Dick Long v. The State, 1 Tex. Ct. App. 466

Winkler, J. The appellant was tried and convicted in the district court of Falls county for the theft of three beef steers, alleged to belong to different persons set out in. the indictment, and his punishment affixed at two years’1 confinement in the state penitentiary. A motion for new trial was made and overruled, and the accused has taken this appeal. Several grounds are set out in the motion for new trial; quite a number of bills of exception are embodied in the record, and twenty-one errors are assigned, upon which it is sought to reverse the judgment rendered in the court below.

It will not be necessary for this court, in the view we have taken of the case as presented by the record, to discuss all the numerous questions presented, but only those matters which enter into our opinion, and such as we deem important with reference to another trial.

The first matter inviting attention is an objection raised in the court below to the sufficiency of the indictment upon which the accused was tried and convicted, which is presented as follows: “Now comes the defendant and moves the court to annul and set aside the indictment in this cause, because the indictment does not show that it was presented in any court having jurisdiction of the offense.” The portion of the indictment to which the objection applies is set out in the record as follows: “ The state of Texas, Falls county. In the district court of Falls county, March term, A. D. 1873.

In the name and by the authority of the state of Texas, the grand jurors, good and lawful men of the state of Texas and county of Falls, duly tried on oath by the district judge touching their legal qualifications, duly elected, impaneled, sworn, and charged to inquire into and true presentments make of all offenses against the penal laws -of said state, committed within the county aforesaid, upon their oath, in the district of said county, in open court, present that Dick Long, late of said county,” etc. The requisites of an indictment are set out in

Article 395 of the Code of Criminal Procedure. Pase. Dig., Art. 2863. The 2d subdivision of the

Article lays down the rule by which the objection here raised must be tested, as follows: “ It must appear therefrom (from the indictment) that the same (the indictment) was presented in a court having jurisdiction of the offense set forth” (in the indictment). This is the evident meaning of the clause in the Code referred to.

The exact language is as follows, to wit: “It must appear therefrom that the same was presented in a court having jurisdiction of the offense set forth.” The demand of the law is that the indictment must be complete in and of itself, bearing upon its face all the requisites named in the statute.

The insertion of the word court between the words in the district and the words of said county, in that part of the sentence set out above which reads “ in the district of said county,” which refers to the court in which the indictment is by law required to be presented, would obviate the difficulty and render the sentence complete. Without it, it is defective and does not come up to the requirements of the law. But our inquiries must not stop here. This is but a formal objection, and must be met by the party accused at the proper time ; otherwise, his objection would not be heard.

The mode by which the party can avail himself of a defect of form in an indictment is laid down in

Article 482 of the Code of Criminal Procedure (Pasc. Dig., Art. 2949)— that is, by a motion to set aside the indictment. The action taken by the defendant in order to test the sufficiency of the indictment seems to have been regular, and at the proper time, and in the manner indicated, and before the trial.

The objection, or motion to quash the indictment, was overruled by the court, and the counsel for the accused took a bill of exceptions to the ruling of the court, made it a ground in the motion for new trial, and has assigned it as error, thus following it up in such a manner as to require it to be reviewed by this court. This defect, going as it does only to the form of the indictment, and having been pointed out in time, could have been cured by an amendment in the court below. Pasc. Dig., Art. 2977.

If the party had neglected to take the exception for insufficiency of form only, in the court below, he would not on such exception be heard in this court for the first time. Rose v. The State, decided by this court at the present term, ante p. 400. Our supreme court, in the case of Matthews v. The State, 44 Texas, 376, had under consideration an objection to an indictment similar to the one before us here.

In that case the able jurist and critical criminal pleader says: “The words ‘ district court’ are not contained in the indictment, which is the only court that has jurisdiction of the offense of theft as charged.

Now, as the whole of this proceeding was had in the district court of the county of Harrison, as fully appears from other parts of the transcript, and as that court as well as this can know, as matter of judicial cognizance, that that court had jurisdiction to hear and determine this case, it might be thought not to be essential for it to appear in the indictment itself that it was found and presented in a court having jurisdiction of the offense charged.

But the legislature of this state, in regulating the form and manner of proceeding in trying indictments for offenses with which they are charged, have thought proper to prescribe the requisites of an indictment, the second of which is : ‘It must appear, therefore, that the same was presented in a court having jurisdiction of the offense set forth’— that is, that the fact that it was presented in a court having jurisdiction of the offense must be made to appear from words used in the indictment itself, and not be left-to be gathered by expressions in, or inference from, other parts of the record, or to be known ex officio by the courts-of the state.” This

interpretation of the statute in question must commend itself to every legal mind. This case of Matthews v. The State is so nearly like the one at bar that the reasoning of the court in the one applies with equal force to the other, and the decision of the one must be decisive of the other. [The case here referred to is also-authority on the subject of amending an indictment; and see, also, Bosshard v.

The State, 25 Texas (Supp.), 207.] We, therefore, hold that the court below erred in overruling the motion of the defendant to quash the indictment for the reason set out in his motion; and for this error the judgment must be reversed and the cause remanded. Several of the charges given to the jury on the trial below have been objected to, and the objections taken by bill of exceptions. Among others is the following : “ 6th.

If you believe from the evidence the defendant confessed toHeaton he was guilty, you may find him guilty as charged in the indictment; ” and, also, the following: “ That the driving of stock from its accustomed range is a continuous-act, and if the jury believe from the evidence that these cattle were driven by men in the employ of Dick Long from Falls county, and were received by him in Eobertson county, and he continued to drive them, and knew at the time they were not his cattle, they will find him guilty.” The first of the above charges is subject to this criticism: that it is a charge on the weight of evidence.

The rules for admitting evidence of confessions made by the party against whom they are expected to be used fare to be found in Paschal’s Digest, Articles 3126 and 3127, and in adjudicated cases arising under these statutes. It can hardly be doubted that this charge had some influence on the jury in malting up their minds as to the guilt or innocence of the-accused. To our minds there was error in the charge in, the form it was given.

The other charge alluded to is objectionable in this respect,, if in no other: that it requires the jury to convict on the-bare fact of receiving the cattle in Robertson county, and knowing at the time they were not his, without permitting-any inquiry into the motives with which the driving was-continued.

For anything contained in this charge, if the proof had shown that the accused was driving the cattle to the pen or pasture of the true owner, or by the direction of the owner,, or any other circumstance going to show an entire absence of guilty intention to deprive the owner of the animals or their value, and to convert them to the driver’s own use still, if the jury believed that he continued to drive them, no-matter where, or for what purpose or intention, the jury were required to convict him on the only other fact—that he-knew that they were not his.

And it is questionable, to-say the least, whether, under the charge, the evidence would have warranted a conviction of theft in Falls county on the-rule of law that the original taking must have been felonious to justify a conviction of theft. Billard v. The State, 30 Texas, 373. This charge was clearly erroneous. We have deemed it-proper, in order to avoid similar errors on a subsequent trial, to point out some of the objections to which the charge of the court is obnoxious.

For a like reason we-refer to the error pointed out by the 9th bill of exceptions, which was error in refusing to allow as evidence the bill of sale from Jasper Grill, agent of Lane & Pierce, to defendant. The objections were erroneously sustained. The rule of" law is stated by our supreme court in Wills v. The State, 40 Texas, 76, as follows : “ Whatever may be the correct

interpretation of the= .-statute on the trial of the right of property in a civil suit, when a party is charged with theft he may give in evidence the facts and circumstances of his claim, or the authority under which the act was done, as showing his intention, for ■the consideration of the jury. And though it may not prove title or ownership, when the authority was given without right, and when the brand was not recorded ■according to statute, it may be material in rebutting the criminal intent.” The record does not show what plea the accused was tried on. The judgment of the district court of Falls county against the appellant is reversed and the cause remanded. Reversed and remanded.