HENDERSON, Judge.
Appellant was convicted of swindling, and his punishment assessed at confinement in the penitentiary for a term of five years; hence this appeal.
The indictment is quite lengthy, and is in several counts. As the disposition of the case turns on the indictment we state the substantial elements thereof. The swindle is alleged to have been perpetrated by appellant on -the Fidelity Mutual Life Association of Philadelphia, subsequently changed to the Fidelity Mutual Life Insurance Company of Philadelphia, the same being a corporation. It is charged that appellant about the 7th of November, 1896, insured his life in said Fidelity Mutual Life Association in favor if his sister, Mrs. Jennie M. Mettler, in the sum of $15,000; and that thereafter about the night of the 4th
of December, 1896, he pretended to drown himself in the Pecos River. That on the day before said night, he left Pecos City in a two-horse vehicle, ostensibly to go to Loving County on some business; that he camped on the Pecos River on said night, made his footprints near the water’s edge, as if he had slipped into the stream and drowned, and left his wagon at the river with one of his horses tied to a tree (which subsequently starved to death there), and mounting the other horse, rode hurriedly to Barstow Station, some twelve miles distant, disguised himself, took the midnight train, and left the State of Texas, changing his-name and secreting himself. He subsequently resided in Alabama, near Birmingham, where he was discovered and arrested some time during the latter part of the year 1902. In the meantime the policies of insurance, which were left at Pecos City, in charge of Senator Gage, a lawyer and banker, were turned over to Mrs. Mettler, appellant’s sister and the beneficiary in said policies. Through one Milligan, representing the insurance company, a short time after the disappearance of appellant, she made proof of loss; the company refused to pay the same, claiming appellant was not dead. She subsequently brought suit in the District Court of Dallas County, Texas, which was afterwards removed to the Federal court in said city. The suit came up for trial on May 28, 1900, and after a hearing on evidence, resulted in a judgment in favor of Mrs. Mettler for the amount of said policies, etc. On writ of error to the Supreme Court of the United States, it was affirmed on May 5, 1902; the judgment in all, including the amount of the policies, interest, and damages, amounting to $24,028.25, was paid to the beneficiary Mrs. Mettler, about June 5, 1902. The principal issue in the case was the death of appellant, which was alleged to have occurred by drowning in the Pecos River. This matter was hotly contested, and evidence adduced on the issue pro and con, which ultimately resulted in the judgment as aforesaid. After the payment of the judgment, appellant’s whereabouts was discovered, and he was extradited from the State of Alabama, and brought to trial on the charge of swindling as aforesaid. The essential allegations against him in the indictment, as before stated, consisted in his pretended drowning, and the alleged feigned circumstances connected therewith, his clandestine flight from the State of Texas, and his subsequent concealment; that these acts and conduct of his constituted a fraudulent representation to the said Fidelity Mutual Life Insurance Company, though it is not alleged that said company relied thereon or believed the same; but it is charged that by means of said conduct he induced the beneficiary in said policies to bring suit to recdver the amount of the same, thus using her as his (appellant’s) innocent agent; and thus inducing the prosecution of said suit and the introduction of evidence tending to establish liability of the company, and by these means using the courts and procuring a judgment on said policies, and securing the money on said judgment; and that this, under out statute consummated a swindle, for which appellant was liable criminally.
Appellant moved to quash thé indictment upon various grounds, among others, that it was not alleged in said indictment that the Fidelity Mutual Life Association of Philadelphia believed the representations alleged in said indictment which were made in reference to the death of said Wm. A. Hunter, or that the said Fidelity Mutual Life Insur- . anee Company paid the $24,028.25 upon the faith or in reliance upon the truth of any representations made by the said Hunter. Nor was it alleged in the indictment that representations of any character were made by the defendant or anyone else to the Fidelity Mutual Life Insurance Company, or that said money was paid by said company thereon; and that said indictment showed on its face that said company did not pay said money on the faith of any representations made by appellant or anyone on his behalf, but that said money was paid over the protest of said company, and on a judgment recovered against it in the United States Circuit Court for the Northern District of Texas, at Dallas. The court overruled the exceptions, and on the trial summed up the elements of fraud as charged in the indictment, and instructed the jury, if they believed the same, to find appellant guilty of the offense charged. The question thus presented is a new one in this State, though cases somewhat similar in character have occurred in other jurisdictions. Evidently the indictment here presented was drawn under Musgrave v. State, 133 Ind., 297. However, that was a case of conspiracy to defraud an insurance company by concocting circumstances indicating death on the part of the two persons therein named. There was no consummation of the plot, and in that case there was also the alleged use of an innocent agent. That case was brought under the Indiana statute, defining a conspiracy to commit a swindle, and unlike the case at bar there was no judgment. Said case might be good authority on a charge of conspiracy to swindle, not involving the judgment of a court. See articles 953 to 957, inclusive, Penal Code. We are also referred to State v. Fraker, 49 S. W. Rep., 1017. This is a Missouri case, and the indictment follows along the lines pursued here. In that case there appears to have been a consent judgment, which, however, was not collected before the apprehension of Fraker. An examination of that case not only fails to support the State’s contention here, but is authority against it. The learned judge who wrote that opinion concluded it with the observation, “That the difficulties with which the pleader had to contend in this instance seem to be insurmountable, no matter how the facts may be stated.” The only ease which has been brought to our attention which is in point is, Commonwealth v. Harkins, 128 Mass., 79. There it was distinctly held by a majority of the court that a prosecution for swindling could not be predicated on a judgment rendered by a court of competent jurisdiction. While this was by a divided court, the majority opinion seems to be in accord with sound legal principle.
In our State all offenses are statutory. These are required to be defined; and if the definition is not sufficient, the offense fails and there
can be no enforcement.
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HENDERSON, Judge.
Appellant was convicted of swindling, and his punishment assessed at confinement in the penitentiary for a term of five years; hence this appeal.
The indictment is quite lengthy, and is in several counts. As the disposition of the case turns on the indictment we state the substantial elements thereof. The swindle is alleged to have been perpetrated by appellant on -the Fidelity Mutual Life Association of Philadelphia, subsequently changed to the Fidelity Mutual Life Insurance Company of Philadelphia, the same being a corporation. It is charged that appellant about the 7th of November, 1896, insured his life in said Fidelity Mutual Life Association in favor if his sister, Mrs. Jennie M. Mettler, in the sum of $15,000; and that thereafter about the night of the 4th
of December, 1896, he pretended to drown himself in the Pecos River. That on the day before said night, he left Pecos City in a two-horse vehicle, ostensibly to go to Loving County on some business; that he camped on the Pecos River on said night, made his footprints near the water’s edge, as if he had slipped into the stream and drowned, and left his wagon at the river with one of his horses tied to a tree (which subsequently starved to death there), and mounting the other horse, rode hurriedly to Barstow Station, some twelve miles distant, disguised himself, took the midnight train, and left the State of Texas, changing his-name and secreting himself. He subsequently resided in Alabama, near Birmingham, where he was discovered and arrested some time during the latter part of the year 1902. In the meantime the policies of insurance, which were left at Pecos City, in charge of Senator Gage, a lawyer and banker, were turned over to Mrs. Mettler, appellant’s sister and the beneficiary in said policies. Through one Milligan, representing the insurance company, a short time after the disappearance of appellant, she made proof of loss; the company refused to pay the same, claiming appellant was not dead. She subsequently brought suit in the District Court of Dallas County, Texas, which was afterwards removed to the Federal court in said city. The suit came up for trial on May 28, 1900, and after a hearing on evidence, resulted in a judgment in favor of Mrs. Mettler for the amount of said policies, etc. On writ of error to the Supreme Court of the United States, it was affirmed on May 5, 1902; the judgment in all, including the amount of the policies, interest, and damages, amounting to $24,028.25, was paid to the beneficiary Mrs. Mettler, about June 5, 1902. The principal issue in the case was the death of appellant, which was alleged to have occurred by drowning in the Pecos River. This matter was hotly contested, and evidence adduced on the issue pro and con, which ultimately resulted in the judgment as aforesaid. After the payment of the judgment, appellant’s whereabouts was discovered, and he was extradited from the State of Alabama, and brought to trial on the charge of swindling as aforesaid. The essential allegations against him in the indictment, as before stated, consisted in his pretended drowning, and the alleged feigned circumstances connected therewith, his clandestine flight from the State of Texas, and his subsequent concealment; that these acts and conduct of his constituted a fraudulent representation to the said Fidelity Mutual Life Insurance Company, though it is not alleged that said company relied thereon or believed the same; but it is charged that by means of said conduct he induced the beneficiary in said policies to bring suit to recdver the amount of the same, thus using her as his (appellant’s) innocent agent; and thus inducing the prosecution of said suit and the introduction of evidence tending to establish liability of the company, and by these means using the courts and procuring a judgment on said policies, and securing the money on said judgment; and that this, under out statute consummated a swindle, for which appellant was liable criminally.
Appellant moved to quash thé indictment upon various grounds, among others, that it was not alleged in said indictment that the Fidelity Mutual Life Association of Philadelphia believed the representations alleged in said indictment which were made in reference to the death of said Wm. A. Hunter, or that the said Fidelity Mutual Life Insur- . anee Company paid the $24,028.25 upon the faith or in reliance upon the truth of any representations made by the said Hunter. Nor was it alleged in the indictment that representations of any character were made by the defendant or anyone else to the Fidelity Mutual Life Insurance Company, or that said money was paid by said company thereon; and that said indictment showed on its face that said company did not pay said money on the faith of any representations made by appellant or anyone on his behalf, but that said money was paid over the protest of said company, and on a judgment recovered against it in the United States Circuit Court for the Northern District of Texas, at Dallas. The court overruled the exceptions, and on the trial summed up the elements of fraud as charged in the indictment, and instructed the jury, if they believed the same, to find appellant guilty of the offense charged. The question thus presented is a new one in this State, though cases somewhat similar in character have occurred in other jurisdictions. Evidently the indictment here presented was drawn under Musgrave v. State, 133 Ind., 297. However, that was a case of conspiracy to defraud an insurance company by concocting circumstances indicating death on the part of the two persons therein named. There was no consummation of the plot, and in that case there was also the alleged use of an innocent agent. That case was brought under the Indiana statute, defining a conspiracy to commit a swindle, and unlike the case at bar there was no judgment. Said case might be good authority on a charge of conspiracy to swindle, not involving the judgment of a court. See articles 953 to 957, inclusive, Penal Code. We are also referred to State v. Fraker, 49 S. W. Rep., 1017. This is a Missouri case, and the indictment follows along the lines pursued here. In that case there appears to have been a consent judgment, which, however, was not collected before the apprehension of Fraker. An examination of that case not only fails to support the State’s contention here, but is authority against it. The learned judge who wrote that opinion concluded it with the observation, “That the difficulties with which the pleader had to contend in this instance seem to be insurmountable, no matter how the facts may be stated.” The only ease which has been brought to our attention which is in point is, Commonwealth v. Harkins, 128 Mass., 79. There it was distinctly held by a majority of the court that a prosecution for swindling could not be predicated on a judgment rendered by a court of competent jurisdiction. While this was by a divided court, the majority opinion seems to be in accord with sound legal principle.
In our State all offenses are statutory. These are required to be defined; and if the definition is not sufficient, the offense fails and there
can be no enforcement. “ ‘Swindling’ is the acquisition of any personal or movable property, money or instrument of writing conveying or securing a valuable right by means of some false or deceitful pretense or device, or fraudulent representation with intent to appropriate the same to the use of the party so acquiring, or of destroying or impairing the rights of the party justly entitled to the same.” Art. 943, Penal Code. In giving effect to this statute, while it has been held that the pretense, or representations, may be of acts or conduct, as well as by words (Blum v. State, 20 Texas Crim. App., 578; Brown v. State, 37 Texas Crim. Rep., 104), still these pretenses must be made to some one, and must be so declared in the indictment. Colbert v. State, 1 Texas Crim. App., 314. And it must be alleged that the pretenses so made were relied upon and the party was induced to part with the ownership of the property on the faith of such representations. These must be shown to be false; and that the party knew they were false when he made them. For authorities see White’s Ann. P. C., sees. 1639, subdiv. 4; McPearson v. State, 10 Texas Ct. Rep., 84; Thorp v. State, 40 Texas Crim. Rep., 347. And a connection must be shown between the alleged false representations and the obtention of the property. Hurst v. State, 39 Texas Crim. Rep., 196; 12 Am. and Eng. Enc. of Law, p. 819; Bishop
Crim.
Law, see. 159, 5 ed. Applying the doctrine announced by our authorities, and which we believe is almost universally followed, we do not find in the indictment any allegation as to whom the false pretenses (being acts and conduct of appellant) were made, unless it be conceded that by inference they were made to the Fidlity Mutual Life Association. However, if it be assumed that appellant’s conduct was equivalent to making representations to said life insurance company, this did not have the desired effect, as the insurance company refused to believe appellant was dead, or to rely thereon. But it is said that the representations were made to the court; that is, appellant caused them to be made, through the innocent agency of Mrs. Mettler, who set the machinery of the court in motion, and his acts were intended for that purpose. So that it follows, if the State has any • case against appellant, it must be be.eause he set in motion a fraud which deceived the court. It must be borne in mind here that no fact is disclosed in the record which connects appellant with this case or the prosecution of this claim, save and except his mysterious disappearance at the Pecos River, and the circumstances connected therewith. Therefore, in order to convict appellant, the State is compelled to rely on the circumstances connected with that disappearance. Eliminating the judgment, the ease stated would be this. A insures his life in favor of B, and subsequently A disappears under mysterious sireumstances, which suggest he had in view some fraudulent purpose. After this B, the beneficiary, without any connivance on the part of A, believing A is dead, so represents to the insurance company, who, on the faith of such representations, pays the policy. It afterwards transpires that A was
not dead, but
bad
absconded. Now, if it be conceded that A feigned the circumstances of death and absconded in order
to
enable B to collect the policy, or the circumstances showed this, then a prosecution for swindling might be maintained. But in the absence of any facts or circumstances going to show some connivance on the part of A in the collection of the policy, a conviction could not be upheld. We do not deem it necessary here to discuss the record,, or determine whether or not, if the case were presented as above, enough is shown to sustain this conviction. Here we have another factor, or rather two factors: the first, the refusal of the insurance company to believe that appellant was dead; and second, the introduction of another agency to compel the payment of the policy. If it could be determined that the court was the agent of the insurance company serving its interest, then it might follow that fraudulent representations made to it would bind the insurance' company. It will be observed there is no consent judgment here, and if the court can be considered as the agent of the insurance company at all, it became so over its protest, and was its involuntary agent, because the company refused to believe in the death of the insured, which is the gravamen of the alleged swindle. If the principle of agency here contended for shall come to be the law, it may as a result deter much litigation, as an honest man with a good cause might hesitate to invoke the action of a court; for although successful, he might find himself imperiled in the toils of a criminal prosecution. The doctrine contended for would in a measure destroy the integrity of judgments in civil cases, when they could thus be attacked by a criminal prosecution. We do not believe the doctrine of agency here contended for accords with sound legal principle. The courts of the country are not to be thus involved in private prosecutions, nor can the integrity of their judgments be jeopardized by characterizing them as a part of the machinery in the consummation of a fraud. The courts of the country are independent agencies of government; and their judgments are presumed to speak the truth; nor will it be permitted that their judgments be assailed as the instruments of fraud, or as an agency in the perpetration of a swindle. In the very nature of things they must stand aloof from any connection with the parties as their agent, save as a function of government, as the final arbiter between all parties, for the determination of the right and the truth as between them. We hold that whenever their power is invoked, between the attempt and the execution of the purpose to swindle, it is the intervention of an independent moral agent, which cuts off any criminal prosecution assumed to be consummated in the judgment. 1 Wharton Crim. Law, sees. 177, 178. Commonwealth v. Harkins, 128 Mass., 79. We quote from that ease as follows : “To hold the statute which punishes criminally the obtaining of property by false pretenses extends to the case of a payment made by a judgment debtor in satisfaction of a judgment, when the evidence only shows that the false pretenses were used to obtain a judgment, as one
step towards obtaining the money, would practically make all civil actions for the recovery of damages liable in such cases to revision in the criminal courts, and subject the judgment creditor to a prosecution criminally for collecting a valid judgment, whether the same was paid in money or satisfied by levying on property.”
Entertaining these views, we believe the court erred in refusing to quash the indictment. The judgment is accordingly reversed and the prosecution ordered dismissed.
Reversed and dismissed.