Musquez v. State
| Decision Date | 01 January 1874 |
| Citation | 41 Tex. 226 |
| Parties | AMARANTI MUSQUEZ v. THE STATE. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Bexar. Tried below before the Hon. George H. Noonan.
J. T. Teel, for appellant.
George Clark, Attorney General, for the State.
The indictment in this case alleges that “Amaranti Musquez, Marcial Tigirina, and Ignacio Waldonado did feloniously and unlawfully steal, take, and carry away from the possession of Manual Barragon six head of work oxen, of the value of one hundred and fifty dollars, the property of said Manual Barragon, without the consent of said Manual Barragon, and with the fraudulent and felonious intent to deprive the said Manual Barragon of the value of said six head of work oxen, and to appropriate the same to the use and benefit of them, the said Aramanti Musquez, Marcial Tigirina, and Ignacio Waldonado.”
Several objections to this indictment were taken below, and are urged in this court:
First. It is said the indictment does not follow the language of the statute defining theft, as the “fraudulent taking,” &c. In lieu of this the indictment charges that he “did feloniously steal, take, and carry away,” following the form of a common-law indictment for larceny. Larceny at common law is defined as the wrongful or fraudulent taking and carrying away by any person of the mere personal goods of another, from any place, with a felonious intent to convert them to his, the taker's, own use, and make them his own property, without the consent of the owner.” (Regina v. Holloway, 2 Carr. & Kir., 945.)
It is not perceived that our statute, in using the word fraudulent, introduces any new element into the common-law crime of larceny; and it is believed that the form of indictment used at common law sufficiently charges that the taking was fraudulent. The averment is, “did feloniously steal;” and the word steal alone has been held to mean, both in common and legal parlance, a felonious taking. (State v. Chambers, 2 Green's Iowa, 310.)
The second objection to the indictment is, that it does not aver that the oxen were “cattle,” so as to bring the offense within the statute as to theft of cattle. It is alleged and proved, however, that the oxen were of the value of one hundred and fifty dollars. The offense is, therefore, punishable by imprisonment in the penitentiary, and the omission becomes immaterial.
It is further objected that the taking is charged to be by Amaranti Musquez, whilst, in alleging the intent to appropriate, the indictment describes him as the “said Aramanti Musquez.” The defendant having been before correctly described, the word “Aramanti” may be rejected without affecting the indictment. (See Cotton v. The State, 4 Tex., 265.)
The evidence discloses that Manual Barragon, on the 21st January, 1874, “left his home in San Antonio with his wagon and ox team, and camped that night on the Leon creek, turning his oxen loose to graze. On hunting his oxen the next morning, he found their carcasses on the...
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Gustavenson v. State
...the defendant admits his name as laid therein and is estopped from pleading misnomer. (Mayo v. State, 7 Tex. App., 342; Musquez v. State, 41 Tex. 226.) In this State it sufficient to charge the commission of the offense on or about a certain date. (R. S., 5301.) The information charges an a......
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Flowers v. State
...its head, horns, and hoofs. Under these circumstances this made out a case of larceny of the cow as charged in the information. Musquez v. State, 41 Tex. 226; McPhail v. 9 Tex. App. 164; Kemp v. State, 89 Ala. 52, 7 So. 413; Croom v. State, 71 Ala. 14; Rawlins' Case, 2 East's P. C. 617; Rap......
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Wampler v. State
...correctly in the first instance. In repeating them they are referred to as "them, the said J. A. Parker and Charles Wamplene." In Musquez v. State, 41 Tex. 226, it was held that where the name of a defendant had been first stated correctly, but afterwards stated incorrectly as to his Christ......
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Putty v. State, 15350.
...to his own use and benefit; that is, he proposed to appropriate to his own use some interest or value in the horse itself. See Musquez v. State, 41 Tex. 226; McPhail v. State, 9 Tex. App. 165. On this phase of the case the court charged the jury, if they believed the defendant took the hors......