Dellinger v. State , 115 Tex. Crim. 480 ( 1930 )

The appellant presented a written motion to quash the indictment, charging that it was duplicitous. From the minutes of the court it appears that the motion to quash was presented and in the order the following recital is made:

"It is, therefore, ordered, adjudged and decreed by the Court that said motion of defendant to quash the indictment presented herein be, and the same is hereby in all things, overruled and denied; to which action and ruling of the Court on this motion to quash the indictment, defendant then and there in open court and before the announcement of any plea and before the trial of said cause on its merits objected to and excepted."

The minutes of the court containing the above order were signed by the trial judge. The procedure mentioned is deemed sufficient to present for review the sufficiency of the indictment against the attack made. The cases of Parroccini v. State, 234 S.W. 671; Bailey v. State, 275 S.W. 1014; Stewart v. State, 299 S.W. 646; Hubbard v. State, 298 S.W. 893, correctly ruled on the point at issue but are not deemed authority for holding that the sufficiency of the indictment in the present instance is not properly presented for review.

A synopsis of the facts in evidence is set forth in the original opinion. No testimony was introduced by the appellant. The evidence all comes from the State's witness. The appellant and two companions, in the nighttime, wearing masks and armed with pistols, assaulted the injured party by shooting at him, striking him and finally seizing him and putting him into an automobile in which he was taken to another state where, after several days, he was permitted to go to a city in New Mexico. The transaction was continuous. There was no cessation in the assault from the moment it began until that of its termination. The blows that were inflicted upon him and the seizure and detention of his person constituted an assault. "An illegal arrest is regarded in law as a continuous assault of an aggravated nature." See Alford v. State, 8 Tex. Cr. App. 545; Johnson v. State, 5 Tex. Cr. App. 47; Brown v. State,87 Tex. Crim. 262; Earles v. State, 94 S.W. 464; Burkhardt v. State, 83 Tex.Crim. R.; Satterwhite v. State, 112 Tex.Crim. R.. The assault being continuous, whether in any sense the indictment can be regarded as duplicitous is open to serious question. The charging part of the indictment is quoted in the original opinion. In this state, just what language will characterize an indictment as duplicitous has been the subject of conflicting views as is illustrated in the case of Murdock v. State,52 Tex. Crim. 262; also Crouch v. State, 87 Tex.Crim. R.; Viley v. State, 92 Tex.Crim. R.. In Murdock's case, supra, and others, an indictment for robbery embracing the two phases of the offense, namely, putting in fear with firearms or other deadly weapon, was duplicitous and of such a nature as rendered the conviction vulnerable though not attacked until after verdict. This position was abandoned in the later cases as noted in Crouch's case, supra. Assuming the duplicity of the present indictment, the question is presented as to the effect of the ruling of the court in refusing to quash the indictment when viewed in the light of the evidence and manner of trial and the precedents upon the subject. On that subject there has been some lack of harmony but all later rulings are in accord with the decision in Melley's case, 248 S.W. 367. Mr. Bishop in his New Cr. Proc., 2nd Ed., Vol. 1, sec. 442, p. 361, characterizes duplicity as a privilege which the accused may waive and of which advantage must be taken before verdict. Such was the ruling in the Melley case, 93 Tex.Crim. R.. It is also said by Mr. Bishop:

"At the trial, the prosecutor may be put to his election on which charge to proceed."

In Vol. 2, secs. 1391 to 1395, Mr. Bishop says that the State may abandon part of a count if it is separable from the others in the indictment. Many precedents are cited in support of the text. The procedure sanctioned in Crouch's case, supra, and others following it, namely, without vitiating the indictment, the abandonment of that part of it which charged the use of a deadly weapon was sanctioned, are analogous. In the present case the court submitted but the offense of assault, thereby limiting the State to that offense for a conviction. The indictment, in the form in which it was written, was the means of bringing into the case no evidence that was not admissible under the averment charging an assault. Instances occur in which an indictment offends not only against the rule against duplicity but embraces a number of distinct felonies which, in their nature, did not depend upon the same act, are not necessarily coincident with reference to the time of their commission, and necessarily bring about a state of confusion out of harmony with the statutory and constitutional provisions governing the substance of indictments, such as Todd v. State, 229 S.W. 515, in which the motion to quash was properly sustained. The indictment under consideration in that case obviously left the accused without information as against which of the several offenses embraced in the indictment he would be called upon to defend. Other cases of the same nature are Wood v. State, 47 Tex. Crim. 543; Scales v. State, 46 Tex.Crim. R.. Such, however, is not the effect of the present indictment. By the indictment the accused was informed of the transaction for which he was called upon to answer. The most that can be urged against the indictment in the present instance is that by the averments therein there was nominally carved two offenses out of a single act or transaction, a fault (if it be a fault) which was corrected by the abandonment of that part of the indictment which charged the alleged offense of imprisonment; and in the charge restricting the State's right to a conviction to that part of the indictment alone which charged an assault. If there was error in refusing to quash the indictment (which is not conceded), it was made harmless by the forced election to rely upon the charge of assault.

The motion is overruled.

Overruled.