State v. Devereux

41 Tex. 383

Opinion

Roberts, Chief Justice.

We are of opinion that the court did not err in setting aside the indictment upon the exceptions taken to it in the court below. The instrument purported to be a pledge and lien, on condition that the defendant’s pay as policeman should not amount to one hundred and five dollars; and there is no averment in the indictment that it did not. That is the literal import of the instrument, and there are no averments showing that it was intended to be an absolute pledge of the buggy and harness, to take effect unconditionally at the date of its execution. If there had been, it is not stated that there was a failure to collect the pay as policeman, for which a power of attorney was given to Martin Casey, otherwise than inferentially, by stating that the defendant had not paid the money to Martin Casey.

The indictment must therefore be held to be defective for uncertainty and for deficiency in not stating properly the facts necessary to constitute the offense attempted to be charged.

Judgment affirmed.