Robinson v. State

• Decision Date: 28 April 1909
• Parties: ROBINSON v. STATE.
• Court: Texas Court of Criminal Appeals

118 S.W. 1037

ROBINSON v. STATE.

Court of Criminal Appeals of Texas.

April 28, 1909.

Appeal from District Court, Williamson County; C. A. Wilcox, Judge

Jim Robinson was convicted of theft, and he appeals. Affirmed.

F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was indicted in the district court of Williamson county on a charge of theft. On trial he was convicted, and his punishment assessed at confinement in the penitentiary for a period of two years.

The indictment contains two counts. The first count charges the horse alleged to have been stolen to have been the property of one A. C. Aderholt, and the second count charges the possession to have been in A. C. Aderholt, but alleges the property belonging to some person to the grand jury unknown.

1. Appellant in the court below filed a motion, after the evidence was in, requiring the state to elect upon which count a conviction would be sought. This was denied by the court, and in this ruling there was no error. The rule is thus stated in the case of Keeler v. State, 15 Tex. Cr. App. 111: "The principle is that the court should always interpose, either by quashing the indictment or by compelling an election, where an attempt is made, as manifested by either the indictment or the evidence, to convict the accused of two or more offenses growing out of distinct and separate transactions, but should never interpose in either mode where the joinder is simply designed and calculated to adapt the pleadings to the different aspects in which the evidence on the trial may present a single transaction." In this case, when the facts are considered, it is obvious that the rule requiring an election cannot in reason be invoked, because this indictment charges but one felony; the different counts only charging different means of accomplishing the one act — the theft of the horse. See Moore v. State, 37 Tex. Cr. R. 522, 40 S. W. 287. It is well settled in this court that the state will not be required to elect between counts, where the same transaction is embraced in any number of distinct counts, and where the same offense is charged, and each count alleges a different mode or means of doing the same act, constituting the same offense, or where the distinct ways of doing the same thing are not antagonistic to each other. In such case they may be alleged conjunctively in the same count, and the prosecution has the right to proceed upon all the means alleged. Again, where the different counts in an indictment are in substance but different ways of charging the same offense and are pleaded for the purpose of meeting the evidence as it may transpire, the state cannot be required to elect and confine itself to one count upon which it shall rely for conviction. Thompson v. State, 37 Tex. Cr. R. 448, 36 S. W. 265; Dill v. State, 35 Tex. Cr. R. 240, 33 S. W. 126, 60 Am. St. Rep. 37.

2. On the trial appellant filed a motion to require the court, before proceeding with the trial of this cause, to put appellant upon trial on an indictment pending therein preferred against him at the July term of said court in 1908. This the court declined to do, and in...