State v. Wall

35 Tex. 484

• Court: Texas Supreme Court
• Decided: July 1, 1872
• Status: Published

Opinion

Walker, J.

The motion to dismiss the appeal in this case must be overruled. Under the Constitution of 1845, the Legislature had the power to limit the right of appeal on the part of the State, in criminal cases, to those less than felony.

The case of The State v. Thornton, 32 Texas, 104, does not apply as authority against appeals taken under the present Constitution. The State now has the same right to appeal in felony cases that is afforded to the defendant. As to the sufficiency of the indictment in this case, the question is settled in The State v. Croft, 15 Texas, 576, and The State v. Killough, 32 Texas, 77, et seq. The felonious intent is distinctly averred in this indictment. In The State v. Croft, opinion by Mr. Justice Wheeler, the court say, “In an indictment for assault with intent to commit an offense, the same particularity is not required as in an indictment for the commission of the offense.”

If the rule was otherwise, this indictment is not subject to the objection urged, and it was error in the district court to quash it.

The judgment is therefore reversed and the cause is remanded.

The same question arises in No. 584, The State of Texas v. Cornelius Brice, and in that case the judgment is also reversed and the cause remanded.

Revebsed and kemahded.