State v. Thompson

Reeves, Associate Justice.

The defendant, Thompson, was indicted under Article 766a of the Penal Code for taking into /his-'possession - and driving from- its accustomed range - a certain heifer described in the indictment.

The'defendant moved to quash the indictment on two grounds: 1. Because the indictment charged no offense. 2; Because the "range of the heifer was not set out' or described in .the indictment.

The court sustained the motion and dismissed the in-indictment, and the State, by the district attorney* excepted and gave notice of an appeal.

The' act of November 12, 1866, under which the defendant was indicted, provides for a class of cases not' embraced in the general definition of theft as defined by' the code, but declared to be theft under the provisions of this act. The offense is defined by this act. Article 766a provides, “If any person shall willfully take into *519possession and drive, use, or remove from its accustomed range, any live stock not his own, without the consent of the owner, and with intent to defraud the owner thereof, he shall be deemed guilty of theft,” etc.

The other articles need not be examined, except Article 766d. This article provides that, ‘1 In prosecutions under the three preceding articles, it shall only be necessary to prove the act of killing or destruction, or driving, using or removing from the range, of any stock not belonging to or under the control of the accused, and it shall devolve upon the accused to show any fact under which he can justify or mitigate the offense.”

The expression “range,” or “accustomed range,” as used in'the statute, is matter of local description, and, unlike a generic term requiring the species to be. stated, it admits of proof under the general allegation without defining by averment the limits of the “range.”

The indictment charges the offense in the language of the statute under which it was framed, and not coming within any exception to the general rule, it is sufficient. (Camp v. The State, 3 Kelly R., 417; The People v. Taylor, 3 Denio R., 93; Francis v. The State, 21 Texas, 280; Horan v. The State, 24 Texas, 161.)

In an indictment charging the defendant with cutting timber on the land of another it was held to be sufficient for the indictment to follow the language of the statute, without further description of the land, and no good reason is perceived why the same rule should not be applied to this case. (The State v. West, 10 Texas, 553; Welsh v. The State, 11 Texas, 374; The State v. Warren, 13 Texas, 45.)

The indictment was sufficient to put the defendant on Jfis trial, and there was error in sustaining the motion to quash, for which the judgment is reversed and case remanded for further proceedings.

Reversed and remanded.