141 S.W. 973 | Tex. Crim. App. | 1911
Lead Opinion
Appellant was indicted by the grand jury of Montague County, alleging that he "did then and there unlawfully establish a raffle and dispose by raffle of certain personal estate, the said estate then and there being less than five hundred dollars in value," and containing all other material allegations.
Appellant filed a motion to quash the indictment "because said indictment charges two separate and distinct offenses in one count, in that it charges that defendant established a raffle and also that he disposed of personal property by raffle." *162
The indictment is drawn in the language of the statute, and the offense could be committed by establishing a raffle or by disposing of personal property by such means. In the case of Nicholas v. State, 23 Texas Crim. App., 317, this court holds: "It seems that whether or not offenses are to be treated as separate and distinct specific offenses, depends upon whether or not they are embraced within the same general definition and punishable in the same manner. If they are, then they are not distinct offenses, and it is permissible to unite them in one count in the same indictment. Discussing the subject, Mr. Bishop says: `It is common for a statute to declare that if a person does this, or this, or this, he shall be punished in a way pointed out. Now, if in a single transaction he does all the things, he violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing only one of the things. Therefore an indictment upon a statute of this kind may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction "and" where the statute has "or," and it will not be double; and it will be established at the trial by proof of any one of them.' (Bish. Crim. Proc., sec. 436; State v. Smith,
"In the State v. Edmundson,
In bills of exception Nos. 2 and 3, defendant complains that a witness was asked, "what was the value of the gun?" to which the witness answered, $1.50 or $2; and that another witness was permitted to answer that he sold the gun, which the evidence shows was disposed of by a raffle, for $4. The objections being that this was not a proper method in which to prove the value of the gun. While this is not the proper way to prove the value of property in a case of this character, and if there was any question raised in the record that the gun did not have some value, or that its value exceeded the sum of $500, there *163 would be force in appellant's contention, but inasmuch as the gun had a value as shown by the evidence, and that its value did not near approach the sum of $500 (which would be punishable in a different sum) the error is not such as should call for a reversal of the case.
In bills of exception Nos. 4 and 5, appellant complains that the court erred "in refusing to permit him to prove that others disposed of property in the same manner that he disposed of this property; that he did not know it was a violation of the law, and if he had known it was a violation of the law he would not have disposed of the gun in this manner." That others had also violated the law would be no excuse or justification. Art. 46 of the Penal Code provides: "No mistake of law excuses one committing an offense; but if a person laboring under a mistake, as to a particular fact, shall do an act which would be otherwise criminal, he is guilty of no offense." (Art. 47.) "The mistake as to fact which will excuse, under the preceding article, must be such that the person so acting under a mistake would have been excusable had his conjecture as to the fact been correct; and it must also be such a mistake as does not arise from a want of proper care on the part of the person committing the offense."
In this case appellant only insists that he did not know that the acts he was committing was an offense — he committed the very act he intended to commit. As said in the above articles of the statute, no mistake of law excuses anyone. Chaplin v. The State, 7 Texas Crim. App., 82; Jones v. State,
Appellant complains of several paragraphs of the charge of the court in his motion for a new trial, and the failure of the court to give special instructions requested by him, but the special instructions requested do not relate to the matter as is complained of in the main charge. No bills of exceptions were reserved to the failure to give the special instructions, nor to any paragraph of the court's charge. This being a misdemeanor case, we can not review these matters when no bills of exceptions were reserved. Downey v. The State, 33 Tex.Crim. Rep.; Lloyd v. The State, 19 Texas Crim. App., 321; Basquez v. State, 56 Tex.Crim. Rep.; Bradley v. State,
Appellant insists that the facts do not show that appellant disposed of the gun by a raffle. The facts show that appellant put numbers from one to forty in envelopes, and sold the envelopes for the number of cents corresponding with the number in the envelope drawn. The names of the purchasers were placed on a circular board, whirled and shot at; the person's number to which a shot came nearest, won the gun. This court held this constituted a raffle in the case of Risien v. State, 71 S.W. Rep., 974.
Judgment affirmed.
Affirmed. *164
Addendum
On a former day of this term, the judgment in this case was affirmed. Appellant has filed a motion for rehearing, in which he insists that we erred in holding the indictment sufficient. Our attention was only called to the ground for quashing the indictment, discussed in the original opinion, and to the holding on that ground we adhere. But in the motion for rehearing it is urged that the indictment is defective in that it does not allege what personal property was disposed of by raffle, merely stating that he did dispose of certain personal estate without naming the property. This contention, it seems, is well taken. The indictment, after stating that appellant "did dispose by raffle of certain personal estate," should have named the property thus disposed of. In this instance the evidence would indicate that it was a gun, but whether it was a gun, horse, buggy, or other species of property, it should be named, that a defendant may be fully apprised of what he is charged by indictment.
The motion for rehearing is granted. The court erred in not sustaining the motion to quash the indictment; and the cause is reversed and dismissed.
Reversed and dismissed.