State v. West
Texas Supreme Court
Appeal from Jasper. The appellee was indicted, under article 386 of the Digest, for cutting' and removing' a landmark. The indictment contained two counts : one charged the cutting of a tree, the other the removing' of a stake, described as allowed landmarks of a certain tract of land described in the indictment. In the description of the offense the indictment followed the words of the statute.
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Appeal from Jasper. The appellee was indicted, under article 386 of the Digest, for cutting' and removing' a landmark. The indictment contained two counts : one charged the cutting of a tree, the other the removing' of a stake, described as allowed landmarks of a certain tract of land described in the indictment. In the description of the offense the indictment followed the words of the statute. On motion of the defendant the court quashed the indictment, on the ground that it “does not allege that the stake or comer “ tree was marked as a corner tree or boundary line, or that the defendant “…
1Opinion of the CourtWheeler, J.
Whether the alleged landmarks were such, and bore the marks necessary to identify and constitute them landmarks, was matter of evidence; and it is never necessary to aver in an indictment mere matter of evidence, unless it alters the offense, for if so, as has been said, “-it would make the indictment as long as the evidonce.” (1 Chit. C. L., 231.)
“If notice,” it is said, “be necessary to raise the duty which the “ defendant is alleged to have broken, it should, of course, be averred; but “ where knowledge must be presumed, and the event lies alike in the knowledge of all men, it is never…
2Cited by8 opinions
- Fulton v. RobinsonTexas Supreme Court · 1881
- Latham v. KistlerCourt of Appeals of Texas · 1921
- State v. ThompsonTexas Supreme Court · 1874
- Antle v. StateCourt of Appeals of Texas · 1879
- Brewer v. StateCourt of Appeals of Texas · 1878
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