37 S.W.2d 1034 | Tex. Crim. App. | 1931
Lead Opinion
The offense is robbery; the punishment, confinement in the penitentiary for five years.
It was uncontroverted that appellant and Cecil Dickerson took a check in the sum of $34.90 from E. E. Parker. This check had been issued to Parker by the Hughes Tool Company. At the time of the taking appellant and his companion exhibited a pistol. While Parker's hands were up one of the parties took the check out of his pocket. They thereafter cashed the check and divided the proceeds.
Appellant made a motion to quash the indictment on the ground that the check was not sufficiently described. It was alleged in the indictment that appellant took "from the person and possession of said E. E. Parker one check of the value of $34.90, said check being a check issued by the Hughes Tool Company to E. E. Parker, the same being the property of the said E. E. Parker." We deem this description sufficient. In the case of Fulshear v. State,
"Here the number of the check was given, the name of the person drawing same, the person to whom payable, and the amount of the check. It is not claimed that in fact appellant was surprised, nor can it be readily seen how in the nature of things he could have been surprised under the allegation by the production of the evidence here tendered and admitted."
In Pye v. State, 74 Tex.Crim. Rep.,
The description of the note was held insufficient. In Patrick v. State, supra, the description of the railroad tickets alleged to have been stolen was as follows: "did then and there unlawfully and fraudulently take from the possession of S. M. Gibson six railroad tickets, reading from Texarkana, Texas, to Kansas City, said tickets of the value of fourteen and 65/100 dollars each, and of the aggregate value of eighty seven and 91/100 dollars; the same being the corporeal personal property of and belonging to the said S. M. Gibson." This description was held insufficient.
The Patrick and Calentine Cases were, in effect, overruled in Pye v. State, supra. Later, in Holland v. State,
Neither Holland's Case nor Burns' Case hold that a check when made the basis of an indictment for robbery or embezzlement should be minutely described. They go no further than to hold that the mere description of the property as a check of a certain named value is insufficient. Giving effect to the holding in such cases, we find nothing therein that militates against the sufficiency of the description in the present case. Moreover Fulshear v. State, supra, is authority for upholding the sufficiency of the indictment under consideration. Again, a more detailed description of the property in question is given than was set forth in the indictments in the Calentine and Patrick Cases. If it should be conceded that Pye v. State, supra, was, in effect, overruled in Holland's Case, the opinion is expressed that the description here is sufficient, when tested by the principles controlling. The law does not require minuteness of detail, but demands only that the particular offense be set out with such certainty that a presumptively innocent man seeking to know what he must meet may ascertain fully therefrom the matters charged against him. Ford v. State, 108 Tex.Crim. Rep.,
It is appellant's contention that the court should have instructed the jury not to consider his confession if they had a reasonable doubt as to whether it was voluntarily made. We doubt whether the issue was raised. In any event the matter is not properly before us for review, in as much as appellant's objections to the charge of the court fail to show that they were presented to the court before the main charge was read to the jury. The caption of these purported exceptions is identical with that found in the record in Gibson v. State,
"Referring to our ruling upon his objections to the charge of the court, in which we said we could not consider the same because not properly verified, appellant insists that the caption of the paper purporting to set forth such objections is as follows: 'Now comes the defendant, and before the court has read and delivered his charge to the jury, and makes the following objections to the court's charge.' And the contention is made that this is sufficient, and also that the trial court indorsed on said paper, 'Refused', by mistake. In the case of Salter v. State, 78 Tex.Crim. Rep.,
In Benson v. State, 105 Tex.Crim. Rep.,
A careful examination of appellant's contentions leads us to the conclusion that error is not presented.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Addendum
The appellant's motion for rehearing is overruled upon the authorities and remarks appearing in the opinion on motion for rehearing in Fuller v. State, 118 Tex.Crim. Rep.,
Overruled.