White, Presiding Judge.
“Swindling,” as defined by our statute, is “the acquisition of any personal or movable property, money, or instrument of writing conveying or securing a valúa" ble 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.” (Penal Code, Art. 790.)
It seems to us clear from this definition that the offense may be committed in either of two ways.
1. Where the unlawful acquisition is accomplished by the means named, and the intent is to appropriate the property so acquired to the use of the party so acquiring.
2. Where the unlawful acquisition is accomplished by the means named, with the intent of destroying or impairing the rights of the party justly entitled to the property. This construction is to our minds borne out by Article 793, which reads: “ It is not necessary, in order to constitute the offense of swindling, that any benefit shall accrue to the person guilty of the fraud or deceit, nor that any injury shall result to the persons intended to be defrauded, if it is sufficiently apparent that there was a willful design to receive benefit or cause an injury.” In [437]*437the one case the intent of the party is to benefit himself; in the other to injure the rights of some one else. It is true that the two intents and two modes of accomplishing the crime may combine and occur in the perpetration of a single act. That they should, however, is not necessary to the completeness of either of the two modes.
It follows, then, that the crime may be committed without destroying or impairing the rights of the party justly entitled to the property, and the swindle may be perpetrated in fact upon one who is not even justly entitled to the property. And this is an important distinction between swindling and theft. In the latter crime the two intents must combine, viz., to deprive the0owner of the value of the property, and to appropriate it to the use or benefit of the taker.
Again, with regard to the allegation of ownership of property, the statute is general that “ where one person owns the property and another person has the possession, charge or control of the same, the ownership may be alleged to be in either.” (Code Grim. Proc., Art. 426.) This rule is not confined to any particular offense, but is prescribed for indictments generally where an allegation of ownership is necessary. Under this rule a party who has either the “possession,” “charge,” or “control” of the property has sufficient ownership to sustain a prosecution for an offense involving ownership, where the statute creating the particular offense does not require other evidence of ownership. It has not-done so in “swindling,” and with regard to that offense we hold that the alleged owner need have no right, title or even beneficial interest in the property, so that he has the possession, charge or control thereof.
In the case before us, Jones, the alleged owner, was the book .keeper of Cleveland & Cameron, and had charge of their safe; “had the only key to the safe and the combination of it.” Under such circumstances we think it might well be said that he had the charge and control of the safe, and that the money therein contained was in his charge, control and possession. The court did not err in charging the jury with regard to the possession in the language of Article 426, above quoted; nor is there a variance between the allegation and proof as to ownership.
A bill of exceptions was reserved to the action of the court in allowing, over objections of defendant, the draft which was read in evidence to the jury. Several grounds of objection were [438]*438urged to this testimony. One was for variance because an endorsement appeared on the note or draft offered in evidence, which was not set out as part of the draft in the indictment. We see no reason why the same rule which obtains in forgery should not hold in swindling, where the offense was committed by means of a false draft or note. In Labbaite v. The State, 6 Texas Court of Appeals, 257, the objection was that the endorsement on the note offered was not set out in the indictment, and it was held, upon the strength of numerous authorities which are cited in the opinion, “that the endorsement was but an extrinsic and irrelevant writing, creating no variance, and that the evidence was properly admitted.” (See, as an additional authority, Miller v. The People, 52 N. Y., 304.)
In connection with the note, the prosecution was also permitted to read in evidence the notarial act of protest of the draft, made by James P. Lowe, notary public in the city of Chicago, county of Cook, State of Illinois. Three objections are urged:
“ 1. Because the certificate of protest of a foreign notary public is not recognized by the laws of Texas.
“ 2. Because by such evidence the State proposed to prove that defendant was not the agent of Steele & Price; and
“ 3. Because the admission of such testimony, for such a purpose, was an evasion of the constitutional right of defendant to be confronted with the witnesses against him.”
It is provided in our Code of Criminal Procedure that (Article 725) “The rules of evidence known to the common law of England, both in civil and criminal cases, shall govern in the trial of criminal actions in this State, except where they are in conflict with the provisions of this Code or of some statute of this State.” And again (Article 72G): “The rules of evidence prescribed by the statute law of this State in civil suits shall, so far as applicable, govern also in, criminal actions when not in conflict with the provisions of this Code or of the Penal Code.” We have no provision of either of these Codes upon the subject under discussion; consequently we must revert to the civil statutes for such rules as they may prescribe. By article 2254 of the Revised Statutes, it is expressly provided that, “all declations and protests made, and acknowledgments taken, by notaries public, and certified copies of their records and official papers, shall be received as evidence of the facts therein stated, in all the courts of this State. ”
For the sake of the argument it may be admitted that there [439]*439was no rule of evidence known to the common law of England which would render this certificate admissible as evidence under Article 725, supra. (1 Whart. Ev., 2 Ed., sec. 123.) If admissible at all, we think authority for its admission must be derived from our own statutes. (Article 726, Code Grim. Proc. and Art. 2254, Rev. Stats,) And independently of these statutes it is well settled that “by the law merchant demand, presentment and dishonor of a foreign negotiable bill of exchange (that is one payable without the State) can be proved for the purpose of charging the drawer or endorser only by protest, and no part of these facts can be proved by extrinsic evidence.” (Abbott’s Trial Ev., 425.) Mr. Wharton says, “by the law merchant in respect to foreign negotiable paper * * * the original protests, or duly certified copies when proved by the notarial seal, ave prima facie evidence of demand and protest.” But he says “the protest” cannot “'be stretched to make it evidence of any collateral facts which it does not specifically aver, unless such facts are involved in facts which are averred.” (1 Whart. Ev., sec.
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White, Presiding Judge.
“Swindling,” as defined by our statute, is “the acquisition of any personal or movable property, money, or instrument of writing conveying or securing a valúa" ble 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.” (Penal Code, Art. 790.)
It seems to us clear from this definition that the offense may be committed in either of two ways.
1. Where the unlawful acquisition is accomplished by the means named, and the intent is to appropriate the property so acquired to the use of the party so acquiring.
2. Where the unlawful acquisition is accomplished by the means named, with the intent of destroying or impairing the rights of the party justly entitled to the property. This construction is to our minds borne out by Article 793, which reads: “ It is not necessary, in order to constitute the offense of swindling, that any benefit shall accrue to the person guilty of the fraud or deceit, nor that any injury shall result to the persons intended to be defrauded, if it is sufficiently apparent that there was a willful design to receive benefit or cause an injury.” In [437]*437the one case the intent of the party is to benefit himself; in the other to injure the rights of some one else. It is true that the two intents and two modes of accomplishing the crime may combine and occur in the perpetration of a single act. That they should, however, is not necessary to the completeness of either of the two modes.
It follows, then, that the crime may be committed without destroying or impairing the rights of the party justly entitled to the property, and the swindle may be perpetrated in fact upon one who is not even justly entitled to the property. And this is an important distinction between swindling and theft. In the latter crime the two intents must combine, viz., to deprive the0owner of the value of the property, and to appropriate it to the use or benefit of the taker.
Again, with regard to the allegation of ownership of property, the statute is general that “ where one person owns the property and another person has the possession, charge or control of the same, the ownership may be alleged to be in either.” (Code Grim. Proc., Art. 426.) This rule is not confined to any particular offense, but is prescribed for indictments generally where an allegation of ownership is necessary. Under this rule a party who has either the “possession,” “charge,” or “control” of the property has sufficient ownership to sustain a prosecution for an offense involving ownership, where the statute creating the particular offense does not require other evidence of ownership. It has not-done so in “swindling,” and with regard to that offense we hold that the alleged owner need have no right, title or even beneficial interest in the property, so that he has the possession, charge or control thereof.
In the case before us, Jones, the alleged owner, was the book .keeper of Cleveland & Cameron, and had charge of their safe; “had the only key to the safe and the combination of it.” Under such circumstances we think it might well be said that he had the charge and control of the safe, and that the money therein contained was in his charge, control and possession. The court did not err in charging the jury with regard to the possession in the language of Article 426, above quoted; nor is there a variance between the allegation and proof as to ownership.
A bill of exceptions was reserved to the action of the court in allowing, over objections of defendant, the draft which was read in evidence to the jury. Several grounds of objection were [438]*438urged to this testimony. One was for variance because an endorsement appeared on the note or draft offered in evidence, which was not set out as part of the draft in the indictment. We see no reason why the same rule which obtains in forgery should not hold in swindling, where the offense was committed by means of a false draft or note. In Labbaite v. The State, 6 Texas Court of Appeals, 257, the objection was that the endorsement on the note offered was not set out in the indictment, and it was held, upon the strength of numerous authorities which are cited in the opinion, “that the endorsement was but an extrinsic and irrelevant writing, creating no variance, and that the evidence was properly admitted.” (See, as an additional authority, Miller v. The People, 52 N. Y., 304.)
In connection with the note, the prosecution was also permitted to read in evidence the notarial act of protest of the draft, made by James P. Lowe, notary public in the city of Chicago, county of Cook, State of Illinois. Three objections are urged:
“ 1. Because the certificate of protest of a foreign notary public is not recognized by the laws of Texas.
“ 2. Because by such evidence the State proposed to prove that defendant was not the agent of Steele & Price; and
“ 3. Because the admission of such testimony, for such a purpose, was an evasion of the constitutional right of defendant to be confronted with the witnesses against him.”
It is provided in our Code of Criminal Procedure that (Article 725) “The rules of evidence known to the common law of England, both in civil and criminal cases, shall govern in the trial of criminal actions in this State, except where they are in conflict with the provisions of this Code or of some statute of this State.” And again (Article 72G): “The rules of evidence prescribed by the statute law of this State in civil suits shall, so far as applicable, govern also in, criminal actions when not in conflict with the provisions of this Code or of the Penal Code.” We have no provision of either of these Codes upon the subject under discussion; consequently we must revert to the civil statutes for such rules as they may prescribe. By article 2254 of the Revised Statutes, it is expressly provided that, “all declations and protests made, and acknowledgments taken, by notaries public, and certified copies of their records and official papers, shall be received as evidence of the facts therein stated, in all the courts of this State. ”
For the sake of the argument it may be admitted that there [439]*439was no rule of evidence known to the common law of England which would render this certificate admissible as evidence under Article 725, supra. (1 Whart. Ev., 2 Ed., sec. 123.) If admissible at all, we think authority for its admission must be derived from our own statutes. (Article 726, Code Grim. Proc. and Art. 2254, Rev. Stats,) And independently of these statutes it is well settled that “by the law merchant demand, presentment and dishonor of a foreign negotiable bill of exchange (that is one payable without the State) can be proved for the purpose of charging the drawer or endorser only by protest, and no part of these facts can be proved by extrinsic evidence.” (Abbott’s Trial Ev., 425.) Mr. Wharton says, “by the law merchant in respect to foreign negotiable paper * * * the original protests, or duly certified copies when proved by the notarial seal, ave prima facie evidence of demand and protest.” But he says “the protest” cannot “'be stretched to make it evidence of any collateral facts which it does not specifically aver, unless such facts are involved in facts which are averred.” (1 Whart. Ev., sec. 123.) In some of the States, it is true, it has been held that certificates of protests as to presentments of notes for payment out of the State are not admissible as evidence even in civil cases. (Dutch Co. Bank v. Ibbottson, 5 Denio, 110; Schoneman v. Falgley, 7 Pa. St., 433; Coleman v. Smith, 26 Pa. St., 255.) Such, however, is not believed to be the rule in Texas. Our statute certainly makes no distinction between inter-state and foreign notarial acts, and the practice with us is believed to be uniform to give faith and credit to such official acts or certificates made in or outside the State, if they are in conformity with the local law.
We see no reason why the certificate in question, under our statutes and practice, was not admissible in evidence. As to the objection that its admission was in contravention of the constitutional guarantee that the accused must be confronted with the witnesses against him, the better doctrine, now well settled, is “that the rule that the prisoner shall be confronted with the witnesses against him, does not preclude such documentary evidence to establish collateral facts as would be admissible under the rules of common or statutory law.” (Rogers v. The State, 11 Texas Ct. App., 608, and authorities there cited.) In The People v. Jones, the Supreme Court of Michigan says: “We do not think the provision of the Constitution securing to the defendant in a criminal prosecution the right to be con[440]*440fronted with the witnesses against him can apply to the proof of facts in their nature essentially and purely documentary, and which can only be proved by the original, or by a copy officially authenticated in some way, especially when the fact to be proved comes up collaterally.” (24 Mich,, 215.)
Opinion delivered February 20, 1884.
But, whilst we hold that the certificate was properly admissible in evidence, it was simply admissible, and could only “ be received as evidence of the facts therein stated.” The fact that the draft was “protested,” was a circumstance to be weighed by the jury, in connection with the other facts in the case. Nothing more than that it was protested after demand upon and refusal to pay, by Steel & Price, is recited in the certificate. It could not and did not prove that the defendant was not the agent of Steele & Price. It was not even conclusive that they had no funds of defendant in their hands. We can well imagine, as is insisted by counsel, how the jury, without being otherwise instructed, would, and likely did, construe the certificate into proof of both these important facts. Having admitted the evidence, the court should by proper instructions have limited its effect and the extent to which the jury were authorized to consider it as evidence in the case. One of the objections urged to its introduction was, that it was proposed to prove by it that defendant was not, as he had represented, the agent of Steele & Price, and this fact, together with the refused counter-charge upon the same subject, were sufficient, to say the least of it, to call the attention of the court pertinently to the necessity of appropriate instructions upon this point.
Because the court erred in failing to instruct the jury upon this important phase of the case, the judgment is reversed and the cause remanded.
Reversed and remanded.