Holland v. State , 110 Tex. Crim. 384 ( 1928 )

On the original presentation the court was without the asistance of a brief for the appellant. This is supplied on motion for rehearing, which reflects thought and research. It refers to an attack upon the indictment to which our attention was not heretofore drawn.

The charge is robbery, and in the indictment it is averred in substance that the appellant did "by putting the said John Long in fear of life and bodily injury, fraudulently and without the consent of the said John Long take from the person and possession of him, the said John Long, one check of the value of $12.50, the same being the property of the said John Long."

At common law, choses in action were not the subject of larceny, and robbery is but an aggravated form of theft. See Winston v. State, 9 Tex.Crim. App. 143; Higgins v. State, 19 S.W. Rep. 503; Barton v. State, 88 Tex.Crim. Rep.. By statute in many of the states choses in action have become the subject of theft. In the statutes of this state upon the subject, it is said:

"It embraces every species of personal property capable of being taken." (P. C., 1925, Art. 1411.)

This has been construed to include checks. See Worsham v. State, 56 Tex.Crim. Rep., 18 Amer. Eng. Ann. Cas., 134; Fulshear v. State, 59 Tex.Crim. Rep.. In charging the offense of robbery as in charging larceny or theft, a description of the property taken is essential. Smedley v. State, 30 Tex. Rep. 215; Winston v. State, supra; Higgins v. State, supra; Wharton's Crim. Law., 11th Ed., Vol. 2, sec. 1090, p. 1302; People v. Nolan, 250 Ill. 351, 34 L. R. A. (N. S.), 301. In Calentine's case, 50 Tex.Crim. Rep., this court considered the description necessary in charging the theft of a promissory note and held the indictment insufficient where the property was described as "one promissory note of the value of $31.80." In the recent case of Clines v. Commonwealth, 298 S.W. Rep. 1107, the Supreme Court of Kentucky considered an indictment charging the larceny of a check which was thus described:

"* * * one check for the sum of $30, same being the property of Paul Costelow, * * * said check being the personal property of Paul Costelow, and being property of value of a greater value than $20."

In the course of the opinion holding the indictment bad, the court gave this expression:

"It will be observed that the indictment as so drawn contains no description whatever of the alleged stolen check. It gives no date, no drawer, no drawee, nor any payee. It is true that it states that it was the personal property of Costelow, but how it ever became such is not alleged. Whether it was issued directly to him as payee, or whether he became the owner as indorsee or by delivery nowhere appears. In other words, there is absolutely no effort to describe, in the faintest way, the check alleged to have been stolen by the defendants in the indictment. It is a general as well as an infallible rule of criminal procedure that an indictment should be sufficiently explicit, including description of property stolen under the charge of larceny, to advise the accused with reasonable certainty of the accusation he is called upon to meet at the trial, and to enable him to rely on the judgment thereunder in bar of a subsequent prosecution for the same offense."

In the present record, the insufficiency of the description of the check is such as to render erroneous the action of the court in overruling the motion to quash the indictment. For that reason, the motion for rehearing is granted, the affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.