Ranch v. State

Winkler, J. The appellant was charged by indictment,, tried, and convicted of an aggravated assault. A motion was made in arrest of judgment, which was overruled, and. this appeal is prosecuted. One ground of the motion in arrest of judgment is set. out as follows : “ The name of the party injured is not set forth or contained in the indictment.” The ruling of the-court on the motion is assigned as error. The indictment charges that the accused, stating time and place, “ did then and there, with force and arms, commit an assault upon the-body of the wife of Thaddeus Bunker; ” and, after averring-circumstances of aggravation, the indictment states, “ did then and there strike and wound the said wife of said Bunker with a large piece of wood, being then and there a deadly weapon; against,” etc. The general rule is, that in indictments or informations for offences of this character the name of the person upon whom the assault is charged must be stated in the indictment or information. “The indictment must state the facts of the crime with as much certainty as the nature of the case will admit.”' 1 Bishop’s Cr. Proc., sec. 494, and authorities referred torn note 5. The offence must be set forth in plain and intelligible words. Code Cr. Proc., art. 395, clause 7 art. 403, clause 7 (Pasc. Dig., arts. 2863, 2870). To this general rule we know of but one exception, and1 that is where the name of the injured party is unknown.. In such case it is sufficient to state that fact. There is nothing in the record before us to show that the-name of the assaulted party was not known to the grand [365] jurors, nor does the indictment state that her name is unknown to them. It does not appear that there was any reason or excuse given for failing to state plainly the name •of the person upon whom the assault is charged to have been committed. The omission to so charge would have •been cured if it had been averred in the indictment that her name was to the grand jurors unknown, if such had been ihe fact. The State v. Snow, 41 Texas, 596. It is urged on behalf of the State, that the defect in the •indictment is such as is cured by the verdict, and should have been raised on motion to quash. We are of opinion, •upon an examination of authorities cited, that they do not ■support the position to the extent claimed. The defect in the indictment, we are of opinion, is not merely a formal, but a substantial one, which may be taken advantage of by motion in arrest of judgment. The Code provides : “ A motion in arrest of judgment shall be granted upon any ground which would be good upon exception to an indictment or information, for any substantia] defect therein.” •Code Cr. Proc., art. 678 (Pasc. Dig., art. 3143). Because of a substantial defect in the indictment, of which advantage was taken in the proper manner and in due time, the judgment is reversed and this prosecution is dismissed. Reversed and dismissed.