Wade v. State

• Decision Date: 26 February 1908
• Citation: 108 S.W. 677
• Parties: WADE v. STATE.
• Court: Texas Court of Criminal Appeals

108 S.W. 677

WADE v. STATE.

Court of Criminal Appeals of Texas.

February 26, 1908.

Appeal from Montague County Court; Geo. S. March, Judge.

Bud Wade appeals from a conviction. Reversed, and prosecution ordered dismissed.

Graham & Williams, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted for violating the local option law; the punishment assessed being a fine of $30 and 20 days' confinement in the county jail.

When the case was called for trial, the state moved to amend the indictment preferred by the grand jury by striking out the following portion of said indictment: "In the issues of said papers of the dates, which read: `April 1, 1904; April 8, 1904; April 15, 1904; April 22, 1904, and on the 1st day of May, 1904,' State moves that said part be stricken out of said indictment because it is surplusage and alleges matters immaterial to this cause. [Signed] C. F. Spencer, County Attorney, Montague County, Texas." This was resisted by appellant. The motion to strike out the above clause in the indictment was sustained, and the said indictment was amended, and thereafter in this connection made to read as follows: "For four successive weeks, which paper was selected by the county judge of said Montague county as the paper in which to publish said order." The court erred in sustaining the motion to strike out said portion of the indictment and amend it as requested by the state's counsel. No indictment can be amended as to matter of substance after presentment by the grand jury. Said pleading could only be amended as to matter of form before announcement of ready for trial. Article 587 of the Code of Criminal Procedure of 1895 is as follows: "Any matter of form in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits, by both parties, but not afterward. No matter of substance can be amended." It has been held formal matters in an indictment, subject to amendment, are those mentioned in the second and third subdivisions of article 439, Code Civ. Proc. 1895, and as to such amendments they must be made before announcement of ready for trial. The second and third subdivisions of said article 439 are as follows: (2) "It must appear therefrom that the same was presented in the district court of the county where the grand jury is in session." (3) "It must appear to be the act of a grand jury of the proper county." It has been also held that the constitutional and statutory provisions with regard to the commencement and conclusion of indictments are matters of substance as well as of form, and that an indictment or information cannot be amended so as to cure defects in the commencement or conclusion. See State v. Durst, 7 Tex. 74; State v. Sims, 43 Tex. 521; Holden v. State, 1 Tex. App. 225; Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; and Saine v. State, 14 Tex. App. 144. It has been further held that the venue of an offense is a matter of substance and not amendable. See Collins v. State, 6 Tex. App. 647; Robins v. State, 9 Tex. App. 666; Orr v. State, 25 Tex. App. 453, 8 S. W. 644; Smith v. State, 25 Tex. App. 454, 8 S. W. 645; Lawson v. State, 13 Tex. App. 83. The time and commission of an offense is a matter of substance and cannot be amended. Sanders v. State, 26 Tex. 119; Drummond v. State, 4 Tex. App. 150; Goddard v. State, 14 Tex. App. 566; Huff v. State, 23 Tex. App. 291, 4 S. W. 890; See, also, Calvin v. State, 25 Tex. 289. When the defect in an indictment is of substance, the indictment is not amendable, and the prosecution will be dismissed. Edwards v. State, 10 Tex. App. 25.

It has also been held that descriptive averments, whether unnecessarily particular or minute,...