SUPREME COURT RECORDS PAGE 13

 

File contributed by Lisa Lach and proofed/formated by Dena Stripling

*1 Case Reserved and Certified from Bastrop County.

The facts constituting the offense should be averred in the indictment with all

convenient and reasonable certainty. [Ante, 455.]

It will generally be sufficient if the indictment follows the exact words of the

statute in describing the offense, and it is never safe to depart from them. But

where the statute uses a general term, it is not enough to employ that term only,

but the pleader must also state the species, according to the truth of the case --

or where general expressions are used in the statute, it is not enough to employ those

general words only, but the facts intended to be included and forbidden by them

should be specified.

The appellant was indicted at the fall term, 1845, of Bastrop district court for

vending spirituous liquors in a quantity of a quart and over without license first

had and obtained.

There was a general demurrer to the indictment which was overruled and judgment

entered against the defendant for $50 fine, but the judge conceiving that questions

of law, novel and difficult, were presented in the case, had the same certified to

the appellate court for revision.

 

 

 

Though it is generally sufficient to follow the language of the statute, and is never

safe to depart from it, yet, if the statute use a generic term, it is not enough to

employ that term only, but the pleader must also state the species according to the

truth of the case.

 

 

An indictment for selling spirituous liquors without license should state at what

house or establishment, or to whom, the vending took place, or some other fact

tending to identify the transaction; otherwise the objection is fatal on demurrer.

Gillespie, for appellant.

The indictment is too general in its character, not alleging how or to whom the sale

was made, so as to apprise the accused of what he was to answer or how to make his

defense.

There was error in overruling the demurrer. It is too well settled to require argument

or authority to prove that when a particular and special mode is pointed out for the

enforcement of a penal statute, it must be strictly and literally pursued.

The act of 1843 (page 40) changed the remedy from a prosecution to a qui tam action.

The act of 1845 (p. 95, sec. 3) provides that upon an indictment by a grand jury and

a conviction by a petit jury the party shall be fined, etc. No such conviction was had

in the case at bar.

Attorney General, contra.

No brief filed.

 

 

WHEELER, J.

*2 Burch was indicted under the statute for a violation of the law requiring the

payment of license tax. 9 Stat. 95, 96, 107.

The offense is charged in the indictment in these words: "That Nelson Burch, of the

county of Bastrop, in the county aforesaid, a retailer of merchandise, who vends

spirituous liquors in quantities of a quart and over, did, on the first day of

September in the year of our Lord, one thousand eight hundred and forty-five, in

the county aforesaid, vend spirituous liquors in a quantity of a quart and over

without license first had and obtained."

There was a demurrer to the indictment overruled, and the defendant "failing to

make any further plea," judgment final was pronounced against him. But the judge,

doubting as to the law of the case, reserved and certified it to this court for

revision.

It is never necessary in an indictment to aver all the facts and circumstances

attending the transaction with the greatest possible certainty, for that might

render the law nugatory by requiring a particularity of proof which could seldom

or never be attained. Yet the facts constituting the offense ought to be averred

with all convenient and reasonable certainty. The extent and reason of the rule

were considered briefly in Bush v. The Republic