Lewellen v. State

18 Tex. 538

• Court: Texas Supreme Court
• Decided: July 1, 1857
• Status: Published

Opinion

Wheeler, J.

The indictment is insufficient in that it does not state the day on which the election was holden. In other respects it does not conform to precedent. If it was intended to charge the defendants with having made a wager together, it would seem it should have been so averred ; if with having jointly made a wager with some other person, it should have been stated with whom; or if with some one to the jurors unkno wn, it should have been so charged. (Precedents of Indts. by Wharton.) The facts constituting the offence ought to be stated with such certainty as to apprise the accused of the particular charge which is preferred against him, in order that he may come prepared to answer to the accusation.

The present is wanting in the requisite certainty. It might and ought to have been more specific in stating the facts constituting the particular violation of the law, which was the ground of the charge. Besides the omission to state the time of holding the election, it does not certainly appear whether it was intended to charge the defendants with having made a wager together, or with some other person ; or whether it was intended to charge them with having jointly or severally violated the law. If the former, the proof does not sustain the charge, and did not warrant the conviction. If the latter, the conviction cannot be maintained, because it is not so charged in the indictment. Several offenders, in some cases, may be included in the same indictment for different offences of the same kind, the word separately being inserted, which makes it several as to each of them ; though, it is said, the Court will in its discretion quash the indictment, if any material inconvenience appear to arise from preferring the charge in that mode. (Whart. Am. Cr. L. 156, Precedents, p. 5, notes.) It seems from the evidence, that the conviction was for a several of-fence. But it is not charged as such in the indictment. We are of opinion that the indictment is insufficient, and that the judgment be reversed and the cause remanded for further pro. ceedings.

Reversed and remanded.