Owens v. State , 25 Tex. Ct. App. 552 ( 1888 )

White, Presiding Judge.

This appeal is from a conviction for malicious mischief. The indictment contained two counts— one for wilfully wounding the animal with intent to injure the owner, and one for wilfully and wantonly and unmercifully disfiguring and cruelly abusing the animal.

A plea in abatement of the indictment was made by defendant upon the ground that three of the grand jurors who found and presented the bill were disqualified and incompetent to act as grand jurors—one being a duly elected, qualified and acting-justice of the peace, and the two others being duly appointed, qualified and acting deputy sheriffs of the county, A plea in abatement to an indictment is not, technically speaking* provided for in our Code of Criminal Procedure. There are two grounds, and two only, mentioned in our Code as sufficient on motion to set aside an indictment. (Code Crim. Proc., art. 523.) Independently of these two grounds, jeopardy and want of jurisdiction are the only other grounds known by which to avoid and vacate an indictment after its presentment. (Dodd v. The State, 10 Texas Ct. App., 370; Williams v. The State, 20 Texas Ct. App., 357: Johnson v. The State, 22 Texas Ct. App., 206.)

But, even if the plea was entitled to be considered in this case, we know of no statute of this State expressly prohibiting justices of the peace and deputy sheriffs from acting as grand and petit jurors. It is true that as civil officers of the State they are declared exempt from jury service, but it is only where they claim the exemption. (Rev. Stats., art. 3014.) Their official status does not disqualify them under the provisions of the Code of Procedure defining the qualifications of grand jurors (Code Crim. Proc., arts. 358, 373), and a challenge to the array of the grand jury does not embrace such grounds. (Code Crim. Proc., art. 380.) It was not error to overrule defendant’s plea in abatement.

Opinion delivered June 6, 1888.

Again, it is objected to the indictment that it does not commence, “In the name and by the authority of the State of Texas,” but, on the contrary, that there is written or printed above the beginning the legend: “The Indictment: Empire Print; Encourage home industry and your money will be circulated among the people.” After this motto the indictment commences properly, and is formal in all subsequent parts. An unnecessary written caption constitutes no part of an indictment, nor do mottoes or business cards, though unnecessarily and unseemly, impair its validity if otherwise valid. (Winn v. The State, 5 Texas Ct. App., 621; West v. The State, 6 Texas Ct. App., 485.) The objection was properly overruled.

As heretofore stated, there were two counts in the indictment, and the motion of defendant to quash was sustained as to the second count, and the same was quashed, and defendant was tried alone upon the first count, which charged that the act was done with intent to injure the owner of the animal. (Penal Code, art. 679; Willson’s Texas Crim. Stats., pp. 234, 235.) We are of opinion the evidence fails to establish the intent charged; on the contrary, if any intent to injure was proven, it was one to injure the animal because of its breachy character and habits.

Without discussing other errors complained of, we will only notice the further one that the venue of the offense is not proven. The record fails to show that the offense was committed, as alleged, in Erath county.

The judgment is reversed and the cause remanded.

Reversed and remanded.