Robinson v. State

• Decision Date: 21 December 1910
• Citation: Robinson v. State, 132 S.W. 944, 60 Tex.Crim. 592 (Tex. Crim. App. 1910)
• Parties: ROBINSON v. STATE.
• Court: Texas Court of Criminal Appeals

132 S.W. 944

ROBINSON v.STATE.

Court of Criminal Appeals of Texas.

December 21, 1910.

Appeal from Criminal District Court, Galveston County; E. R. Campbell, Judge.

J. B. F. Robinson was convicted of establishing a lottery, and appeals.Reversed and remanded.

Brockman, Kahn & Williams and E. T. Branch, for appellant.John A. Mobley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The indictment charged appellant with establishing a lottery.The charging part is as follows: "That J. B. F. Robinson * * * did unlawfully establish a lottery for the purpose of exposing personal property, to wit: Twenty-six suits of clothes, to be by lot and chance of certain drawings, then and there being conducted by him the said J. B. F. Robinson, to be disposed of and distributed to and among the persons who should become the purchasers of tickets therein, which said tickets were then and there issued by the said J. B. F. Robinson, in the form of membership contracts in a club, then and there instituted, organized and promoted by the said J. B. F. Robinson, which said membership certificates or applications then and there entitled the holder thereof to participate in said drawing, in which suits of clothes were then and there disposed of and distributed by lot and chance."The second count in the indictment sets out the form of a written application used by the parties in soliciting membership in the club, or rather the form of an application which was to induce the parties to engage in drawing in the lottery or raffle.This count was held insufficient by the trial court.There are several very interesting questions suggested for revision, but under the view taken of the case, we deem it unnecessary to decide those questions.

It will be noticed that the indictment charged that appellant issued tickets to parties who were to draw in the alleged lottery for the suits of clothes.The evidence fails to show that any tickets were issued.In fact, there were no tickets issued.The parties were to pay a dollar a week, and when the first dollar was paid a receipt was given.Subsequently the dollar a week was collected by some one supposed to be connected with the lottery, but no tickets were issued.It is contended that this constitutes a variance between the allegation and the evidence introduced to support such allegation.We are of opinion this contention is correct.It may have been an unnecessary allegation, but was descriptive, and being descriptive, must be proved as alleged.SeeState v. Meysenburg, 171 Mo. 1, 71 S. W. 235;Blocker v. State, 73 S. W. 955;Gray v. State, 11 Tex. App. 411;Warrington v. State, 1 Tex. App. 168;Cameron v. State, 9 Tex. App. 332.Unnecessary descriptive averments do not vitiate an indictment, but cast the burden upon the pleader in the prosecution of proving such averments.Rogers v. State, 26 Tex. App. 429, 9 S. W. 762;Martinez v. State, 51 Tex. Cr. R. 585, 103 S. W. 930.

It has also been held that when a person, place, or a thing necessary to be mentioned in an indictment is described with unnecessary particularity, all the circumstances of description must be proved, and cannot be rejected as surplusage, for by reason of the pleading they are made essential to identity.SeeState v. Meysenburg, supra;Blocker v. State, supra;Warrington v. State, supra;Rose v. State, 1 Tex. App. 401;Ranjel v. State, 1 Tex. App. 462;Lunsford v. State, 1 Tex. App. 448, 28 Am. Rep. 414;Courtney v. State, 3 Tex. App. 261;Meuly v. State, 3 Tex. App. 383;Collier v. State, 4 Tex. App. 12;McGee v. State, 4 Tex. App. 625;Watson v. State, 5 Tex. App. 27;Allen v. State, 8 Tex. App. 360;Mosely v. State, 9 Tex. App. 137;Cameron v. State, 9 Tex. App. 332;Wallace v. State, 10 Tex. App. 269;Simpson v. State, 10 Tex. App. 681;Gerard v. State, 10 Tex. App. 691;Gray v. State, 11 Tex. App. 411;Davis v. State, 13 Tex. App. 219;Childers v. State, 16 Tex. App. 527;Moore v. State, 20 Tex. App. 279;Stiff v. State, 21 Tex. App. 255, 17 S. W. 726;Coleman v. State, 21 Tex. App. 526, 2 S. W. 859;Withers v. State, 21 Tex. App. 212, 17 S. W. 725;Loyd v. State, 22 Tex. App. 649, 3 S. W. 670;McLaurine v. State, 28 Tex. App. 530, 13 S. W. 992;Evans v. State, 40 S. W. 988;Ward v. State, 21 S. W. 250;Knight v. State, 49 S. W. 383;Neely v. State, 32 Tex. Cr. R. 370, 23 S. W. 798;Hill v. State, 41 Tex. 257;Butts v. State, 47 Tex. Cr. R. 494, 84 S. W. 586;Wade v. State, 52 Tex. Cr. R. 620, 108 S. W. 677;McAllister v. State, 55 Tex. Cr. R. 266, 116 S. W. 582;Snelling v. State, 57 Tex. Cr. R. 416, 123 S. W. 610;Early v. State, 56 Tex. Cr. R. 61, 118 S. W. 1036;Melton v. State, 124 S. W. 911;Poston v. State, 126 S. W. 1148;Tucker v. State, 128 S. W. 617.

It has also been held that if money is unnecessarily described, the description must be proved as laid.Statum v. State, 9 Tex. App. 273;Simpson v. State, 10 Tex. App. 681;Childers v. State, 16 Tex. App. 527;Gerard v. State, 10 Tex. App. 691;Early v. State, 56 Tex. Cr. R. 61, 118 S. W. 1036;Snelling v. State, 57 Tex. Cr. R. 416, 123 S. W. 610;Johnson v. State, 126 S. W. 597;Lancaster v. State, 9 Tex. App. 393.

It has also been held if age, color, brand, or sex of an animal is unnecessarily alleged, the evidence must correspond with that allegation.Hill v. State, 41 Tex. 257;Lunsford v. State, 1 Tex. App. 448, 28 Am. Rep. 414;Ranjel v. State, 1 Tex. App. 462;Courtney v. State, 3 Tex. App. 261;Allen v. State, 8 Tex. App. 360;Davis v. State, 13 Tex. App. 219;Cameron v. State, supra;Gray v. State, supra;Ward v. State, 21 S. W. 250;Loyd v. State, 22 Tex. App. 649, 3 S. W. 670.

It has also been held if a contract is unnecessarily described as express, the allegation will not be supported by proof of an implied contract.State v. Meysenburg, 171 Mo. 1, 71 S. W. 235.

If ownership be needlessly alleged, it must be proved as laid.Collier v. State, 4 Tex. App. 12;McLaurine v. State, 28 Tex. App. 530, 13 S. W. 992;Rose v. State, 1 Tex. App. 401.

If an injured party is alleged to be a corporation, the evidence must support that allegation.Tucker v. State, 128 S. W. 617.

If stolen property be unnecessarily described, the description must be proved as laid.Poston v. State, 126 S. W. 1148;Coleman v. State, 21 Tex. App. 526, 2 S. W. 859.

If the name, age, or sex of an injured party be alleged, it must be proved.Wallace v. State, 10 Tex. App. 269;Butts v. State, 47 Tex. Cr. R. 494, 84 S. W. 586;Mosely v. State, 9 Tex. App. 137.

Having alleged in the indictment that appellant issued tickets to those who were to draw at the lottery, as one of the means by which the lottery was carried on, it became a descriptive averment, and the evidence should have corresponded with the allegation.This was a descriptive averment and the evidence must so show on the trial.Failure in this respect constitutes fatal variance.

For the reason indicated, the judgment is reversed and the cause is remanded.

McCORD, J., disqualified.