Dancey v. State , 35 Tex. Crim. 615 ( 1896 )

On motion for rehearing, appellant contends that the second count of the information, which is the one on which the appellant was convicted, does not show in what court it was presented. The information, in that respect, shows the beginning of the second count to be as follows: "And the County Attorney presents on said date in said county," etc. On this question appellant refers us to Bowen v. State, 28 Tex.Crim. App., 498. This was a case in which there was but one count, and the indictment does not show in what court the same was presented. Mr. Bishop says, "That each count must contain the necessary commencement — leaving off the caption — and the conclusion, as against the statute, or as against the peace and dignity of the State." He says, "As a rule, any count from which the commencement is omitted is bad." "In practice," he says, "the commencement is generally abbreviated, after the first count, to read, 'The jurors aforesaid, on their oath aforesaid, do further present.' " See, Bishop's New Crim. Proc., § 429. By reference to the same author, it will be seen that, in stating the form of an indictment containing more than one count, the second count begins as above stated. See, Bishop's New Crim. Proc., § 132. So that it would appear that the commencement of this indictment in the second count, according to Mr. Bishop, is sufficient, without stating in what court the same was presented. Our statute on the form of indictments and informations states the requisites as to the beginning and concluding parts of each. See, Rev. Code Crim. Proc., Arts. 439, 466. This does not refer to the counts in an information or an indictment. It has been held by our court that it is not necessary that each count of an indictment shall contain the concluding part thereof, "against the peace and dignity of the State." While it has been decided that each count, as to the charging part, is independent of every other count, still the preceding count or counts may be looked to, to supply auxiliary allegations — to supply defects in the subsequent counts. See, Boren v. State, 23 Tex.Crim. App., 28; Boles v. State, 13 Tex.Crim. App., 650. In West v. State, 27 Tex.Crim. App., 472, it was held that where the District Attorney abandoned and dismissed the preceding counts, including the first count, and the trial proceeded on a subsequent count, it was not necessary that such subsequent count should begin, "in the name and by the authority of the State of "Texas," but that the first count, though dismissed, could be looked to for this allegation. The court say in that case. "The commencement and caption are to be considered, not only as a part of the first count, but as part of each and all counts in the indictment, and may be referred to and considered in aid of any count. They constitute a part of the entire indictment." In Morgan v. State, 31 Tex.Crim. Rep., it is held that the first count may be looked to, on a prosecution of the subsequent count, to supply the date of the commission of the offense. While it is not necessary in this case to go to the extent in the last case cited, yet we think, on principle and on authority, there can be no question that, as to a mere matter of form, the first count can be looked to, to help out the want of an allegation in the subsequent count. As we have seen, by Mr. Bishop, the commencement in the count before us is sufficient; and our own decisions go much further in this respect than does the text-book writer just quoted. We think the second count of the indictment, under which the appellant was convicted, in itself, is sufficient, as against the criticism urged by the appellant, and that, if it were not, we could recur to the first count of the information for the purpose of helping out the defect suggested. The motion for a rehearing is overruled.

Motion Overruled.