Gragg v. State , 148 Tex. Crim. 267 ( 1945 )

Appellant was convicted of the murder of his wife and the jury assessed the death penalty.

The indictment charges Chesley Arthur Gragg did on the sixteenth day of June, 1943, with malice "kill Flora Gragg, by then and there drowning the said Flora Gragg, * * *." The appeal raises the question as to the sufficiency of this indictment. We know of no better way to express our conclusion than the following language from Jackson v. State, 28 S.W. 815:

"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. Wilson's Cr. St. art. 428k, form No. 2; Drye v. State, 14 Tex. App. 191[14 Tex. Crim. 191]; Cudd v. State, 28 Tex. App. 124[28 Tex. Crim. 124], 12 S.W. 1010. The rule in this respect requires that the means or weapon employed in bringing about the homicide, if known, must be set forth; and, if not known, that fact must be pleaded in appropriate terms. Sheppard v. State, 17 Tex. App. 74[17 Tex. Crim. 74]; Walker v. State, 14 Tex. App. 609[14 Tex. Crim. 609]. The judgment is reversed, and the prosecution is dismissed."

This opinion was followed in Huddleston v. State,156 S.W. 1168, and we are of the opinion that the rule applies in the case before us.

The State has filed a very exhaustive and helpful brief, in which the position is taken that the indictment is sufficient. The argument there presented is plausible but we do not think it is sustained by the authorities cited. If the manner and means used in accomplishing the drowning were unknown to the grand jury, and could not have been ascertained by reasonable diligence, the indictment should have so stated. If there is only one method of drowning, and water the only article by which it can be accomplished, then force would be added to the State's position. The State cites a definition of drowning found in 28 C.J.S., page 496, from which we quote the following language: "DROWN. To deprive of life by immersion in water or other liquid; * * *." For this definition reliance is had on Webster's International Dictionary, where we find the identical definition: "To deprive of life by immersion in water or other liquid." There being more than one means by which the drowning may be accomplished, the indictment does not inform the accused with sufficient accuracy of the offense for which he is charged to comply with the holdings of this court and it cannot, therefore, be sustained.

Appellant was convicted on circumstantial evidence and great reliance was had on the statements of the accused in which there is exculpatory language. It is seriously contended that the State is bound by this language and that such exculpatory statements were not disproved. If there is no evidence introduced by the State to disprove the exculpatory statements, the theory invoked would apply. The contradictory statements and all the circumstances appear to do this. The writer is of the opinion that the State has shown strong motive, with intention definitely expressed which, in connection with all of the circumstances, clearly support the jury's verdict. However, this view is not approved by all the members of the court and it is but fair to the litigants that they be informed of the situation, in view of the likelihood of another trial.

For the reasons stated, the judgment of the trial court is reversed and the cause ordered dismissed.