Bird v. State

Court of Criminal Appeals of Texas

Bird v. State

35 S.W. 382, 37 Tex. Crim. 408, 1896 Tex. Crim. App. LEXIS 246

CourtCourt of Criminal Appeals of Texas

DecidedApril 29, 1896

DocketNO. 847.

StatusPublished

Cited by5 cases

This text of 35 S.W. 382 (Bird v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bird v. State, 35 S.W. 382, 37 Tex. Crim. 408, 1896 Tex. Crim. App. LEXIS 246 (Tex. 1896).

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Opinion

DAVIDSON, Judge.

Appellant was convicted in the court below under the gaming laws, and fined 810, and prosecutes this appeal. A motion was made to quash the indictment in the court below on the ground that it did not conclude with the expression, “against the peace and dignity of the State,” and the original indictment has been sent up with the record to this court for our inspection, in order to determine said question. The contention is that the word “against” is omitted. We have inspected said indictment in this record carefully, and there is no doubt that the word is spelled “ainst.” The letters “ag” being entirely omitted. The Constitution is imperative that the indictment must conclude, ‘^against the peace and dignity of the State.” See, Constitution, Art. 5, § 12. No doubt it was the intention of the pleader to have begun this clause with the proper word “against.” But instead thereof he entirely omitted the two beginning letters that would have spelled said word and uses an entirely different word that is not idem sonans, and has no meaning at all. Can we supply this omission? We think not. We would again call attention to the fact that more care and diligence should be exercised in such matters by the lower courts. A motion was made to quash this indictment, and it does occur to us that when this matter was called to the attention of the court a new indictment or complaint should have been filed, so that the delay and costs of this transaction might have been avoided. The judgment is reversed and the cause dismissed.

Reversed and Dismissed.

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DAVIDSON, Judge.

Appellant was convicted in the court below under the gaming laws, and fined 810, and prosecutes this appeal. A motion was made to quash the indictment in the court below on the ground that it did not conclude with the expression, “against the peace and dignity of the State,” and the original indictment has been sent up with the record to this court for our inspection, in order to determine said question. The contention is that the word “against” is omitted. We have inspected said indictment in this record carefully, and there is no doubt that the word is spelled “ainst.” The letters “ag” being entirely omitted. The Constitution is imperative that the indictment must conclude, ‘^against the peace and dignity of the State.” See, Constitution, Art. 5, § 12. No doubt it was the intention of the pleader to have begun this clause with the proper word “against.” But instead thereof he entirely omitted the two beginning letters that would have spelled said word and uses an entirely different word that is not idem sonans, and has no meaning at all. Can we supply this omission? We think not. We would again call attention to the fact that more care and diligence should be exercised in such matters by the lower courts. A motion was made to quash this indictment, and it does occur to us that when this matter was called to the attention of the court a new indictment or complaint should have been filed, so that the delay and costs of this transaction might have been avoided. The judgment is reversed and the cause dismissed.

Reversed and Dismissed.

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35 S.W. 382, 37 Tex. Crim. 408, 1896 Tex. Crim. App. LEXIS 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bird-v-state-texcrimapp-1896.

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