Hickman v. State

• Decision Date: 27 November 1886
• Citation: 2 S.W. 640
• Court: Texas Court of Appeals
• Parties: HICKMAN <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>

2 S.W. 640

HICKMAN

v. STATE.¹

Court of Appeals of Texas.

November 27, 1886.

Appeal from district court, Llano county.

The opinion discloses the case. Seven years and six months in the penitentiary was the penalty assessed.

No brief for appellant. Asst. Atty. Gen. Burts, for the State.

HURT, J.

The indictment in this case charged that the appellant, in the county of Llano, "did fraudulently take, steal, and carry away from and out of the possession of Frank Warnica, who was then and there holding the same for the owner, one animal of the horse species, of the value of fifty dollars, the property of one Ira Kuykendall; one saddle, bridle, and blanket, from and out of the possession of said Frank Warnica, and the corporeal personal property of the said Frank Warnica. Said saddle was worth and of the value of $20; said bridle and blanket were worth $2 each; and said animal of the horse species, and said saddle, bridle, and blanket, were then and there, at one and the same time, fraudulently taken and carried away by the said Frank Hickman, without the consent," etc. The appellant, being convicted, moved in arrest of judgment on the ground that the bill of indictment was duplicitous. His motion was overruled, and he excepted, and his counsel assigns this as error.

The indictment in this case contains but one count, in which two different and distinct felonies, with different penalties, are charged. This being the case, the motion in arrest was well taken. Heineman v. State, ante, 619, (present term.)

When we look at the verdict in this case, it demonstrates this conclusion. The verdict is as follows: "We, the jury, find the defendant, Frank Hickman, guilty as charged in the indictment, and assess his punishment at seven years and six months in the state penitentiary." Now, of what did the jury find him guilty? Theft of the horse, or theft of personal property of a certain value. We are left to conjecture. We are not, however, to be understood as holding that any character of verdict could cure the defect in the bill of indictment in this case. It has that effect in some cases of duplicity, but not in cases of this character. Whart. Crim. Pl. & Pr. (8th Ed.) § 255.

The judgment is reversed, and the prosecution dismissed.

1. Reported by Messrs. Jackson & Jackson, official reporters of the Texas court of appeals.