Fulcher v. State , 33 Tex. Crim. 22 ( 1893 )

On the 28th day of March, 1893, the grand jury of Motley County presented into the District Court an indictment against, appellant, which charged him with the murder of A. Beetner, on or about the 7th day of September, 1887, which was about six years before the indictment was presented. Upon the trial on said indictment, appellant was convicted of all assault with intent to murder. Appellant filed and presented his motion in arrest of judgment, because the offense for which be was convicted was barred by the statute of limitation. The motion was overruled.

Upon the plainest principle of law, supported by an unbroken line of authority, the motion should have been sustained. Murder being charged, a motion to quash was not available; but when the verdict for the assault to murder was returned, murder being eliminated, the motion in arrest was then properly invoked. Why the court overruled the motion, thus forcing appellant to appeal to this court, is past our comprehension. That the assault was barred call not be questioned. Code Crim. Proc., art. 199. Besides this, the evidence established the fact that the assault was made sometime in September, 1887.

The judgment is reversed, and the cause dismissed.

Reversed and dismissed.

DAVIDSON, Judge, disqualified, and did not sit in this case.