M'Daniel v. State

• Decision Date: 25 January 1888
• Citation: 7 S.W. 249
• Parties: McDANIEL v. STATE.
• Court: Texas Court of Appeals

7 S.W. 249

McDANIEL v. STATE.

Court of Appeals of Texas.

January 25, 1888.

Appeal from district court, Leon county; EARLE ADAMS, Special Judge.

Charles McDaniel was indicted with one James Mathews for the larceny of a cow, the property of H. C. Coburn, but was tried separately. The state proved the disappearance of the animal from the range possession of its owner about April 1, 1886. It was traced to the subsequent possession of the defendant and Mathews, and finally to the possession of one Walker, in Limestone county. It was further proved that Walker bought it from one Bently, whose agent, Smith, bought it for him from Mathews and defendant. The defense interposed was a purchase of the animal by defendant and Mathews from one George Washington, colored. A single witness testified that he was present at the house of James Mathews on or about April 1, 1886, when Mathews and appellant bought this and three other animals from Washington. He saw the money paid for them, and wrote the two bills of sale which passed in the transaction; one covering the animal in question, and the other covering the other three. Those bills were written on the same sheet of paper, and then torn apart. George Washington was dead at the time of this trial, but his testimony taken on the examining trial was read in evidence by the state in rebuttal. He denied that he had ever "owned, or claimed to own, a single head of cattle, or that he ever sold a head of cattle to either Mathews or appellant. It was shown by other rebuttal witnesses that the papers on which the two bills of sale were written could not be fitted together, and that therefore there must be no truth in the statement of the defense witness that he wrote the two bills separately on the same sheet of paper. On trial, defendant was found guilty, and appeals.

Johnston & Dolson, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

A motion in arrest of judgment attacked the sufficiency of the indictment, because the minutes of the court do not show that a foreman for the grand jury which found the bill had ever been appointed by the court, nor do they show that the said grand jury were ever sworn. "A motion in arrest of judgment shall be granted upon any ground which would be good upon exceptions to an indictment or information for any substantial defect therein." Code Crim. Proc. art. 787. Exceptions, and the only exceptions, to the substance of an indictment in our practice, are those enumerated in article 528, Code Crim. Proc., and all exceptions to form are specified in article 529. No such grounds as those here asserted are enumerated in the matters rendering an indictment defective for substance, — they are matters of form only. "A mere formal objection would not be reached by a...