Lunn v. State

• Decision Date: 01 January 1875
• Citation: 44 Tex. 85
• Parties: GEORGE LUNN v. THE STATE.
• Court: Texas Supreme Court

44 Tex. 85

GEORGE LUNN

v.THE STATE.

Supreme Court of Texas.

1875.

APPEAL from Red River. Tried below before the Hon. James Q. Chenoweth.

Gains & George, for appellant.

A. J. Peeler, Assistant Attorney General, for the State.

REEVES, ASSOCIATE JUSTICE.

The indictment in this case charges the defendant, George Lunn, with theft of four hogs of the value of five dollars each. The jury found the defendant guilty, and assessed his punishment at confinement in the penitentiary for one year. There was a motion in arrest of judgment and motion for a new trial, which motions being overruled, the defendant appealed.

The grounds of the motion in arrest of judgment are: 1. Because the indictment does not charge any offense against the laws of the State. 2. The indictment is vague, uncertain, and defective. 3. The indictment does not sufficiently describe the property alleged to have been stolen.

The indictment charges that “George Lunn, feloniously, willfully, and fraudulently, did take, steal, and carry away from and out of the possession of one Jo. C. Ward four certain hogs of the value of five dollars each,” &c.

The property described is the subject of larceny, and with reference to this case greater certainty was not required. (2 Arch. Cr. Plead., 355.) The identity of the hogs as the property stolen is a question of evidence. (Ib., 390-3.)

The first ground of the motion for a new trial is that the court erred in overruling defendant's motion to compel the district attorney to elect upon which of the two alleged offenses developed by the testimony he would proceed, and in permitting the case to go to the jury upon evidence tending to show the commission of two separate offenses.

It appears from the recital in the bill of exceptions taken by the defendant on the trial that the motion was made after the State's witness, John Ray, had testified that two of the hogs were stolen by defendant one day, and that the other two hogs were stolen two days thereafter.

The general rule in felony, says Bishop, is that the court will permit the prosecutor to give evidence of only one felonious transaction. (1 Bishop on Cr. Procedure, sec. 457; 2 Arch. Cr. Plead., 361.)

It appearing from the evidence that the hogs were not stolen at one time, but were stolen at distinct times, and each act of larceny being punishable as a felony, the evidence should have been confined to a single transaction. If more hogs than one were taken at the same time the taking was only a single transaction, and punishable as such according to the value of the property as being under or over twenty dollars. By article 766 a it is provided that if any person shall steal any sheep, hog, or goat, he shall, if the value of the property stolen is twenty dollars or over, be punished by confinement in the penitentiary not less than two nor more than five years. If the value of property is under twenty dollars he shall be punished by imprisonment in the penitentiary for not less than one nor more than two years. (See act May 17, 1873, p. 80.)

It is contended in behalf of the State that the objection arising upon the bill of exceptions is obviated by the charge of the judge, and that the jury found the defendant guilty of only one act. The court charged the jury as follows: “If you believe from the evidence that the hogs charged in the indictment to have been stolen, were stolen on two different occasions, it will be sufficient for you to fix the value of the hogs stolen on one of the occasions proved.”

The practice of the courts in the different States is far from being uniform as to what time the election is to be made by the district attorney.

In some of the States the prosecuting officer is required to...