Phillips v. State

• Decision Date: 31 January 1867
• Citation: 29 Tex. 226
• Parties: WILLIAM J. PHILLIPS v. THE STATE.
• Court: Texas Supreme Court

29 Tex. 226

WILLIAM J. PHILLIPS

v.THE STATE.

Supreme Court of Texas.

January, 1867.

Art. 399 a of the criminal code reads as follows: “If any person shall wrongfully destroy, mutilate, deface, injure, or remove any tomb, monument, gravestone, or other structure, in any place used or intended for the burial of the dead, or any fence, railing, or curb for the protection of such structure, or any inclosure for any such place of burial, or shall wrongfully injure, cut, remove, or destroy any tree or shrub growing within any such inclosure, he shall be punished by imprisonment in jail not exceeding six months, or by fine not exceeding $500.” Pas. Dig. art. 2031. The indictment charged the defendant with removing and destroying the fence, etc. This is always proper where a statute makes two or more distinct acts, connected with the same transaction, indictable, each one of which may be considered as representing a stage in the same offense.

There is no repugnancy between the act of removing and that of destroying a graveyard. The former includes the latter.

The code of criminal procedure does not contemplate that a general demurrer to an indictment, or a general exception, which does not notify the court whether the defect of the indictment is one of form or one of substance, shall be heard by the court. Pas. Dig. art. 2949, note 733.

If the offense be charged substantially in the language of the statute, so as to put the defendant upon notice of the particular charge which he is called on to answer, and he could plead his acquittal or conviction against another indictment, it is sufficient. 4 Tex. 383;26 Tex. 678.

Where a man does an act with the intent which the law forbids, it will not avail him that he also intended an ultimate good. It is enough that every one must know what the law forbids.

That the burying ground was better protected by the new fence than the old is no defense.

APPEAL from Wharton. The case was tried before Hon. BENJAMIN SHROPSHIRE, one of the district judges.

The appellant was indicted in these words: “That William J. Phillips and Jim Phillips, on the 25th day of March, A. D. 1856, with force and arms, in the county aforesaid, did then and there wrongfully destroy and remove the fence from around a certain graveyard near the town of Wharton, in said county and state, which said fence was placed around said graveyard for its protection and inclosure.”

The defendants moved to quash the indictment, because it was insufficient and charged no offense known to the law. The motion was overruled, and it was proved that the graveyard had been inclosed for some years by public subscription; that the fence was dilapidated and in a bad condition previous to the change made by the defendants, so much so, that stock were accustomed to break in; that the appellant, being the agent of Mrs. McWillie, the owner of the adjoining plantation, removed one string of the graveyard fence, so as to take in about five more acres of land; but the inclosure was then repaired, and a better fence made, so as to keep out the stock. It was proved that one Kinchiloe had formerly owned the land, which he had given for a graveyard for the use of the town of Wharton. In removing the fence the appellant caused the graveyard to be partly within the cotton patch of Mrs. McWillie.

The state having closed with this evidence, the defendant proved that he had applied to the county court for permission to remove the division fence between the McWillie plantation and the graveyard. The court refused to take jurisdiction of the matter. He then proved, by a diagram, that by removing the fence he threw five acres more into the graveyard inclosure, but cultivated the five acres in cotton, having made a good fence around the whole inclosure. The inclosure was proved to have been very much improved. One of the subscribers to the graveyard swore that the appellant applied to him for permission to make the change, and he gave his consent, stating at the same time that he thought no one would object.

The court instructed the jury, that if they believed that the defendants, or either of them, did wrongfully remove the fence which did inclose the graveyard or burial-ground of the town of Wharton, they would find them guilty, etc., and refused to instruct, that if the change made in removing the division fence repaired and improved the inclosure they would acquit.

The jury found William J. Phillips guilty, and acquitted the freedman, Jim Phillips. William J. Phillips appealed.

There was a motion for a new trial overruled, which is sufficiently noticed in the opinion of the court. The points in it arose upon other rulings.

John T. Harcourt, for appellant. The first assignment of error calls in question the ruling of the court on the motion to quash the indictment.

The indictment is believed to be defective, because it is double, and repugnant, and does not pursue the language of the statute with sufficient exactness. Penal Code, art. 399 a.

It will be observed that two distinct offenses are charged in the bill. The first is, that the defendant destroyed the fence; the second, that he removed it.

“A count in an indictment which charges two distinct offenses is bad, and the defendant, on a motion to quash or demurrer, can defeat it.” Whart. Cr. Law, 139; Miller v. State, 5 How. 250.

“When one material averment in an indictment is contradictory to another, the whole is bad.” Whart. Cr. Law, 142.

The destruction of the fence completes the crime, and, if destroyed, it could not be removed. It is an inconsistent averment.

It is apparent that the offense intended to be charged was, that the defendant “wrongfully removed the inclosure from a place used for the burial of the dead, near the town of Wharton.” These are the “plain, intelligible words” contemplated by article 395, code of criminal procedure.

“An indictment which may apply to either of two definite offenses, and does not specify which, is bad.” Whart. Cr. Law, 120, 121, 132.

2. The court erred in overruling the motion for new trial. It is contended that the charge of the court was erroneous, because it did not explain to the jury what would constitute a wrongful removing of the fence. This was the technical averment which formed the gist of the prosecution.

“The intent with which an act is done is often made a material ingredient in the offense, as defined either by the common law or by statute.”

“Where an evil intent, accompanying an act, is necessary to constitute such act a crime, the intent must be alleged in the indictment and proved.” 1 Arch. Cr. Prac. and Plead. 87, note; The People v. Petit, 3 Johns. 511; Fergus v. State, 6 Yerg. 334; Coffee v. State, 3 Yerg. 283.

We conclude that it was the duty of the court to define what was the technical, legal import of the term wrongful, and submit to the jury the material practical issue, whether the act was done with a guilty evil intent, or for some innocent laudable purpose.

The court erred in refusing to give the charge asked by the defendant. This charge embodied the law applicable to the facts of the case, and would have enabled the jury to acquit the defendant.

The fence was a bad one, before the change was made, so much so, that it was not in fact an inclosure, as it did not keep out the stock. The defendant made it an “inclosure” which did protect the burial-ground. The fence, as changed, did surround and shut in the graveyard, and it was not in any just sense a removing of the inclosure.

The fifth ground of the motion for a new trial is submitted with a single remark. The jury intended to fine the defendant $100. The court, a quo, has decided that the United States currency is not a legal tender, and this fine must be paid in coin.

3. The third assignment of error is, that the verdict and judgment are contrary to law and the evidence.

We think it has already been shown that the verdict and judgment are contrary to law, and an inspection of the statement of facts will show that they are not warranted by the proof.

There was no evidence conducing to show that the act was done with a wrongful or evil intent. It devolved upon the state to show this offensive guilty intent.

The defendant fully exculpated himself by the testimony of the witnesses, Horne and Davis, who proved that the defendant applied to all the parties, whom he supposed had any control over the subject, for permission to make the proposed change, and no objection was urged by the county court. Permission was granted him by Mr. Davis. The proof negatives all idea of a guilty evil intent. It abundantly shows that the defendant labored under the mistaken belief that he had obtained the consent of parties, which would exonerate him from all liability for extending the inclosure. He had sought to obtain this consent from all the parties having, as he supposed, any control of the subject-matter; and having obtained the consent of Mr. Davis, who told him he thought there would be no objection, he acted under this mistake, and is excusable, under articles 47 and 48 of the penal code.

We close the argument with an extract from the able opinion of Judge Kane, in a note to Wharton's Criminal Law, 116.

“The law secures to every man who is brought to trial on a charge of crime that the acts which constituted his alleged guilt shall be set forth with reasonable certainty in the indictment which he is called upon to plead to. This is his personal right.” * * *

F. C. Hume, for the state. This is an indictment framed under art. 2031, Pas. Dig. (O. & W. Dig. art. 399 a), for removing inclosure around a graveyard. Motion to quash overruled, and verdict rendered against defendant.

Motion made for new trial and overruled; whereupon defendant appeals, and assigns three reasons for error:

1. The court erred, as shown by the bill of exceptions.

2. The court erred in overruling motion for new trial.

3. The verdict and judgment are contrary to law and the evidence.

1st. The...