Pittman v. State

14 Tex. Ct. App. 576, 1883 Tex. Crim. App. LEXIS 214

• Court: Court of Appeals of Texas
• Decided: October 17, 1883
• Docket: No. 1528
• Status: Published

Opinion

Willson, Judge.

This appeal is from a conviction for the theft of a hog, the prosecution being by information.

1. It is objected to the affidavit upon which the information is founded, that it does not charge that the taking of the hog was fraudulent, and therefore does not charge any offense against the law. It is charged in the affidavit that the defendant “did feloniously take, steal and carry away, from and out of the possession of the affiant, one hog,” etc. Even if it were conceded to be essential that an indictment or information for theft must allege that the property was fraudulently taken, still the omission of that particular word in an affidavit would not vitiate it. The particularity requisite in an indictment or information is not necessary in the affidavit on which an information is founded. Substantial compliance with the provisions of the Code is all that is required in such an affidavit. (Cole v. The State, 11 Texas Ct. App., 67; Brown v. The State, Id., 451.) We think the affidavit in this case is in substantial compliance with the law, and is sufficient. It is alleged in the information that the property was fraudulently taken, and hence we are not called upon to determine whether the word “feloniously,” used in an indictrnent or information for theft, instead of the statutory word “fraudulent,” would be sufficient. (See Musquez v. The State, 41 Texas, 617; Muldrew v. The State, 12 Texas Ct. App., 617.)

2. Among the several exceptions to the information and affidavit there is one which, in our opinion, is well taken, and this reaches only to the information. There is no allegation in the information of the value of the hog charged to have been stolen.. Whenever the value of a stolen article affects the penalty for the offense, such value must be alleged and proved. (Sheppard v. The State, 1 Texas Ct. App., 522; Meyers v. The State, 4 Texas Ct. App., 121; Simpson v. The State, 10 Texas Ct. App., 681.) In this case it depends upon the value of the property stolen whether the theft is a felony or a misdemeanor, and this question can only be determined and the punishment of the offender regulated by allegation and proof of such value. (Penal Code, Art. 748.)

3. While it is true in this case that the affidavit alleges the value of the hog, this does not supply the omission of such allegation in the information. It is the allegations in the information, not those in the affidavit, that the defendant must plead to and be tried upon. An information, as to all material, substantial matters, must be complete within itself, without reference to the affidavit upon which it is based, and it must conform to the affidavit in all material allegations. (Stinson v. The State, 5 Texas Ct. App., 31.)

Because the information is defective in the particular mentioned, the judgment must be reversed, but the prosecution will not be dismissed, because the affidavit is a sufficient one and another information may be brought upon it. (Goode v. The State, 2 Texas Ct. App., 520.) The cause is therefore remanded to enable the county attorney to file another information, should he see proper to do so.

Reversed and remanded.

Opinion delivered October 17, 1883.