Loyd v. State

Court of Appeals of Texas

Loyd v. State

3 S.W. 670, 22 Tex. Ct. App. 646, 1887 Tex. Crim. App. LEXIS 7

CourtCourt of Appeals of Texas

DecidedJanuary 12, 1887

DocketNo. 2128

StatusPublished

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This text of 3 S.W. 670 (Loyd 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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Loyd v. State, 3 S.W. 670, 22 Tex. Ct. App. 646, 1887 Tex. Crim. App. LEXIS 7 (Tex. Ct. App. 1887).

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Opinion

Willson, Judge.

This conviction is for removing from the State mortgaged property with the intent to defraud the mortgagee. In the indictment, and also in the mortgage, the property is described as “one chestnut sorrel pony horse, nine years old, and fourteen hands high, and one Studebaker two horse wagon.” This particular description of the property was necessary in the indictment, because it was the particular description of the property mortgaged. Such description can not be regarded and treated as surplusage. It identifies the offense charged, and must be proved, if not as to all, at least as to a portion of the property. (Warrington v. The State, 1 Texas Ct. App., 168; Rangel v. The State, Id., 461; Allen v. The State, 8 Texas Ct. App., 360; Cameron v. The State, 9 Texas Ct. App., 336; Simpson v. The State, 10 Texas Ct. App., 681; Davis v. The State, 13 Texas Ct. App., 215.)

In this case the descriptive averments in the indictment are not met and sustained by the evidence. As to the horse, the evidence is that the one removed from the State by the defendant was a sorrel, not a chestnut sorrel, as described in the indictment and mortgage, and it was further proved that there is a marked difference between the colors of sorrel and chestnut sorrel. As to the wagon, it was not proved that it was a Studebaker, nor even that it was a two horse wagon. These defects in the evidence were called to the attention of the court by a [650]*650special instruction requested by defendant, which was refused, and also in defendant’s motion for a new trial.

Opinion delivered January 12, 1887.

We are of the opinion that the court erred in not instructing the jury as to the effect of a failure on the part of the State to prove the descriptive averments in the indictment, at least as to some portion of the property, and again erred in refusing to grant defendant a new trial, upon the ground that the State had failed to make such proof. Because of these errors the judgment must be reversed and the cause remanded. As to the other matters complained of by defendant, we perceive no error.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

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Willson, Judge.

This conviction is for removing from the State mortgaged property with the intent to defraud the mortgagee. In the indictment, and also in the mortgage, the property is described as “one chestnut sorrel pony horse, nine years old, and fourteen hands high, and one Studebaker two horse wagon.” This particular description of the property was necessary in the indictment, because it was the particular description of the property mortgaged. Such description can not be regarded and treated as surplusage. It identifies the offense charged, and must be proved, if not as to all, at least as to a portion of the property. (Warrington v. The State, 1 Texas Ct. App., 168; Rangel v. The State, Id., 461; Allen v. The State, 8 Texas Ct. App., 360; Cameron v. The State, 9 Texas Ct. App., 336; Simpson v. The State, 10 Texas Ct. App., 681; Davis v. The State, 13 Texas Ct. App., 215.)

In this case the descriptive averments in the indictment are not met and sustained by the evidence. As to the horse, the evidence is that the one removed from the State by the defendant was a sorrel, not a chestnut sorrel, as described in the indictment and mortgage, and it was further proved that there is a marked difference between the colors of sorrel and chestnut sorrel. As to the wagon, it was not proved that it was a Studebaker, nor even that it was a two horse wagon. These defects in the evidence were called to the attention of the court by a [650]*650special instruction requested by defendant, which was refused, and also in defendant’s motion for a new trial.

Opinion delivered January 12, 1887.

We are of the opinion that the court erred in not instructing the jury as to the effect of a failure on the part of the State to prove the descriptive averments in the indictment, at least as to some portion of the property, and again erred in refusing to grant defendant a new trial, upon the ground that the State had failed to make such proof. Because of these errors the judgment must be reversed and the cause remanded. As to the other matters complained of by defendant, we perceive no error.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

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3 S.W. 670, 22 Tex. Ct. App. 646, 1887 Tex. Crim. App. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loyd-v-state-texapp-1887.

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