Smith v. State

• Decision Date: 13 February 1895
• Citation: 29 S.W. 774
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

29 S.W. 774

SMITH v. STATE.

Court of Criminal Appeals of Texas.

February 13, 1895.

Appeal from district court, Eastland county; T. H. Cruner, Judge.

John Smith was convicted of larceny, and appeals. Affirmed.

Mann Trice, for the State.

DAVIDSON, J.

The indictment contains two counts: (1) Charging theft of the horse from George Bosher; (2) alleging property in J. W. Bosher and possession in S. P. Bosher. It is urged as error that the state did not elect upon which count the prosecution would be maintained. This was not required in this case. This court has frequently suggested the practice of including different counts in indictments and information, so as to meet every phase of the transaction which might be developed by the testimony upon the trial. But, if an election had been necessary, appellant cannot complain because the court submitted the first count only for the consideration of the jury, and this was tantamount to an election by the state. Parks v. State, 29 Tex. App. 597, 16 S. W. 532; Dalton v. State, 4 Tex. App. 333; Weathersby v. State, 1 Tex. App. 643. The supposed error of the court admitting confessions of the appellant will not be noticed, because a bill of exceptions was not reserved to its admission. Nor is there anything in the alleged error of the court making the sentence in this case cumulative of that pronounced against appellant in a preceding conviction. This action of the court is expressly enjoined by statute, and therefore the court did not err in this respect. Code Cr. Proc. art. 800. The conviction is fully supported by the evidence, and the judgment is affirmed.