Huggins v. State, 52303
Decision Date | 08 December 1976 |
Docket Number | No. 52303,52303 |
Citation | 544 S.W.2d 147 |
Parties | John Wayne HUGGINS, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Ernest W. Kuehne, Jr., Dallas, for appellant.
Henry Wade, Dist. Atty., John Tatum and Paul D. Macaluso, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
DALLY, Commissioner.
This appeal from an order revoking probation was first submitted as a wholly frivolous appeal without merit; it was abated for further briefing by both the appellant's counsel and the State. Huggins v. State, 538 S.W.2d 136 (Tex.Cr.App.1976).
On appeal from an order revoking probation an original conviction may be collaterally attacked and the judgment set aside if fundamental error was committed. Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972). The original conviction will be set aside in an appeal from an order revoking probation if the indictment was fundamentally defective. Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975). The indictment upon which the appellant's conviction is based is fundamentally defective and requires that the judgment of conviction be reversed.
The appellant's conviction was for attempted arson, a violation of Article 1316, V.A.P.C. (1925), which in pertinent part reads:
'Any person who willfully attempts to set fire to or attempts to burn, . . . buildings, or property such as are mentioned elsewhere in Chapter 1, Title 17 of the Penal Code of 1925 . . ., shall be guilty of an attempt to commit the offense of arson . . .'
The indictment under which the appellant was convicted alleges that the appellant:
'. . . did then and there unlawfully set fire to and attept to burn the house of C. J. Humphries in the city of Dallas, Texas, there situate, . . .'
It is not alleged in the indictment that the appellant acted Willfully in the attempt to burn the house. Cf. Willson's Criminal Forms (7th ed.), Sec. 1830; 4 Branch's Ann.P.C. (2d ed.) 738, Sec. 2395. Orato v. State, 170 Tex.Cr. 514, 342 S.W.2d 108 (1960); Thomas v. State, 41 Tex. 27 (1874).
Massey v. State, 154 Tex.Cr.R. 263, 226 S.W.2d 856 (Tex.Cr.App.1950).
An allegation that the offense was committed willfully is necessary when willfulness is an essential element of the crime. 30 Tex.Jur.2d 587, Indictment and Information, Sec. 30.
'If the language of the statute requires the prohibited act to have been 'willfully' done before it constitutes an offense an indictment drawn on such statute should allege the act was 'willfully' done.' I Branch's Ann.P.C. (2d ed.) 499, Sec. 519.
Woolsey v. State, 14 Tex.App. 57 (1883).
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