State v. Daugherty

30 Tex. 360

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

Opinion

Donley, J.

The charge in the indictment is, that the defendant, “ on the 1st day of August, 1865, with force and arms, in the county and state aforesaid, then and there, without lawful authority, molest, disturb, and take into his possession, and carry and sell one steer, of the value oi $15,” &c.

In The State v. Huston, 12 Tex., 245, it was averred, that the defendant did play at a game with cards, upon which money was then and there het, a certain public house, &e. The court said: “A knowledge of the language of the statute enables us to perceive that the word “ at” was omitted, no doubt by accident, after the word “ bet.” It is said, that it is evident that some word has been casually omitted, but there is no authority to supply the omission. Here the the word omitted is essential to the certainty necessary in the description of the offense, and that it cannot be supplied by intendment, and of consequence the omission must be fatal to the indictment.”

In the cause now under consideration the word “did” is essential to the validity of the indictment. And it may be said in this, as in the case cited, that “ there is evidently an omission in the indictment” which might be supplied by the insertion of a word. It is at the same time possible to supply the omission by averments, showing that no offense had been committed. The court can only pass upon questions that are presented for consideration. It cannot supply defects in pleáding, by supposing to be inserted what it may be presumed the pleader intended.

There is no error in the judgment, and it is

Aeeirmed.