Hubotter v. State
| Decision Date | 01 January 1870 |
| Citation | 32 Tex. 479 |
| Parties | C. W. HUBOTTER v. THE STATE. |
| Court | Texas Supreme Court |
1. In the conduct of public trials, a large discretion must be accorded to courts of original jurisdiction; and unless that discretion has been wantonly or most unwisely exercised, an appellate tribunal will not interpose to control it.
2. After the district attorney had accepted the panel, the court below allowed him to challenge one of the jurors. Held, that there is nothing in the code of criminal procedure which prohibits such action by the court below; and where nothing appears in the record to the contrary, this court will regard it as the exercise of a sound and wise discretion, not revisable by this court.
3. An indictment under art. 2410, Pas. Dig., as amended by the act of November 12th, 1866, for the theft of “two beeves, the same being cattle, each of the value of fifteen dollars,” is sufficiently certain in its descriptive averments of the property stolen.
4. See the opinion of the court for a critical analysis and definition of the term “cattle,” as used in the above mentioned enactments.
5. The court below permitted the district attorney to prove what the value of the stolen property was in United States currency, such proof being objected to on the ground that no particular kind of money should be designated. Held, not to be error which this court would revise.
APPEAL from Harris. Tried below before the Hon. W. R. Fayle, judge of the criminal court of the county of Harris.
In the criminal court of the county of Harris, at a special term held in August, 1869, the appellant was indicted and tried for theft.
The indictment charged that the accused, “on the 13th day of August, A. D. 1869, in the said county of Harris and state of Texas, did then and there fraudulently and feloniously steal, take and carry away, from the possession of Samuel W. Allen, two beeves, the same being cattle, each of the value of fifteen dollars, without the consent of the owner, and with the intent then and there to deprive the owner of the value thereof, and to appropriate the same to the use and benefit of him the said C. W. Hubotter,” etc.
The defendant pleaded not guilty. By a bill of exception taken by his counsel, it appears that “the district attorney having accepted the entire jury, the defendant examining each juror on his voir dire, when Mr. Henry Dupperman was called, examined and accepted by the defendant, whereupon the district attorney challenged him peremptorily, after having accepted him as a member of the panel, and the court set the said juror aside, and the defendant excepted,” etc.
To which was appended by the judge the following:
The other facts, so far as of any consequence, are indicated in the opinion of the court.
The accused was convicted, and his sentence fixed at two years in the penitentiary.
His counsel moved for a new trial, and in arrest of judgment assigning, among other causes, that the indictment was insufficient for want of proper description of the property alleged to have been stolen.
Both motions being overruled, the accused appealed.
Henderson & Whitfield, for the appellant. The second ground for arrest of judgment is as follows:
The third is as follows:
Beef is defined by Mr. Webster as “an animal of the bovine genus, whether ox, bull or cow.” The word therefore embraces the whole bovine race.
The qualification “being cattle,” instead of describing the particular kind of beef taken, makes it still more complicated.
Cattle, Mr. Webster says, in the United States, in common usage, signifies only beasts of the bovine genus, oxen, bulls, cows and their young.
The indictment in this case is too vague, indefinite and uncertain; by the terms used the state could have convicted the defendant of theft of a bull, ox, cow or a calf. The indictment does not specify what kind of an animal was stolen. Mr. Justice Lindsay, in delivering the opinion of this court, at its last session, in case 3091, Charles Jordt v. The State, said:
“If the theft of a specific domestic animal was committed, it should have been correctly charged in the indictment.” The appellant in that case was indicted for the theft of a horse, and the proof was he had taken a gelding.
Mr. Justice Lindsay said, in referring to it: “A conviction for the theft of a horse upon the proof of taking a gelding, would be as incongruous as that of stealing a mule or an ass upon a similar indictment.”
In the case under consideration the accused was convicted for the theft of two “beeves.” Were they bulls, oxen, cows or calves? If the indictment is good, could the defendant plead this judgment in bar of another prosecution for the theft of two oxen belonging to S. L. Allen? If there was a felony committed it was the theft of two oxen.
In the case of Bush v. The Republic, 1 Tex. 455, Justice Wheeler, in delivering the opinion of the court, said: “In an indictment for a statutory offense, the statute must be strictly pursued, and if the description of the offense embraced in the statute be departed from in any material respect, or if any ingredient in the definition of the offense be omitted, the indictment will be bad.”
Again: “An indictment should allege the fact necessary to constitute the offense charged by averments, direct, positive and certain, and not by way of argument and inference.” 1 Tex. 455.
The appellant was indicted under art. 766, O. & W. Dig. , which was amended November 12, 1866. Gen. Laws, 11th Leg. p. 200.
Art. 766, before being amended, read: “If any person shall steal any “neat cattle,' sheep, goat or hog, he shall be punished by confinement...
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