Hilliard v. State

37 Tex. 358

• Court: Texas Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinion

Walker, J.

The court erred in excluding the plea of former acquittal from the jury, and also in the first clause of the charge.

A defendant, if convicted at all, must be convicted of the offense charged in the indictment. This charge instructed the jury to find the defendant guilty, if, at any time within six months prior to the finding of the indictment, he did have and carry, on or about his person, a pistol.

It is easy to conceive that the defendant might have had upon his person a pistol within the time specified, and have yet committed no breach of the law.

The court should explain to the jury all the ingredients of an act which makes it an offense against the law; otherwise an innocent man might be found guilty, and indeed could have no defense against acts innocent in themselves.

The Legislature undoubtedly intended to give justices jurisdiction of the offense charged in this indictment. (Vol. II., Paschal’s Digest, 6517.)

The judgment of the District Court is reversed and the cause dismissed.

Reversed and dismissed.