Cain v. State
| Decision Date | 01 January 1857 |
| Citation | 18 Tex. 391 |
| Parties | JAMES CAIN v. THE STATE. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Where an indictment, after the words “state of Texas, county of Fayette,” and the usual commencement, charged “that James Cain, late of Travis county aforsesaid, yeoman, with force of arms, in the county aforesaid, on, etc., did then and there feloniously steal, take and carry away,” etc., it was held that a motion in arrest of judgment on the ground of repugnancy and uncertainty in the statement of the venue, should have been sustained.
Appeal from Fayette. Tried below before the Hon. Thomas H. DuVal.
Indictment for larceny, in stealing a horse. The indictment, after “state of Texas, county of Fayette,” and the usual commencement, charged “that James Cain, late of Travis county aforesaid, yeoman, with force and arms in the county aforesaid, on, etc., did then and there feloniously steal, take and carry away,” etc. The horse was stolen at the same time the slave was enticed away, as in preceding case; and the testimony and rulings were the same. Motion in arrest of judgment on the ground that the indictment did not charge that the offense was committed in the county of Fayette.
J. T. Harcourt, for appellant.
Attorney General, for appellee.
The rule of law applicable to indictments, is, that if the fact be stated as to time or place with repugnancy or uncertainty, the indictment will be bad. Whart. Am. Cr. L. 113, 142. In this indictment there is manifest repugnancy in the statement as to the place or county where the offense was committed. This was a good ground in arrest of judgment. There was error, therefore, in refusing to sustain the motion on the ground of repugnancy and uncertainty in stating the venue.
There is also the same error in rejecting the evidence offered by the prisoner, as in the case just decided between the same parties; for which the judgment in this case must be reversed, and the case be remanded for further proceedings.
Reversed and remanded.
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