Chivarrio v. State , 1884 Tex. Crim. App. LEXIS 6 ( 1884 )

White, Presiding Judge.

Appellant was convicted of the murder of one Guadalupe Trevino, and of one Antonio, whose other name was alleged to be unknown. He was found guilty of murder in the first degree, and his punishment is assessed at death. There is no statement of facts in the record, and but a single bill of exceptions. In the indictment it is charged that the murder was committed in Webb county, the county in which the trial and conviction were had. A prelipainary motion to quash the indictment, because duplicitous in that it alleged the killing of two persons in the same count, was properly overruled. An indictment for murder may, in a single count and without duplicity, charge the prisoner or accused with the murder of two or more persons by the same act. (Rucker v. The State, 7 Texas Ct. App., 549.)

A serious question is raised by the bill of exceptions, and one not heretofore brought directly before the courts of this State, though it was suggested without decision in Prendez v. The State, 7 Texas Court of Appeals, 587. As stated above, the indictment charged that the murder was committed in the county of Webb; the evidence, as stated in the bill of exceptions, established that the murder was committed in Encinal county. Encinal county is unorganized, and by law for several years has been attached for judicial purposes to Webb county. Now, in in the charge of the court the following instruction was given the jury, viz: “5. You are instructed that the county of Encinal is attached to the county of Webb for judicial purposes. Therefore, if from the evidence you find that the, crime of which the defendant stands accused was committed in Encinal county instead of the county of Webb, and you shall believe beyond a reasonable doubt from the evidence that the defendant was the person who committed it, the proof of the venue will be sufficient to warrant you to find him guilty as charged in the indictment.” This charge was excepted to and is complained of as error.

Our Code of Procedure declares that “whenever it is found that this Code fails to provide a rule of procedure in any particular state of case which may arise, the rules of the common law shall be applied and govern.” (Code Crim. Proc., Art. 27.) If resort in this instance were had to the common law, doubtless the position assumed by the court would be held correct under ¡=>ome of the authorities, for we are told by Mr. Wharton “that, while the place of the offense must be shown to be within the jurisdiction, there is no necessity to prove that the facts given in evidence occurred in the parish or place therein alleged; it is sufficient to prove that they occurred within the county, or other extent of the court's jurisdiction;” and he cites 2 Hawkins, chapter 25, section 84; 2 Russell on Crimes, 799; Wharton’s Criminal Evidence (8 ed.), section 107. Again the same author says: “In another volume it will be shown that it is enough to lay the venue within the jurisdiction of the court,” (referring to Wharton’s Criminal Pleading and Practice, section 139, section 109) We are further told, however, in this latter section (109) that “when a county includes several jurisdictions, the jurisdiction must be specified.’’ But, says Mr. Bishop: “Where the law allows an indictment in a county other than that in which the offense was committed, still ‘all the facts,’ says Cliitty, ‘should he laid in the county where they actually happened.’ ” (1 Bish. Crim. Proa, 3 ed., sec. 381.)

And this we believe to be the rule in Texas, expressly provided by statute. In chapter two of the Code of Criminal Procedure, relating to “the county within which offenses may be prosecuted,” provision will be found for all exceptions intended to be made to this rule. After enumerating the exceptions, we have the following general provisions: “Article 224. In all cases mentioned in the foregoing articles of this chapter the indictment or information, or any proceeding in the case, may allege that the offense was committed in the county where the prosecution is carried on; and to sustain the allegation of venue it shall only be necessary to prove that, by reason of the facts existing in the case, the county whore such prosecution is carried on has jurisdiction.

“Article 225. In all cases except those enumerated in previous articles of this chapter, the proper county for the prosecution of offenses is that in which the offense was committed.” Ho provision can be found in the previous articles of the chapter for laying the venue of an offense committed in an unorganized county in the county to which it may be attached for judicial purposes. The enumeration of the exceptional cases in the chapter of the Code above referred to, under a general rule of construction well settled, would exclude from the purview of Article 224 all cases not enumerated. And though the case was properly triable in Webb county, Encinal being attached to Webb for judicial purposes, we are clearly of opinion that the venue or place of the offense should have been alleged to be, if such were the fact, in Encinal county. Attaching Encinal county to Webb for judicial purposes was never intended to, and did not, destroy its character as a separate, independent subdivision of the State. Its existence as a county, though unorganized, is fully recognized by law; its territorial limits accurately defined; its geographical position and relations clearly delineated upon our maps; and its subordination to Webb county limited solely to judicial purposes. (Constitution, Art. 11, sec. 1; Rev. Stats., Art. 773; State v. Jordan, 12 Texas Reports, 205.)

Opinion delivered January 23, 1884.

Because the court erred in its charge to the jury above set forth, the judgment will be reversed and the cause will be remanded, that another indictment and another trial may be had in conformity with the • facts in the case. Of course if the offense was committed within four hundred yards of Webb county, the indictment could properly allege it to have been committed in that county. (Code Crim. Proc., Art. 209.)" That such might have been the case cannot be inferred either from the charge of the court or the bill of exceptions.

The judgment is reversed and the cause remanded.

Reversed and remanded.