State v. Wilburn

CourtSupreme Court of Texas
Citation25 Tex. 738
PartiesTHE STATE v. FELIX WILBURN.
Decision Date01 January 1860
OPINION TEXT STARTS HERE

The same question decided and principle reaffirmed as in the case of Hewitt v. The State.

Although it is irregular for the district court to set aside an indictment without the exceptions to it are in writing, and presented at the proper time, yet in such case, where the indictment is dismissed because the same is clearly defective, the judgment will be affirmed.

APPEAL from Shelby. Tried below before the Hon. A. W. O. Hicks.

The indictment was filed May 1, 1858, and charged that Felix Wilburn, on the first day of March, in the year of our Lord eighteen hundred and fifty-eight, in the county of Shelby, did retail intoxicating liquors in quantities less than one quart, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.” The defendant was put on trial, plead not guilty, and a jury impaneled and sworn. The record reciting the above proceedings adds: “And now comes the defendant by his attorney, and submits the indictment in this case to the court, and the same being seen and considered, the matters therein set forth and charged appearing to the satisfaction of the court to be not indictable, this case is, therefore, taken from the jury, and the same dismissed from the docket by the court; it is, therefore, ordered, decreed and adjudged by the court that the state of Texas have nothing by this suit, and that the defendant go hence without day, and be not required to answer further herein.” From the judgment the state appealed.

Attorney General, for the appellant. The indictment is for retailing intoxicating liquors in less quantities than one quart, under the act of February 2, 1856.

The case came on for trial at the spring term of the district court for Shelby county, A. D. 1859; the parties announced themselves ready for trial, and a jury was impaneled and sworn to try this case. There were no exceptions to the indictment, and no motion made by the accused to quash the indictment. It seems that the counsel for the accused simply submitted the indictment to the court after the case had gone to the jury, whereupon the court withdrew the case from the jury and dismissed the same from the docket of the court. The rule requiring exceptions to be in writing is peremptory. Code Cr. Proc. art. 489. And certainly there is no law authorizing the judge to dismiss a case of his own motion. If the rules of...

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3 cases
  • State v. Schooley
    • United States
    • Missouri Supreme Court
    • March 2, 1929
    ...22 and 30; State v. Stowe, 132 Mo. 199; State v. Murphy, 141 Mo. 267; State v. New man, 96 Wis. 258; King v. State, 49 Ind. 210; State v. Wilburn, 25 Tex. 738; Huett v. State, 25 Tex. 722. (9) The court erred in failing to discharge the defendant Schooley at the close of the State's case wh......
  • State v. Schooley
    • United States
    • Missouri Supreme Court
    • March 2, 1929
    ...22 and 30; State v. Stowe, 132 Mo. 199; State v. Murphy, 141 Mo. 267; State v. Newman, 96 Wis. 258; King v. State, 49 Ind. 210; State v. Wilburn, 25 Tex. 738; Huett v. State, 25 Tex. 722. (9) The court erred in failing to discharge the defendant Schooley at the close of the State's case whe......
  • State v. Roderman
    • United States
    • Missouri Supreme Court
    • February 23, 1923
    ... ... Murphy, 147 S.W. 520; Miles v. State, 94 ... Ala. 106; State v. Learned, 47 Me. 426; Green v ... Briggs, 10 Fed. Cases 5764, pp. 1135, 1139; State v ... Newman, 96 Wis. 258; King v. State, 49 Ind ... 210; Landringham v. State, 49 Ind. 186; State v ... Symonds, 57 Me. 148; State v. Wilburn, 25 Tex ... 738; Hewitt v. State, 25 Tex. 722; Hodgson v ... Vermont, 168 U.S. 262, 42 L.Ed. 461; Kiefer v ... State, 87 Md. 562; 12 Corpus Juris, 1204. (3) Failure of ... the court to give defendant's counsel, upon request, the ... privilege of consulting with the defendant as to the ... ...

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