Pisano v. State

29 S.W. 42, 34 Tex. Crim. 63, 1895 Tex. Crim. App. LEXIS 2

Opinion

DAVIDSON, Judge.

Motion was made to quash the indictment, because it charged no offense; because it was repugnant; and because it was duplicitous, and charged two separate and distinct offenses. The indictment contained two counts. The first alleged theft of four horses from Miguel de la Garza; the second charged theft of four horses from Reyes Pena. In order to constitute duplicity, two or more distinct felonies must be averred in the same connt. In this indictment distinct offenses are apparently set out in different counts. This is the proper practice. If the evidence develops distinct transactions, the State should be required to elect upon which count the conviction wonld be asked. As to repugnancy, it may be stated, in a general way, to consist in pleading two inconsistent allegations in the same count. It does not apply to repugnancy which of necessity exists between different counts in the same indictment. The exceptions are not well taken. Boren v. The State, 23 Texas Crim. App., 35; Willson’s Crim. Stats., secs. 1989, 1990.

Special instructions requested by appellant, in effect directing an acquittal if he was guilty of robbery, were properly refused, because not warranted by the testimony adduced on the trial.

We are of the opinion the evidence amply supports the verdict, the charge is fair and full, and the judgment should be affirmed, and it is so ordered.

Affirmed.

Judges all present and concurring.