Lindsay v. State

DALLY, Judge,

dissenting.

V.T.C.A. Penal Code, Sec. 15.02, unlike Art. 1622, V.A.P.C. (1925), requires an overt act to be committed to constitute the substantive offense of conspiracy. Except for *573 an allegation of the overt act, I see no reason why an indictment for the substantive offense of conspiracy under the new penal code should be different than under the former penal code. Under the former penal code, this Court held that it was unnecessary to allege the means by which the conspiracy was to be accomplished. See Garza v. State, 122 Tex.Cr.R. 413 , 55 S.W.2d 1042 (1932); Echols v. State, 133 Tex.Cr.R. 121 , 109 S.W.2d 190 (Tex.Cr.App.1937).

Although the indictment in the instant case is drawn inartfully and is not a model — it alleges more than is necessary — the court did not err in overruling the appellant’s motion to quash the indictment. I submit that under Y.T.C.A. Penal Code, Sec. 15.02, 1 an indictment is sufficient which alleges in pertinent part that “Judith Lindsay, did then and there with the intent to commit murder for remuneration, agree with Kenneth G. Davis, Jewelle Beard, and Larry Whittaker, that they, or one of them, would shoot Larry Lindsay with a firearm and pursuant to that agreement, Kenneth G. Davis shot Larry Lindsay with a firearm.” Such an allegation contains all of the constituent elements of the offense; i. e., (1) a person (2) with intent that a felony be committed (3) agrees with one or more persons (4) that they or one of them engage in conduct that would constitute the offense (5) and an overt act in pursuance of that agreement is performed by one or more of them.

I dissent.

Before the court en banc.

. Sec. 15.02, V.T.C.A. Penal Code provides:

“(a) A person commits criminal conspiracy if, with intent that a felony be committed:

“(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and

“(2) he or one or more of them performs an overt act in pursuance of the agreement.”