Smith v. State , 137 Tex. Crim. 634 ( 1939 )

On the 21st of June, 1939, an opinion was delivered herein reversing the judgment of conviction and remanding the cause. The reversal was based upon the failure of the court to give a requested instruction relative to the voluntary character of appellant's confession. In his motion for rehearing appellant insists that the indictment herein is fatally defective, and prays that our judgment remanding the cause be set aside and a judgment now be entered reversing the judgment of the trial court and ordering the prosecution dismissed.

Looking to the indictment, we find that it charges the offense in language as follows:

"IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS:

"THE GRAND JURORS, for the County of Wichita, State aforesaid, duly organized as such at the April Term A.D. 1938, of the 89th District Court for said County, upon their oaths in and to said Court, present that Clarence Smith on or about the 5th day of June A.D. 1938 and anterior to the presentment of this Indictment, in the County of Wichita and State of Texas, did then and there unlawfully and voluntarily with malice aforethought kill Ernest Holmes by stricking him with a hammer, against the peace and dignity of the State.

"BURTON STAYTON, Foreman of the Grand Jury."

It is insisted in the motion that the indictment is defective in that in the commencement thereof it uses the word "the" before the word "authority." It is well settled that the insertion of the word "the" between the words "by" and "authority" will not invalidate the indictment. Morris v. State, 28 S.W.2d 155.

It is also insisted that the indictment is fatally defective because it refers to the members of the indicting body as the grand jurors, etc., instead of the grand jury. This contention cannot be sustained. Davis v. State, 49 S.W.2d 805.

Again appellant urged that the indictment is defective in failing to show the dates of the beginning and adjournment of the term of court at which he was indicted. It is clearly shown by the averments of the indictment that the grand jury was organized at the April term, 1938, of the district court and that at that term of court said indictment was presented charging the appellant with the offense of murder. We deem the adverments sufficient, and are constrained to overrule appellant's contention.

The motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.