Brewer v. State ( 1885 )

Hurt, Judge.

This is a conviction for the theft of two watches, the property of Mrs. Willie Bowles. It is alleged in the indictment that the watches were the property of, and taken from the possession of,-Bowles, “ whose Christian name is to the grand jurors unknown.”

“ In alleging the name of the defendant, or of any other person necessary to be stated in an indictment, it shall be sufficient to state one or more of the initials of the Christian name and the surname. . . . When the name of the person is unknown to the grand

jury, that fact shall be stated; and if it be the person accused of the offense, a reasonably accurate description of him shall be given in the indictment.” (Code Crim. Proc., art. 425.) It will not be questioned for a moment that the name of the owner of the property in theft is necessary to be stated in an indictment for this offense, and if unknown to the jury this fact “ shall be stated in the indictment.”

Upon the trial the proof was evident that the watches belonged to Mrs. Willie Bowles. This being the case, “the rule requires the State to go further, and show that the grand jury did not know the owner or claimant, and could not, by reasonable diligence, have obtained that information.” (Jorasco v. The State, 6 Texas Ct. App., 238; Williamson v. The State, 13 Texas Ct. App., 514; Duval & Pelham v. The State, 63 Ala., 12.)

In the case in hand there was no such proof attempted, and hence the judgment must be reversed. Let us briefly call attention to the necessity and justness of this rule. That the defendant may be thoroughly prepared to meet the charge against him, he is entitled to the name, both Christian and surname, of the owner of the property charged to have been stolen. How the grand jury in the bill of indictment must, if in its power, furnish the defendant with the name of the owner of the property. This is required by the rules of pleading. If the name is not known, this fact must be stated. But, can the grand jury deprive the defendant of the name of the owner of the property arbitrarily, by simply stating that the name is unknown, when in fact it was, and may have been known by the use of reasonable diligence? Clearly not. To permit this would be to license the grand jury arbitrarily to deny to the accused a legal right, and one too of very great importance to his defense.

The judgment is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered June 13, 1885.]