Smith v. State

34 Tex. 612

• Court: Texas Supreme Court
• Decided: July 1, 1871
• Status: Published

Opinion

Walker, J.

This was an indictment under article 2410, Paschal’s Digest, and is a part of the act of 1866, which introduced some confusion into the Criminal Code. The offense punishable under this article is called theft, and yet it is wanting in one of the ingredients made necessary to constitute the crime of theft by article 2381.

The indictment in this case would not be good under article 2381, but it is good under article 2410.

It is, perhaps, unfortunate that the Legislature did not use the same language in defining the offense under both the statutes; but we are not prepared to say that because of this omission in the latter act, to-wit, of the words “ and to appropriate to the use or benefit of the person taking,” an offense accompanied with all the ingredients required by article 2410 is not well described in an indictment which follows the language of the statute. Indeed there can be no safer'rule for the pleader to follow, than that he should set forth the offense in the language of the statute.

The judgment of the district court is affirmed.

Affirmed.