Jackson v. State , 34 Tex. Crim. 38 ( 1894 )

Omitting preceding portions, the indictment charges, that appellant "did unlawfully, with malice aforethought, murder and kill Sam Crow, by shooting the said Sam Crow."

It was moved in arrest of judgment, that the indictment was fatally defective, because it failed to allege the means or weapon used by appellant in committing the homicide. We think the motion should have prevailed.

Such has always been the law, and under the common sense indictment act of 1881, this is required. Willson's Crim. Proc., art. 428k, Form No. 2; Drye v. The State, 14 Texas Crim. App., 191; Cudd v. The State, 28 Texas Crim. App., 124. The rule in this respect requires the means or weapon employed in bringing about the homicide must be set forth, if known; and if not known, that fact must be pleaded in appropriate terms. Sheppard v. The State, 17 Texas Crim. App., 74; Walker v. The State, 14 Texas Crim. App., 609.

The judgment is reversed and the prosecution is dismissed.

Reversed and dismissed.

Judges all present and concurring.