State v. Carabin

Decision Date01 January 1870
Citation33 Tex. 697
CourtTexas Supreme Court

1. An indictment was sufficiently certain and specific which, stating time and place, alleged that the defendant, “one bay horse of the value of one hundred dollars, not of his own property, but of the property of some other person, to the grand jurors unknown, which said bay horse was then and there an estray, did take up and use, without first complying with the laws regulating estrays, contrary to the statute,” etc.

2. The defendant excepted to the indictment because it gave the initials only of his christian name, without alleging that the name was unknown to the grand jurors. The exception itself did not state what the christian name was. Held, that it was error to sustain the exception and quash the indictment.

APPEAL from Hill. Tried below before the Hon. F. P. Wood.

The facts are sufficiently indicated in the opinion and the head notes.

John G. Boyle, Assistant Attorney General, for the state.

I. The court erred in sustaining the exceptions of defendant to the indictment on the ground of misnomer. That exception partakes of the character of a plea in abatement, and it is a well settled rule of law that he who pleads a misnomer in abatement shall set forth the true name, that he may, in the quaint language of the law books, give the plaintiff a “better writ.” See Chit. Bla. vol. 2, p. 271.

II. Article 469 of the code of criminal procedure (2938, Pas. Dig.) provides that if the defendant or his counsel for him, suggest that he bear some name different from that stated in the indictment, the same to be noted upon the minutes of the court, the indictment amended, the style of the cause changed, so as to give his true name, and the cause proceed as if the true name had been first recited in the indictment. And in the next article, 470 (2939, Pas. Dig.), it is provided if the defendant allege that he is not indicted by his true name and refuse to say what his real name is, the cause shall proceed as if the name stated in the indictment were true. In this case the defendant has neither complied with the old common law rule as to pleas in abatement; nor has he placed his plea before the court in such form as would give the state the benefit of the amendment provided for in art. 469, code criminal procedure, but stands in the attitude of the defendant described in art. 470, code of criminal procedure, alleging that he is not indicted by his true name, and refusing...

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