|
|
||
|
Bastrop County, TX |
||
|
|
||
|
|
SUPREME COURT RECORDS PAGE
13
File contributed by Lisa Lach and proofed/formated by
Dena Stripling *1 Case Reserved and Certified
from Bastrop County. The facts constituting the
offense should be averred in the indictment with all convenient and reasonable certainty. [Ante, 455.] It will generally be sufficient
if the indictment follows the exact words of the statute in describing the offense, and it is never safe to
depart from them. But where the statute uses a general
term, it is not enough to employ that term only, but the pleader must also state
the species, according to the truth of the case -- or where general expressions are
used in the statute, it is not enough to employ those general words only, but the facts
intended to be included and forbidden by them should be specified. The appellant was indicted at the
fall term, 1845, of Bastrop district court for vending spirituous liquors in a
quantity of a quart and over without license first had and obtained. There was a general demurrer to
the indictment which was overruled and judgment entered against the defendant for
$50 fine, but the judge conceiving that questions of law, novel and difficult, were
presented in the case, had the same certified to the appellate court for revision. Though it is generally sufficient
to follow the language of the statute, and is never safe to depart from it, yet, if
the statute use a generic term, it is not enough to employ that term only, but the
pleader must also state the species according to the truth of the case. An indictment for selling
spirituous liquors without license should state at what house or establishment, or to
whom, the vending took place, or some other fact tending to identify the transaction; otherwise the objection is
fatal on demurrer. Gillespie, for appellant. The indictment is too general in
its character, not alleging how or to whom the sale was made, so as to apprise the
accused of what he was to answer or how to make his defense. There was error in overruling the
demurrer. It is too well settled to require argument or authority to prove that when a
particular and special mode is pointed out for the enforcement of a penal statute, it must be strictly and literally
pursued. The act of 1843 (page 40) changed
the remedy from a prosecution to a qui tam action. The act of 1845 (p. 95, sec. 3)
provides that upon an indictment by a grand jury and a conviction by a petit jury the party shall be fined,
etc. No such conviction was had in the case at bar. Attorney General, contra. No brief filed. WHEELER, J. *2 Burch was indicted under the
statute for a violation of the law requiring the payment of license tax. 9 Stat. 95, 96, 107. The offense is charged in the
indictment in these words: "That Nelson Burch, of the county of Bastrop, in the county
aforesaid, a retailer of merchandise, who vends spirituous liquors in quantities
of a quart and over, did, on the first day of September in the year of our
Lord, one thousand eight hundred and forty-five, in the county aforesaid, vend
spirituous liquors in a quantity of a quart and over without license first had and obtained." There was a demurrer to the
indictment overruled, and the defendant "failing to make any further plea," judgment final was pronounced
against him. But the judge, doubting as to the law of the
case, reserved and certified it to this court for revision. It is never necessary in an
indictment to aver all the facts and circumstances attending the transaction with
the greatest possible certainty, for that might render the law nugatory by
requiring a particularity of proof which could seldom or never be attained. Yet the facts constituting the
offense ought to be averred with all convenient and reasonable certainty. The extent and
reason of the rule were considered briefly in Bush v. The Republic |
|
|
|
|
|
|
|
|
|