Allen v. State , 1882 Tex. Crim. App. LEXIS 179 ( 1882 )

White, P. J.

This appeal is taken from a judgment rendered in a prosecution based upon an information couched in the following language, viz.: “In the name and by the authority of the State of Texas, comes R. M. Lively, county attorney in and for the county of Van Zandt and State of Texas, duly elected and qualified, now here in the county court of said county information makes that Thomas Allen, as shown by complaint of S. C. Wilson, made October 18, 1881, late of the county of Van Zandt, laborer, on the eighteenth day of October, 1881, with force and arms, in the county of Van Zandt, did then and there make an aggravated assault upon the person of S. 0. Wilson, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.”

The information was drawn under “the common sense indictment bill,” General Laws Seventeenth Legislature, p. 61, sec. 11, form Wo. 4. A motion to quash was made upon the following grounds: “First. That said information and complaint do not charge the means constituting the aggravation alleged, and do not charge any acts or thing to show aggravation. Second. Because the same are insufficient to give notice to this defendant of what he is called upon to answer.” Another objection might also, perhaps, have been urged to the information, that it does not directly and affirmatively hver that Allen did the acts complained of, but that it is shown by the complaint of Wilson that he did the acts mentioned. (Hunt v. State, 9 Texas Ct. App., 404.) Had the words which we have italicised above been contained in parenthesis or omitted entirely, the information would not have been obnoxious on this ground. Appearing as they do in the information, to say the least of it they make the allegations uncertain. “ It is a general rule that an indictment or information must directly and with certainty aver the facts which constitute the offense, and not leave them to be deduced by argument or inference.” (Hunt’s case, 9 Texas Ct. App., 404.)

Prior to the adoption of the common sense bill, the rule adopted and recognized with regard to indictments for aggravated assault was that “the indictment should allege some of the particular acts or circumstances which are necessary under the Penal Code to constitute the offense. This rule, however, is not applicable to indictments (or informations) for simple assaults and batteries, or to assaults with intent to murder.” (Browning v. State, 2 Texas Ct. App., 47.)

In our opinion this rule is still the law in this State, and that the form prescribed by the common sense bill for indictments and informations for aggravated assault is an infraction of the constitutional provision which guarantees to the accused in all criminal prosecutions the right “to demand the nature and cause of the accusation against him.” See Williams v. State, decided at the Austin term, 1882. (12 Texas Ct. App., 395.)

Because the court erred in overruling the motion to quash the information the judgment is reversed, but the^ prosecution will not be dismissed, inasmuch as the complaint is sufficient to charge simple assault, and the prosecutor may, if he sees fit, prepare another information based upon said complaint for that offense.

Reversed and remanded.

Opinion delivered October 14, 1882.