Cudd v. State

• Decision Date: 30 October 1889
• Citation: 12 S.W. 1010
• Court: Texas Court of Appeals
• Parties: CUDD <I>v.</I> STATE.

12 S.W. 1010

CUDD

v. STATE.

Court of Appeals of Texas.

October 30, 1889.

Appeal from district court, De Witt county; H. C. PLEASANTS, Judge.

Friend & Pleasants and Crain, Kleberg & Grimes, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

Defendant made a motion in arrest of judgment which attacked the sufficiency of the indictment, and claimed that it was wholly defective, in "that the said indictment fails to state when Campbell Taylor, with whose murder defendant is attempted to be charged, died." The charge, as set forth in the indictment, is "that Tom Cudd, on or about the 26th day of August, one thousand eight hundred and eighty-eight, and anterior to the presentment of this indictment, in the county and state aforesaid, did then and there, unlawfully, and with malice aforethought, kill and murder Campbell Taylor by cutting and stabbing him, the said Campbell Taylor, with a knife, inflicting upon him, the said Campbell Taylor, one mortal wound, from which said mortal wound he, the said Campbell Taylor, died; against the peace and dignity of the state." This motion in arrest, having been overruled, is assigned for error on this appeal, and the proposition based upon the assignment is that "it must appear affirmatively from the face of an indictment for murder that death ensued within a year and a day from the alleged infliction of the mortal wound; and an indictment which fails to allege the date of the death of the deceased, either in exact words or by necessary implication, as that he `then and there' instantly died, is fatally defective."

In copying the charging part of the indictment it will be seen that we have italicized the words "inflicting upon him, the said Campbell Taylor, one mortal wound, from which said mortal wound he, the said Campbell Taylor, died." Now, if the italicized words be stricken out, and eliminated from the indictment, there can be no doubt of its sufficiency under the well-established rules and forms which have been recognized in this state. The well-settled rule is that allegations not essential to constitute the offense, and which might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment, are treated as mere surplusage, and may be entirely disregarded. Mayo v. State, 7 Tex. App. 342; Holden v. State, 18 Tex. App. 91; McConnell v. State, 22 Tex. App. 354, 3 S. W. Rep. 699. Eliminating these words, we have an indictment complying in every essential with No. 388, the general form for murder found in Willson, Crim. Forms, 173, which form, since its publication, has repeatedly been held sufficient by this court. Lucas v. State, 19 Tex. App. 79; Walker v. State, Id. 176; Stephens v. State, 20 Tex. App. 255; Banks v. State, 24 Tex. App. 559, 7 S. W. Rep. 327; Rather v. State, 25 Tex. App. 623, 9 S. W. Rep. 69. See, also, Wilson, Crim. St. § 1980, form No. 2. In Strickland's Case, 19 Tex. App. 518, Judge HURT, says: "At common law it was essentially necessary to set forth particularly the manner of the killing, and the means by which it was effected. This is rendered unnecessary by the act of March 26, 1881. Wilson, Crim. St. § 1980, form No. 2. But this act, known as the `Common Sense Bill,' does not render unnecessary the allegation that the accused killed the deceased. The form therein prescribed requires such an allegation, and we here hold that an indictment for murder, drawn under this form, is sufficient, because it (the form) contained each and every element of which murder is composed. Upon this subject Mr. Wharton says: `The wound must be alleged to be mortal, and death therefrom must be distinctly averred. The averment that the defendant killed the deceased on a certain day implies that the latter died on such day.' 1 Whart. Crim. Law, §§ 536, 537. * * * Since the act of March 26, 1881, it is not necessary for the indictment to describe the wound in any manner, nor to allege that it was mortal, nor to allege in terms that the deceased died therefrom. The allegation that the defendant, with his malice aforethought, with certain means, did kill and murder deceased, is sufficient." Wilson, Crim. St. § 1035. "An averment that the defendant killed the deceased on a day certain implies that the latter died on such day." 9 Amer. & Eng. Cyclop. Law, 636. Expunging the surplusage as above indicated...