State v. Knippa , 29 Tex. 295 ( 1867 )

Donley, J.

It is believed that it was intended, in this case, to charge the defendant with the unlawful alteration, obliteration, and defacing of a certain receipt of the defendant to one Ujffy, which receipt, it is averred, was indorsed on a bill of lading, given by the defendant to Ujffy. There is no positive and certain averment that the bill of lading and receipt had been delivered by the defendant, so as to constitute those writings, as the act of the defendant, binding him. But if it be conceded that the allegations show the receipt to be such an instrument, and to have been executed, so that an alteration by the defendant would make him guilty of a criminal offense, the question then arises, whether the alleged wrongful acts of the defendant are stated with such legal certainty as to require that he shall be placed upon trial before the jury. Is the charge, that the defendant did falsely, fraudulently, feloniously, and without lawful authority, alter, obliterate, and deface the receipt, an averment of the commission of the offense, with the certainty required by law? Ueither the defendant nor the court are advised by the allegations in the indictment in this case in what respect the receipt was altered, obliterated, and defaced. It is believed that it was the intent of the pleader to set out in the indictment the receipt as originally executed. If correct in this, yet the indictment is fatally defective for the want of an averment showing any alteration of the receipt, by which, if true, it would have created, increased, diminished, or defeated any pecuniary obligation, or would have transferred or in any manner affected any property whatever. There is in fact no allegation of any alteration of the receipt. It is. not averred that a word has been added to the receipt since its execution; nor is it averred that any part, so much as one word or letter, has been effaced, blotted out, changed, or that the receipt has in any way been altered or defaced since it was first executed by the party whose act it purports to be.

The facts constituting the supposed offense are not averred with sufficient certainty as to apprize the defendant of the offense alleged to have been committed by him. The act done by the defendant, which is to be held as an alteration, obliteration, or defacing of the receipt, is not averred.

The offense intended to be charged in this case is a felony. The instrument might have been altered materially by erasing two letters, reducing the sum mentioned in the receipt from $60 to $6. This alteration, or any other, if in fact made, should have been averred; but it does not appear from the indictment.in this case that the receipt, for the alteration of which the complaint is made, has in fact been altered in any respect. To obliterate, in legal effect, would be “to deface, to efface, to blot out, to destroy.” Obliterate, in the law, may be to alter, but certainly to alter will not necessarily be held as an obliteration. This indictment is defective in not averring what acts were done by the defendant. It is not questioned that it is an offense to alter, to obliterate, or to deface certain writings which are mentioned; but, as has been said, the objection to this indictment is, that it is not averred with sufficient certainty what was done.

The grand jury must, of necessity, hear the testimony before returning a bill for a violation of law. The facts constituting the offense ought to be known to the officer who is to prepare the bills of indictment, and the offender should be charged with the particular offense which the evidence shows he has committed, and not with that offense and something else, when it clearly appears that he could not have committed the two or more offenses, as alleged. It is not perceived how the defendant could possibly have altered the receipt by adding a word to or erasing a word from the receipt, and by the same act obliterate, blot out, and destroy the entire receipt.

Part 7, Art. 895, Criminal Procedure, in prescribing what shall be deemed a sufficient indictment, says “ the offense must be. set forth in plain and intelligible words.”

The words in this indictment are not plain, for the reason that it does not appear whether the alteration of the receipt was by adding to and inserting words in the receipt after its execution, or that the alteration was effected by erasing and obliterating words which were in the receipt. It does not appear, in fact,, that anything was done to or with the receipt at the time of its execution. It cannot certainly be determined from an examination of the indictment what act it is intended to charge that the defendant had done which was in violation of the criminal law, subjecting him to a prosecution for that violation of law. As the acts constituting the offense alleged to have been committed by the defendant are not stated with sufficient certainty, the judgment is therefore

Affirmed.