in the case of Luce v. State, 88 Tex. Crim. 46, distinguish it from the present appeal. While the Luce case and the authorities there cited are precedents for the proposition that an indictment for swindling based upon the acquisition of a written instrument should embrace an averment of the value of the instrument, the facts in that case are not wholly analogous to the present one. In the instant case there is an averment in the indictment of the value of the note in question. As the averment appears in the indictment, it is deemed susceptible of the construction that by the value stated is meant the value after indorsement. It was the noteafter the indorsement that the appellant received. The note with the indorsement inured to the benefit of the accused, and the delivery of the note with the indorsement thereon to the accused caused the injury to Underwood. From the averment of the indictment it is manifest that the value of the note before indorsement was minimized by the averred fact that the represented lien securing the note did not exist. The specific matter now presented, namely, that there was no averment in terms that the value ascribed to the note was perforce the indorsement, was not addressed to the court until after verdict. The jury, in the court's charge, were told that to warrant the conviction of a felony the false representation must have been with intent to acquire by the accused a benefit amounting to fifty dollars or more, or to injure Underwood to that extent. The acquiescence in the charge so framed give substance to the idea that the value of $880.20 placed upon the note by the evidence was a statement of the value after the indorsement, as construed at the time of the trial. The following quotation from the *Page 555 case of Horton v. The State, 109 Ga. Rep. 131, is of interest as bearing upon the principle involved in the present inquiry:
"In the case of State v. Thatcher, 6 Vroom (N.J.) 445, Van Syckel, J., in discussing what property must be obtained in order to constitute the offense, said: 'Is the maker's own note or contract of suretyship a valuable thing? The signing of the name was an act — the name when signed was a thing. Was it a thing of any value? While it remained locked up in his secretary, it was of no value to the maker, but eo instanti it passed out of his hands by the fraud, it became impressed with the qualities of commercial paper, and possessed to him the value which it might cost to redeem it from a bona fide holder. . . . Can it, therefore, be said that a paper which imposed such a risk was of no value to the maker? Its value to him consisted, not in what it would put in his pocket if he retained it, but in what might be taken out of his purse by the delivery of it to the defendant'."
As the record appears here, the opinion is held and expressed that the trial court was warranted in overruling the appellant's motion in arrest of judgment.
For the reasons stated, the second motion for rehearing is denied.
Denied.