Portwood v. State

Decision Date31 January 1867
Citation29 Tex. 47
PartiesH. PORTWOOD ET AL. v. THE STATE OF TEXAS.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

Art. 398 of the code of criminal procedure reads 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.” Pas. Dig. art. 2865, note 722. Art. 724 of the penal code reads as follows: “The offense of burglary is constituted by entering house by force, threats, or fraud, at night, or, in like manner, by entering a house during the day and remaining concealed therein until night, with the intent in either case of committing a felony.” Pas. Dig. art. 2359. In charging the offense of burglary, it is essential that the indictment should state that the house was entered for the purpose of committing a felony, and it should also be stated that the accused intended to commit burglary and the particular felony.

As a general rule, the indictment may follow the language of the statute; but there are cases where more particularity is required, either from the obvious intention of the legislature, or from the application of known principles of law.

APPEAL from Karnes. The case was tried before Hon. BENJAMIN F. NEAL, one of the district judges.

The indictment charged that the accused “a certain house, situated in the town of Helena, then and there occupied and used by the firm of Calloway & Stowell for the purpose of merchandising, with force and arms did willfully, forcibly, and feloniously enter, and with the felonious intent then and there a felony to do and commit.” Portwood moved to quash, which motion was sustained, and the state appealed.

F. C. Hume, for the state, cited United States v. Lancaster, 2 McLean, 431;State v. Mitchell, 6 Mo. 147;State v. Helm, 6 Mo. 263.

Mills & Tevis, for the appellee, cited Pas. Dig. arts. 2359, 2370, 2371 and 2372, and insisted that the indictment was insufficient.

DONLEY, J.

By art. 398, O. & W. Dig. tit. Criminal Procedure, it is provided that “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 an essential ingredient of the offense here intended to be charged, that the house should be entered for the purpose of committing a felony. O. & W. Dig. art. 724. This is averred in the words of the statute.

As a general rule, it is sufficiently certain to describe an offense...

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7 cases
  • State v. Allen
    • United States
    • North Carolina Supreme Court
    • October 24, 1923
    ... ... is not enough in an indictment for burglary to charge ... generally an intent to commit "a felony" in the ... dwelling house of another. The particular felony which it is ... alleged the accused intended to commit must be specified ... People v. Nelson, 58 Cal. 104; Portwood v ... State, 29 Tex. 47, 94 Am. Dec. 258; State v ... Doran, 99 Me. 329, 59 A. 440, 105 Am. St. Rep. 278. The ... felony intended, however, need not be set out as fully and ... specifically as would be required in an indictment for the ... actual commission of said felony, ... [119 S.E ... ...
  • Clark v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 7, 1928
    ...describing in the indictment the particular act upon which the prosecution is found than that contained in the statute. Portwood v. State, 29 Tex. 47, 94 Am. Dec. 258; Lagrone v. State, 12 Tex. App. 426; Hammonds v. State, 100 Tex. Cr. R. 237, 272 S. W. 791; Branch's Ann. Tex. P. C. § 494. ......
  • Railey v. State
    • United States
    • Texas Court of Criminal Appeals
    • January 24, 1910
    ...1836 to 1867, when for the first time a case involving this offense made its appearance in the Supreme Court under the style of Portwood v. State, 29 Tex. 47-48 , which was an appeal by the state from a judgment of the lower court quashing the indictment. The court in that case, in construi......
  • Barnhart v. State
    • United States
    • Indiana Supreme Court
    • February 15, 1900
    ...prosecution for the same offense. People v. Nelson, 58 Cal. 104; State v. Lockhart, 24 Ga. 420; State v. Williamson, 3 Heisk. 483;Portwood v. State, 29 Tex. 47. It would be adequate, at least as against a motion in arrest, to allege that the defendant broke and entered into the building, “w......
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