Smedly v. State
| Decision Date | 30 April 1867 |
| Citation | 30 Tex. 214 |
| Parties | WILLIAM SMEDLY ET AL. v. THE STATE. |
| Court | Texas Supreme Court |
An indictment for robbery should state clearly the ownership of the property charged to have been taken, as well as the name of the person from whom it was taken. Pas. Dig. art. 2379.
DONLEY, J., dissented, and insisted that the indictment, though not good as an indictment for robbery, was good as an indictment for assault and battery.
ERROR from Hunt. The case was tried before Hon. W. G. T. WEAVER, one of the district judges.
The indictment charged the appellants with an assault and battery on Crely, and putting him in fear, and while in such fear they “then and there, with force and arms, fraudulently, unlawfully, did take and carry away from and out of the possession of him the said Sin Crely one shot-gun of the value of twenty-five dollars, the said shot-gun being the corporeal personal property of one ____, and within the legal custody and control of him the said Sin Crely, and with the intent then and there to appropriate the said shot-gun, the property as aforesaid, to the use of them and each of them.” John Smedly was put upon his trial without plea, as far as the record shows, and the jury found a verdict as follows: “We the jury find the defendant, John Smedly as alleged in the indictment, and fix his punishment at the penitentiary for two years.”
The defendant moved for a new trial and in arrest of judgment, which being overruled, he appealed. The charge of the court is in the record; but as the case turned upon the sufficiency of the indictment, it is unnecessary.
Reeves & Douglass, for the appellants.
William M. Walton, Attorney General, for the state.
The indictment in this case charges that the property taken by the defendant was “the coporeal personal property of one ____, and within the legal custody and control” of the party upon whom the assault was committed. It is defective in not giving the name of the party to whom the article taken belonged. An indictment for robbery must state correctly the ownership of the property (3 Arch. Cr. Pl. 417, note 3), and all the approved common-law forms of indictments set forth the ownership of the property taken, as well as the name of the person from whom it was taken. 3 Arch. Cr. Pl. 417, note 3; Whart. Pr. And our statute does not change the rules of the common law so as to allow any less particularity in this respect. It should clearly appear from the indictment that the article taken belongs to some person other than the accused, or that the party deprived of the possession through violence is entitled to such possession as against the defendant. For aught that appears from this indictment, the gun may have been the lawful property of Smedly, although in the legal custody and control of another. The owner cannot be guilty of theft, according to our statute, by taking such property from the party in possession, though under circumstances which would otherwise amount to this offense. Penal Code, art. 751. Nor do we think that he would be guilty of robbery, though he obtained possession of it through violence and putting in fear. It is held at common law that if a party, bona fide, believing that property in the personal possession of another belongs to himself, takes that property away from him with menaces and violence, that is not robbery. 1 Russ. Crimes, 872. He certainly would not be liable to an indictment for robbery if the property actually belonged to him and he was entitled to its possession.
Had the indictment charged that the gun was the property of the person from whom it was taken, it would probably have been supported by proof that this article was in his legal custody and control, though belonging to some third party. But in this indictment there is no allegation that it belonged to any one, much less does it affirmatively appear that it is the property of some one other than the defendants.
A motion was made in the district court to arrest the judgment, because of the insufficiency of the indictment to support a conviction for the offense of robbery. I concur in the opinion, that the appellant could not legally be convicted of robbery on the indictment in this case. I, however, entertain the opinion that the appellant should not have been discharged. The indictment, although not good as an indictment for robbery, is a good indictment for assault and battery; and the evidence very clearly shows the appellant to be guilty of that offense, under such circumstances of aggravation as would seem to require the jury to impose upon him a severe punishment.
The effect of arresting a judgment is to place the defendant in the same position he was before the indictment or information was presented; and if the court be satisfied from the evidence that he may be convicted upon a proper indictment or information, he shall be remanded into custody or bailed, as the case may require. Art. 680, Code Cr. Proc.; Pas. Dig. art. 3145. If the court be satisfied from the evidence that the defendant might be convicted upon a proper indictment or information, he shall not be discharged.
It is not required that the evidence should be sufficient to convict the defendant of the offense which has been attempted to be alleged against him. If, from the evidence, upon a proper indictment, he may be convicted of an offense, he shall be remanded into custody or bailed, as the case may require. The words of the statute are not confined to a proper indictment for the offense which has been attempted to be alleged against the party accused of an offense. The evident intent of the words used in the article cited is, that if he may be convicted, upon a proper indictment charging the offense which the evidence shows he has committed, he shall be held to answer.
The question on arresting judgment is, does the evidence show the defendant to be guilty of an offense for which, by law, he is liable to be indicted? If the evidence does show him to be so guilty, he shall be remanded or bailed, as the case may require.
In this case, as the district court improperly overruled the motion in arrest of judgment, should not the judgment of this court, reversing the action of the district court, place the parties in the position they would have occupied if the district court had ruled correctly on hearing the motion in arrest of judgment? This would be effected by remanding the cause to the district court. Is it not competent for this court to make such an order as shall have the effect to require the defendant to answer to the offense he has committed?
Article 742, code of criminal procedure, provides, that “the judgment in a criminal action upon appeal may be wholly reversed and dismissed when brought up by the defendant, or affirmed and dismissed when brought up by the state. The judgment may be reformed and corrected, or the cause may be remanded for further proceedings in the district court, as the law and the nature of the case may require. It must be admitted, that under this article in the code, it is competent for this court to remand the cause to the district court for further proceedings. Then do not the facts in evidence in this cause present such a case as to require the cause to be remanded? It is stated that defendants, John and William Smedly, on a certain day in 1867, came to the house of one Kennedy, in Hunt county. They were offered seats near the fire. Crely, the witness, took a seat by the appellant; that appellant remarked to witness that he, appellant, understood that witness had had some pretty chat about appellant and appellant's brother, who was with him; to which the witness replied, that appellant and his brother had had some such chat about witness; upon which appellant said, in an angry manner, that witness was a damned liar, and knocked him down; that witness lay on the floor a minute, then got up and staggered toward the bed at the back of the room; that Mrs. Kennedy pushed witness back on the bed; that appellant started towards witness, Crely, saying that he would hickory-whip him, Crely, to death, when Mrs. Kennedy pushed appellant back, and appellant, after...
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McGinnis v. State
...of the property alleged to have been taken. (State v. Dengel, 24 Wash. 49, 63 P. 1104; State v. Morgan, 31 Wash. 226 (71 P. 723); Smedly v. State, 30 Tex. 214; State Lawler, 130 Mo. 366, 32 S.W. 979; Commonwealth v. Clifford, 62 Mass. 215, 8 Cush. (62 Mass.), 215.) We have found the contrar......
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Barfield v. State, 20364.
...cases. As early as 1867 it appears that the court sensed a distinction in the character of possession in robbery and theft. In Smedly v. State, 30 Tex. 214, 215, we find the following expression. "It should clearly appear from the indictment that the article taken belongs to some person oth......
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Page v. State
...thus fails to show that the complainant had a possessory interest in the property that was superior to that of the appellant. Smedly v. State, 30 Tex. 214 (1867), quoted with approval in Goodrum v. State, 172 Tex.Cr.R. 449, 451, 358 S.W.2d 120, 122 (1962). See also Arline v. State, 529 S.W.......
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Temple v. State
...49 Tex. Cr. R. 349, 92 S. W. 806, 13 Ann. Cas. 774; Barnes v. State, 9 Tex. App. 128; Higgins v. State, 19 S. W. 503; Smedly v. State, 30 Tex. 214, 13 Ann. Cas. 775, We think the charge should have been so amended that it would inform the jury in appropriate terms as to the appellant's righ......