Burch v. Republic
| Decision Date | 31 December 1846 |
| Parties | NELSON BURCH v. THE REPUBLIC |
| Court | Texas Supreme Court |
Case Reserved and Certified from Bastrop County.
The facts constituting the offense should be averred in the indictment with all convenient and reasonable certainty. [ Ante, 455.]
It will generally be sufficient if the indictment follows the exact words of the statute in describing the offense, and it is never safe to depart from them. But where the statute uses a general term, it is not enough to employ that term only, but the pleader must also state the species, according to the truth of the case -- or where general expressions are used in the statute, it is not enough to employ those general words only, but the facts intended to be included and forbidden by them should be specified.
The appellant was indicted at the fall term, 1845, of Bastrop district court for vending spirituous liquors in a quantity of a quart and over without license first had and obtained.
There was a general demurrer to the indictment which was overruled and judgment entered against the defendant for $50 fine, but the judge conceiving that questions of law, novel and difficult, were presented in the case, had the same certified to the appellate court for revision.
Gillespie, for appellant.
The indictment is too general in its character, not alleging how or to whom the sale was made, so as to apprise the accused of what he was to answer or how to make his defense.
There was error in overruling the demurrer. It is too well settled to require argument or authority to prove that when a particular and special mode is pointed out for the enforcement of a penal statute, it must be strictly and literally pursued.
The act of 1843 (page 40) changed the remedy from a prosecution to a qui tam action. The act of 1845 (p. 95, sec. 3) provides that upon an indictment by a grand jury and a conviction by a petit jury the party shall be fined, etc. No such conviction was had in the case at bar.
Attorney General, contra.
No brief filed.
Burch was indicted under the statute for a violation of the law requiring the payment of license tax. 9 Stat. 95, 96, 107.
The offense is charged in the indictment in these words: “That Nelson Burch, of the county of Bastrop, in the county aforesaid, a retailer of merchandise, who vends spirituous liquors in quantities of a quart and over, did, on the first day of September in the year of our Lord, one thousand eight hundred and forty-five, in the county aforesaid, vend spirituous liquors in a quantity of a quart and over without license first had and obtained.”
There was a demurrer to the indictment overruled, and the defendant “failing to make any further plea,” judgment final was pronounced against him. But the judge, doubting as to the law of the case, reserved and certified it to this court for revision.
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... ... 588; United States v. Carll, 105 U.S. 611, 26 L.Ed ... 1135; Boyd v. Commonwealth, 77 Va. 52; State v ... Graham, 38 Ark. 519; Burch v. Republic, 1 Tex ... 608; Kerry v. State, 17 Tex.App. 178, 50 Am. Rep ... Sergeant ... Hawkins, in his Pleas of the Crown ... ...
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Fletcher v. State
...v. State, 17 Tex.App. 468. On page 470, the court said: "The other cases cited by appellant's counsel in his brief, viz., Burch v. The Republic, 1 Tex. 608, and v. State, 29 Tex. 495, were cases arising under statutes regulating the sale of intoxicating liquors, and cannot, we think, be hel......
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Haughn v. State
...92 U. S. 542, 23 L. Ed. 588;U. S. v. Carll, 105 U. S. 611, 26 L. Ed. 1135;Boyd v. Com., 77 Va. 52; State v. Graham, 38 Ark. 519; Burch v. Republic, 1 Tex. 608;Kerry v. State, 17 Tex. App. 178, 50 Am. Rep. 122. Serjeant Hawkins, in his Pleas of the Crown, said: “Neither doth it seem to be al......
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State v. Wolf
...588;United States v. Carll, 105 U. S. 611, 26 L. Ed. 1135;Boyd v. Commonwealth, 77 Va. 52;State v. Graham, 38 Ark. 519;Burch v. Republic, 1 Tex. 608;Kerry v. State, 17 Tex. App. 178, 50 Am. Rep. 122. Sergeant Hawkins, in his Pleas of the Crown (8th Ed.) vol. 2, c. 25, § 111, said: “Neither ......