Wilcox v. State, 31 Tex. 586

Wilcox v. State

31 Tex. 586 | Tex. | 1869

Caldwell, J.

—We have neither bill of exceptions nor assignment of errors. There is nothing before this court on appeal but the sufficiency of the indictment, the evidence, and motion for a new trial.

The indictment charges the defendant with burglariously entering the banking-house of W. B. Sorley, with the intent to steal the goods, &c., of said Sorley, and after such burglarious entering did steal, take, &c., of the goods and chattels of one E. H. Cuny.

It is insisted on, in behalf of the prisoner, that the indictment is bad for duplicity, in that it charges the defendant with burglary and theft in the same court. The objection is not well taken. It is provided, in article 2370 of Paschal’s Digest, that if a house be burglariously entered, the person thus guilty shall, if he commit theft or any other offense, be punished for the burglary as well as the theft or any other offense.

*588A count .stating that the defendant broke and entered * * with intent to commit a larceny, and did commit a larceny, is not bad for duplicity. So, when the indictment alleged that the defendant broke, &e., and entered the house of one person with the intent to steal his goods, and, having so entered, stole the goods of another person, there was no misjoinder. (Wharton’s Criminal Law, 139, and authorities cited.)

Again, it is objected that the indictment does not give the Christian name of the defendant, though it is averred that his Christian name is unknown. This objection is too late after verdict. Even in a capital case the defendant could not be heard (after arraignment) in denial of his true name having been set forth. (Paschal’s Dig., Art. 2937.)

A motion for a new trial must be disposed of at the term of the court to which it is presented. The adjournment of the court without judgment upon the motion for a new trial disposes of it by operation of law. This is a peremptory statutory rule, and leaves ¿he court without discretion. (Paschal’s Dig., Art. 1473; McKean v. Ziller, 9 Tex., 58; Bullock v. Ballew, 9 Tex., 500.)

Upon a careful review of the evidence we are satisfied that the verdict is well founded.

Judgment aeeirmed.