29 Tex. Ct. App. 592 | Tex. App. | 1891
The indictment alleges that appellant, late of the county of Falls, “on the first day of October, A. D. eighteen
It is objected to this indictment, on a motion to quash, that it does not appear that an offense was committed by appellant, it does not appear affirmatively that the road spoken of is in Falls County, nor that the road remained obstructed and out of repair for twenty days at one' time. It is not material that the indictment should contain a distinct and direct averment that the road referred to was in the county of, Falls. “The indictment avers the happening of the several derelictions of duty with which the defendant is charged, and which constitutes the offense charged, in the county, and, so the offense is charged to have been committed in the county, it is sufficient.” The State v. Lee, 15 Texas, 252. But we think that the indictment does charge that the road was in Falls County and was section 2 of road precinct Ho. 3 in said county.
Appellant was indicted under the second clause of article 409 of the Penal Code, and under this portion of the statute it was not necessary to allege that the road remained out of repair and uncleared of obstructions for twenty days at one time. By the terms of the statute there are various ways of violating its provisions. The pleader may base the indictment or information upon any phase of it, and if sufficiently pleaded will not be subject to demurrer. It is not requisite that the entire statute should be placed in the indictment, nor that every phase of it should be declared upon. If several offenses are embraced in the same general definition, and are punishable in the same manner, they are not distinct offenses, and may be charged conjunctively in the same count, or they may be charged in the same indictment in separate counts. It is not necessary, however, this should be done. Where one of the modes has been selected and declared upon, the prosecution can prove no other, but will be compelled to prove the case as alleged. The indictment is not subject to the criticisms urged against it.
Appellant contends that the testimony is not sufficient to sustain the conviction and that it fails to show any willful dereliction on his part. We think he is correct in both positions. So far as we are able to understand the facts of the case, the appellant sought the road with the view of working it, but was wholly unable to find it. Some of the witnesses testified that it was impossible to ascertain the whereabouts of the road by resorting to the field notes laying out said road; that it was impossible to locate the road by virtue of said field notes. Some
Reversed and remanded.
Judges all present and concurring.