Smith v. State

29 S.W. 774, 34 Tex. Crim. 123, 1895 Tex. Crim. App. LEXIS 37

Opinion

DAVIDSOH, Judge.

The indictment contains two counts: (1) charging theft of the horse from George Bosher; (2) alleging property in J. W. Bosher, and possession in S. P. Bosher. It is urged as error, that the State did not elect upon which count the prosecution would be maintained. This was not required in this case. This court has frequently suggested the practice of including different counts in indictments and information, so as to meet every phase of the transaction which might be developed by the testimony upon the trial. But if an election had been necessary, appellant can not complain because the court submitted the first count only for the consideration of the jury, and this was tantamount to an election by the State. Parks v. The State, 29 Texas Crim. App., 597; Dalton v. The State, 4 Texas Crim. App., 333; Weathersby v. The State, 1 Texas Crim. App., 643. The supposed error of the court admitting confessions of the appellant will not be noticed, because a bill of exceptions was not reserved to its admission. Hor is there anything in the alleged error of the court making the sentence in this case cumu lative of that pronounced against appellant in a preceding conviction. This action of the court is expressly enjoined by statute, and therefore the court did not err in this respect. Code Crim. Proc., art. 800.

The conviction is fully supported by the evidence, and the judgment is affirmed.

Affirmed.

Judges all present and concurring.