Northern v. State

• Decision Date: 21 May 1947
• Docket Number: No. 23553.,23553.
• Parties: NORTHERN v. STATE.
• Court: Texas Court of Criminal Appeals

203 S.W.2d 206

NORTHERN v. STATE.

No. 23553.

Court of Criminal Appeals of Texas.

May 21, 1947.

Rehearing Denied June 28, 1947.

Commissioners' Decision.

Appeal from Criminal District Court, Dallas County; Henry King, Judge.

Buster Northern was convicted of murder, and he appeals.

Reversed and remanded, and prosecution ordered dismissed.

A. S. Baskett, Noah Roark, Bowen Tatum, and W. L. Sessions, all of Dallas, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is murder. The punishment assessed is death.

Appellant brings forward three complaints upon which he relies for a reversal of the judgment. In view of the disposition we are making of this case, we deem it necessary to discuss only his first complaint by which he challenges the sufficiency of the indictment which, omitting the formal parts, reads as follows: "* * * That one Buster Northern on the 27th day of March, in the year of our Lord One Thousand Nine Hundred and 46 with force and arms, in the County and State aforesaid, did then and there unlawfully, voluntarily, and with his malice aforethought, kill Fannie McHenry by then and there kicking and stomping the said Fannie McHenry, etc."

His main contention is that the indictment fails to charge the means by which the alleged murder was committed. In this respect, we agree. It seems to have been the holding of this Court in many cases that the means by which the offense was committed, if known, should be stated; and if not known, it should be charged that the same were unknown to the grand jury.

It is now the established rule in this State that an indictment should be so certain and definite in charging the offense that it leaves nothing to be supplied by intendment or inference. Applying this rule to the indictment in the instant case, it fails to meet the requirements of the rule stated. It is true that it charges the time, place, and manner of the commission of the offense, but it fails to charge the means employed in the commission of the same.

This court has held many times an indictment is insufficient which charged that the accused killed the deceased with a sharp instrument without charging the kind or character of the instrument employed. Drye v. State, 14 Tex.Cr.R. 185, 191; Jackson v. State, 34 Tex.Cr.R. 38, 28 S.W. 815.

This Court has also held that charging the accused with killing the deceased by shooting him was insufficient in that it failed to charge that he did so with a gun. In other words, the means employed in the commission of the offense must be charged, if known, in order to apprise the accused, not only of the time, place, and manner of the commission of the offense, but also of the means used in the commission thereof.

Long before this Court was established and while the Supreme Court of this State had appellate jurisdiction of criminal cases, the question here under consideration was frequently before that Court and it consistently held that the indictment had to charge the means by which the offense was committed. See State v. Williams, 36 Tex. 352. If the offense was committed with a weapon or other instrument, it had to allege the kind and character of the weapon or instrument used, or aver that it was unknown to the grand jury. This is in consonance with the constitutional requirement that the accused be informed of the offense with which he is charged. It is urged as a reason for affirmance of this case that, inasmuch as one could only kick and stomp with his foot, the instrument or means used in the commission of the offense may be inferred.

We have been unable to find any case so holding, and no text-writer on criminal law, so far as we know, has ever announced such doctrine. To so hold would be a radical departure from the rules of pleading in criminal cases. The constitutional requirement that the accused be informed of the nature of the offense with which he is charged is mandatory. The Legislature as well as the Courts have been rather zealous in framing rules of procedure which would guarantee to the accused this constitutional provision. It might be conceded that the indictment in the instant case informed him that he stomped the deceased to death from which it may be inferred that he did so with his feet since no one can stomp with anything but his feet, but to do so would require the Court to supply by inference something not alleged.

It must be borne in mind that the theory of our law is that every person is presumed to be innocent and it is upon this theory of our law that it is necessary to charge the offense with such certainty that a presumptively innocent man seeking to know what he must meet may ascertain from the indictment fully the matters charged. If we proceeded upon the theory that every person accused of an offense is guilty, then it may not be necessary to charge the offense with the same particularity because being presumed guilty, he would necessarily know what he did, what he is charged with, and what he will be required to meet on his trial, but this would be contrary to the Constitution and our form of government. It would have been an easy matter to have alleged in the indictment that the accused stomped the deceased to death with his feet with shoes on since the grand jury had that information when the indictment was drawn. In support of the conclusion here expressed we refer to the following authority: Huddleston v. State, 70 Tex.Cr.R. 260, 156 S.W. 1168.

Having reached the conclusion that the indictment is fatally defective with respect to the omissions herein pointed out, the judgment of the trial court is reversed, the cause is remanded and the prosecution ordered dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by us.

GRAVES, Judge (dissenting).

Appellant is charged with taking the life of Mrs. Fannie McHenry, a woman 70 years of age, and upon his conviction, he was awarded the penalty of death.

Appellant brings forward three complaints upon which he relies for reversal of the judgment. By his first complaint he challenges the sufficiency of the indictment which, omitting the formal parts, reads in substance as follows: "* * * That Buster Northern on the 27th day of March, in the year of our Lord One Thousand Nine Hundred and 46 with force and arms, in the County and State aforesaid, did then and there unlawfully, voluntarily, and with his malice aforethought, kill Fannie McHenry by then and there kicking and stomping the said Fannie McHenry", etc.

His main contention seems to be that the indictment fails to charge the means by which the alleged murder was committed. While it is true that ordinarily an indictment should charge the manner and means in which the injuries were inflicted which resulted in death, still Article 405, C.C.P., provides as follows: "An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment", etc.

Article 398, C.C.P., provides as follows: "The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense."

It is obvious that the allegations in the indictment inform the appellant of the time and place of the commission of the offense, as well as the manner in which it was committed. The fact that he did so by "kicking and stomping" necessarily includes the means, since he could not have kicked and stomped her with anything except his feet. In no other manner could he have kicked and stomped her.

In construing an indictment, it must be given a reasonable and not an unreasonable construction. What other information could have been conveyed by the indictment to the appellant than that he kicked and stomped her with his feet? However, it would have been an easy matter to have charged that he killed her by kicking and stomping her with his feet with his shoes on, but under the facts here disclosed, we see no escape from the conclusion that when he kicked and stomped her, it necessarily means that he kicked and stomped her with his feet, thus informing him, not only of the manner, but also of the means or the overt act by which he committed the offense.

Webster's International Dictionary, 2d Ed., defines the word "kick" to mean "a blow with foot or feet; a striking or thrust with the foot." The word "stomp" is defined as a variation of the word "stamp", the word "stamp" being defined, among other things, as "to strike or beat forcibly with the bottom of the foot, or by thrusting the foot downward."

We then, in the light of the statute (Art. 405, C.C.P.), find this indictment saying that appellant killed this lady by blows with his foot or feet, by a striking thrust with his feet; and by striking and beating her forcibly with the bottom of his feet, and by thrusting his feet downward upon her.

Under Art. 398, C.C.P., above quoted, it has been held that an indictment is sufficient if the constituent elements of the offense are so averred as to apprise the defendant of the charge against him and to enable him to plead the judgment in bar of another prosecution for the same offense. See Burck v. State, 132 Tex.Cr.R. 628, 106 S.W.2d 709; Gilliam v. State, 145 Tex.Cr.R. 242, 167 S.W.2d 528. See also Vernon's Ann.Tex.C.C.P., Vol. 1, art. 398, p. 264, note 2, where many cases are collated, beginning with Williams v. State, 1 Tex. App. 90, 28 Am.Rep. 399, and on up to the present time. See Paschal's Digest, Art. 2865; Alexander v. State, 29 Tex. 495; State v. Hanson, 23 Tex. 233.

Let us suppose for the sake...