Wade v. State

23 Tex. Ct. App. 308 | Tex. App. | 1887

Willson, Judge.

It was not error to overrule the exception to the indictment and the motion in arrest of judgment, both based upon the supposed insufficiency of the indictment in that “it does not appear from the face of the indictment whether the defendant killed a man, or a beast, or some inanimate object.” It is alleged in the indictment that the defendant killed “Smutty My Darling.” It has been repeatedly held by this court that in an indictment for murder it is sufficient to allege the name of the deceased, without further alleging that said deceased was “a reasonable creature in being.” (Bean v. The State, 17 Texas Ct. App., 60, and cases there cited.) Whether or not the deceased was “a reasonable creature in being,” and therefore the subject of unlawful homicide, is a question not of pleading, but of proof. If the name of the deceased, as alleged in the indictment, was the name of a human being, and it was this identical human being that was killed, it can make no difference that the name is an unusual one,—a name perhaps never before applied to a person. The singularity of the name would serve the more certainly to identify the deceased. In all respects the indictment is in accordance with long approved precedent, and is sufficient.

Opinion delivered April 23, 1887.

Several objections to the charge of the court are presented in a motion for a new trial, in an assignment of errors, and in the brief of counsel for defendant. As there is no statement of facts in the record, we can only consider the charge with reference to fundamental errors, such errors as would under any state of facts be fatal to the conviction. We find no such error in the charge before us. It conforms to the indictment, and we must presume that it conformed to and was warranted by the evidence. It was not excepted to at the time of the trial, nor were any additional instructions requested. While in some of the respects complained of, the charge may not be critically correct, there are no such errors as can be considered fatal to the conviction in the absence of a statement of facts.

There is no such error shown by the record as would authorize the conviction to be set aside, and the judgment is affirmed.

Affirmed.