Winkler, J.
This is an appeal from a conviction of theft. The indictment charges the appellant with the theft ■Of two hundred and fifty head of sheep, of the value of $2 per head, the property of James Culbertson, from the possession of B. T. Palmer, averred to have been holding the same for the owner.
The appellant (defendant below) moved the court to quash the indictment on the grounds following, to wit: 1. Because the same does not commence, “In the name and by the authority of the State of Texas.” 2. Because the same •does not appear to be the act of the grand jury of Caldwell County. 3. Because the oath administered to the ¡grand jury, as set out in said indictment, is not the oath required by law. 4. Because there is no sufficient allegation of ownership of the sheep alleged to have been stolen.
The court overruled the motion to quash the indictment. A trial followed, resulting in a verdict of guilty and the assessment of four years’ confinement in the State penitentiary, followed by judgment in accordance with the verdict. A motion for a new trial was made and overruled. The ■defendant also moved in arrest of judgment, in which the same objections to the indictment were urged as in the motion to quash, and which was also overruled.
The overruling of the motion to quash the indictment, the overruling of the motion for new trial, and the refusing to arrest the judgment, are severally assigned as error. The motion to quash the indictment and the motion in arrest of judgment embodying, substantially, the same objections to the indictment, may with propriety be considered together.
The first objection to the indictment — viz., that it does not commence, “In the name and by the authority of the [493] State of Texas’’ — is not sustained by the record. The most that can be said in relation to this objection is, that the indictment was drawn on paper manufactured at a particular establishment, and having printed upon it a business card or-advertisement of the proprietors, which is described in the-brief of appellant’s counsel as an advertisement of “ Barnard & Co., printers, &c.” This may involve a question of' taste, but if the manufacturer of the paper upon which the-indictment was written does not object, we see no reason why the accused should. At any rate, as a matter of law,, it does not vitiate the indictment, and was so held in Winn v. The State, 5 Texas Ct. App. 621.
The second objection is not tenable. On the face of the indictment the grand jurors are characterized as “ good and lawful men of the State of Texas, county of Caldwell.” This, when taken in connection with the succeeding portions, shows satisfactorily that the indictment does appear to be the act of the grand jury of Caldwell County.
As to the third objection,—viz., that the oath administered to the grand jury, as set out in the indictment, is not the oath required by law,—it would perhaps be sufficient to-say that the law has not conferred upon one accused of crime any right or authority to question the form of oath administered to the grand jury, or the form of the process upon which they were summoned.
When an indictment has been preferred, the accused is-permitted to have the indictment or information set aside on either of the two grounds mentioned in art. 483 of the Code-of Criminal Procedure, and no other. He is also permitted to except to the substance of the indictment or information on either of the three grounds set out in art. 487 ; and, besides these, the law declares that there is no exception to the-substance of either. He is also permitted to take exception-to the form of the indictment or information on the two-grounds mentioned in art. 488, and only on these. These-three articles — 483, 487, and 488 — embrace all the grounds-[494] of objection to an indictment or an information which one accused of a violation of law, in either mode, is permitted to make in the first instance; subject, of course, to such modifications as have been made by legislation subsequent to the adoption of the Codes, and which will be found to be but few.
In Schwartz v. The State, the Supreme Court said: “The Code of Criminal Procedure seems to contemplate that certain specified exceptions are permissible, and that, unless the defect in the indictment be embraced in one of the prescribed exceptions, it shall not constitute a valid objection. * * * It prescribes the exceptions, and those only, which will be entertained, whether for matter of form or substance.” 25 Texas, 764.
In The State v. Schoolfield, 29 Texas, 501, the court say: “The Code of Criminal Procedure provides what exceptions may be taken to indictments, dividing them into two classes, — exceptions to form, and exceptions which go to the substance of the indictment. ’ ’ See also Phillips v. The State, 29 Texas, 226, where the same doctrinéis held. We know of no authority, either in the Code or in any adjudication under it, which authorizes one accused of crime to inquire into the form of oath administered to the grand jury.
In Pierce v. The State, 12 Texas, 210, it is stated: “ The record stated that R. B. Hudnall was ordered to act as foreman of the grand jury for the present term of this court, who, being called, comes and is sworn according to the statute, to discharge the duties as foreman of the grand jury; and now come the other members of the grand jury, who took a like oath.” In passing upon this ground of objection, the court said: “The objection that the jurors were not duly sworn is not supported by the record. The entry does not profess to give the form of oath administered, nor was that necessary. It recites that they were sworn ‘accordingto the statute,’ etc., which admits of no [495] other reasonable inference than that the oath prescribed was administered.” It does not appear that the extract passed upon was from the indictment; but it was probably taken from the minutes of the court. At any rate, the question there raised, agreeably to later decisions, could not be raised on exception to the indictment. The present case, however, is analogous, in that the indictment does not profess to give the form of oath administered, but it does recite that the grand jurors were sworn, and the presumption must be indulged that the proper oath was, in fact, administered. There can be no necessity for an indictment to do more than to show that the grand jury were sworn, —that they acted under the solemnities of an oath.
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Winkler, J.
This is an appeal from a conviction of theft. The indictment charges the appellant with the theft ■Of two hundred and fifty head of sheep, of the value of $2 per head, the property of James Culbertson, from the possession of B. T. Palmer, averred to have been holding the same for the owner.
The appellant (defendant below) moved the court to quash the indictment on the grounds following, to wit: 1. Because the same does not commence, “In the name and by the authority of the State of Texas.” 2. Because the same •does not appear to be the act of the grand jury of Caldwell County. 3. Because the oath administered to the ¡grand jury, as set out in said indictment, is not the oath required by law. 4. Because there is no sufficient allegation of ownership of the sheep alleged to have been stolen.
The court overruled the motion to quash the indictment. A trial followed, resulting in a verdict of guilty and the assessment of four years’ confinement in the State penitentiary, followed by judgment in accordance with the verdict. A motion for a new trial was made and overruled. The ■defendant also moved in arrest of judgment, in which the same objections to the indictment were urged as in the motion to quash, and which was also overruled.
The overruling of the motion to quash the indictment, the overruling of the motion for new trial, and the refusing to arrest the judgment, are severally assigned as error. The motion to quash the indictment and the motion in arrest of judgment embodying, substantially, the same objections to the indictment, may with propriety be considered together.
The first objection to the indictment — viz., that it does not commence, “In the name and by the authority of the [493] State of Texas’’ — is not sustained by the record. The most that can be said in relation to this objection is, that the indictment was drawn on paper manufactured at a particular establishment, and having printed upon it a business card or-advertisement of the proprietors, which is described in the-brief of appellant’s counsel as an advertisement of “ Barnard & Co., printers, &c.” This may involve a question of' taste, but if the manufacturer of the paper upon which the-indictment was written does not object, we see no reason why the accused should. At any rate, as a matter of law,, it does not vitiate the indictment, and was so held in Winn v. The State, 5 Texas Ct. App. 621.
The second objection is not tenable. On the face of the indictment the grand jurors are characterized as “ good and lawful men of the State of Texas, county of Caldwell.” This, when taken in connection with the succeeding portions, shows satisfactorily that the indictment does appear to be the act of the grand jury of Caldwell County.
As to the third objection,—viz., that the oath administered to the grand jury, as set out in the indictment, is not the oath required by law,—it would perhaps be sufficient to-say that the law has not conferred upon one accused of crime any right or authority to question the form of oath administered to the grand jury, or the form of the process upon which they were summoned.
When an indictment has been preferred, the accused is-permitted to have the indictment or information set aside on either of the two grounds mentioned in art. 483 of the Code-of Criminal Procedure, and no other. He is also permitted to except to the substance of the indictment or information on either of the three grounds set out in art. 487 ; and, besides these, the law declares that there is no exception to the-substance of either. He is also permitted to take exception-to the form of the indictment or information on the two-grounds mentioned in art. 488, and only on these. These-three articles — 483, 487, and 488 — embrace all the grounds-[494] of objection to an indictment or an information which one accused of a violation of law, in either mode, is permitted to make in the first instance; subject, of course, to such modifications as have been made by legislation subsequent to the adoption of the Codes, and which will be found to be but few.
In Schwartz v. The State, the Supreme Court said: “The Code of Criminal Procedure seems to contemplate that certain specified exceptions are permissible, and that, unless the defect in the indictment be embraced in one of the prescribed exceptions, it shall not constitute a valid objection. * * * It prescribes the exceptions, and those only, which will be entertained, whether for matter of form or substance.” 25 Texas, 764.
In The State v. Schoolfield, 29 Texas, 501, the court say: “The Code of Criminal Procedure provides what exceptions may be taken to indictments, dividing them into two classes, — exceptions to form, and exceptions which go to the substance of the indictment. ’ ’ See also Phillips v. The State, 29 Texas, 226, where the same doctrinéis held. We know of no authority, either in the Code or in any adjudication under it, which authorizes one accused of crime to inquire into the form of oath administered to the grand jury.
In Pierce v. The State, 12 Texas, 210, it is stated: “ The record stated that R. B. Hudnall was ordered to act as foreman of the grand jury for the present term of this court, who, being called, comes and is sworn according to the statute, to discharge the duties as foreman of the grand jury; and now come the other members of the grand jury, who took a like oath.” In passing upon this ground of objection, the court said: “The objection that the jurors were not duly sworn is not supported by the record. The entry does not profess to give the form of oath administered, nor was that necessary. It recites that they were sworn ‘accordingto the statute,’ etc., which admits of no [495] other reasonable inference than that the oath prescribed was administered.” It does not appear that the extract passed upon was from the indictment; but it was probably taken from the minutes of the court. At any rate, the question there raised, agreeably to later decisions, could not be raised on exception to the indictment. The present case, however, is analogous, in that the indictment does not profess to give the form of oath administered, but it does recite that the grand jurors were sworn, and the presumption must be indulged that the proper oath was, in fact, administered. There can be no necessity for an indictment to do more than to show that the grand jury were sworn, —that they acted under the solemnities of an oath.
We cannot approve the form of the recital in the indictment before us following the word charged, as therein employed, to wit: “ Charged to inquire into, and true presentment make of all offences committed within the body of the county aforesaid.” This is an old form of expression, calculated to occasion controversy, as in the present case, by creating the impression that this is what the grand jury were sworn to do, and not what they were charged to do, and might well be dispensed with. In setting out the fact that the grand jury were sworn, it would not be necessary to set out at length the prescribed oath administered, in the indictment, as found in art. 356, Code of Criminal Procedure, as this, from its length, would necessarily encumber the indictment. It would be sufficient to state that the grand jury was sworn, duly sworn, or sworn according to law, and thus controversy would be avoided, notwithstanding that the form of oath cannot be inquired into on exception to an indictment.
The Code (art. 678) provides that “ a motion in arrest of judgment shall be granted upon any ground which would be good upon exception to an indictment or information, for any substantial defect therein.” A mere formed objection would not be reached by a motion in arrest of judgment; such objection could only be made available by exception [496] taken at the proper time and in the proper manner, — that is, as pointed out in art. 488, above referred to, — whilst objections to the substance of the indictment, such as are mentioned in art. 487, could be reached by motion in arrest of judgment.
The fourth and last objection taken to the indictment is, that it contains no sufficient allegation of ownership of the property charged to have been stolen. This objection is not well taken. The indictment charges that the sheep alleged to have been stolen were “the corporeal personal property of James Culbertson,” which is a clear averment of ownership. We are of opinion there is no material defect in the indictment, either of form or substance; and we find no error either in overruling the exceptions to it, or in refusing the motion in arrest of judgment.
The only remaining error assigned is, that the court erred in overruling the motion for a new trial. The complaints ' made in the motion relate mainly to the evidence as to the ownership of the property, and the charge of the court. It is urged that the evidence showed that the property in question was the property of Culbertson and Palmer as partners, and not the property of Culbertson alone, as averred in the indictment.. The proof was, that recently before the property was stolen, — if stolen at all, — it was-placed in the hands of Palmer by Culbertson, the owner, under a contract between Culbertson and Palmer, in which it was stipulated that Palmer was to keep the sheep until September, 1879, on shares; Palmer to have one-fourth of the wool and one-fourth of the increase; that the ewes had dropped some lambs prior to the time when the sheep were missing, for the theft of which this indictment was found. _
We are of opinion that, under the circumstances elicited in evidence, the ownership of the sheep was properly laid in Culbertson, and that it was not partnership property of Culbertson, the employer, and Palmer, the employee ; that, as to the property being a subject of larceny, it is analogous [497] to the case of one who labors upon the farm of another under an agreement to have a share of the crop. In that case, agreeably to Mr. Wharton, “ until his share is separated from the general mass, and set apart to him, the property of the entire crop remains in his employer; and, in case of larceny, the property must be laid in the latter. ’ ’ Whart. Cr. Law, sect. 1827. The evidence warranted the charge of the court on the subject of ownership.
It is further urged that there were, in fact, no sheep lost from the flock in charge of Palmer. We are of opinion that the proof makes a case to the contrary; that it shows that the missing sheep (and of which there was proof of identity) were seen by more than one witness in possession of the defendant. If the defendant was really guilty of theft, his liability to punishment was not removed by the fact that the property was subsequently reclaimed by the owner.
The position contended for, that the sheep had not been stolen, but had only strayed away, and were afterwards found, is not sustained by the evidence. The defendant is shown to have had in his possession a bunch of two hundred and "fifty or two hundred and seventy-five head of sheep, corresponding with those missing. These he was claiming-as his own; at any rate he, to all appearances, claimed to-own them, and to contract with others for taking care of them for a time. On the trial, however, he offered no testimony as to his right to the property. On this subject there was no material error in the charge.
The judge who presided at the trial had his attention called to the testimony and the charge, in reviewing them on hearing the motion for a new trial. If error had been made to appear, the judge would have applied the proper-corrective, by setting aside the verdict and awarding a new trial. This he declined to do, and we have not been able to discover any error in the ruling of the court below.
The judgment of the District Court is affirmed.
Affirmed.