Portwood v. State

29 Tex. 47

• Court: Texas Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinion

Donley, J.

By Art. 398, O. & W. Dig., tit. Criminal Procedure, it is provided, that “ The certainty required in. an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.”

It is an essential ingredient of the offense here intended to be charged, that the house should be entered for the purpose of committing a felony. (O. & W. Dig., Art. 724.) This is averred in the words of the statute.

As a general rule, it is sufficiently certain to describe an offense in an indictment in the language of the act creating the offense; but there are cases where more particularity is required, either from the obvious intention of the legislature, or from the application of known principles of law. (Moffitt v. The State, 6 Eng., 169; The people v. Taylor, 3 Denio, 91; Commonwealth v. Stout, 7 B. Monr., 249; Same v. Cook, 13 B. Monr., 149.)

Murder, robbery, rape, arson, theft, and other offenses that might be mentioned, are felonies. And the allegation, that the house was entered with the intent to commit a felony, does not contain the certainty required in the article of the digest above cited. The offense which it is alleged the defendant intended to commit is not so described as to enable the defendant to plead in bar of another prosecution for the same offense. The indictment is insufficient for want of certainty in describing the felony which it is averred the defendant entered the house to commit. Judgment is . Aeeirmed.