State v. Earp

41 Tex. 487

• Court: Texas Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinion

Reeves, Associate Justice.

The motion to quash the indictment is not found in the record, and there being no return to the certiorari obtained by appellant, the cause is submitted on brief by the Attorney General, asking that the judgment be reversed.

The judgment recites that it was considered by the court that the law was for the defendant; and the motion to quash was sustained, but on what ground does not appear.

The indictment charges that the defendant, in the county of Wise, on the 20th day of July, 1871, did “fraudlently” take, steal, and carry away from and out of the possession of Preston Walker one certain steer, of the value of fifteen dollars, said steer being then and there the corporeal personal property and neat cattle of the said Preston Walker, without the consent of the said Preston Walker, and with the “6fraudlent5 and felonious intent,” &c., omitting the letter “w” in the words fraudulently and fraudulent.

The character of the taking and the intent with which the act is alleged to have been done are charged with sufficient certainty to constitute theft, and the meaning cannot be mistaken.

The indictment complies substantially with the requisites prescribed for an indictment by the Code of Procedure, and greater certainty should not be required. (Pas. Dig., art. 2863.)

The descriptive averments of the property alleged to be stolen are sufficiently certain, and the judgment that may be given thereon could be plead in bar of any prosecution for the same offense. (Pas. Dig., art. 2865; Hubotter v. The State, 32 Tex., 479.)

If the indictment was quashed on the grounds here noticed, it was erroneous. Finding no sufficient reason for holding the indictment to be defective, and no defect being pointed out by defendant, the judgment is reversed and case remanded.

Reversed and remanded.