State v. Killough

32 Tex. 74

• Court: Texas Supreme Court
• Decided: July 1, 1869
• Status: Published

Opinion

Lindsay, J.

The judgment upon the verdict of “ guilty,” in a prosecution on indictment for an assault, with intent to kill and murder, was arrested by the District Court in this case; upon which ruling, the Attorney for the State gave notice of appeal.

The reason assigned for the arrest of the judgment is the alleged vagueness, indefiniteness and uncertainty of the indictment. The inquiry, then, is confined to simply testing the indictment by the principles of our criminal law, as laid down in the Code. There are nine requisites established by the Code, by which the sufficiency of an indictment is to be tested. It must be in the name, and by the authority of the State. It must appear it was presented in a court having jurisdiction. It must be presented by a grand jury of the proper county. It must state the name of the accused, or allege it is unknown. It must show the place of the offence is within the jurisdiction •of the court. The time must be mentioned, and not so remotely as to show limitation has barred the prosecution. The offence must be set forth in plain and intelligible language. It must conclude against the peace and dignity of the State. And it must be signed by the foreman of the grand jury. These are the requisites; and it is not pretended that it is defective in any, except' the seventh requisite, which exacts that “ the offence must be set forth in plain and intelligible words.” In this it is supposed to be defective. It must be borne in mind, that Art. 2491, Paschal’s Digest, prescribes, “ the Code shall be liberally construed, so as to attain the objects intended by the Legislature—the prevention, suppression and punishment of crime.” All the other requisites, indicated and instituted by the Code, having been observed in the indictment, it is a simple question, whether the offense of assaulting with intent to murder, is so set forth in words “plain and intelligible” to the common apprehension of mankind. The indictment charges, that the accused “ an assault did make, in and upon one W. H. Yoakum, with unlawful violence, with intent, then and there, wilfully, feloniously, and of his malice aforethought, to kill and murder him,” embracing, in the language of the Code, the full definition of the offense, with the interpolation of apt words in pleading, to indicate the legal nature of the crime intended, which was a necessary element in the constitution of the offense charged to have been actually committed. But the allegations in the indictment go farther, and charge the specific acts done, and the manner in which they were done, together with' the weapon used, as • evincive of the deadly purpose; all of which matters would be legitimate evidence on trial, and certainly cannot vitiate the indictment wlien therein plead and charged. Whether it be necessary or not to state the instrument or means made use of by the assailant, in an indictment for an offense under this Art. of the Code, it is needless for this court to determine, or to undertake to settle, whether the intimation of the court in the case of The State v. Crofts, 15 Texas, was the true interpretation of the law, or a mere obiter dictum.' It is unimportant in determining the sufficiency of this indictment, in which both the instrument and the means used are charged. The court, in that case, properly say they are matters of proof. Surely whatever is matter of proof upon the trial, can not, with propriety, be excepted to, when introduced as allegations in the pleading. In charging the offense, we think it was done in apt and suitable phrase, “ in plain and intelligible words,” readily and easily understood by all capacities of adult age, which seems to have been the only design of that sub-division of the article of the Code upon the requisites of an indictment.

There being no statement of facts in the transcript, the court lias no means of knowing whether any injustice was done the accused upon the trial. If the evidence did not show, upon the trial, that the offense would have been murder, if death had ensued from the assault, the charge was not made out. But for want of a statement of facts, and of a hill of exceptions to the charge of the judge presiding at the trial, this court is pre'cluded from such inquiry. The court, however, erred in arresting the judgment and granting a new trial. lYorn the aspect of the case presented to this court by the record, the cornt is bound to reverse the judgment, which is accordingly done.

Reversed and remanded.