King Fisher v. The State, 33 Tex. 792

Ogden, J. The defendant was indicted for the theft from the store bouse of H. Greenly, on the nineteenth day of June, 1870, of a quantity of tobacco, candy, a knife and a pair of pants. On the trial the district attorney offered to prove that defendant stole a portion of the articles on the nineteenth of June and the balance on the twelfth of the same month; to which evidence counsel for the defendant objected, and moved the court to confine the evidence to one date and to one offense.

The objection was overruled by the court, and the district attorney was permitted to prove, or attempt to prove, two distinct offenses committed on two distinct days. The court charged the jury that “ the defendant cannot be'convicted of two offenses committed on different days, when but one offense is charged in the indictment.” ' And under this charge the jury found a general verdict of guilty. We think there was error in the ruling of the court on the admission of testimony to prove two' distinct felonies.

The indictment charged but one offense, and therefore the prosecution should have been confined to the proof of one offense. It was not necessary to prove the offense as charged, provided the offense is not barred, in regard to the time; or to the articles stolen, provided that no proof could have been received as to the theft of any

article not charged in the indictment. Eut we think it would be in contravention of the first principles of law and the administration of justice to permit the State to indict a party, for one distinct offense and on the trial to prove several in order to secure conviction, or to unite several distinct offenses in the same indictment for the same purpose. We think the correct rule is laid down in Wharton’s American Criminal law,

section 416, which says: ti In cases of felony, where two or more distinct offenses are contained in the same indictment, it may be quashed, or the prosecutor he compelled to elect on which charge he will proceed. And the same doctrine is held in Roseoe’s Criminal Evidence, page 281, and in many cases there cited. This, we believe, to be the true rule and the one which has been uniform in this State.

It is true that the district attorney may not always be in possession of the necessary information to enable him always to know that he is following this rule, when drafting an indictment; hut when two or more offenses are charged in one indictment it will soon he discovered on the trial, and when discovered then is the time to abandon the prosecution, excepting as to one offense.

It might, and most certainly would, work a great injustice to a defendant if, when upon trial for one offense, the State should he permitted to prove or attempt to prove several other offenses, and thereby prejudice the minds of the jury. The ruling of the court on the admission of evidence and its charge to the jury were in conflict, as the one admitted evidence which the other would exclude, hut not until it may have prejudiced the minds of the jury to the great damage of the defendant. The defendant was convicted of a felony, hut of what particular offense it is impossible to tell.

It may have been for the alleged theft of the nineteenth of June, .or it may have been for that of the twelfth of June; or, which is more probable, the jury may have taken both charges into an account, and have considered that, one or the other -was not sufficiently made out to warrant a conviction, hut that both together convinced them of the guilt of the defendant; and in either case we think the verdict incorrect-, and a new trial should have been granted. The judgment is reversed and the cause is remanded. Keversed and remanded.