Oakley v. State ( 1959 )

ON APPELLANT’S SECOND MOTION FOR REHEARING

MORRISON, Presiding Judge.

Judge Davidson dissented on original submission, and, since I now agree with him, his opinion is withdrawn, as is the opinion which I prepared on appellant’s motion for rehearing.

I have now concluded that the description of the property contained in the indictment is insufficient to meet the requirements of Article 403, V.A.C.C.P., and, in line with the holdings of this court in Luce v. State, 88 Texas Cr. Rep. 46, 224 S.W. 1095; Scott v. State, 125 Texas Cr. Rep. 396, 87 S.W. 2d 1040; Howk v. State, 138 Texas Cr. Rep. 275, 135 S.W. 2d 719; and Leos v. State, 155 Texas Cr. Rep. 478, 236 S.W. 2d 817, is so fundamentally defective as to require a reversal even though there was no motion to quash.

The recent case of Crawford v. State 165 Texas Cr. Rep. 147, 305 S.W. 2d 362, caused the writer of this opinion great concern, but in that case the description was “two inch upset tubing,” while here the description is only “seed.”

I express my gratitude to counsel for the appellant as well as the authors of the studious amicus curiae briefs.

Having concluded that the description is insufficient, the appellant’s second motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment is now reversed and the prosecution is ordered dismissed.