*1 Appellant’s ex-stepfather (ap- father and testified as to pellant’s) appellant. parental mother’s lack care amply support findWe the evidence sufficient to plea guilty. during trial, trial, motions, filed either before no or after trial. appear exception, No formal and no informal bills bills objections charge and no re-
the record. quested charges filed to the No were to the were submitted court. Finding support conviction, the evidencesufficient to appearing, judgment no errors is affirmed. Burney, M. Jr. v. State
Melvin 33,545. 24, 1961 No. June Presiding Judge, WOODLEY, dissented. appellant. McDonald, San C.
William Attorney, Douglas, Austin, for the state. State’s Leon Judge. MCDONALD, court of convicted, jury, district
Appellant charging him with the County, Tom upon Green an indictment *2 injuring intentionally breaking, cutting, tele- of and offense wire, Punishment as denounced V.A.P.C. years. penitentiary for two was at confinement the assessed in Robertson, Cowboy in State’s witness worked the Stella who Angelo, place appellant Bar in San into the testified that came awhile, p.m., around ten drank companions, o’clock with some and then to asked her to call someone for him but she refused argument call; ensuing appellant slapped make the that after an her hit her throat and her with his fist and told her he would cut police if she in wit- on him” or station. The “called called the companions ness left further testified that of as one go also, to get appellant to he and that the car tried to to leave appellant went the tele- then out the door to the back and cut phone wire put pocket, and then his knife back in his after telephone that, the operate. prior would not said The witness this, telephone to operating the had been and she had talked that by telephone to her son fifteen about minutes before in. came witness, Cates,
The state’s other Alfred testified that he was “a combination man and trouble shooter” for the Tele- General phone Company Southwest, that, employee of the an and as company, the Cowboy he to went the Bar at Cecil Street company operated running San where the “a line into telephone there”; the telephone that when he the arrived was dead; appeared cut, that approximately the wire to been have from, ground, five feet sharp the with a knife or some instrument. The spliced together, witness testified that he then wire the back telephone operation. after which the back in was Appellant testify any did not nor offer evidence.
Appellant first trial contends that the erred in not court sus- taining quash indictment, his motion to the in which motion he give contends that indictment failed to sufficient notice charged charge offense and that it fails violation of the law, penal any penal and that the essential elements of offense alleged certainty are charge not with sufficient him with a penal offense. insufficiency indictment,
With reference to the of the appellant urges in his motion for new trial as fundamental error “ ‘unlawful, any the failure of the him with indictment ” further, omission, says, wilful or that malicious’ act allegation telephone there was no that wire was fact wire,” “live messages or a wire over which could be transmitted. brief, urges, the indictment should also that allegation have he not the owner contained thereof, telephone alleged the owner wire or that it should the consent telephone and also that the was cut without wire the owner. alleged appel-
Omitting parts, the formal the indictment intentionally break, injure a “did, cut lant telephone then there operated situate, telephone wire there line to-wit: *3 by at 901 N. Telephone Company of the Southwst the General Cecil Street in San Texas.” 1334, statute, Art. The indictment tracked the terms of the 1844, supra, substantially in which are as found the same Sec. Forms, Willson’s Criminal 6th Edition. of indictment proper form that the appellant submits
While —at in substance— least this case should have followed 755, 2419, in 4, C., page Sec. given at in Branch’s Ann. P. Vol. 1334, not statute, supra, we do viewing terms of the the agree appellant. with statute, it is in- offense, examining
In as defined the the offense teresting within the to note that are two elements there injuring telegraph or being tele- the first with reference to dealing with the the statue portion line and the latter of messages. of transmission of obstruction brought the that, under agree had the indictment been doWe statute, appellant’s as to the cor- portion contention latter of the it and that would rect would been tenable form Branch “wilfully.” necessary allege have been to any appellant’s with re- contentions find no merit We insufficiency of the indictment. ference to the Jur., p. 34: in 23 Tex. Sec. It is stated or general rule that an indictment information “It is a defining creating language in the of the statute and drawn safer is sufficient. While it is the an offense better statute, practice precise words of employ words language import, or the same or more extensive substantially ordinarily statutory words, suf- follows will fice.”
Appellant complains charge of the refusal of the trial court to on the law circumstantial evidence. carefully reviewing record, opinion
After we of the are charge that the circum- state’s evidence was direct and that on stantial evidence was not warranted. complains of the failure of the trial court’s
charge jury to contain an to the “if Bill instruction Dean Carnes, any telephone wire, person other cut the if same cut, acquitted.” then that the should be support requested charge.
We find no evidence to this Appellant’s objections exceptions other court’s charge have been examined. find proper one,
We court’s con- tentions are sup- overruled. We find the evidence sufficient port the conviction. *4 agree court-appointed we
While do not with able counsel, certainly diligence, trial for we commend him his his argument. brief and oral
Finding error, judgment no is affirmed.
WOODLEY, Presiding Judge, (dissenting). allegation immediately
The indictment contains no be- telephone capable being fore it was cut the wire was used for telephone communication, yet transmission the court believe, properly, jury I instructed that even they beyond though believed a reasonable doubt that the de- injured telephone wire, alleged fendant cut and as in the in- dictment, you guilty can you “before find the defendant must beyond find believe reasonable im- doubt mediately defendant, any, before such action of if said wire was capable being then and there for used the transmission of 278 believe,
telephone communication; you if do not so find you thereof, you acquit ifor will a reasonable doubt * *.' * defendant “Everything in an provides Art. 397 C.C.P. be stated should necessary prove.” indictment which is an offense under Cutting not constitute a dead wire would injury cutting must be such P.C. The the wire Art. 1334 along messages the tele- with the transmission as to interfere Priest, 241. & Tel. Co. v. S.W. line. S.W. Tel. have been sus- quash the indictment should The motion to tained. Roy
Ex Parte Howard 33,629. No. June Austin, Holman, petitioner. N. Brooks Attorney, Austin, Douglas, for the state. Leon State’s BELCHER, Judge. remanding appeal
This an from an order is custody hearing corpus County after on a writ of habeas County. Court at Law of Travis *5 justice for violation was convicted in the court P.C., provides 910, punishment of not less
Art. than P.C., 906, duty Art. is the nor more than Under it $50 $200. Commission Texas Game Fish to enforce