Stephanes v. State

21 Tex. 206

• Court: Texas Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Wheeler, J.

The indictment does not conform to approved precedent. (Precedents by Wharton, 433 et seq.; 3 Arch. Cr. PI. 607.) It may not have been necessary to characterize the conduct of the accused as unlawful, or wilful, or to aver that it was to the damage and common nuisance, &c. Yet these, or words of like import, are found in the precedents. Nor, perhaps, was it necessary to aver that he caused or procured the negroes to congregate at his house, as the precedents are; (Precedents by Whart. 433, 456 ;) as to permit it was unlawful. The indictment does not conclude according to precedent, nor does it contain words which have been held to be essential. (Whart. Am. Cr. L. 698-9.) Nor does it aver that the negroes congregated at the defendant’s house. The averment is, that he kept a disorderly house, “ by allowing and permitting great numbers of drunken negroes to congregate and use indecent language, and entertaining them to the great annoyance,” &c. Of course the pleader meant to have it understood that the defendant permitted them to congregate at his house, and that he entertained them there. It would have been more in accordance with the rules of pleading, especially in an indictment, to have so averred, than to leave it to inference. We think, on the whole, the indictment is too loosely and carelessly framed to sustain a conviction, where the puishment is fine and imprisonment. To hold it sufficient would be to make a precedent; and that we are not inclined to do. We think it safer to adhere to established and approved precedents, (though it should occasion the escape of an offender, who, it may be, well deserves punishment, for an of-fence of very injurious tendency,) than to invent new ones. We are of opinion that the Court erred in overruling the motion in arrest of judgment; for which the judgment is reversed and the cause remanded.

Reversed and remanded.