Phillips v. State, 29 Tex. 226

Phillips v. State

29 Tex. 226 | Tex. | 1867

Willie, J.

The indictment in this case charges that the appellant did “ wrongfully destroy and remove the fence from around a certain graveyard near the town of Wharton, in Wharton county, which said fence was placed around said graveyard for its protection and inclosure.” A general demurrer to the indictment was overruled by the court below, and the appellant was convicted of the offense, and fined $150. A motion for a new trial was made, based upon several grounds, all of which it will not he necessary to notice. Those worthy of consideration are: That the court erred in charging the jury, and in refusing the instructions asked by the defendant; and that the verdict was contrary to law and the evidence. This motion was overruled.

The proof showed that the in closure around the graveyard contained about five acres, and was in a dilapidated condition; that it adjoined a plantation of Mrs. McWillie, for whom defendant was agent; that defendant removed one string of the fence around the graveyard, thereby changing the fence so as to take into the enclosure about five more acres of land with the McWillie plantation, and the inelosure was repaired, and a better fence made, so as to keep out stock. The fence, however, between the graveyard and the McWillie plantation was never replaced by *233him, and the removal of the fence threw the graveyard into the same inclosure with a cotton-patch belonging to Mrs. McWillie. The graveyard was the common burial-ground for the town of Wharton. Three weeks previous to removing the fence defendant applied to the county court of Wharton county for permission to remove this fence, but they decided that they had no authority to grant it. He also applied to a person who had subscribed to the building of the fence for permission to remove it, who gave his consent, and told defendant he did not think there could be any objection to the proposed change. It was fully proved that the fences around the graveyard had been very bad, and that cattle and horses were constantly getting in, but that, after removing one line of the fence, defendant repaired the other three, so as to put them in a much better condition.

The errors assigned are, as to overruling the motion to quash the indictment; overruling the motion for a new trial; and because the verdict and judgment are contrary to law and the evidence.

The only ground for quashing the indictment insisted upon in this court is, that it is double, charging the defendant with both ruining and destroying the fence. The statute is: “ If any person shall wrongfully destroy, mutilate, deface, injure, or remove, any tomb, monument, grave-stone, or other structure, in any place used or intended for the burial of the dead, or any fence, railing, or curb for the protection of such structure, or any inclosure for any such place of burial, * * * he shall be punished,” &c. (Penal Code, Art. 399a.)

The indictment charges conjunctively acts constituting the offense, which are stated disjunctively in the statute. This is always proper and allowable, where a statute makes two or more distinct acts, connected with the same transaction, indictable, each one of which may be considered as representing a stage in the same offense. Thus, it is prop*234er to charge, in the same count, that a defendant set up a gaming-table, and also that he kept a gaming-table, and induced others to bet upon it, although these are distinct offenses. (Whar. Am. Crim. Law., 141; Hinkle v. Commonwealth, 4 Dana, 518.) And where a statute used the disjunctive language, “ burned or caused to be burned,” and the indictment charged the offense in the conjunctive, “burned and caused to be burned,” the allegation was held sufficient. (Whart. Am. Crim. Law, 135; State v. Price, 6 Holst., 215. See also 3 Chitty’s Crim. Juris., 1053, 1054, 1056, 1057; Archbold’s Crim. Plead., 25, 189, 202, 343; Starkie, 271.)

There is no repugnancy between the acts of removing and that of destroying the inclosure around a graveyard. The former, in fact, may be considered as including the latter, since the act of removal would destroy the fence so far as it was useful in protecting the burial-ground from the incursion of trespassers.

A more. serious objection to the indictment is, that it does not describe with sufficient certainty the graveyard which was the subject of the offense. This objection is not urged to it either by special exeejjtions in the court below, or by argument in this court, and we might possibly refuse to notice it, as not being reached by general demurrer.

Mr. Justice Bell, in the State v. Schoolfield and others, dicided in 1861, says that the Code of Criminal Procedure does not contemplate that a general demurrer to an indictment, or a general exception, which does not notify the court whether the defect of the indictment is one of form or one of substance, shall be heard by the court. And that, although the indictment in that ease might be defective, yet that no defect was pointed out in such a manner as to authorize the court to consider it. (Appendix, post.)

We are of opinion, however, that the indictment would be good in this respect, even upon special exception. It charges the offense substantially in the language of the *235statute; it puts the defendant fully upon notice of the particular charge which he is called upon to answer; and he could plead his acquittal or conviction under it in bar of any future prosecution for the same offense. Our courts have never required such a minute description of an offense in an indictment as to entirely supersede proof of its identity where the judgment is pleaded in bar of a second prosecution. (Cochran v. The State, Galveston T., 1863,) [26 Tex., 678.] Hence, in an indictment for playing cards in a house for retailing spirituous liquors, it is not necessary to state the name of the occupant of the house. (Prior v. State, 4 Tex., 383.)

And it has never been required that an indictment for the above offense should identify the particular place in which the playing is charged. (Sublett v. State, quoted in Cochran v. State, above cited.)

There can be no reason for requiring greater strictness and particularity of description in the present ease. Had the graveyard been further described, by alleging that it belonged to any particular church or society, or by its distance and direction from the town of Wharton, these would have been mere matters of surplusage, which it was unnecessary to prove. In the ease of Commonwealth v. Cooley, 10 Pick., 37, the indictment alleged, that the defendant disinterred a dead body, which had been interred in the common burying-ground in Greenfield, belonging to the first congregational parish in said Greenfield. The State failed to prove that the burying-ground belonged to the above parish; but the court held, that the allegation as to the ownership was unnecessary, and as such there was no necessity to prove it.

The indictment in the present case follows the approved form used in some of the other States where similar statutes exist. Thus in Massachusetts, the statute of 1841, ch., 114, § 6, enacts, that if any person shall willfully destroy, deface, or injure any tree, shrub, or other ornament, *236placed within the limits of any cemetery, he shall he punished by fine, &c.

The form of indictment used in that State, under this statute, charges that the defendant, with force and arms, at S, in the county of E, one willow tree, of the value of $5, of the property of one J W, placed within the limits of a certain cemetery, situate at S, in the county of E, unlawfully, willfully, and maliciously did deface, injure, and destroy, &c. (Davis’ Crim. Justice, 366, 367.)

The allegation that a graveyard was situated near a town is equally as certain as one charging that it was at the town. The court did not err in overruling the motion to quash the indictment.

The only ground taken by the appellant to sustain his second and third assignments of error is, that the removal of the fence took place without any wrongful intent on his part; that the court should have charged the jury as requested by him; that if the change made in removing the division fence around the inclosure did repair and improve the graveyard inclosure, they must find the defendant not guilty; and that, as that fact was fully proved, he should have been acquitted.

It is a well settled principle of law, that when a man does the thing prohibited, with the intent which the law forbids, it will not avail him that he also intended an ultimate good; as, on an indictment for obstructing a road, that he has opened a better way. (1 Bish. Crim. Law, § 250.) And that, if a man intends to do what he is conscious the law, which every one is conclusively presumed to know, forbids, there need not be any other evil intent. (1 Bish. Crim. Law, § 252.)

The fence was removed in this case without the consent of any person or persons authorized to give such permission, and was therefore wrongful. The burying-ground may have been better protected after the division fence between it and Mrs. McWillie’s plantation was removed; still *237those who were interested in the graveyard might not have preferred to have it turned into the same in closure with a cotton-patch. The defendant must have been aware that the persons to whom he applied had no control over the graveyard, and that it was not in his discretion to interfere with the manner in which it was already inclosed, though, in some respects, and in the opinion of some persons, it had been improved by the change.

The facts proved were sufficient to warrant a conviction, and the judgment is /

Affirmed.