State v. Morales

• Decision Date: 01 January 1858
• Citation: 21 Tex. 298
• Parties: THE STATE v. SIMON MORALES.
• Court: Texas Supreme Court

21 Tex. 298

THE STATE

v.SIMON MORALES.

Supreme Court of Texas.

1858.

In an indictment under articles 774 and 775 of the penal code, it should be averred that the act charged to have been committed was a criminal act by the law of the state where committed, and that it was robbery, theft or the receiving of stolen goods knowing them to have been stolen, as the case may be.

Appeal from Cameron. Tried below before Hon. E. J. Davis.

The indictment charged the defendant with stealing, taking and carrying away two horses, the property of Antonio Mediano, then being found in the state of Tamaulipas in the republic of Mexico, without an averment that such act was there a crime. Upon motion the indictment was quashed.

J. Willie, Attorney General, for the state. Although it is undoubtedly necessary to prove, on the trial in a case like this, that by the law of the foreign country the act committed is an offense against the law of such foreign state, it does not necessarily follow that the indictment must allege the fact; for I suppose the presumption, at least for the purposes of determining upon the sufficiency of the indictment, would be that the foreign law is the same as our own. If the converse of this proposition is true, it would seem to be equally requisite to allege that a particular act is penal by the law of our own state. So far as the indictment is concerned, the gist of the charge in a case like this is, that the party has committed an offense against the law of Texas. It only remains for the prosecution to show, by the production of the foreign law, that the act is also criminal in the country from which the property was taken.

I. B. Bigelow, for appellee.

I. The indictment in this case was fatally defective, and was properly quashed.

Article 775 of the penal code provides that, “To render a person guilty under the provisions of article 774 of the same act, it must appear that by the law of the state or territory from which the property was taken and brought to this state, the act committed would also have been robbery, theft, or receiving stolen goods.”

How could it be made to appear that the taking of a horse in Tamaulipas, Mexico, is a theft, but by proof of the fact; and how could such proof be admitted in the absence of appropriate averments in the indictment.

II. In order to put the defendant upon his trial, it was necessary for the indictment to charge him, in direct terms, with the theft, whereas it simply alleges that...