State v. Campbell , 29 Tex. 44 ( 1867 )

Doxley, J.

The law, for the alleged violation of which this indictment is found, provides, that “If any person shall commit with mankind or beast the abominable and detestable crime against nature, he shall be deemed guilty of sodomy.” [Paschal’s Dig., Art. 2033.]

The charge in the indictment substantially pursues the language of the statute. It does not, however, mention, the name of the offense. There is an exception to the indictment, that it does not charge any offense known to the law, and that it does not describe the offense charged against the defendant with certainty, sufficient to apprize him of what he is called upon to answer.

In The People v. Taylor, 3 Denio, 93, it is said to he a general, though not a universal rule, that in indictments for offenses created by statute it is sufficient to charge or describe the offense in the words of the statute.

In Moffitt v. The State, 6 Eng., 169, this general rule is recognized, yet it is said there are caáes where more particularity is required, either from the obvious intention of the legislature or from the application of known principles of law.

It is said in The Commonwealth v. Stout, 7 B. Monr., 249, that “An indictment in the words of a statute is not always sufficient; whether sufficient or not, depends upon the manner of stating the offense in the statute. If every fact necessary to constitute the offense is charged, or necessarily implied, by following the language of the statute, the indictment in the words of the statute is undoubtedly sufficient, otherwise it is not.”

In The Commonwealth v. Cook, 13 B. Monr., 149, it is said: “A presentment in the words of the statute, although generally, is not always sufficient. The act relied upon as constituting the offense should be averred.”

In Archbold’s Criminal Pleadings, 311, the form of an indictment for the offense here attempted to be charged is given. By this form it apjoears, that the acts constituting the offense are charged, and not left, as in this case, to inference. To secure a conviction, the acts of the defendant must be proved on the trial. These acts, which are relied upon as being in violation of law, and which are to be proved, must first appear by direct averment, and are not to be inferred from other facts alleged. Judgment is

Aeeibmed.