Osborne v. State
| Decision Date | 07 December 1887 |
| Citation | 6 S.W. 536 |
| Parties | OSBORNE v. STATE. |
| Court | Texas Court of Appeals |
Appeal from district court, Colorado county; GEORGE McCORMICK, Judge.
Ed. Osborne was indicted for the murder of one West Kirby, and convicted of murder in the first degree; the penalty assessed by the jury being death. Upon appeal, a new trial was awarded, for the reasons pointed out in the opinion of the court of appeals published in 5 S. W. Rep. 251 et seq. From the verdict of conviction of murder in the same degree at the second trial, and sentence of imprisonment for life, defendant brings the present appeal.
J. C. Mitchell, for appellant. Asst. Atty. Gen. Davidson, for the State.
As presented in court by the grand jury, the indictment recited that it was found at a term of the district court for Colorado county, Texas, beginning on the first Monday after the first Monday in February, 1887. This was an erroneous statement of the time of the beginning of the term of said court at which said indictment was presented; said term having begun on the fourth Monday after the first Monday in February, 1887. Upon motion made by the district attorney for leave to amend the indictment so as correct the said erroneous recital, such leave was granted, and thereupon the district attorney in open court, and with the knowledge of the court, erased the word "first," and inserted in its stead the word "fourth," in the original indictment, so as to make it appear that the term of the court at which the indictment was presented commenced at the proper time; that is, on the fourth Monday after the first Monday in February, 1887. To this amendment of the indictment, made in the manner above stated, the defendant excepted, and through his counsel urgently insists that it constitutes error for which the conviction should be set aside.
When this case was before us on a former appeal, we held, with reference to this supposed defect in the indictment, that it related to matter of form, and was amendable. Osborne v. State, 23 Tex. App. 431, and 5 S. W. Rep. 251. But it is now contended that the amendment was not properly made, because it is not recited in the minutes of the court that it was made, etc. In the case of Bosshard v. State, 25 Tex. 207, a similar amendment of an indictment was made, and made by inserting a word in the original indictment, and there was held to be no error in the proceeding. In Sharp v. State, 6 Tex. App. 650, a similar amendment was held to...
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