Drye v. State

Court of Appeals of Texas

Drye v. State

14 Tex. Ct. App. 185, 1883 Tex. Crim. App. LEXIS 153

CourtCourt of Appeals of Texas

DecidedMay 9, 1883

DocketNo. 2679

StatusPublished

This text of 14 Tex. Ct. App. 185 (Drye v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Drye v. State, 14 Tex. Ct. App. 185, 1883 Tex. Crim. App. LEXIS 153 (Tex. Ct. App. 1883).

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Opinion

White, Presiding Judge.

In this case the indictment, which purports to'be for murder, charges that “one Clay Drye, on or about the 4th day of the month of December, in the year of our Lord one thousand eight hundred and eighty-two, in said county of Maverick and State of Texas, did with malice aforethought kill and murder C. H. Lund; contrary to the statute and against the peace and dignity of the State.”

This indictment is fatally defective. An indictment for murder “must set forth the means by which the life was extinguished; hence, if it was by a weapon, it must say what the weapon was, or allege it to be unknown to the grand jury. If it describes the killing as done in a way requiring no weapon— for example, by the use of the hands—none other need be mentioned. The particulars of the weapon—as that it was of such a length and breadth—need not be given; to say, for example, that it was ‘a certain wooden stick’ will suffice. And if stones were used their number need not be stated. A‘loaded pistol’will do.’’ (2 Bish. Crim. Proc., 3 ed., sec. 514; The State v. Williams, 36 Texas, 352; Dwyer v. The State, 12 Texas Ct. App., 535; Peterson v. The State, 12 Texas Ct. App., 650.)

The indictment being fatally defective, the judgment is reversed and the prosecution dismissed.

Reversed and dismissed.

Opinion delivered May 9, 1883.

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White, Presiding Judge.

In this case the indictment, which purports to'be for murder, charges that “one Clay Drye, on or about the 4th day of the month of December, in the year of our Lord one thousand eight hundred and eighty-two, in said county of Maverick and State of Texas, did with malice aforethought kill and murder C. H. Lund; contrary to the statute and against the peace and dignity of the State.”

This indictment is fatally defective. An indictment for murder “must set forth the means by which the life was extinguished; hence, if it was by a weapon, it must say what the weapon was, or allege it to be unknown to the grand jury. If it describes the killing as done in a way requiring no weapon— for example, by the use of the hands—none other need be mentioned. The particulars of the weapon—as that it was of such a length and breadth—need not be given; to say, for example, that it was ‘a certain wooden stick’ will suffice. And if stones were used their number need not be stated. A‘loaded pistol’will do.’’ (2 Bish. Crim. Proc., 3 ed., sec. 514; The State v. Williams, 36 Texas, 352; Dwyer v. The State, 12 Texas Ct. App., 535; Peterson v. The State, 12 Texas Ct. App., 650.)

The indictment being fatally defective, the judgment is reversed and the prosecution dismissed.

Reversed and dismissed.

Opinion delivered May 9, 1883.

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14 Tex. Ct. App. 185, 1883 Tex. Crim. App. LEXIS 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drye-v-state-texapp-1883.

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