The indictment upon which the appellant was tried and convicted contains two counts. The first count charges: “That one A. P. Mathews, in the county of Tarrant and State aforesaid, on the 13th day of December, in the year of our Lord one thousand eight hundred and eighty, with force and arms did make an assault upon one R. W. Oashion, and did then and there unlawfully, by means of said assault, and by violence, and by putting said R. W. Oashion in fear of fife and of great bodily injury, take from the possession of said Oashion *283a certain watch and chain then and there belonging to said Cashion, of the value of fifteen dollars, and forty dollars in current paper money of the United States, then and there belonging to said Cashion, and described as follows, to wit: Two ten dollar bills of the value of ten dollars each, and four five dollar bills of the value of five dollars each, which money the grand jurors are unable more fully to describe, with intent then and there on the part of him the said Mathews to appropriate to his, said Mathews’, use.” The second count charges the defendant with the theft of the same property and money set out in the first count, and it is described in the second count just as it is in the first.

On the trial below the jury returned the following verdict: “ We the jury find the defendant guilty of swindling to an amount exceeding twenty-five dollars, and assess his punishment at confinement in the State penitentiary for a period of four years.” Judgment was rendered in conformity to the verdict. The defendant’s motion for a new trial was overruled, and this appeal is prosecuted. The first error assigned raises the question whether the testimony sustains the descriptive averment in the indictment as to the money charged to have been taken by the defendant. It does not appear that any attempt was made on the trial to identify the money taken with that described in the indictment, or that the attention of the solitary witness who testified in the case was called to the money described in the indictment. He seems to speak, as one of the incidents of the transaction, of having but forty dollars, and of pulling it out, and of his companion having bet it, and that it was decided he had lost and the defendant had won, and says it was of the value of forty dollars, that the defendant on persuasion gave him back five dollars, and that the money the defendant kept was of the value of thirty-five dollars; but we fail to see any attempt whatever to identify the money by proof with *284that described in the indictment, further than inferentially that it belonged to the witness. Because of this defect in the proof the money alleged to have been taken cannot enter into or form any part of the basis of the verdict and judgment. No question is raised as to the proof of identity of the watch, but its value being shown to be but fifteen dollars, will not support the verdict; and on this account we are of opinion a new trial should have been granted.

The second error assigned raises a question of the sufficiency of the testimony to support a verdict of guilty of swindling. It is true that, agreeably to the Code of Procedure, it is declared that when a prosecution is for an offense consisting of different degrees the jury may find the defendant not guilty of the higher degree (naming it), but guilty of any degree inferior to that charged in the indictment or information. Code Orim. Proc. art. 713. And among the enumerated offenses which include different degrees we find the following: “Theft, which includes swindling, embezzlement, and all unlawful acquisitions of personal property punishable by the Penal Code.” Code Crim. Proc. art. 714, subdivision 6. From this provision it would seem that agreeably to the intention of the law-makers swindling is an inferior degree of the crime of theft, and that an indictment for theft would support a conviction for swindling. In all cases, however, the proof must sustain the verdict or it ought not to stand. In all cases where the verdict is for a minor degree of a major offense charged in the indictment, the proof should meet the definition of the minor degree when it is specifically defined by law.

For example, an indictment for murder would support a conviction for manslaughter, on proof of manslaughter, and so an indictment for maiming would support a conviction for an assault and battery, on proper proof of that degree of the offense, which is included in the charge of *285maiming. In all these cases the question is, do the proofs show the commission of the degree of the offense of which the party has been found guilty by the jury? And in the present case the question presented for our determination-is, do the proofs sustain the verdict of guilty of swindling, as that specific offense is defined by the Penal Code? This particular offense is well defined in the Penal Code, art. 790, and its punishment is prescribed in art. 796. The punishment was changed by the Revised Code from what it was formerly. (See the former law, Pasch. Dig. art. 2432.) The definition of the offense, however, has undergone no change by the revision; so that former adjudications apply to the law as it now is. By the statute swindling is defined to be the acquisition of 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. Penal Code, art. 790. This article was construed in Johnson v. State, 41 Texas, 65, to require that some false representations as to existing facts or past events should be made, and that mere false promises or false professions of intention, although acted upon, are not sufficient to constitute the offense.

The difficulty in the way of the present conviction is that the testimony does not show that the defendant obtained the money or property of the prosecuting witness by means of any false or deceitful pretense or device, or fraudulent representation, which is requisite to constitute the offense of swindling. To our minds the evidence more nearly approaches robbery or theft than swindling. The testimony does not support the verdict, nor in our opinion did it warrant the charge of the court on swindling.

*286It is urged in argument for the appellant that the indictment is vicious, because it charges robbery in one count and theft in another, and that the prosecution was not required to elect as to which count the State would try upon. The character of offenses charged in the two counts is so similar that the objection for duplicity is not well taken, but aside from this we are of opinion that the record discloses a virtual election to try on the count for theft, and that the defendant had the benefit of an election, and hence has no ground to complain of the indictment. The indictment may comprise as many counts as are necessary to meet the contingencies of the evidence, without necessitating an election. Dill v. State, 1 Texas Ct. App. 278; Weathersby v. State, id.. 643; Dalton v. State, 4 Texas Ct. App. 333; Irving v. State, 8 Texas Ct. App. 46.

Because the testimony does not sustain the descriptive averment in the indictment as to the money charged to have been taken, and because the value of the other property taken is not sufficient to support a verdict of felony, and because the testimony did not warrant either the charge of the court on the subject of swindling or the verdict finding the defendant guilty of swindling, the judgment will be reversed and the case remanded.

Reversed and remanded.