1. An indictment for the offense of robbery which pursues, substantially, the common law precedents for that offense is sufficient. (Burns v. The State, 12 Texas Ct. App., 269.) But the indictment in this case does not follow such precedents. It charges as follows: “That Bill Trimble, late of the county of Rains and State of Texas, did, with force and arms, in the county of Rains and State of Texas, on the twenty-sixth day of October, A. D. 1883, by assault and by violence, and putting in fear of life and bodily injury, unlawfully and fraudulently take from the person and possession of Henry Ivy ten dollars in money,” etc. This charge is in the precise words of the statute defining robbery; but it is not always sufficient to charge an offense in the words of the statute defining it. An indictment must allege the facts which constitute the crime, by averments direct, positive and certain, and not by way of argument and inference. (Moore v. The State, 7 Texas Ct. App., 608.)
In this indictment it is not averred that Ivy, the party alleged to have been robbed, was assaulted by the defendant, or was put in fear of life or bodily injury. It is not averred who it was that was assaulted or put in fear by the defendant. It might be argued or inferred from the statement contained in the indictment that Ivy was the person so assaulted and put in fear, but we must not resort to argument or inference to ascertain the meaning of allegations in an indictment. It might have been a fact that some other person than Ivy was assaulted and put in fear by the defendant, and that by means of such assault or putting in fear Ivy was robbed. If such were the case, the indictment should so allege, and name the party so assaulted and put in fear. It is as reasonable to conclude from the allegations in the indictment that Ivy was robbed by means of an assault upon another person, or by means of putting another person in fear, as that the robbery was effected by an assault upon him, or by putting him in fear. We have found no precedent, and we think none can be found, which would sustain this in*121dictment. In all the precedents for this offense which we have examined, the averments as to the assault, and putting in fear, are directly and positively made, naming the person assaulted or put in fear. (1 Whart. Prac., 410; 2 Arch. Crim. Prac. and Pl, 521; 2 Bish. Crim. Pro., sec. 1002; Reardon v. The State, 4 Texas Ct. App., 603; Burns v. The State, 12 Texas Ct. App., 269.) We are of the opinion that the court erred in not sustaining the defendant’s motion in arrest of judgment, based upon the insufficiency of the indictment.
2. On cross-examination of the witness Ivy, defendant’s counsel asked him if he had not, just before instituting this prosecution, had a conversation with defendant about defendant’s knowledge of an alleged incestuous intercourse between witness and his niece. On objection made by the State the witness was not permitted to answer the question. In the bill of exceptions taken to this ruling it is stated that this question was asked “ for the purpose of showing the animus of the witness, and the motive the said witness could have in prosecuting the defendant.” We think that for this purpose the question was proper, and that the witness should have been permitted and required to answer it. (Whart. Crim. Ev., secs. 476, 477.)
3. We are of the opinion that the court erred in overruling defendant’s motion for a new trial. To our minds the testimony of the only State’s witness, Ivy, as presented to us in the record, is of a very unreliable and unsatisfactory character, when considered in connection with the other evidence in the case. It by no means establishes in our minds the guilt of the defendant beyond a reasonable doubt. We think furthermore that the newly discovered evidence shown by the motion for a new trial was material, and would be likely to change the result on another trial. In our opinion the motion should have been granted upon this ground, if upon no other.
The judgment is reversed, and because the indictment is fatally defective the prosecution is dismissed.
Reversed and dismissed.
Opinion delivered May 3, 1884.