State v. Toney

• Decision Date: 01 January 1854
• Citation: 13 Tex. 74
• Parties: THE STATE v. EDWARD TONEY.
• Court: Texas Supreme Court

13 Tex. 74

THE STATE

v.EDWARD TONEY.

Supreme Court of Texas.

1854.

Appeal from Bastrop. This was an indictment against Edward Toney Joseph Scott, late of Bastrop county, laborers, for permitting gambling in a house kept for the retailing of spirituous liquors.

Edward Toney pleaded in abatement that his real name is Edward Toney, and that he was never known or called Edward Toney Joseph Scott. The plea was sustained, the indictment quashed, and the State appealed.

Attorney General, for appellant. The indictment, as the body of it shows, was jointly against Edward Toney and Joseph Scott, described in the indictment as “““Edward Toney Joseph Scott, late of Bastrop county, laborers.”

It would be difficult, if not altogether impracticable, to adduce any standard authority for holding that the trifling omission of the conjunction “and” between two several names of different defendants jointly indicted, while clearly distinguished by after-words in the same instrument, (as here by the word “laborers” in the plural number,) amounts to misnomer as a ground for abatement.

HEMPHILL, CH. J.

We are of opinion that there was no error in the judgment. If Edward Toney Joseph Scott be in fact two persons, it should have appeared with such certainty on the face of the indictment as not to be mistaken. We may infer that more than one person was intended from the addition “laborers” being in the plural number, and from their being described as “possessors and occupiers of a house,” &c. But this should have been made certain, and not left to inference. If Edward Toney Joseph Scott be two persons, there is no certainty upon the indictment as to their names. They might be Edward and Toney Joseph Scott--or Edward Toney Joseph and Toney Joseph Scott--or other changes might be rung on the name.

Judgment affirmed.