State v. Lutterloh

• Citation: 22 Tex. 210
• Parties: THE STATE OF TEXAS v. F. H. LUTTERLOH.
• Decision Date: 01 January 1858
• Court: Supreme Court of Texas

22 Tex. 210

THE STATE OF TEXAS

v.F. H. LUTTERLOH.

Supreme Court of Texas.

1858.

An indictment, charging that the defendant did make “a violent and aggravated assault, with a pistol; and did then present the said pistol at said G. W. T.; and did then and there shoot at said G. W. T., with intent to kill;” is a good indictment for an aggravated assault.

In an indictment for assault, it is not necessary to state that it was unlawfully committed. Any assault, committed on a freeman, is regarded as unlawful, until an excuse or justification be shown.

APPEAL from Coryell. Tried below before A. J. Evans, Esq., agreed upon by the parties, the presiding judge having been of counsel.

The defendant was indicted for an aggravated assault upon George W. Taylor. The body of the charge in the indictment, is set out in the opinion.

A motion to quash the indictment was sustained, and the case dismissed; to which ruling and judgment the district attorney excepted, and prayed an appeal to this court.

Attorney-General, for appellant. The indictment is sufficient, as it contains venue, and all the material allegations to constitute the offense. The word “““violent,” in connection with aggravated assault, may be regarded as surplusage. That the indictment did not aver an ability to do an injury, was matter of defense. See Caldwell v. The State, 5 Tex. 18, where it was held, that if defendant was not within shooting distance, it was matter of defense.

X. B. Saunders, for appellee. The court did not err in quashing the indictment, as there is no such offense known to our law, as a violent and aggravated assault. See assaults, Penal Code, §§ 475-9.

An indictment must contain a definite description of the crime charged, and a statement of facts which constitute it, or judgment will be arrested. Mart. & Yerg. 137.

The indictment is bad, for that it does not charge any criminal intent. An assault and battery is defined to be the use of any unlawful violence upon the person of another, with the intent to injure him; and an assault is an attempt to commit a battery, coupled with the ability to do so (Penal Code, § 475), which means, among other things, that the person making the assault, must be within such distance of the person assailed, as to make it within his power to commit the battery, by use of the means with which he attempts it. Penal Code, § 482.

An indictment, under a statute, must follow the words of the statute, and nothing is to be taken by intendment. The State v. O'Bannon, 1 Bailey, 144; The State v. Brown, 4 Port. 410; The State v. Delue, 1 Chand. 166; Hamilton v. Commonwealth, 3 Penn. 146.

This indictment does not charge the act to have been unlawfully done, or within shooting distance. Penal Code, art. 483, §§ 1, 3, 3, 4, 5, and 6.

The offense should be stated, with such distinctness and precision as to leave no room for doubt on the mind of either defendant or court. The State v. Johnson, 11 Tex. 22.

An indictment upon a statute, must state all the facts and circumstances which constitute the statutory offense, so as to bring the party indicted precisely within the provisions of the statute. People v. Allen, 5 Denio, 76;Howel v. Commonwealth, 5 Gratt. 664.

In an accusation, which sets forth a charge that is criminal only under certain circumstances, which are defined by law, the omission to set forth or aver the existence of such circumstances is fatal to the indictment. Commonwealth v. Clark, 2 Ashm. 105.

The venue must be specially laid, which is not done in this case, except by a mere marginal reference. Kennedy v. Commonwealth, 3 Bibb, 499.

ROBERTS, J.

The exceptions taken to the indictment are, that it is vague and uncertain, and that the facts stated therein do not constitute an offense. The body of the charge is as follows: “In and upon one George W. Taylor, in the peace of God, and said state of Texas, then and there being, did make a violent and aggravated assault, with a pistol; and did then present the said pistol at said George W. Taylor; and did then and there shoot at said George W. Taylor, with intent to kill; contrary to the form of the statute,” etc. This indictment laid the charge at a time antecedent to the adoption of the penal code, though it was found and presented afterwards. The prosecution, in the mode of procedure, should conform to the rules prescribed in the code, being the law in force at the time, during which it was instituted and carried on. Our laws, previous to the adoption of the code, recognized the grades...