Higgins v. State

• Decision Date: 21 May 1892
• Citation: 19 S.W. 503
• Parties: HIGGINS v. STATE.
• Court: Texas Court of Appeals

Page 503

19 S.W. 503

HIGGINS v. STATE.

Court of Appeals of Texas.

May 21, 1892.

Appeal from Bexar county court.

John M. Higgins was convicted of robbery, and appealed, and the judgment was affirmed. On rehearing. Judgment reversed.

Crenshaw & Bell, for appellant. R. H. Harrison, for the State.

DAVIDSON, J.

The appeal in this case is from a conviction of robbery, the penalty assessed being confinement in the penitentiary for a term of five years. On a previous day of this term of court we affirmed the judgment without delivering a written opinion. Counsel for appellant has since filed a motion for rehearing, upon the ground that the indictment does not charge the offense of robbery, in that it fails to allege the ownership of the property. Omitting preceding portions of the indictment, it reads as follows: "That Lucius Higgins and John M. Higgins, * * * in and upon I. N. Turner did make an assault, and did then and there by said assault, and by violence to said I. N. Turner, and by putting the said I. N. Turner in fear of life and bodily injury, fraudulently, and without the consent of the said I. N. Turner, take from the person and possession of him, the said I. N. Turner, one silver watch, with the intent to deprive the said I. N. Turner of the value of the same, and to appropriate the same to the use and benefit of them, the said Lucius Higgins and John M. Higgins," etc. The point now urged was not raised in the court below nor in this court heretofore, and is called to our attention for the first time in the motion for rehearing. Robbery is thus defined: "If any person, by assault, or by violence and putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property, with intent to appropriate the same to his own use, he shall be punished by confinement in the penitentiary not less than five years," etc. Pen. Code, art. 722. If the property taken was the property of the taker there is no doubt of the fact that he would not be guilty of the offense of robbery unless the party in possession had such right of possession as against the taker. With reference to criminal pleadings, our statute declares the general rule to be that "everything should be stated in an indictment which it is necessary to prove, but that which it is not necessary to prove need not be stated." Code Crim. Proc. art. 421. "The omission of any fact or circumstance necessary to the constitution of the offense — in other words, made essential to the punishment — renders the indictment bad." 2 Bish. Crim. Proc. (3d Ed.) § 325. As a rule for the indictment it is that every fact in law essential to the punishment shall be plainly and distinctly stated in terms sufficiently minute and technical to identify the offense and the offender. Same authority. Under the rule of pleading it is "not always sufficient to pursue the very words of the statute, unless by so doing you fully, directly, and expressly allege the fact in the doing or not doing whereof the offense consists, without any the least uncertainty or ambiguity." Kerry v. State, 17 Tex. App. 178; 2 Hawk. P. C. c. 25, § 111. A statute often uses general terms in describing the offense, whereas the indictment framed thereunder must be specific enough to give the party notice of what he is to meet, so that he may be able to traverse the facts averred. This class of offenses is not sufficiently charged by being averred in the language of the statute. The indictment must be more specific, because the terms employed in the statute do not convey all that is necessary to a legal description of the offense. Same authority. The test of an indictment is this: "If every allegation be taken as true, and yet the defendant be guilty of no offense," it would be insufficient, although it employed the very words of the statute. Com. v. Squire, 1 Metc. (Mass.) 258; 2 Lead. Crim. Cas. 174; Kerry v. State, 17 Tex. App. 178. Applying these rules to the case in hand, we do not think the indictment charges the offense of robbery. In order to convict of this offense, the party from whom the property is taken must be entitled to...