George Washington v. The State, 41 Tex. 583

Reeves, Associate Justice. There being no statement of facts in the record, the charge of the court and the verdiet of the jury, as being contrary to the evidence as alleged in the motion for a new trial, cannot be considered. The objection presented by the motion for a new trial, that one of the jurors was incompetent to sit upon the jury, and that the defendant did not have an impartial trial, is not presented in a proper form to be revised.

The judgment sets out the names of the jurors, from which it appears that Whitley was a member of the jury; but there is no evidence in the record to support the allegation of his in competency. The truth of the charge rests on the motion; and though it is sworn to, the action of the court will not be reviewed in the absence of a statement of the facts on which the court may have ruled in refusing the motion on that ground.

The motion in arrest of the judgment is based in part on the same grounds of the motion for a new trial, with the further ground that the indictment, or, as it is called, the information, was insufficient in not stating who was the owner of the property. There was no exception to the indictment, and the question of its sufficiency to warrant the judgment arises on the motion in arrest. A motion in arrest of judgment, as defined by the code, “is a suggestion to the court on the part of the defendant that judgment cannot be legally rendered upon the verdict against him.” (Article 3140.) And by

article 3143: “A motion in arrest of judgment shall be granted upon any ground which would be good upon exception to an indictment or information for any substantial defect therein.” It might perhaps be contended that this ground is not matter of substance, and, therefore, would not be a ground of exception to the substance of the indictment.

Article 2954 provides that “there is no exception to the substance of an indictment or information except, 1st, ‘ That it does not appear from the face of the same that any offense against the law was committed by the defendant.’ ” The other causes of exception need not be quoted. By

article 2865: “ the certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.” If these articles are considered together, as they must be in construing the code of which they are a part, we think the motion in arrest brings in review the sufficiency of the indictment to support the judgment, and that the indictment is defective if it is subject to the objection made by the motion in arrest. (Slaughter v.

The State, 24 Tex., 410.) The indictment charges “ that the said George Washington did then and there and thereby (to wit, by said false representation and pretense) purchase and acquire of the said Galen Hodges” the property described in the indictment. There is no averment of the ownership of the property. The allegation of an intent to deprive Hodges of the value of the goods is not a sufficient averment that he was the owner.

At most it amounts to nothing more than an inference that he might have been the owner or in some way interested, when the fact, if it be one, should have been stated by direct averment, and not left to be inferred. The indictment must state that the goods are the property of the person intended to be defrauded, or give some excuse for not making the averment, to enable- the defendant to plead a conviction or acquittal on such indictment, in bar to a subsequent indictment for the same transaction. (Rose. Cr. Ev., 475; State v.

Lathrop, 15 Verm., 279.) It is stated by Greenleaf, as a general principle in indictments, “ that the names of the persons injured, and of all others whose existence is legally essential to the charge, must be set forth, if known, and that it is material that they be precisely proved as laid.” (3 Greenl. Ev., § 22.) The example he gives is in respect to goods stolen or intended to be stolen; but it is not restricted to theft.

The rule is general that the name of the legal owner, general oi’ special, of the goods, on1 a charge of theft, and the names of all others who are injured, and whose existence is essential to the charge, if known, must be averred and set forth in the indictment. (Mathews v. The State, 33 Tex., 107; 1 Whart. Free., 528, 529, 530.) A critical examination of the indictment might show a want of certainty in other respects. When it is compared with the precedents, the contrast is apparent.

Whatever may be the difference between the code and the statutes of the other States on the same subject, and how far the precedents referred to would be applicable here, need not now be examined. (Rose. Cr. Ev., 473; Tyler v. The State, 2 Humph., 37; Commonwealth v. Lincoln, 11 Allen) 233 ; The People v. Haynes, 11 Wend., 557.) The indictment has not been excepted to, and it is not intended to discuss or pass upon its sufficiency on these grounds without argument and further examination.

We are of opinion that the indictment was insufficient in not stating who was the owner of the property, and that the motion in arrest of judgment should have been sustained on that ground. The judgment is therefore reversed and the case remanded. Reversed and remanded.