To enforce the provisions of the Constitution declaring that in a criminal case "the accused shall have right to demand nature and cause of accusation against him, and to have a copy thereof," and "shall not be held to answer for criminal offense, unless on indictment of grand jury," the Legislature has enacted statutes setting forth certain requisites essential to the validity of an indictment, and the courts have uniformly insisted, both in averment and proof, upon a substantial compliance with these provisions. See Huntsman v. State, 12 Tex.Crim. App. 619; and other cases *Page 59 collated in Harris' Const. of Texas, p. 85, note 36. Among the statutes is Art. 456, C. C. P., requiring that the name be given, when known, to the grand jury. Statutes more specific upon the subject have been passed with reference to certain subjects, for example: in the offense of theft it is said:
"Where one person owns the property, and another person has the possession, charge, or control of the same, the ownership thereof may be alleged to be in either. Where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in all or either of them." (Art. 457, C. C. P.)
So, with reference to the offense of the unlawful sale of intoxicating liquor, it is said:
"* * * it shall be sufficient to charge that the defendant sold intoxicating liquors contrary to law, naming the person to whom sold." (Art. 464, C. C. P.)
In theft cases, the holdings of the court are numerous and uniform to the effect that the averment must name the owner and that the proof must correspond with the averment, and "joint ownership, if alleged, must be proved as laid." See Branch's Ann. Tex. P. C., Sec. 2440; Hernandez v. State, 43 Tex. Crim. 80; Franklin v. State, 53 Tex.Crim. Rep.; Hardeman v. State, 58 Tex.Crim. Rep..
"If ownership is alleged to be in more than one person, the proof must correspond with the allegation." Branch's Ann. Tex. P. C., supra; also Grantham v. State, 59. Tex.Crim. Rep. 556.
"If it is alleged that possession was in one person and that he was holding the property for another, both allegations must be proved as laid." York v. State, 42 Tex.Crim. Rep.; Coleburn v. State, 61 Tex.Crim. Rep.; Branch's Ann. Tex. P. C., supra. Among the later cases are Butler v. State, 83 Tex. Crim. 373; Bergfeld v. State, 85 Tex.Crim. Rep.. So, in the sale of intoxicating liquors, the averment of the name of the purchaser is essential. It is likewise necessary that the proof correspond with the allegation. This announcement was made by the Supreme Court of this State in Alexander v. State, 29 Tex. Rep. 495, from which a quotation is taken in the opinion by Judge Hawkins. It has been repeatedly and uniformly announced in subsequent decisions. See Dixon v. State, 21 Tex.Crim. App. 517, and other cases mentioned in the opinion written by Judge Hawkins.
In Price's case, 83 Tex.Crim. Rep., the indictment named four persons as purchasers of intoxicating liquor from Price. In its charge, the court told the jury in effect that if *Page 60 the sale of whiskey by the appellant was made to all or either of the persons named in the indictment, a conviction should result. Discussing the matter, this court, in the unanimous opinion, used the following language:
"The court's charge was not correct. The indictment having charged that the sale was made to four persons, naming them, it was essential that the proof should agree with the allegation, and the conviction could not be had under this indictment upon proof that the sale was made to one of the parties named. This has been held in a number of cases. Sessions v. State, 98 S.W. Rep. 243; Jones v. State, 76 Tex.Crim. Rep., 174 S.W. Rep. 394; O'Shennessey v. State, 49 Tex.Crim. Rep.; Tippit v. State, 53 Tex.Crim. Rep.; Arnold v. State, 47 Tex. Crim. 556. The evidence, however, is undisputed that the sale if made by appellant was made to all four parties named in the indictment; that they were all together, all interested in the purchase, each furnishing their pro rata part of the money. This being true, it appears that under article 743, C. C. P., which provides, in substance, that error not calculated to injure the rights of an accused will not authorize reversal, the error of the court would be classed as harmless."
Upon the subject of assault, there is no specific statute requiring an averment of the name of the injured party, as in the offense of theft and the sale of intoxicating liquor, but under the general provisions embraced in Art. 456, supra, touching the sufficiency of the indictment, indictments for assault must name the injured person, if known. Whether, in cases of assault where more than one person is named as the injured party, it be essential that the proof show an assault upon all of them, there is lack of harmony in the precedents. However, it is believed that the weight of them and the better reason is in favor of the rule which has heretofore been applied in theft and liquor cases. Upon this subject we quote from the opinion of this court in two cases of recent date. In Barton v. State, 88 Tex.Crim. Rep., 227 S.W. Rep. 317, is found the following statement:
"In view of certain special charges that were given, we would not feel justified in reversing this case upon the complaint made of the manner in which the sixth count in the indictment was submitted to the jury. That count manifests the intention upon the part of the pleader to charge a single assault upon Green and Eldridge jointly. This interpretation seems to be emphasized by the fact that in the fourth and fifth counts an assault to rob Green and Eldridge separately is charged, and *Page 61 upon the trial was submitted to the jury. The sixth count should, in our opinion, be treated as charging a single assault upon both Green and Eldridge. That is to say, that part which submitted that count which authorized conviction, if the assault is made upon either of them, should be eliminated. Upon the subject, see Grantham v. State, 59 Tex.Crim. Rep.,129 S.W. 839; Franklin v. State, 53 Tex.Crim. Rep.,110 S.W. 909; Hernandez v. State, 63 S.W. 320."
From Pate v. State, 91 Tex.Crim. Rep., 239 S.W. Rep. 967, an opinion written by our Brother Lattimore, we quote:
"Nor is the court's charge in paragraph four, wherein the jury are told that if they believe appellant, Rogers and Dollar made an assault upon Cozine and Hampton, or either of them, and by violence to Cozine and Hampton, or either of them, and by putting Cozine and Hampton, or either of them, in fear of life and bodily injury, etc., in accordance with the authorities. It would seem clear that the indictment charges an assault upon both Cozine and Hampton, and the use of violence toward both of said parties, and thus charges a joint assault, and that in such case the court could not instruct the jury to find appellant guilty if an assault was committed upon either of them or violence used toward either of them. Barton v. State, 88 Tex.Crim. Rep.; Neely v. State, 32 Tex.Crim. Rep.; Woods v. State, 26 Tex.Crim. App. 508; Henley v. State,61 Tex. Crim. 428; Davis v. State, 68 Tex.Crim. Rep.; 152 S.W. Rep. 1095."
An examination of the cases cited in both opinions quoted from shows that this court regarded the principle as exactly analogous where ownership in theft cases was alleged to be in more than one party, proof must show want of consent of all of them and not of one only. In practice, there need be no variance by reason of the name of the purchaser, the owner, or the injured party. If there is uncertainty in the advance knowledge of the pleader touching the direction that the evidence will take upon the trial, as to whether the assault was committed upon one or more than one, or as to whether the owner was joint or several, or the purchaser was one or more, the law permits that the indictment be drawn in separate counts and the State thereby be protected against any injury. To secure the State in its rights, it is not necessary that the law touching the certainty of indictments and the agreement of proof in the averment be abandoned or abrogated to meet the particular case. It is required only that the pleader use care in drawing the indictment in separate counts and that the court *Page 62 submit to the jury for decision those phases of the indictment which are supported by the evidence. It is said in Branch's Ann. Tex. P. C. Sec. 507:
"An indictment may contain as many counts charging the same transaction as is thought necessary to meet the emergencies under the testimony, that is, to meet the proof as it transpires and to prevent a variance."
This practice has not only been approved, as shown by many cases cited in the section mentioned, but has been expressly commanded by this court on various occasions. See Shubert v. State, 20 Tex.Crim. App. 330. Had this procedure been followed in the present case, there might be no occasion to interfere with the verdict. Since it was not, however, and the proof does not agree with the averment in the indictment, the case should be reversed to the end that it might be tried in accord with the law as it has been heretofore announced in the statutes and decisions to which reference has been made.
For these reasons, deploring the fact that there should be any difference of opinion in the membership of the court touching the subject in hand, I feel bound to express my views in accord with my conviction, and to concur with my Brother Hawkins in his conclusion that the motion for rehearing should be granted, the judgment of conviction set aside, and the cause reversed and remanded for another trial.
Reversed and remanded.