The charging part of the indictment, under which appellant was convicted, is substantially, as follows: * * * "Did then and there unlawfully commit the offense of swindling by the use of false and deceitful pretenses and devices and false and fraudulent representations, as follows: The said P.S. Doxey, being the owner of a herd of cattle ranging and situated in Moore County, Texas, of upward of eight hundred head, and of the value of twelve thousand dollars, and being indebted to W.B. Worsham and Company, a partnership, composed of W.B. Worsham, W.H. Featherston, J.D. Stine, J.H. Farriss and F.B. Wyatt, doing a banking business in the town of Henrietta, in said Clay County, of which partnership W.B. Worsham was President, to an amount exceeding eight thousand dollars, some of which was then past due, and the remainder of which would soon thereafter mature, and the said Doxey then and there desiring to obtain an extension and renewal of said indebtedness, and to procure other money from the said W.B. Worsham Company, under the pretense of borrowing, did then and there, falsely and fraudulently in writing represent to the said W.B. Worsham that there was nothing against said cattle, or against him, the said Doxey, and that his said indebtedness to the said W.B. Worsham Company was the only money that he owed, said written representation being in the following language: "I want to be carried until can ship to meet paper, and if you cannot carry me any longer say so and give me a chance to do something, there is nothing against my cattle or me, and your money is all I owe any one, so let me hear from you at once." Said Doxey thereby intending to say and in fact saying that he was indebted to no one except to said W.B. Worsham Company, which representation and statement, the grand jurors aforesaid, upon their oaths do charge and say was false and fraudulent and untrue, the said Doxey being then and there indebted to one M.H. Kellum in an amount exceeding nine thousand dollars and to his own wife in an amount exceeding two *Page 509 thousand dollars; and the said Doxey being then and there insolvent, and which false and fraudulent representations were so made by the said Doxey with the intent to obtain from the said W.B. Worsham Company, under the pretense of borrowing three thousand dollars, money of the said W.B. Worsham Company, or some other large sum, with the intent to appropriate the same to the use and benefit of him, the said P.S. Doxey, and to deprive the said W.B. Worsham Company of the value thereof, and for the purpose of obtaining an extension and renewal of his, the said Doxey's existing indebtedness to the said W.B. Worsham Company, and thereby impairing said indebtedness.
"And that while said representation was made to the said W.B. Worsham it was made to him as president of said W.B. Worsham Company, and with the intent and design that it should be relied on by the said W.B. Worsham Company; and the said W.B. Worsham Company relying upon said representations and believing them to be true, did then and there grant to the said P.S. Doxey an extension and renewal of his said indebtedness, and there after advance and loan to him, without security, and the said P.S. Doxey did acquire possession of and from the said W.B. Worsham Company, the sum of three thousand dollars, and other large sums of money, lawful money of the United States, the property of the said W.B. Worsham Company, which money the said Doxey then and there received and acquired possession of and converted to his own use and benefit; and has never in any manner paid or satisfied his indebtedness to the said W.B. Worsham Company, but pursuant to the fraudulent intent existing in his mind at the time he made said fraudulent representations and obtained said loan and extension, he, the said Doxey, has turned over and delivered his entire property to his wife and the said M.H. Kellum in satisfaction of said debts, the existence of which he denied in said statement. Wherefore the grand jurors aforesaid do say that in the manner and by the means aforesaid, the said P.S. Doxey in the county of Clay, committed the offense of swindling."
It will be seen by comparing this indictment with the statute that it follows every salient feature of the statute. Clearly where a thing is fraudulently done, it must necessarily be knowingly done. As to whether the party relied upon the false statement, discussed in the opinion, is a question of fact and not of law. We are not warranted in passing upon the sufficiency of the evidence when merely passing upon the sufficiency of the indictment. For these reasons I do not agree with the opinion of the majority of the court, but believe the indictment is good. *Page 510