Shuman v. State

• Decision Date: 16 January 1895
• Citation: 29 S.W. 160
• Parties: SHUMAN v. STATE.
• Court: Texas Court of Criminal Appeals

29 S.W. 160

SHUMAN v. STATE.

Court of Criminal Appeals of Texas.

January 16, 1895.

Appeal from district court, Red River county; E. D. McClellan, Judge.

L. W. Shuman was convicted of theft, and appeals. Affirmed.

R. L. Henry, for the State.

HENDERSON, J.

The appellant was tried in the district court of Red River county on the 27th day of November, 1894, on an indictment charging him with theft of personal property over the value of $20. He was convicted, and sentenced for a term of four years in the penitentiary, and from the judgment and sentence of the court he prosecutes this appeal. There is no statement of facts in the case, and the only assignment of error that requires notice is the first assignment, which charges "that the court erred in overruling defendant's motion in arrest of judgment, in this: that the indictment charges two separate and distinct felonies, is insufficient under the law, and is not of such a character as would enable the defendant to plead the conviction in bar of another prosecution for the same offense." The indictment is for theft of a bale of cotton, in two counts. In the first count the property and possession of the bale of cotton are alleged to have been in J. W. Wilson at the time of the taking, while in the second count the property in the bale of cotton is charged to have been in J. W. Wilson, and the possession in one F. H. Elmore, holding the same for the said Wilson. All the authorities seem to authorize this mode of procedure, and we see no error in the judgment. But it is urged that in the first count the time of the taking is alleged to be the 13th of February, 1894, while the second count places the time on the 13th of February, 1892. This is true, as shown by the record, and the question here presented is, does this variance in time render the conviction void, and require of the court to arrest the judgment and set aside the verdict? It is not only allowable, but considered the better practice, to set up the same conviction by as many counts as the pleader may deem necessary to meet the various phases which the proof may possibly develop, and only in a case where it may appear that the rights of a defendant may be jeopardized or prejudiced will the state be required to elect on which count it will proceed to trial. In this case there was no motion requiring the state to elect, and the question was first presented after verdict, by a motion in arrest of judgment. It is agreed by the authorities that...