State v. Moreland

• Decision Date: 01 January 1864
• Citation: 27 Tex. 726
• Parties: THE STATE v. JOSEPH MORELAND.
• Court: Texas Supreme Court

27 Tex. 726

THE STATE

v.JOSEPH MORELAND.

Supreme Court of Texas.

1864.

In an indictment under article 775b of the Penal Code, an averment that the defendant took up and used certain oxen “without estraying them in the manner prescribed by law,” is equivalent to charging, in the language of the statute, that he took them up and used them, “without complying with the laws regulating estrays.”

In framing an indictment, it is better to employ the words of the statute rather than equivalent phraseology, and thus preclude all doubt about the meaning of the averment.

Unnecessary averments in an indictment may be rejected as surplusage; and a mere defect in the manner of stating the matter charged will not vitiate.

Oxen other than work oxen are included in the generic term “cattle,” employed in article 855 of O. & W. Digest.

See this case with respect to the estray laws as they effect oxen in contradistinction to work oxen.

Stray work oxen are, in general, classified with horses, mares, etc., and may be estrayed forthwith; while oxen other than work oxen are, as cattle, subject to different regulations, and cannot be estrayed unless they have been on the land of the taker-up at least twelve months before being estrayed.

APPEAL from Freestone. Tried below before the Hon. R. S. Gould.

The facts are shown in the opinion of the court.

Attorney General, for the appellant.

REEVES, J.

It appears from the record in this case that the appellee was indicted in the district court of Freestone county, at the fall term, 1861, for taking up and using three estray oxen without complying with the statute regulating estrays. This case was continued from term to term until the fall term, 1863, at which time the defendant excepted to the indictment on the ground that it did not charge any offense known to the laws of the state. The exception was sustained by the court and the case was ordered to be stricken from the docket, to which ruling of the court the district attorney excepted and gave notice of an appeal to this court. There is no appearance for appellee by counsel or by brief, and we are left to conjecture the grounds on which the district court acted in sustaining the exception.

By article 775b of the Penal Code, it is provided that, “if any person shall, without complying with the laws regulating estrays, take up and use, or otherwise dispose of any animal coming within the meaning of estrays, he shall be punished as prescribed in the preceding article,” a fine not exceeding double the value of the property.

By article 843 (O. & W. Dig.) of the statute of February, 1850, regulating estrays, “When any stray horse, mare, colt, mule, jack, or jennet shall be found on the plantation or land of any citizen of this state, such citizen shall forthwith advertise the same, describing the animal's color, and specifying the marks and brands, if any, at three public places in the county in which such citizen resides, one of which notices shall be on the court house door for at least twenty days, after the expiration of which time, if no owner apply, it shall be lawful for such citizen to appear before some justice of the peace in and for said county and estray the same.”

By article 855, “Any citizen taking up any estray cattle other than work oxen, hogs, sheep or goats, shall proceed in the same manner as required in the case of horses, etc., except advertising in a newspaper; and any person estraying the same, at the expiration of six months from the date of appraisement, shall proceed to give notice as required in cases of sheriffs' and constables' sales, and to sell such estrays where they were taken up, if not less than three bidders attend such sales; provided, that no animal of the kind enumerated in this section, except work oxen, shall be subject to be estrayed unless the same shall...