80 S.W. 524 | Tex. Crim. App. | 1904
Appellant was convicted of murder in the second degree, the penalty assessed being sixteen years' confinement in the State penitentiary.
The indictment charges the murder "of a female baby, light brown in color, about three months of age, a better description and the name of said baby being to the grand jurors unknown." The first count charges the homicide by drowning; and the second, by strangling and choking. On the trial the evidence showed the name of the mother to be as alleged in the indictment, Rosa McCloy, and the name of the child Priscilla. It is evident the name of the mother was well known to the grand jury, as indicated by the indictment, and the testimony introduced on the trial. The facts further show that the name Priscilla, if not known, could have been easily ascertained by the grand jury at the time the indictment was preferred. Upon this testimony a variance is claimed. This contention is well taken. For a careful and full discussion of this matter see Jorasco v. State, 6 Texas Crim. App., 238. Whether the grand jury knew or could have ascertained by reasonable diligence that the name of the child was Priscilla, they had indubitable evidence before them that the child was the daughter of appellant, and that appellant's name was Rosa McCloy. Then, of course, they knew the name of the *126 child to that extent. The grandmother of appellant testified that the name of the child was Priscilla. The evidence for the State disclosed that the child was born at the residence of the grandmother, at whose house appellant had remained practically all the time from the birth of the child until a few hours before its death. In the Puryear case, 28 Texas Crim. App., 73, the child there destroyed or alleged to have been killed was alleged as the infant child of its mother, giving the name of the mother; that was held sufficient allegation as to name — it appearing that the child had been born just before its destruction; that is, within a few moments. The State does not undertake here to account for the failure to allege the name of the child. For this reason the judgment must be reversed.
If upon another trial the facts are as detailed in this record, we believe the charge of circumstantial evidence should be given. The evidence in this regard could be much more satisfactory.
The judgment is reversed and the cause remanded.
Reversed and remanded.