State v. Huston

• Decision Date: 01 January 1854
• Citation: 12 Tex. 245
• Parties: THE STATE v. E. S. HUSTON.
• Court: Texas Supreme Court

12 Tex. 245

THE STATE

v.E. S. HUSTON.

Supreme Court of Texas.

1854.

An indictment for playing at a game with cards upon which money was bet, at a certain public house, &c., in which the word “at” is omitted before the words “a certain public house” is bad, because the word “at” in that connection forms an integral part of the description of the offense. (Note 53.)

Appeal from Nacogdoches. An indictment was preferred against the appellant, containing a charge, that the defendant “did play at a game with cards upon which money was then and there bet a certain public house.” &c.

The defendant moved the Court to quash the indictment, because it did not charge the offense to have been committed at a place prohibited. The Court sustained the motion and the District Attorney appealed.

Attorney General, for appellant. Without the benefit of authority (which it would be difficult to find anywhere on a point so minute,) I am constrained to content myself with insisting that, on principle, this motion ought not to have been sustained. Certainty to a common intent is all that is required in indictments for misdemeanors. A sufficient description of the offense to apprise the defendant what he is called upon to answer, and to enable the Court to know what judgment to pronounce, will suffice. In this case the statute upon which the defendant was indicted, supplied the omitted word, and run over all uncertainty which might otherwise have existed. The degree of certainty necessary on this occasion is what would clearly have indicated the offense intended to be charged, to one having the statute before him. No one can read the indictment and statute and have any doubt of the verbal omission. (Whart. Am. Crim. Law, 81.)

WHEELER, J.

We think the Court did not err in its judgment. A knowledge of the language of the statute enables us to perceive that the word “at” was omitted, no doubt by accident, after the word “bet.” We know that is the appropriate word to supply the omission. But were it not for our acquaintance with the subject, we might suppose the omission as well supplied by any other word which would make sense and render the sentence complete. It is evident that some word has been casually omitted. But, if we were at liberty to supply such an omission by intendment, there is nothing in the indictment which indicates that the omitted word should be at or in, rather than by or was, or any other word or phrase which would render the sentence...