State v. Elliot
| Decision Date | 01 January 1870 |
| Citation | 34 Tex. 148 |
| Parties | THE STATE v. SAM. ELLIOT. |
| Court | Texas Supreme Court |
1. An indictment (for an infraction of the estray laws) laid the time of the offense as “on or about” a certain day. Held, in view of the provisions of our code, that this averment is sufficiently certain and specific. Pas. Dig. arts. 1611, 2491 and 2863. No distinction is made in the opinion between felonies and misdemeanors, or between capital and other cases.
2. Our statutes have greatly modified many of the irrational rules of the common law; and one of their most important modifications is the abrogation, by article nine of the penal code (Pas. Dig. art. 1611), of the distinction usually made between the construction of penal laws and laws upon other subjects.
3. The averment of time in an indictment is quite uniformly held in this country to be a matter of form, and not generally material; and it seems that, under our statute (Pas. Dig. art. 2977), it is to be regarded as a matter of form, and amendable as such.
APPEAL from Johnson. Tried below before the Hon. Charles Soward. The opinion states the case.
J. G. Boyle, Assistant Attorney General, for the state.
No brief for the appellee.
The indictment charges that the defendant did, on or about the first day of August, A. D. 1869, take up and use a certain stray horse. On the trial the district attorney moved to strike out the words “or about” before “the first day of August,” and to insert instead the words, “to wit,” which motion was overruled by the court, to which ruling the district attorney excepted. The defendant then excepted to the sufficiency of the indictment, because it did not charge the offense to have been committed at any certain time. The court sustained the exceptions and quashed the indictment, and thereupon the district attorney appealed. Article 2977, Pas. Dig., provides that indictments may be amended whenever defective in matters of form, and the ruling of the district court in this case raises the question whether the averment of time in an indictment is a matter of form, which may be amended under our statute, or whether it is a matter of substance that cannot be amended. It is believed that under the strict rules of the common law the averment of time was not considered, excepting in a few instances, as a material part of the indictment, notwithstanding, for reasons disconnected with the accusation, trial and punishment of offenses, the law required a specific time to be charged. But that rigid rule is greatly modified in England by the statute of 14 and 15 Victoria, which enacts that, “no indictment shall be held insufficient for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense, nor for stating the time imperfectly.” In this country it is quite uniformly held that the averment of time in an indictment is a matter of form, and not generally material. Whart. Am. Cr. L. 261; Bishop's Cr. Pr. 237.
The learned author of the latter excellent work declares that “the averment of time in an indictment is altogether formal,” and the legislatures of some of the states have passed laws declaring that the allegation of time is immaterial in an indictment, and need not be stated. We are therefore of the opinion that the court erred in overruling the motion of the district attorney to amend the indictment.
The rule which requires an indictment to state some particular day on which the offense was committed, had its origin, like most technical and special pleadings, in the common law; and though the reason for that great particularity in the averment of time no longer exists, yet in most of the common law states that rule is still rigidly adhered to; and the pleader in those states, where it is claimed that the law is founded in reason, justice and equity, is forced into the...
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Mireles v. State, 693-94
...of our precedents on the subject is clearly indicated. The earliest Texas case to address the question of date allegation is The State v. Elliot, 34 Tex. 148 (1870). There, the trial judge quashed an indictment charging the defendant with horse theft "on or about the first day of August, A.......
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State v. Woolsey
... ... 292-294; People v. Aro, 6 Cal. 207; [19 ... Utah 493] Farrell v. State, 45 Ind. 371; ... Hardebeck v. State, 10 Ind. 459; ... Hampton v. State, 8 Ind. 336; ... Coakley v. State, 4 Iowa 474; ... State v. McNichol, 34 Tex. 676; ... State v. Hill, 34 Tex. 623; State ... v. Elliot, 34 Tex. 148; Fish v ... Manning, 31 F. 340 ... While ... at common law the time of the offense must always be alleged, ... yet where time does not constitute an element of the offense, ... the prosecution is not required to prove that it was ... committed on the day stated; but ... ...
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Garcia v. State
...for an indictment to allege an "on or about" date for the charged offense. See, e.g., Presley v. State, 131 S.W. at 333; State v. Elliot, 34 Tex. 148, 151 (1870). Such an indictment will, except in rare instances, provide an accused with notice adequate to enable him to prepare a proper def......
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Benson v. State
...rule that it was sufficient to allege that the crime was committed "on or about" a certain date. State v. McMickle, 34 Tex. 676; State v. Elliot, 34 Tex. 148; State v. Hill, 35 Tex. 348, 349; Johnson v. State, 1 Tex. App. 118. Without exception, as far as we know, the rule has been laid dow......