Appellant complains at certain language in our opinion as subject to the interpretation that we are applying the rules of pleading in civil cases to indictments, thereby in effect holding that an indictment subject to attack by special exception, would nevertheless be held good in the absence thereof. If our language was so unhappily chosen as to be reasonably subject to such interpretation we now disclaim such to have been our intention. We intended to say only that the motion to quash the indictment was general in its terms, not pointing out specifically wherein it was claimed not to charge an offense, but that in our opinion the indictment did charge an offense, and was therefore not subject to the motion to quash. But it is urged that because the indictment alleged that appellant intended to swindle and defraud, and did swindle and defraud, a corporation, to-wit: The Southwestern Life Insurance Company, and alleged that the false representations were made to the Corporation; and did not name the particular persons or agents of the same to whom the said representations were made, that the indictment, for such failure, does not charge an offense, and that our former opinion is therefore erroneous and in conflict with Pruitt v. State,83 Tex. Crim. 148, 202 S.W. Rep., 81. Consideration of Article 24 of our Penal Code will aid in the solution of this question. It reads:
"Whenever any property or interest is intended to be protected by a provision of the penal law, and the general term `person', or any other general term, is used to designate the party whose property it is intended to protect, the provision of such penal law, and the protection thereby given, shall extend to the property of the State, and of all public or private corporations."
Reference to Article 1421, P.C., defining the offense of swindling will reveal that the only "general term" used to designate the party whose property that article is designed to protect is "the party justly entitled to the same." A corporation may own its corporate name and hold title to property, and is "justly entitled thereto." We quote *Page 491 from the opinion in Modica v. State, (No. 6868, Delivered February 14th, 1923):
"In the fifth count, the owner was named as the Beaumont, Sour Lake and Western Railway Company, a corporation. There is no rule of law which inhibits the naming of a corporation as the owner in an indictment for theft. There is nothing in the cases of Green v. State, 199 S.W. Rep., 623; Hartman v. State, 213 S.W. Rep., 939; White v. State, 28 Tex.Crim. Rep., or other cases cited by appellant which is opposed to this rule. On the contrary, the cases of White v. State, 24 Texas Crim. App., 231; and Thurmond v. State, 30 Texas Crim. App., 539, cited by appellant recognize the sufficiency of an indictment naming the corporation as the owner. They suggest that a better practice would be to place the ownership in an individual. The practical value of this suggestion is referable to the proof rather than the averment, in that the proof of want of consent is much easier when the averment places the ownership in an individual. On this subject, see Osborne v. State, 245 S.W. Rep., 939; also Bishop's New Crim. Proc., Sec. 138; Cyc. of Law Proc., Vol. 25, p. 95; Wharton's Crim. Law, Sec. 1180."
The authorities cited will, we think, demonstrate the soundness of the proposition announced. Where one obtains property belonging to a corporation by fraudulent representations made to a particular individual who has control of the property so acquired the better practice is always to allege the name of the person to whom the representations were made; but where the facts justify it, we believe it may properly be alleged that the representations were made to the corporation, and that such allegations charges an offense. It is true that corporations must act through individuals, and it is necessary for some person for the corporation to act upon the representations; but it does not follow that the representations must be directed to any particular person. As we understand the record in the instant case, all communications reporting appellant's death, the proof thereof and affidavits relating thereto, were all directed to the Southwestern Life Insurance Company. It was a matter of small concern to appellant into whose hands they ultimately fell, or what particular agent of the corporation passed upon them. The facts show they were acted on, not by one, but by many officers of the company. Upon this point we quote from the testimony of Mr. Mather:
"I had access to or possession of the policies of the company while acting in the official capacity of secretary for the Southwestern Life Insurance Company in the year 1919. As to who the party was who usually passed upon proof of death of claims under the policies, there are several, all of the officers pass on the proofs of death; they first come to me and are gone over carefully and then they are referred to the medical director and are by him gone over, then to the general attorney *Page 492 and from there back to the president and if approved by all these, they come back to me for final approval and payment."
We believe the facts shown by the foregoing evidence will demonstrate that if the proposition contended for by appellant, — that the indictment to be valid must allege the name of the person to whom the representations were made, — should be upheld, it would be practically impossible to draw a good indictment or secure a conviction under such a state of facts as is disclosed by this record. All the officers passed upon "proof of death claims." Would it be necessary to allege that the representations were made to all of them, the Secretary, the Medical Director, the General Attorney and the President? If not, then to which one? The law does not require impossible or impracticable things. In so far as Pruitt v. State,83 Tex. Crim. 148, 202 S.W. Rep., 81, contains expressions contrary to the views here expressed it is modified to that extent.
It is further contended in the motion for rehearing that the indictment is bad for failure to set out the written proof of death forwarded by appellant's wife to the Insurance Company, and that in the absence of such instrument in the indictment appellant's objection on that ground should have been sustained when it was offered in evidence by the State. We find ourselves unable to agree to either proposition. Authorities cited in support of the contentions are White v. State, 3 Texas Crim. App., 605; Dwyer v. State, 24 Texas Crim. App., 123; Hardin v. State, 25 Texas Crim. App., 74; Ferguson v. State, 25 Texas Crim. App., 451; Salter v. State, 36 Tex.Crim. Rep.; Lively v. State, 74 S.W. Rep., 321; Doxey v. State, 47 Tex. Crim. 503. We deem is unnecessary to review them in detail. They announce the correct doctrine that when a written instrument is the basis of a swindle that instrument should be set out in the indictment, and that where the indictment upon its face reveals this to be true it will be held bad for the failure to incorporate it. What was the basis for the swindle in the instant case? The act on the part of appellant of simulating death? He was fraudulently representing to the world that he was dead and buried. The insurance policy as we find it in the record did not require written proof of death, and if so, the requirement could have been waived by the company. The beneficiary could have reported the (supposed) death of her husband by telephone, in person, or by private messenger to the company. She did write a letter so advising; later the proof of death was furnished. The Insurance Company, for some reason, not being satisfied sent an agent who had a personal interview with appellant's wife and others relative to appellant's supposed death; he also secured affidavits of two co-conspirators, and of some friends who had attended the fake funeral, and who appear to have been imposed upon as well as the Insurance Company. Could it be contended that the indictment should have set out all of the documents sent to the company or secured by it? What was the effect *Page 493 of all of them? To cause the company to believe that appellant was dead, the false simulation of which, was to our minds, the basis of the whole swindle and conspiracy. If it had been alleged that the company relied on the written proof of death, then it could have been urged with plausibility that this was not true, because the company sent an agent to make further investigation, and secure additional affidavits. The letter, proof of death and various affidavits introduced over appellant's objection were only evidence pertinent in making out the State's case, and the means whereby the pretended death was established as a real event. It is never necessary to set out any part of the evidence in an indictment, unless a written document used as evidence be the basis of the offense charged. Not being required to set out the written instruments in the indictment we believe the objection to their introduction because not so averred was properly overruled. Presiding Judge Morrow agrees that the indictment was not obnoxious to the motion to quash, but is inclined to the view that there being no averment in the indictment that written representations entered into the offense, the admissibility of the written proof of death is doubtful, under the Rudy case, 81 Tex.Crim. Rep. and authorities there cited.
The motion for rehearing is overruled.
Overruled.