Morris v. State
| Decision Date | 16 January 1924 |
| Docket Number | (No. 7679.) |
| Citation | 257 S.W. 899 |
| Parties | MORRIS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
M. Morris was convicted of keeping a building for sale of intoxicating liquors, and he appeals. Reversed and remanded.
A. H. Mount, of Dallas, for appellant.
R. G. Storey, Asst. Atty. Gen., for the State.
The conviction is for keeping a building for the purpose of selling intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.
Provision is made in article 482, Code Cr. Proc. for the substitution of a lost indictment. On the present record it appears that on the 3d day of November, 1922, the district attorney presented to the court a motion which contained an averment to the effect that on the 16th day of September, 1922, there had been legally presented against M. Morris, in cause No. 6332, an indictment charging him with the offense of possession of intoxicating liquor for the purpose of sale, and transporting liquor for the purpose of sale, and keeping and being interested in keeping a building as a place where intoxicating liquors were sold, and other counts in said indictment.
It was also averred in said motion that the indictment had been lost, and after diligent search could not be found, and that the copy of the indictment attached to the motion was a substituted copy of the one returned by the grand jury. The court, on the hearing of the motion, took the testimony of the assistant district attorney and also of the attorney for the appellant. There was a conflict in their testimony touching the contents of the indictment. The assistant district attorney testified that he had never seen the indictment after it was filed, while the attorney for the appellant testified that he saw the indictment, but that it was not like the one presented, in that it charged a different offense.
The clerk of the court, who was the custodian of the indictment, had not been called as a witness to prove the loss or search for the original indictment. Its loss was not proved, and was not a matter of judicial knowledge.
Another question arises from the record, namely, that there appears in the cause no order made by the court authorizing the substitution of the lost indictment. Such an order seems to be necessary. From one of the opinions of this court, the following quotation is taken:
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Martinez v. State
...v. State, 43 Tex.Cr.R. 437, 66 S.W. 779 (1902); Hollingsworth v. State, 87 Tex.Cr.R. 399, 221 S.W. 978 (1920); Morris v. State, 96 Tex.Cr.R. 337, 257 S.W. 899 (1924); Clark v. State, 717 S.W.2d 910, 919 Because we do not find where it was ever contested in the trial court that the indictmen......
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Carrillo v. State
...App. 1900); Reed v. State, 61 S.W. 925 (Tex. Crim. App. 1901); White v. State, 160 S.W. 703 (Tex. Crim. App. 1913); Morris v. State, 257 S.W. 899 (Tex. Crim. App. 1924). There has been little caselaw in the past seventy-five years addressing the issue of replacing a lost indictment. The few......
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State v. Dotson
...(1930) (discussing whether a defendant is entitled to notice of the State's intention to substitute an indictment); Morris v. State, 96 Tex.Crim. 337, 257 S.W. 899 (1924) (describing the procedure to substitute an indictment, which includes the filing of a formal motion); White v. State, 72......
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Farrell v. State, 16210.
...the court's order that the instrument presented be substituted for the original and lost complaint and information. See Morris v. State, 96 Tex. Cr. R. 337, 257 S. W. 899; Carter v. State, 41 Tex. Cr. R. 608, 58 S. W. 80; Burrage v. State (Tex. Cr. App.) 44 S. W. The opinion is expressed th......