John Williams v. The State, 13 Tex. Ct. App. 285

Willson, J.

Article 723 of the Penal Code, upon which the indictment in this case is founded, reads as follows: “If any person, by threatening to do some illegal act injurious to the character, person or property of another, shall fraudulently induce the person so threatened to deliver to him any property, with the intent to appropriate the same to his own use, he shall be punished by confinement in the penitentiary not less than two nor more than five years.” To constitute the offense described in the above article, it must appear: 1.

That the accused threatened to do some illegal act injurious to the character, person or property of another, and the indictment should aver the threats, and the illegal act threatened, with reasonable certainty. 2. That, by means of such threat, the accused fraudulently induced the person threatened to deliver to him certain property, • which property should be described in the indictment, as in an indictment for theft, except no value need be alleged. 3. That the accused so obtained the property with the intent to appropriate the same to his own use.

In the case before us, while the indictment is unnecessarily prolix, and not such as we could commend as a model indictment under this statute, still we think it sufficiently alleges all the elements of the offense, and that the court did not err in overruling the exceptions to it, and in overruling the motion in arrest of judgment, based upon the supposed defects in the indictment. We think the court erred in overruling the exceptions of the State to the special pleas of former acquittal and former conviction, filed by the defendant.

The pleas wholly failed to set out or allege the proceedings which resulted in such former acquittal and former conviction. A plea of this nature should consist of two matters: 1. Matter of record, to-wit, the former indictment and acquittal, or conviction. 2. Matters of fact, to-wit, the identity of the person acquitted or convicted, and of the offense of which he was acquitted or convicted. (2 Whart. Pr. and PL, 1150, et seq.; Quitzow v. The State, 1 Texas Ct. App., 47; Pritchford v. The State, 2 Texas Ct.

App., 69.) But, the court having sustained the pleas, and the evidence having entirely failed to support them, we do not think the court erred in refusing to submit to the jury instructions in regard to the plea of former acquittal. It plainly appeared from the evidence that the indictment upon which the defendant had been previously tried and acquitted charged an offense different from the offense charged in this indictment. The former indictment would not have been supported by the same evidence as would support the present one (Boggess v.

The State, 43 Texas, 347); nor could the defendant have been legally convicted upon said indictment under the ruling of this court in a similar case wherein this defendant was appellant. (Williams v. The State, 12 Texas Ct. App., 240.) . It is objected by defendant’s counsel that there is a variance between the name of the party alleged to have been injured, as stated in the indictment and the proof. Calvin Johnson is the name of the alleged injured party as stated in the indictment.

It appears from the evidence that his real name was Alexander Stewart, but that on the day he was deprived of his money by defendant, he had ran away from his father, and to avoid being discovered, had assumed the name of Calvin Johnson, and was known in Troupe, the place where he was deprived of his money, by that name. We think there was no variance. “When a person is known by two or more names, it shall be sufficient to state either name” (Code Crim. Proc., Art. 425), and proof of the name stated in the indictment will be sufficient. Several objections are urged to the charge of the court.

We think none of them are well taken. Considering the general charge given by the court in connection with the special charges given at the request of the defendant, we are of the opinion that the jury were fully and correctly instructed as to the whole law applicable to the facts in evidence, and we think the evidence fully established every material allegation in the indictment. Having discovered no error in the proceedings and judgment in this case, the judgment is affirmed. Affirmed. Opinion delivered November 22, 1882.