#### BLAND v. STATE.

No. 20493.

Court of Criminal Appeals of Texas.

June 14, 1939.

On Rehearing June 23, 1939.

*293Mel T. Janes, of Lubbock, for appellant.

Lloyd W. Davidson, State’s Atty., of Austin, for the State.

HAWKINS, Judge.

Conviction is for swindling, punishment being two years in the penitentiary.

The indictment purports to charge the offense of swindling by giving a worthless check for $52.50.

If the indictment as found in the transcript is correctly copied it charges no offense. It charges that appellant by means of said check acquired “certain corporeal personal property.” , In other places in the indictment the property is referred to as “said property” or as “the herein described property.” Nowhere in the indictment before us is the property obtained described, even in the most general terms. The same rule with reference to description of property obtains in indictments for swindling as for theft. The check described in the indictment contains a notation “For typewriter,” but no averment is found that such was "the property delivered to appellant.

The judgment is reversed and prosecution ordered dismissed under the indictment here found.

On Motion for Rehearing.

'KRUEGER, Judge.

At a former day of this term we reversed the judgment in- this cause and ordered the prosecution dismissed, because of the insufficiency of the indictment as the same appeared in the record. Since then the state has filed a motion for a rehearing, accompanied by a supplemental transcript, properly certified as required by law, and containing a copy of the- 'original indictment which appears to be sufficient to charge the offense. The clerk óf the trial court made an affidavit which is attached to the state’s motion, in which he states that in preparing the original transcript he inadvertently omitted from the indictment a description of the property obtained by appellant by means of a worthless check. The record having been perfected, the,motion for a rehearing is granted, the case is reinstated, and will now be disposed of on its merits.

There are no bills of exceptions or objections to the court’s charge. Hence the only question to be determined is the sufficiency of the evidence to sustain the conviction.

The record shows that on the 7th day of January, 1939, between the hours of two and three p. m., appellant appeared at the Hester Office Supply Company in Lubbock, Texas, with a view of buying a typewriter. After inspecting several models, he purchased a Royal Portable, Model A, De Luxe Typewriter, bearing the serial" number A. 779290. He told Miss Hester, the saleslady, that his wife was a school teacher and that they lived at Goodman in Bailey County, Texas. In payment for the typewriter, he gave a check on the. First National Bank of Littlefield, Texas in the sum of $52.50, to which he signed the name of “J. T. Elmore.” The saleslady noted the serial number of the typewriter in the lower left hand corner of the check. . This check was sent through the usual channels to the bank on which it was drawn, but was returned, since no one by the name of J. T. Elmore had an account with-said bank. The .typewriter was subsequently found in the possession of Buey’s Implement Company in Stamford, Texas. It bore the same serial number which' had been placed on the check. Bernard Buey testified that he obtained the typewriter from the appellant, C. B. Bland. Appellant did not testify, but relied upon an alibi which he supported by a number óf witnesses.

From the foregoing, it will be noted that an issue of fact was raised, which the jury decided adversely to appellant’s contention, and we would not be justified in disturbing their verdict. Especially is this true since the uncontroverted evidence shows that soon after the 7th day of January, appellant sold to the . Buey Implement Company the same kind of a type-*294’ivriter, bearing the 'same serial number as the one which had been purchased with a worthless check' 'from the Hester Office Supply Company. ''

' The evidence being sufficient to sustain appellant’s' conviction and no other question appearing-in the record, the judgment of the trial court is affirmed.

PER CURIAM.

The foregoing opinion of the Commission'of Appeals'has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.