Vanvickle v. State

• Decision Date: 17 December 1886
• Parties: VANVICKLE <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

2 S.W. 642

VANVICKLE

v. STATE.¹

Court of Appeals of Texas.

December 17, 1886.

Appeal from district court, Rains county.

The opinion sufficiently discloses the case.

No brief for the appellant. Asst. Atty. Gen. Burts, for the State.

WHITE, P. J.

Copying so much of the indictment upon which this case was prosecuted below as is necessary to illustrate the question of its sufficiency, we find it reads as follows, viz.: "In the name and by the authority of the state of Texas, the grand jurors of the state of Texas, charged, impaneled, and sworn to diligently inquire into, and true presentment make of, all crimes and offenses against the law committed within the body of the county of Rains and state of Texas, that one John Vanvickle, late of the county of Rains and state of Texas, with force and arms, in the county of Rains," etc.; proceeding then to set out certain facts going to constitute the offense of false swearing, in order to procure the issuance of a marriage license by the county clerk.

It is, in our opinion, only inferentially stated in the above recitals that the grand jury was the grand jury of Rains county, but such allegations as are here made have time and again been held sufficient, under the statute, (subdivision 3, art. 420, Code Crim. Proc.,) to show that the indictment was the act of the grand jury of the proper county, (English v. State, 4 Tex. 125; Williams v. State, 30 Tex. 404; Davis v. State, 6 Tex. App. 133; West v. State, Id. 485; Ferguson v. State, Id. 504; Coker v. State, 7 Tex. App. 83; Scales v. State, Id. 361; Thomas v. State, 7 Tex. App. 213.) But while such allegations have been held sufficient, the proper practice, and by far the more simple and satisfactory, would be to allege directly, positively, affirmatively, and specifically that the grand jury was the grand jury of the county named. A concise and proper form is found in form No. 1 of Willson's (Texas) Criminal Forms.

But, recurring to the language of the indictment as copied above, it will be noticed that there is a hiatus, or, more properly speaking, a total want of connection, between the allegations with reference to the impaneling of the grand jury and the facts stated with regard to the subsequent acts of John Vanvickle. The usual or ordinary words of accusation, to-wit, "on their oaths present," it will be seen, are entirely omitted, and no similar or equivalent words are used or substituted. In short, while this paper shows a grand jury for Rains county were impaneled to inquire into crimes committed in said county, and while it shows that John Vanvickle did certain acts therein set out, it is not shown, nor is it anywhere alleged, that the said grand jury charge, aver, allege, or accuse the said Vanvickle with doing those acts. There is no connection between the impaneling of the grand jury and the statements made with reference to the acts of Vanvickle afterwards set out. It is certainly not stated that the grand jury charged or accused him with the commission of those acts and deeds. Then, who did? We are nowhere informed.

This is not a question as to whether the indictment is properly presented in court, (Code Crim. Proc. arts. 420, 559,) but it is whether there is any indictment at all, in fact, when the purported instrument or writing fails wholly to show, by specific averment, that the facts stated are presented,...