Charlie Atkinson v. The State, 19 Tex. Ct. App. 462

Hurt, Judge. This is a conviction for the theft of a two-year-old bull, the property of some person to the grand jurors unknown. Upon the trial it appears that the bull belonged to the estate of John Harris, and that the mark and brand upon the bull were recorded in the county of the prosecution. No witness was before the grand jury, the bill being found upon the written evidence taken before the examining court. Two of the witnesses who were before the examining court, though not informed at that time, learned, however, before the grand jury met, that the bull belonged to Harris.

This information was obtained from the records. It is a well settled rule tha,t when the grand jury could have ascertained the name of the owner of stolen property by the use of reasonable diligence, it is their duty to do so, and, failing in this duty, a new trial should be granted. (Brewer v. The State, 18 Texas Ct. App., 456; Williamson v. The State, 13 Texas Ct. App., 514; Jorasco v. The State, 6 Texas Ct.

App., 238.) In this casé, though the means were quite accessible, there was not the slightest effort made by the grand jury to discover the -owner, and hence, this being developed on the trial, a new trial should have been granted. While we do not intend to intimate that an indictment presented ■without having the witnesses before the grand jury \tould be bad, or that this matter could be inquired into by the party indicted in any mariner, still we desire to condemn such practice. Because a new trial should have been granted upon the ground above stated, the judgment is reversed and the cause remanded.

Reversed and remanded. '■ [Opinion .delivered November 28, 1885.]