Morris v. State

13 Tex. Ct. App. 65, 1882 Tex. Crim. App. LEXIS 188

• Court: Court of Appeals of Texas
• Decided: October 21, 1882
• Docket: No. 1239
• Status: Published

Opinion

White, P. J.

In the lower court no attack was made upon the indictment, either by motion to quash or by motion in arrest of judgment, but its sufficiency to sustain the conviction is now, for the first time, called in question on this appeal.

We think that the proper rule is that where the indictment is fatally defective in matter of substance, a party may avail himself of the defect for the first time on appeal, but not so with regard to matter of form merely. The reason for the rule is found in the constitutional provision, which requires that the accused in all criminal cases shall have the right to demand the nature and cause of the accusation against him. (Bill of Rights, sec. 10; Cox et al. v. The State, 8 Texas Ct. App., 254.)

With regard to matters of form (because the statute provides that they may be amended), in order to entitle a party to avail himself of them, he must show that he has endeavored to have them properly corrected in the court below. Besides, a defect of substance in an indictment is a fundamental error which may be availed of at any time.

In the case before us, which was an assault with intent to rob, it is earnestly and ably insisted that the indictment is fatally defective -in that it fails to allege that the acts complained of were done with intent to appropriate the property intended to be acquired by the felonious assault to his, the assailant’s or defendant’s, own use.

We have been cited to numerous authorities, both of our own and of other courts, which by analogy, it is contended, support the position; but no case has been furnished us directly covering the point involved. The position assumed is that, in an indictment for an assault with intent to rob, it is not only necessary to allege the assault and the intent with which it was committed, but to so particularize the offense intended to be committed as that all the elements and ingredients of robbery should also be charged, as the same are defined by statute, Article 722, Penal Code, as follows: “If any person, by assault, or by violence and putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property, with intent to appropriate the same to his own use, he- shall be punished by confinement in the penitentiary not less than two nor more than ten years.”

It is also provided by statute that “an assault with intent to commit any other offense is constituted by the existence of the facts which bring the offense within the definition of an assault, coupled with an intention to commit such other offense, as of maiming, murder, rape, or robbery.” (Penal Code, Art. 506.)

And we have the further express provision contained in our Code of Criminal Procedure, that, “where a particular intent is a material fact in the description of the offense, it must be stated in the indictment.” (Code Crim. Proc., Art. 423.)

It is to be noted that in the definition of robbery, as we have quoted it above from our Penal Code, one of the elements, and one of the most important elements of the offense, is the intent with which the acts constituting the assault were committed, which, as stated in the language of the statute, is “with the intent to appropriate the same,” to-wit, the property attempted to be fraudulently taken, “to his own use.” Without the intent to appropriate the same to his own use, that the offense of robbery is not complete under the statute is clearly evident. In an indictment for robbery such an allegation would be indispensable to the indictment. But here the party is not charged with robbery, but with an assault with intent to rob, and the intent, so far as concerns the offense with which he is sought to be charged, is fully stated, to-wit, to rob.

We hold that the proper construction of Article 506 of the Penal Code, above quoted, is that it is only necessary, in charging an assault with intent to commit some other offense, to allege such matters as bring the offense within the definition of an assault, coupled with an intention to commit such other offense, naming it, without giving the constituent elements of the offense intended to be committed; and this, we think, is the clear import of the previous decisions of our courts upon the question. Wherever the offense is by the Code defined, as is the case in maiming) murder, rape, robbery, etc., in charging assaults with intent to commit those offenses, it is only necessary to charge the assault and the offense intended to be committed eo nomine. (Martin v. The State, 40 Texas, 19; Bittick v. The State, 40 Texas, 117; Long v. The State, 10 Texas Ct. App., 186; The State v. Croft, 15 Texas, 575; Shinn v. The State, 68 Ind., 423; Wharton’s Precedents, 4 ed., pp. 251-54; Buntin v. The State, 68 Ind., 39.)

Another rule of pleading is, that in charging an assault with intent to commit some other offense, the same particularity is not required as is required in charging the offense itself. (Dickenson v. The State, 70 Ind., 247.)

On the trial of the case, exception was reserved by the defendant to the ruling of the court, over objection of defendant, in admitting against this defendant the declarations of the co-defendant, or co-conspirator, Self, made after the consummation of the conspiracy and in the absence of this defendant. These objections, we think, were well taken, and the court erred in the admission of the evidence. (Draper v. The State, 22 Texas, 400; Myers v. The State, 8 Texas Ct. App., 321; Hightower v. The State, 22 Texas, 605; Wright v. The State, 43 Texas, 170; Simms v. The State, 10 Texas Ct. App., 131.)

The judgment is reversed and the cause remanded.

Beversed and remanded.

Opinion delivered October 21, 1882.