Diggs v. State

• Decision Date: 08 November 1911
• Citation: 141 S.W. 100
• Parties: DIGGS v. STATE.
• Court: Texas Court of Criminal Appeals

141 S.W. 100

DIGGS v. STATE.

Court of Criminal Appeals of Texas.

November 8, 1911.

On Motion for Rehearing, December 6, 1911.

Appeal from Hall County Court; John D. Bird, Judge.

Ben Diggs was convicted of intimidation, and he appeals. Affirmed.

Stovall Johnson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant prosecutes this appeal from a conviction in the county court of Hall county, wherein he was charged with intimidation under article 600 of the Penal Code.

The Assistant Attorney General has filed a motion asking that the statement of facts and bills of exception be stricken from the record. As neither the bills of exception nor the statement of facts were filed within 20 days from the date of adjournment of the term, and this being a case tried in the county court, the motion is sustained. Acts First Called Sess. 30th Legislature, c. 7, p. 446, Sess. Acts. There is a motion to quash the indictment in the record, but, inasmuch as the indictment charges an offense under article 600 of the Penal Code, and is in exact conformance with the form drawn by Judge White, a former member of this court, and published in White's Ann. Pen. Code (see section 988), the court did not err in overruling the motion.

The court in his charge submitted the offense charged in the indictment, and, inasmuch as there is no statement of facts we can consider, this court presumes that the court charged the law, and all the law applicable to the facts introduced in evidence.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing in this case, in which he earnestly insists that the court erred in holding that the indictment in this cause was sufficient. The indictment reads: "In the name and by the authority of the state of Texas: The grand jurors, for the county of Hall, state aforesaid, duly organized as such at the December term, A. D. 1910, of the district court for said county, upon their oaths in said court, present that Ben Diggs, on or about the 25th day of July, A. D. one thousand, nine hundred and ten, and anterior to the presentment of this indictment, in the county of Hall and state of Texas, did then and there unlawfully by threatening words, acts of violence and intimidation, attempt to prevent, and did prevent, Oscar Brewington from engaging and remaining in, and performing the duties of a lawful employment, that is, the employment of cultivating a cotton crop, against the peace and dignity of the state."

Appellant did not file a motion to quash the indictment, nor in arrest of judgment, but in his motion for new trial we find the following ground: "Comes now the defendant, and moves the court to set aside the verdict herein rendered against him on the 25th day of April, 1911, and grant him a new trial for the following reasons: (1) Because the indictment in this cause failed to state what the threatening words that defendant used or was charged with using and that constituted the offense. (2) Because the acts of violence and intimidation were not set forth in the indictment, but the indictment simply stated that the defendant did by acts of violence and intimidation prevent Oscar Brewington from remaining and performing," etc. The indictment in this case follows the opinion of this court in the case of Luter v. State, 32 Tex. Cr. R. 69, 22 S. W. 140, and it was not necessary to set out the threatening words, nor state the specific act of violence. Buie v. State, 1 Tex. App. 60. In the case of McFain v. State, 41 Tex. 387, Chief Justice Roberts held: "It is objected to the indictment that the words constituting the alleged threat are not set out. The indictment charges that the defendant `did then and there unlawfully, feloniously, and seriously threaten to take the life of B. J. Harvey' and of others named. This is substantially in the language of the statute creating the offense. Paschal's Dig. art. 2864. That is, as it has often been held, sufficient when the statute sets out in the definition the specific facts constituting the offense, and does not define or describe the offense by the use of generic terms. The statute in this case presents two distinct facts, which concurring constitute the offense, one of which is the act of threatening to take life, and the other is the then existing serious intention entertained to execute it. A threat to take life is a definite single act, capable, it is true, of being performed in different ways by the use of different words, just as in the case of an assault. An assault is the unlawful attempt to commit a battery. The act involved in its commission may be performed in various ways and by a great diversity of means and instruments. Still, however variant the modes or means of performing the act, it is single and definite, and therefore it is not required that the particular mode or means in any case shall be set out. So, in the same sense, a threat to take life is a single definite act, although it may be performed by the use of a great variety in the combination of words employed for the purpose."

The sufficiency of an indictment of this character is discussed in Long v. State, 10 Tex. App. 194, by Presiding Judge White, and more specific allegations than are contained in this indictment are held unnecessary. See, also, Foreman v. State, 31 Tex. Cr. R. 477, 20 S. W. 1109; Parsons v. State, 33 Tex. Cr. R. 540, 28 S. W. 204; Thompson v. State, 16 Tex. App. 161; Longley v. State, 43 Tex. 490. The indictment in this case sets out the lawful employment, and it is not necessary to allege the means used more specifically than "by threatening words, acts of violence, and intimidation" the person was...