Helmus v. State

• Decision Date: 01 December 1965
• Docket Number: No. 38728,38728
• Citation: 397 S.W.2d 437
• Parties: Richard A. HELMUS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 437

397 S.W.2d 437

Richard A. HELMUS, Appellant, v. The STATE of Texas, Appellee.

No. 38728.

Court of Criminal Appeals of Texas.

Dec. 1, 1965.

Rehearing Denied Jan. 19, 1966.

Blanchard, Clifford, Gilkerson & Smith, John J. C. O'Shea, Lubbock, for appellant.

Alton R. Griffin, Dist. Atty., J. H. Schuetzeberg, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Presiding Judge.

Appellant was indicted for murder with malice; the indictment reads as follows:

'* * * did then and there unlawfully and willfully and voluntarily with his malice aforethought kill Jeffrey Helmus by striking him with his hand, and the said Richard A. Helmus did then and there unlawfully and willfully and voluntarily with his malice aforethought kill Jeffrey Helmus in some manner and by some means, instrument or weapon to the Grand Jury unknown, against the peace and dignity of the state.'

Trial was had before a jury and the appellant was found guilty of the offense of aggravated assault, a lesser included offense of the charge in the indictment. Punishment was assessed at confinement in the county jail for two (2) years.

The sole contention urged by appellant is that the trial court erred in refusing to grant his motion to quash the indictment on the theory that it is fundamentally defective as it is repugnant because it contains allegations inconsistent with each other in the same count, all of which cannot be true.

Appellant cites us a definition of repugnancy taken from the early case of Pisano v. State, 34 Tex.Cr.R. 63, 29 S.W. 42, but he did not oblige us with the holding in that case. We shall do so. In that case a motion was made to quash the indictment, because it charged no offense; because it was repugnant; and because it was duplicitous, and charged two separate and distinct offenses. The indictment contained two counts. The first alleged theft of four horses from Miguel de la Garza; the second charging theft of four horses from Reyes Pena. This court held:

'In order to constitute duplicity, two or more distinct felonies must be averred in the same count. In this indictment distinct offenses are apparently set out in different counts. This is the proper practice. If the evidence develops distinct transactions, the state should be required to elect upon which count the conviction would be asked. As to repugnancy, it may be stated, in a general way, to consist in pleading two inconsistent allegations in the same count. It does not apply to repugnancy which of necessity exists between different counts in the same indictment. (Emphasis added.) The exceptions are not will taken.'

It may readily be observed that the definition taken out of context means one thing but read in proper context means another.

In his brief appellant cites and correctly quotes a definition of repugnancy taken from Brown v. State, 96 Tex.Cr.R. 409, 257 S.W. 891:

'An indictment is said to be 'repugnant' when in the same count it contains allegations inconsistent with each other, both of which cannot be true and there is no means of ascertaining from the face of the indictment which is meant.'

In the Brown case the appellant there advanced the theory that the indictment offended against the rule against repugnancy in that it alleged that appellant was the keeper of a gambling house, and also that he permitted the house kept to be used for the purpose of gaming, and that these are separate offenses denounced by statute. This Court then stated the above definition of repugnancy and further stated that '[a]n indictment is 'duplicitous' when in the same count two separate offenses are charged, or in which two or more phases of the same offense are charged, each carrying a different punishment.' Speaking through Presiding Judge Morrow, this Court held: 'This indictment may be duplicitous, but we fail to perceive its repugnancy. That it was duplicitous did not...