Myatt v. State , 31 Tex. Crim. 523 ( 1893 )

DAVIDSON, Judge.

The indictment in this case, charging John Myatt with carrying a pistol, was properly certified to the County Court. Being informed by the sheriff that the grand jury should have indicted “ Marion,” and not “John” Myatt, the clerk erased “John,” and inserted “Marion” in lieu of “John”-in the indictment, and issued a capias for the arrest of “ Marion.”

When the cause was called for trial the defendant moved to quash the indictment because of this alteration, called the attention of the court to the fact that he had a brother named “ John,” and suggested his own name as “Marion.” The court thereupon ordered the name “Marion” stricken out and “John” inserted, and required defendant to plead to the indictment. He declined to do so, whereupon the court entered a plea of not guilty for him, and the cause proceeded to trial.

The act of the clerk was a nullity, did not affect the indictment, and it remained as if the alteration by the clerk had not occurred. When defendant suggested his name to be “Marion” it should have been so “noted upon the minutes of the court, the indictment corrected by inserting therein the name of the defendant as suggested by him, the style of the cause changed so as to give his true name, and the cause proceed as if the true name had been first recited in the indictment.” Code Crim. Proc., art. 513. In refusing and failing to comply with this provision of the law the court erred, and for this error the judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.