Barner v. State

• Decision Date: 05 November 1892
• Citation: 20 S.W. 559
• Parties: BARNER v. STATE.
• Court: Texas Court of Criminal Appeals

20 S.W. 559

BARNER v. STATE.

Court of Criminal Appeals of Texas.

November 5, 1892.

Appeal from district court, Collin county; P. B. MUSE, Judge.

John Barner was indicted and convicted of the crime of horse theft. From this conviction he appeals. Affirmed.

Bassett, Seay & Muse, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant prosecutes this appeal from a conviction of horse theft. He moved to quash the indictment because it charged no offense against the law, in that it alleged the theft of "on" horse. An indictment is sufficient if it charges an offense in ordinary and concise language, in such manner as to enable a person of common understanding to know what is meant, and with such certainty as to notify the defendant of the particular offense with which he is charged, and to enable the court to pronounce judgment in case of conviction, and the defendant to plead such conviction in bar of another prosecution for the same offense. Code Crim. Proc. arts. 422, 428a; Willson, Crim. St. § 1960. It is well settled that if, eliminating surplusage, the constituent elements of the offense are so averred as to apprise the accused of the charge against him, and enable him to plead the judgment in bar of another prosecution for the same offense, it is good in substance, under our Code. Hammons v. State, 29 Tex. App. 445, 16 S. W. Rep. 99; Willson, Crim. St. § 1960. Words or allegations not essential to constitute the offense, and which may be omitted without affecting the charge and without detriment to the indictment, may be rejected as surplusage. Hammons v. State, 29 Tex. App. 445, 16 S. W. Rep. 99; Mayo v. State, 7 Tex. App. 342; Willson, Crim. St. §§ 1960, 1988. "When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quantity, number, and ownership, if known, shall be sufficient." Code Crim. Proc. art. 427. Tested by the above rules, the indictment in this case is sufficient, and the court did not err in overruling the motion to quash it.

The court instructed the jury that, if the offense was committed prior to the filing of the indictment, they would convict defendant. It is contended that this instruction is fatally defective, because it authorized defendant's conviction though the offense may have been barred by limitation. If the charge contains the law applicable to the issues raised, it is sufficient. Limitation was not an issue in this...