State v. Lee

15 Tex. 252 | Tex. | 1855

Wheeler, J.

No omission of any material averment in an indictment can be supplied by intendment. But we do not think it material that there should have been a distinct and direct averment that the road referred to was in the county. The indictment avers the happening of the several derelictions of duty with which the defendant is charged, and which constitute the offence charged, in the county; and so the offence is charged to have been committed in the county, it is sufficient. It is not perceived that there is any more necessity of a distinct averment that the road was in the county in this case, than, in the case of an indictment for an assault, that the party assaulted was in the county. The party it is true, in the one case could not be guilty of the offence, unless the road was situated in the county ; nor, in the other, could he be guilty of the assault unless the person assaulted was in the county ; but it was never supposed necessary that the indictment should contain a distinct averment of that fact. Moreover, as observed by the Attorney General, the road is described in the indictment as leading from Austin; and it would seem that more could not be necessary to advise the District Court of Travis county that it was in that county. We are of opinion that the Court erred in quashing the indictment, and that the judgment be reversed and the case remanded.

Reversed and remanded.