¶1On Motion for Rehearing.
¶2Appellant predicates his motion in part on a renewed claim that our original opinion is erroneous in some particulars. Believing the questions discussed have been properly decided, we see no reason to again review them. The burdens resting upon this court are already so demanding on the time at our disposal that we deem it impractical to write at length on rehearings where views already expressed are adhered to.
¶3Appellant calls attention to the fact that one ground upon which the indictment was attacked by motion in arrest of judgment was not adverted to in our original opinion. The point made is that the averments of the indictment disclose that Underwood, by fraudulent representations of appellant, was induced to become an “accommodation indorser” on the note for $880 which was falsely represented to have been made -by appellant and his wife payable to the Motor Supply Corporation in payment for an automobile; that, as an “accommodation indorser,” Underwood incurred no liability as long as the note was in the hands of the payee, but under the express provision of the civil statute' (Rev. St. 1925, art. 5936, § 64, subd. 3) he only became liable to subsequent parties; by reason of this appellant claims that the indictment is fatally defective in failing to allege that the note was transferred to a third party after Underwood’s indorsement thereon was obtained.
¶4The contention seemed plausible, and challenged our attention, but after mature con- • sideration we have concluded it cannot be sustained. If the note which Underwood was *679induced to indorse represented a bona fide transaction, ,'appellant’s position might be stronger, although we regard its soundness even under 'those circumstances as open to grave doubt. As was said by Judge Henderson, writing in Speer v. State, 50 Tex. Cr. R. 273, 97 S. W. 469, 470: “The main question in a ease of this character is the intent to defraud. Of course the intent to appropriate to some one’s use is incidental, and the statute uses that language. But, after the intent to defraud is once established, the law is not particular in ascertaining to whom the benefit is to accrue. Nor does it split hairs in order to determine that fact.” The “intent to appropriate” is not indispensable; the fraud may consist in “impairing the right of the party” upon whom the fraud is practiced. (See the definition of “swindling,” article 1545, Pen. Code 1925.) In determining the sufficiency of the indictment, or in appraising the facts relied upon to sustain it, article 1548, Ben. Code 1925, may not be overlooked. It reads as follows: “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 person intended to be defrauded, if it is sufficiently apparent that there was a wilful design to receive benefit or cause an "injury.”
¶5The indictment avers that appellant advised Underwood, if he would indorse the note in question, that appellant “could and would negotiate same.” After the indorsement was placed on the note it immediately became possible for an injury to result to Underwood, and the averments of the indictment taken altogether make it sufficiently apparent that there was a willful design on the part of appellant “to receive benefit (to himself) or cause an injury” to Underwood by reason of said indorsement. In Baxter v. State, 51 Tex. Cr. R. 576, 105 S. W. 195, accused, with another, executed a note to a bank, and made false representations by which they received from the bank $1,000. It was insisted that the indictment was defective for failing to allege that the note had not been paid. This court said: “This is not a necessary allegation in an indictment for swindling since article 946 [now article 1548] provides that it is not necessary in order to constitute the offense that any benefit accrue to the party guilty of the fraud or deceit or injury to the person intended to be defrauded.”
¶6In the present indictment the intent to injure and defraud is alleged, and sufficient averments are incorporated to show that Underwood was induced to do a thing which put it within the power of appellant to consummate the injury. Proof of the fact that appellant did transfer the note to a third party simply evidenced the continuance of a fraudulent intent, and the consummation of such intent which is averred to have been entertained by appellant when the deceit was practiced. In Corpus Juris, vol. 25, p. 606, is found the following general statement applicable here: “The property obtained (in the present case the endorsement of the note) must be such that the deprivation of it may, by possibility at least, be a cause of loss to the prosecutor.” The averments of the present indictment are in our opinion sufficient.
¶7The motion for rehearing is overruled.
¶8On Second Motion for Rehearing.
¶9In a second motion for rehearing, appellant, through his counsel, advances the contention (not heretofore discussed) that there was no averment in the indictment of the value of the indorsement of the note, and that in the absence of such averment there was no basis for the jury to determine whether the offense was a felony or a misdemeanor. In the indictment it is averred as follows: “… The said P. R. Underwood relying upon said false and fraudulent pretenses and representations and believing them to be true, was induced to and did endorse and place his signature upon said above described note, said note above described being an instrument of writing, conveying and securing a valuable right, of the value of $880.20, with intent on the part of him, the said Otis O. Pleenor, and with the willful design to cause an injury to him, the said P. R. Underwood, and to destroy and impair the right of the said P. R. Underwood, as endorser on said note.”
¶10The statement of the value of the note as above quoted and the connection in which it appears are deemed sufficient averments of the value of the indorsement. An inquiry into the solvency or insolvency of Underwood would not be a pertinent inquiry. Neither the benefit to the accused nor injury to Underwood was an essential element of the transaction. Pen. Code 1925, art. 1548. Evidence, however, was received upon the trial showing that the transfer of the note was contemplated at the time of the indorsement and consummated before the maturity of the note, which was subsequently paid by Underwood. The facts before the court in the case of Luce v. State, 88 Tex. Cr. R. 46, 224 S. W. 1095, distinguish it from the present appeal. While the Luce Case and the authorities there cited are precedents for the proposition that an indictment for swindling based upon the acquisition of a written instrument should embrace an averment of the value of the instrument, the facts in that case are not wholly analogous to the present one. In the instant case there is an averment in the indictment of the value of the note in question. As the averment appears in the indictment, it is deemed susceptible of the construction that by the value stated is meant the value after indorsement. It was the note after the indorsement that the appellant received. The note with the indorsement inured to the benefit of the accused, and the delivery of the *680note with the indorsement thereon to the accused caused the injury to Underwood. Prom 'the averment of the indictment it is manifest that the value of the note before indorsement was minimized by the averred fact that the represented lien securing the note did not exist. The specific matter now presented, namely, that there was no averment in terms that the value ascribed to the note was> perforce the indorsement, was not addressed to the court until after verdict. The jury, in the court’s charge, were told that to warrant the conviction of a felony the false representation must have been with intent to acquire by the accused a benefit amounting to $50 or more, or to injure Underwood to that extent. The acquiescence in the charge so framed gives substance to the idea that the value of $880.20 placed upon the note by the evidence was a statement of the value after the indorsement, as construed at the time of the trial.
¶11The following quotation from the ease of Holton v. State, 109 Ga. 131, 34 S. E. 358, 360, is of interest as bearing upon the principle involved in the present inquiry: “In the case of State v. Thatcher, [6 Vroom] 35 N. J. Raw, 445, Van Syckel, J., -in discussing what property must be obtained in order to constitute the offense, said: ‘Is the maker’s own note or contract of suretyship a valuable thing? The signing of the name was an act; the name, when signed, was a thing. Was it a thing of any value? While it remained locked up in his secretary, it was of no value to the maker; but, eo instanti it passed out of his hands by the fraud, it became impressed with the qualities of commercial paper, and possessed to him the value which it might cost to redeem it from a bona fide holder. … Can it therefore Be said that a paper which imposed such a risk was of no value to the maker? Its value to him consisted, not in what it would put in his pocket if he retained it, but in what might be taken out of his purse by the delivery of it to the defendant.’ ”
¶12As the record appears here, the opinion is held and expressed that the trial court was warranted in overruling the appellant’s motion in arrest of judgment.
¶13Eor the reasons stated, the second motion for rehearing is denied.