State v. Hanson

23 Tex. 232

Opinion

Roberts, J.

The indictment charges, that the defendant did “ publish an indecent and obscene newspaper, called 6 John Donkey,’ manifestly designed to corrupt the morals of the youth of said county.” Upon exceptions, it was held insufficient.

It is enacted, that “ if any person shall make, publish, or print, any indecent and obscene print, picture, or written composition, manifestly designed to corrupt the morals of youth, he shall be fined,” &c. (Penal Code, Art. 399.) “ The offence must be set forth in plain and intelligible words,” (Code Crim. Proc. Art. 395.) “ The certainty required in an indictment, is such as will enable the accused to plead the judgment that may be given upon it, in bar of any prosecution for the same offence.” (Id. Art. 398.)

The plain inference, from the words used in the indictment, is, that the newspaper contained a “ printed or written composition,” that was indecent and obscene. The composition, or print, should have been set out, or such description given of it, as that the court could judge of its character, in reference to the alleged indecency and obscenity. Without this, the particular offence intended to be charged, amidst the various offences of this class, would not be identified, so as to enable the defendant to know what he had to meet; and after a conviction, or acquittal, on this charge, to plead it in bar „of another prosecution for the same offence. This may be rendered obvious by the question, what is the nature of the indecency and obscenity intended to be charged? The indictment does not identify it, in any way whatever.

Judgment affirmed.