Ex parte McClain, 67323
| Decision Date | 23 September 1981 |
| Docket Number | No. 67323,67323 |
| Parties | Ex parte Lou Ella McCLAIN. |
| Court | Texas Court of Criminal Appeals |
This is a post-conviction habeas corpus proceeding. Art. 11.07, V.A.C.C.P. The Petitioner was convicted for violation of Art. 725b, V.A.P.C. (1925), under the following indictment which alleged that on or about January 13, 1972, the Petitioner:
"willfully, knowingly, and fraudulently pass(ed) as true to Wright Smith, pharmacist at the Lindale Pharmacy, Lindale, Texas, a false and forged instrument in writing, to wit: a prescription, which had theretofore been made without lawful authority and with intent to defraud and was then and there of the tenor following: (copy of instrument omitted) and which said instrument in writing the said LOU ELLA McCLAIN then and there well knowing to be false and forged and she, the said LOU ELLA McCLAIN, did pass as true with the intent to injure and defraud, ..."
The Petitioner now seeks relief asserting that this indictment is fundamentally defective because it does not allege all of the elements of an offense. An indictment which fails to allege all of the elements of an offense is void. Ex parte Seaton, 580 S.W.2d 593 (Tex.Cr.App.1979); American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974), and may be attacked for the first time by post-conviction writ of habeas corpus. Ex parte Seaton, supra; Ex parte Fontenot, 550 S.W.2d 87 (Tex.Cr.App.1977).
Art. 725b, V.A.P.C. (1925), under which Petitioner was convicted, provides, in pertinent part:
The indictment, which alleges that Petitioner knowingly passed as true a forged instrument, a prescription, the tenor of which was set out, knowing it to be forged, with the intent to injure and defraud, is sufficient to allege that Petitioner uttered a forged prescription as proscribed by Art. 725b, Sec. 20(5), supra, and alleges all that the...
To continue reading
Request your trial
-
Ex parte Renier
...1 All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.2 He also cites Ex parte McClain, 623 S.W.2d 140 (Tex.Cr.App.1981) and Ex parte Pousson, 599 S.W.2d 820 (Tex.Cr.App.1980); to them we add the recent decision in Ex Parte Oliver, 703 S.W.2d 205 (Te......
-
Ex parte Ormsby
...a fundamentally defective indictment may be challenged for the first time by a post-conviction writ of habeas corpus. Ex parte McClain, 623 S.W.2d 140 (Tex.Cr.App.1981); Ex parte Fontenot, 550 S.W.2d 87 Subsequent to filing this application, applicant pled guilty to the misdemeanor offense ......
-
Harrell v. State, s. 63149--
...rehearing in order that we might reconsider several of this Court's past decisions, namely, Ex parte Everett, supra; Ex parte McClain, 623 S.W.2d 140 (Tex.Cr.App.1981); Ex parte Roberts, 623 S.W.2d 138 (Tex.Cr.App.1980); and Ex parte Holbrook, 609 S.W.2d 541 (Tex.Cr.App.1980). The State inv......
-
Ex parte Oliver
...may be challenged by a post-conviction writ of habeas corpus. Ex parte Ormsby, 676 S.W.2d 130 (Tex.Cr.App.1984); Ex parte McClain, 623 S.W.2d 140 (Tex.Cr.App.1981); Ex parte Fontenot, 550 S.W.2d 87 (Tex.Cr.App.1977). Applicant's claim is not rendered moot because of the fact that he has alr......