Jester v. State

Court of Appeals of Texas

Jester v. State

9 S.W. 616, 26 Tex. Ct. App. 369, 1888 Tex. Crim. App. LEXIS 199

CourtCourt of Appeals of Texas

DecidedNovember 3, 1888

DocketNo. 2785

StatusPublished

Cited by8 cases

This text of 9 S.W. 616 (Jester 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.

Bluebook

Jester v. State, 9 S.W. 616, 26 Tex. Ct. App. 369, 1888 Tex. Crim. App. LEXIS 199 (Tex. Ct. App. 1888).

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Opinion

Willson, Judge.

It appears from the record that the defendant was tried by a jury of six men. Such trial was not in accordance with law, and the conviction must be set aside. (Const., art. 5, sec. 13; Code Crim. Proc., art. 595; Rich v. The State, 1 Texas Ct. App., 206; Huebner v. The State, 3 Texas Ct. App., 458; Marks v. The State, 10 Texas Ct. App., 334.) This error in the conviction is confessed by the Assistant Attorney General.

In the indictment, as it appears in the record, there is a fatal defect, in so far as it undertakes to charge burglary. It alleges that the defendant “then and there, by force, break and enter a house,” etc., omitting the essential word “did.” If guch [370]*370omission be in tbe original indictment, a conviction for said offense can not be sustained upon it. (Walker v. The State, 9 Texas Ct. App., 177; Moore v. The State, 7 Texas Ct. App., 42.) The indictment, however, is a good one for the offense of theft. The judgment is reversed and the cause is remanded.

Opinion delivered November 3, 1888.

Reversed and remanded,

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Willson, Judge.

It appears from the record that the defendant was tried by a jury of six men. Such trial was not in accordance with law, and the conviction must be set aside. (Const., art. 5, sec. 13; Code Crim. Proc., art. 595; Rich v. The State, 1 Texas Ct. App., 206; Huebner v. The State, 3 Texas Ct. App., 458; Marks v. The State, 10 Texas Ct. App., 334.) This error in the conviction is confessed by the Assistant Attorney General.

In the indictment, as it appears in the record, there is a fatal defect, in so far as it undertakes to charge burglary. It alleges that the defendant “then and there, by force, break and enter a house,” etc., omitting the essential word “did.” If guch [370]*370omission be in tbe original indictment, a conviction for said offense can not be sustained upon it. (Walker v. The State, 9 Texas Ct. App., 177; Moore v. The State, 7 Texas Ct. App., 42.) The indictment, however, is a good one for the offense of theft. The judgment is reversed and the cause is remanded.

Opinion delivered November 3, 1888.

Reversed and remanded,

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9 S.W. 616, 26 Tex. Ct. App. 369, 1888 Tex. Crim. App. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jester-v-state-texapp-1888.

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