# Studer v. State

> Court of Criminal Appeals of Texas · November 21, 1990 · 799 S.W.2d 263

URL: https://www.frixlaw.com/law-library/cases/9762489

## Case

- **Full name:** Jimmy Randolph STUDER, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** November 21, 1990
- **Citations:** 799 S.W.2d 263; 1990 Tex. Crim. App. LEXIS 190; 1990 WL 180802
- **Precedential status:** Published
- **Opinion:** Concurrence by Clinton
- **Judges:** Miller, Teague, McCormick
- **Cited by:** 430 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9762489

## How later opinions describe it (automated extraction)

- stating, "In sum, the wording of Article V, § 12(b), that provides 'an indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense; an information is a written instrument presented to a court by an attorney for th…
- holding that a charging instrument may be an indictment as contemplated by the Texas constitution even if fails to charge each element of an offense

## Opinion text

*286 CLINTON, Judge,
concurring.
Article 1, § 10, Bill of Rights, Constitution of the State of Texas, guarantees that “no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary,” and with certain other exceptions not pertinent here. 1 In the latter cases the prosecution is usually on an information, as here.
Reduced to its simplest form, the controlling question in this cause is what constitutes an “information” purporting to charge a misdemeanor offense.
I.
In this jurisdiction our first constitution mandated Congress to introduce by statute the common law of England, and declared that in all criminal cases “the common law shall be the rule of decision.” Article IV, § 13, Constitution of the Republic. By Act of January 20, 1840, Congress complied, viz:
That the Common Law of England (so far as it is not inconsistent with the Constitution or the Acts of Congress now in force) shall, together with such acts, be the rule of decision in this Republic, and shall continue in full force until altered or repealed by Congress.”
2 Gammel, Laws of Texas 177 (Gammel’s).
At common law, offenses were charged through a presentment or indictment by a grand jury; whereas, as well as an instrument to allege misdemeanors, an information was a means of apprising the king’s court of an offense. See Hurtado v. State of California, 110 U.S. 516 , 4 S.Ct. 111 , 28 L.Ed. 232 (1884); Clepper v. The State, 4 Tex. 121, at 123 (1849) (Wheeler, J.). An indictment was “an accusation at the suit of the crown, found to be true by the oaths of a grand jury.” Hawkins, Pleas of the Crown c. 25, § 1. Mr. Bishop elaborated: “An indictment is a written accusation, an oath, by at least twelve of a grand jury, against the person named therein, of a CRIME which it defines, to be carried into court, and there made of record,” 1 Bishop Criminal Procedure (3rd Ed.) § 131.
Unlike designation of offenses in the Fifth Amendment, our first constitution mandated an indictment or presentment by grand jury for every offense. Constitution of the Republic, Declaration of Rights, Sixth, viz:
“And no freeman shall be holden to answer for any criminal charge, but on presentment or indictment by grand jury, except....” 2
Congress enacted a sort of penal code but never promulgated a code of criminal procedure, as such. However, according to the Supreme Court in Smith v. The Republic, Dallam 473 (1842), “It was well settled that an indictment under a statute must follow and conform to the statute in stating the offense.” Procedural matters existed in related statutes or, as dictated by the constitution and the Act of January 20, 1840, were governed by the common law. 3 After Statehood the laws of the Republic still in force not repugnant to higher authority were to continue and remain in *287 force as laws of the State until they expired or were altered or repealed by the Legislature. Constitution of 1845, Article XII, § 4.2. 4 Furthermore, the Legislature was to direct that civil and criminal laws be revised, digested, arranged and published within five years. 5
When it adopted the penal code the Sixth Legislature expressly repealed certain identified acts and parts of acts “together with all other laws and parts of laws relating to crimes and punishments,” Act of August 28, 1856, § 3; in the code of criminal procedure § 4 repealed “all laws and parts of laws now in force which regulate or refer to the prevention, suppression, prosecution and proceeding for the punishment of crime,” Act of August 26, 1856. The Seventh Legislature supplemented and amended each in separate acts: the former in Act of February 12, 1858, Acts, 1858, 7th Leg. Ch. 121, p. 156, 4 Gammel’s 1028; the latter in Act of February 15, 1858, Acts 1858, 7th Leg., Ch. 151, p. 228, 4 Gammel’s 1100, also repealing certain articles designated in § 2, id., at 1028. 6
Although principles and procedures are not the same, the Legislature addressed indictments and informations and their requisites together in Chapter III of the Old Code of Criminal Procedure. 7 That chapter treats indictments first, then informations, but at the end directs that “rules laid down in [prescribed articles] with respect to indictments are applicable also to informa-tions.” O.C. 406; 0. & W. 406. From the common law and that provision Texas courts so held; 8 the Legislature continued to codify their holdings, viz: “The rules *288 with respect to allegations in an indictment and the certainty required apply also to an information.” Article 21.23, V.A.C.C.P.
“An indictment is the written statement of a Grand Jury accusing a person, therein named, of some act or omission, which, by law, is declared to be an offence.” O.C. 394; 0. & W. 394. Noting that definition soon after it appeared in our statute, the Supreme Court pointed out:
“At the adoption of our constitution, and for a century previously in England and America, this is what was understood as constituting an indictment.”
Hewitt v. The State, 25 Tex. 722, at 726 (1860). Accord: State v. Duke, 42 Tex. 355, at 461-462 (1875); see Carter, Texas Court of Criminal Appeals, 11 Tex.L.Rev. (1932-1933) 1, 301-302, nn. 154-157 and accompanying text.
Reacting to such decisions, the Legislature adopted the so-called “Common Sense Indictment Bill” — “An Act to prescribe the forms of indictments in certain cases.” Acts 1881, 17th Leg. Ch. 57, p. 60. Early on, our predecessor court of appeals easily found many such forms unconstitutional. 9 This Court followed those decisions to the same end in, e.g., Kennedy v. State, 86 Tex.Cr.R. 450, 451 , 216 S.W. 1086 (1919), viz:
"... An indictment under our statutes is ‘the written statement of a grand jury accusing a person therein named of some act or omission which, by law, is declared to be an offense,’ and ‘the offense must be set forth in plain and intelligible words.’ Texas Code of Criminal Procedure, arts. 450 and 451. The bill of rights declares that one accused of crime ‘shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. * * * And no person shall be held to answer for a criminal offense, unless on indictment of a grand jury.’ Constitution, art. 1,10. The statute declaring the requisite of an indictment but confirms the law as it is contained in the Constitution, [citations omitted].”
Finally the Legislature relented and abandoned the “Common Sense Indictment” law. Compare former article 470, C.C.P.1911, with former article 409, C.C.P. 1925.
All those developments demonstrate, and in reason the majority cannot deny, that when citizens of Texas first adopted a constitution for their governance and with every constitution since then the meaning of the current command that “no person shall be held [holden] to answer for a [any] criminal offense [charge], unless [but] on [presentment or] an indictment of [by] a grand jury, except ...” embraced an *289 understanding of those distinct requisites of an indictment under the common law captured and succinctly defined by Old Code article 394, viz:
“An indictment is the written statement of a Grand Jury accusing a person, therein named, of some act or omission, which, by law, is declared to be an offense.”
Except that it be presented by an attorney for the State, an information was similarly defined, O.C. 402, and certain rules with respect to an indictment also applied to an information, O.C. 416. Those constitutionally valid articles as well as all others likewise enacted prove the Legislature has always had power to provide practice and procedures relating to indictments and in-formations. And axiomatic is that one or the other was necessary to invoke and provide jurisdiction and power in a trial court. Burns v. The State, 12 Tex.App. 394 (1882):
“... [A] conviction cannot be had for acts or omissions until they have first been charged. Result: punishment without indictment or information.”
Id., at 395 .
What the majority fails to recognize and acknowledge is that in terms Article V, § 12(b), is essentially a restatement of the same points of constitutional and statutory law extant on the morning of the day § 12(b) was approved. Moreover, the majority seems oblivious to those fundamental reasons for insisting that a charging instrument meet the requisite degree of certainty long demanded by the common law from whence all our law springs, viz:
“... The charge must contain such a description of the crime, that the defendant may know what crime it is which he is called upon to answer; that the jury may appear to be warranted in their conclusion of ‘guilty/ or ‘not guilty,’ upon the premises delivered to them; and that the court may see such a definite crime, that they may apply the punishment which the law prescribes.”
Bush v. the Republic of Texas, 1 Tex. 455 (1846), quoting authoritatively from Chief Justice De Grey in Rex v. Horne, 2 Cowp. 682, reproduced in Arch. 6, Pl.40. 10
II.
Article V, § 12 of the Texas Constitution, as recently amended, for the first time provides an express constitutional definition for “indictment or information,” viz: “a written instrument ... charging a person with the commission of an offense.” An indictment must be “presented to a court by a grand jury.” See also, of course, Article I, § 10, supra. An information may be “presented ... by an attorney for the State[.]” “The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.” Article V, § 12(b), supra.
The information in this cause failed to specify conduct which allegedly amounted to recklessness, as required by Article 21.-15, V.A.C.C.P. We had formerly held such a defect to be of jurisdictional magnitude. Gengnagel v. State, 748 S.W.2d 227 (Tex.Cr.App.1988). Whether this defect now deprives a convicting court of jurisdiction depends upon whether the information is nevertheless sufficient to “charg[e] ... the commission of an offense.” Article V, § 12, supra. If so, its mere “presentment” is enough to authorize the court to proceed.
For over a century it has been held that Article I, § 10, supra, requires all elements *290 of an offense to be alleged in a charging instrument. Williams v. The State, 12 Tex.App. 395 (1882). Conviction based upon a charging instrument that fails to allege every element of an offense is “void,” American Plant Food Corporation v. State, 508 S.W.2d 598, at 603 (Tex. Cr.App.1974), because the convicting court lacked jurisdiction over the cause to begin with. See Garcia v. Dial, 596 S.W.2d 524, at 527 (Tex.Cr.App.1980). Today the majority holds that something less than “each constituent element of an offense” need be alleged for an indictment or information to “charge” an offense, and hence invest the court with jurisdiction by virtue of its presentment, under Article V, § 12(b), supra. Major, op. at 272. Indeed, whether a “written instrument” will constitute an “indictment or information” is no longer a question of constitutional interpretation at all, but rather one for the Legislature alone, Article I, § 10 notwithstanding.
As I understand it, the majority bases its holding on the fact that the Legislature has amended Article 1.14, V.A.C.C.P., to provide that charging defects of “substance” may be forfeited by failure to object before trial. See Acts 1985, 69th Leg., ch. 577, p. 2196, § 1, eff. Dec. 1, 1985. Because Article 27.08, (1), V.A.C.C.P., lists as a defect of substance, inter alia, “[tjhat it does not appear [from the charging instrument] that an offense against the law was committed by the defendant[,]” and because this court has long equated defects of “substance” with “fundamental defects,” i.e., defects which divest the convicting court of jurisdiction over the cause, the majority reasons that failure to allege all elements of an offense is a defect of substance in contemplation of Article 1.14(b), supra. It would hardly have been consistent for the Legislature to provide in Article 1.14(b), supra, that an accused “waives and forfeits” appellate objection to a charging defect of “substance,” including failure to allege all elements of an offense, if it had not also meant for a charging instrument suffering from that particular defect nevertheless to constitute an “indictment or information” for purposes of Article V, § 12(b), supra. Thus, concludes the majority, “charging ... the commission of an offense” under the new constitutional provision could not have been intended to require allegation of every constituent element of the offense. See major, op. at 268 (“If omitting an element from an indictment is still a defect of substance in an indictment, it naturally follows that the indictment is still an indictment despite the omission of that element.”)
The majority bolsters this conclusion with various indicia of legislative intent. From the materials examined it is clearly evident that many of this Court’s rulings holding certain charging defects to be “fundamental” in nature were repugnant to the Legislature. That Representative Morales and Senator Harris each presented SB 169 to his respective chamber as a measure to eliminate appellate reversals based upon charging defects not raised at trial indicates both it and SJR 16 were aimed in part at fundamental defects. It is apparent the sponsors believed that at least some defects deemed fundamental by this Court were too inconsequential to justify voiding a conviction well after the fact. Indeed, when asked on the House Floor “what kinds” of “substance” defects the Bill related to, Morales answered, “Any and all.”
Yet we know this statement cannot be taken literally. Some purported charging instruments may be so defective they cannot fairly be described as “charging ... an offense” by any definition. The Texas Legislative Council acknowledged as much when it allowed that “it is possible ... the courts will still find jurisdictional problems in certain defective charging instruments.” The only clue provided this Court to determine which formerly “fundamental” charging defects the Legislature would have us consider of jurisdictional import, and which it would not, is use of the word “substance” in Article 1.14(b), supra.
But the meaning of “substance” is not without ambiguity in our caselaw. The majority proceeds upon the form/substance dichotomy articulated in American Plant Food Corporation v. State, supra. Accordingly, defects of substance are limited *291 to those recognized in Article 27.08, supra. 11 Defects of form are those enumerated in Article 27.09, V.A.C.C.P., embracing any “deficiency under Article 21.21(7), as that provision is further clarified by Articles 21.03, 21.04, 21.11 and 21.17, Y.A.C. C.P. and prior decisions of this Court.” 12 508 S.W.2d at 603 . Such deficiencies include “failure to give notice of precisely what the defendant is charged with and failure to allege sufficient facts to bar a subsequent conviction.” Id., at 604 . In American Plant Food the Court ruled that, thus defined, defects of “substance” render a conviction void, and can be raised for the first time after judgment; while defects of “form” must be preserved for appeal by proper objection. Assuming this definition of “substance,” Article 1.14(b), supra, would now seem to require objection to preserve error even in a charging instrument that fails to allege every element of the offense. See Article 27.08, (1), supra. Obviously the Legislature did not believe such a defect should deprive the trial court of jurisdiction. It could not have intended, then, that an indictment or information necessarily allege all elements in order to “charge” an offense under Article V, § 12, supra.
Caselaw has given the word “substance” another gloss, however, that is not consistent with the statutory scheme identified in American Plant Food, supra. In Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980), on State’s motion for rehearing, the Court held that failure of an indictment to give sufficient notice as required by Article 21.02(7), supra, could not be remedied by way of amendment of the indictment. Instead, the indictment must be dismissed. The Court noted that former Article 28.10, V.A.C.C.P., provided that “[n]o matter of substance can be amended.” The dichotomy of American Plant Food, supra, notwithstanding, the Court effectively held that notice was a matter of “substance,” which could only be supplied in felony cases by a grand jury. See Brasfield v. State, supra, at 303 (Clinton, J., dissenting). Thus, what for purposes of waiver had been found to be a defect of form was found for purposes of amendment to be a matter of substance. It is at least plausible to argue that in amending Article 28.10, supra, to allow amendment of “a matter of form or substance,” the Legislature merely intended to counteract Bras-field ’s holding that a notice defect in an *292 indictment requires dismissal; 13 and that the Legislature meant “substance” in Article 1.14(b), supra, to have no more expansive a meaning than it does in Article 28.-10. 14
It is true that this latter understanding of “substance” is inconsistent with the avowed legislative purpose to do away with at least some types of fundamental defects. However, it avoids many problems that arise when “substance” is construed in Article 1.14(b), supra, strictly in terms of Article 27.08, supra. For instance, failure to allege all elements of an offense is not the only defect of “substance” Article 27.08, supra, delineates. See n. 11, ante. Are we to hold on some future date that an indictment which shows on its face that the alleged offense is barred by limitations nevertheless authorizes the trial court to convict? Id., subd. 2. Or that a court which the indictment on its face shows has no jurisdiction nevertheless does have jurisdiction because the accused raised no objection at trial? Id., subd. 4.
Suppose, moreover, that a charging instrument leaves out an element of the offense it purports to allege. The accused fails to object to this defect, and the State fails to amend under Article 28.10, supra. If the accused objects at trial to evidence tendered by the State to prove the missing element on the ground it is irrelevant to any material issue raised by the pleadings, is his objection well taken? Is the trial court authorized to include the unpled element in its instructions authorizing the jury to convict? If not, can a jury verdict of guilty on less than all elements of the statutorily defined offense authorize conviction, consistent with due process and due course of law? With characteristic understatement, Professor Dix aptly notes, “the difficulties of conducting trials on charging instruments that fail to allege all elements of the offense would be substantial.” G. Dix, Texas Charging Instrument Law: The 1985 Revisions and the Continuing Need for Reform, 38 Baylor L.Rev. 1, at 39-40, n. 137 (Winter 1986). 15
*293 Without consideration of these difficulties to come, the majority announces that the Legislature will now be the sole arbiter of what it takes for a “written instrument” to “charg[e] ... an offense” under Article V, § 12. It is true that the Legislature may prescribe “contents, ... sufficiency, and requisites” of indictments and informa-tions. But that has always been the case, subject only to this. Court’s obligation to ensure that what the Legislature prescribed was consistent with that degree of certainty required by the common law and incorporated in Article I, § 10, viz: that an indictment or information “charge an offense.” Williams v. The State, supra. See Part I, ante.
Moreover, as I have elsewhere indicated, that “no person shall be held to answer for a criminal offense, unless upon an indictment of a grand jury ...” requires:
“that the grand jury find and express facts which are sufficient to show on the face of the indictment that the accused is alleged to have done that which a penal statute proscribes; or restated, the grand jury’s constitutional function is to assure, by affirmative finding, that there is sufficient cause to believe that a person has committed each and every ‘element’ of an offense ... before he is held liable to defend against a prosecution by the State.”
Brasfield v. State, supra, at 304-305 (Clinton, J., dissenting); 16 See also Interpretive Commentary, Article I, § 10, at p. 271. Any defect of “substance” of such a character that we cannot say the indictment serves its function under Article I, § 10, to document the grand jury’s finding of sufficient cause cannot nevertheless be said to “charg[e] ... the commission of an offense” under Article V, § 12(b). 17 Professor Dix suggests the tension between these constitutional provisions could be alleviated by a judicial compromise “requiring only that the instrument make reasonably clear what criminal offense the grand jury intended.” Dix, supra, at 43. Today the majority rejects even this compromise approach, and in my view accomplishes what the Legislature clearly did not intend. It has read indictment provisions in Article I, § 10, out of the Texas Constitution altogether.
This Court should not construe the phrase “charging a person with the commission of an offense” from Article V, § 12(b), any differently than we have always understood it under Article I, § 10. So long as a charging instrument purports to allege an offense by setting out the requisite elements thereof, we should require it to set out all the elements in order to “invest the court with jurisdiction of the cause.” Perhaps this view disregards evidence of the rather nebulous legislative intent that at least some of the so-called “fundamental” defects this Court has recognized in the caselaw be wiped from the jurisprudential slate. But meaning and import of Article V, § 12(b), insofar as it defines “indictment or information,” is a question for this Court. The Legislature is free to prescribe “contents, ... sufficiency, and requisites,” but only within constitutional parameters. A charging instrument must “charg[e] ... an offense,” both under Article V, § 12(b) and Article I, § 10. Use of the word “substance” in Article 1.14(b), supra, cannot change that.
Eschewing a narrower ground for decision, see n. 14, ante, the Court reaches to hold that an indictment or information no longer need allege every element of an offense to invest the trial court with jurisdiction over the cause. I cannot join in this evisceration of Article I, § 10, supra, and therefore join only the Court’s judgment.
*294 APPENDIX A
Sec. 65. All allegations in an indictment or other accusation which are unnecessary to be proved, may be omitted.
Sec. 66. No indictment or other accusation shall be quashed or deemed invalid for omitting to set forth that it is upon the oaths of the jurors, or upon their oaths and affirmation, or for the insertion of the words “upon their oaths” instead of “upon their “oath,” or for not alledging that the offense was committed “within the jurisdiction of the Court,” when the averments show that the case is one of which the Court has jurisdiction, or for the omission or misstatements of the title, occupation, estate or degree of the accused; or of the name or place of his residence; or for omitting the words “with force and arms,” or the statement of any particular kind of force and arms; or for omitting to state, or stating imperfectly the time at which the offence was committed, when time is not the essence of the offence; or for failing to allege the value of an instrument which caused death, or that it was of no value; or for omitting to charge the offence to be “against the form of the statute” or “statutes;” or for the omission or insertion of any other words of mere form or surplus-age.
Sec. 67. No indictment or other accusation shall be abated for any misnomer of the accused, but the court may, in case of misnomer appearing before or in the course of the trial, forthwith cause the indictment or accusation to be amended according to the fact.
Sec. 68. In cases of misdemeanors, no exception for defect or want of form in the presentment or other accusation shall be allowed so as to dismiss the prosecution, but the District-Attorney may amend the same under the direction of the court according to the right of the case.
Sec. 69. Judgment in any criminal case after verdict, shall not be arrested or reversed upon any exception to the indictment or other accusation, if the offence be charged with sufficient certainty for judgment to be given thereon according to the very right of the case.
APPENDIX B
1882.] Williams v. The State. 395
Al Williams v. The State.
1. Indictment — Constitutional Law.— The word “indictment” is used in section 10 of the Bill of Bights with its well-known legal signification, and, in conformity therewith, is defined by the Code of Procedure, article 419, as “the written statement of a grand jury, accusing a person therein named of some act or omission which, by law, is declared to be an offense.” To be valid, therefore, an indictment must charge all acts or omissions essential to constitute the offense of which the defendant is accused; and this being the requirement of the Constitution, the Legislature has not the power to dispense with it, nor to validate as an indictment a *295 statement which, pretermitting the acts or omissions constituting an offense, charges the conclusion of law deducible therefrom.
396 12 Texas Court of Appeals. [Austin Term,
Statement of the case.
2. Same — Theft— “Common-Sense Indictment Bill.” — The form for an indictment for theft prescribed by the act of 1881, entitled “ An act to prescribe the forms of indictments in certain cases,” charges no facts, acts or omissions constituting the offense of theft, and is therefore repugnant to the Constitution of this State.
8. Same — Case Stated.— Indictment, after stating time and venue, charged that the appellant “ did fraudulently take, steal and carry away four hogs, of the value each of four dollars, from A. L. W.; contrary to law, and against the peace and dignity of the State.” Appellant excepted to the indictment because it does not charge the constituents of theft. Held, that the indictment, though it follows the form prescribed by the said act of 1881, is insufficient because it does not charge the ownership of the property, nor the want of the owner’s consent to the taking of it, nor the intent to deprive the owner of its value, nor the intent to appropriate it to the use and benefit of the defendant. Omission of any one of these four elements of theft is'fatal to the validity of the indictment.
Appeal from the County Court of Freestone. Tried below before the Hon. 0. 0. Kirven, County Judge.
The indictment was framed in accordance with the form for theft prescribed by the “common-sense indictment ” enactment of March 26, 1881, and is set out at large in the opinion. The defense excepted to its sufficiency, because it does not allege the ownership of the hogs, nor charge that they were taken without the consent of the owner, or with intent to deprive him of their value. The exceptions were overruled, and the defense reserved a bill of exceptions to the ruling.
The punishment assessed against the appellant was a fine of $100, and imprisonment for twenty-four hours in the county jail.
No brief for the appellant.
H. Chilton, Assistant Attorney General, for the State.
*296 1882.] Williams v. The State. 397
Opinion of the court.
Willson, J. The indictment in this case is as follows: “ In the name and by the authority of the State of Texas. The grand jury of Freestone county, Texas, present in the District Court of Freestone county, that, about the third day of January, A. D. 1881, in Freestone county, Texas, Al. Williams did fraudulently take, steal and carry away four hogs, of the value each of four dollars ($4), from H. L. Williams; contrary to law and against the peace and dignity of the State. J. B. Casey,
“Foreman of the Grand Jury.”
This indictment omits to charge the following elements of the offense of theft, as defined in art. 724 of the Penal Code, viz.: (1) The ownership of the property; (2) that it was taken without the consent of the owner; (3) that it was taken with the intent to deprive the owner of the value of the same; and (4) with the intent to appropriate it to the use and benefit of the person taking it. These omissions, or any one of them, would render the indictment substantially and fatally defective under all the previous decisions of this court, and of the Supreme Court of this State, upon this subject. (Marshall v. State, 31 Texas, 471 ; State v. Sherlock, 26 Texas, 106 ; Ridgway v. State, 41 Texas, 231 ; Watts v. State, 6 Texas Ct. App. 263.)
But it is contended that this indictment is sufficient under the act entitled, “ An act to prescribe the requisites of indictments in certain cases,” approved March 26, 1881. (Gen’l Laws 17th Leg. chap. 57, page 60.)’ That act prescribes a form for the offense of theft, as follows: “A. B. did steal a horse from C. D.;” or, “A. B. did steal a watch, of the value of fifty dollars, from C. D.;” and provides that such, or an analogous form, shall be sufficient. (Sec. 11 of said act.) The indictment before us would unquestionably be sufficient under the form prescribed by this statute. But here the question arises, is the form itself valid ? Is it not repugnant to the Constitution.? This is a serious question, and one which we *297 approach with hesitation. It is a delicate and a solemn act in a court to declare unconstitutional an act of a coordinate branch of the government; but the duty to do this, in a proper case, cannot be properly declined. In the case before us the constitutionality of the prescribed form under which this indictment would be held good is directly raised, and must be passed upon. If the form is a valid one, this indictment is valid. If the form is not valid, the indictment is fatally defective.
398 12 Texas Court of Appeals. [Austin Term,
Opinion of the court.
Our organic law provides that “no person shall be held to answer for a criminal offense unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary,” etc. (Bill of Bights, sec. 10.) The case before us is one which might have been presented by information, being a misdemeanor; but, being presented by indictment, the same rules will apply to it that would govern were it a felony.
Now the question is, what meaning and scope are we to give to the provision quoted ? What is meant by the word “ indictment ? ” This word had a well-known legal signification at the time it was thus used. We must, therefore, conclude that it was thus used understandingly, and in its well-known legal sense. What then was this legal signification? We will quote some definitions of the term.
“This word, indictment, is said to be derived from the old French word inditer, which signifies to indicate; to show, or point out. Its object is to indicate the offense charged against the accused.” (Bouvier’s Law Die. Title “Indictment.”)
“ It must be framed with sufficient certainty; for this purpose the charge must contain a description of the crime or misdemeanor of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation.” (Ibid.)
It is a general rule, to which there are but a few excep *298 tions, “that all the material facts and circumstances comprised in the definition of the offense ” must be stated. “If anyone material fact or circumstance be omitted, the indictment will be bad.” (Archbold’s Or. PI. & Prac. 85.)
1882.] Williams v. The State. 399
Opinion of the court.
“An indictment is a written accusation on oath by at least twelve of a grand jury, against a poi’son named therein, of a crime which it defines, to be carried into court, and there made of record.” (1 Bish. Or. Pro. § 131.)
“ The indictment must show on its face that it has been found by competent authority, in accordance with the requirements of law; and that a person mentioned therein has done, within the jurisdiction of the indictors, such and such particular acts, at a specific time; which acts, so done, constitute what the court can see, as a question of law, to be a crime,” etc. (1 Bish. Or. Pro. § 135.)
“An indictment is the written statement of a grand jury, accusing a person therein named of some act or omission which, by law, is declared to be an offense.” (Code Orim. Proc. art. 419.)
Chief Justice Roberts, in Hewitt v. State, 25 Texas, 722 , quotes the above definition from our Code, and says: “At the adoption of our Constitution, and for a century previously, both in England and America, this is what was understood as constituting an indictment.” And again he says in the same opinion, “When an act is made the subject of a criminal charge, the constitutional provision requiring an indictment or information is at once brought into active force in favor of those who are accused of and prosecuted for said act; and if an indictment be preferred, it must be such an one as the framers of the Constitution contemplated.”
In State v. Duke, 42 Texas, 455 , Gould, justice, delivering the opinion of the court, cites and approves the case of Hewitt v. State, and says that in that case it was held to be beyond the power of the Legislature to dispense with *299 the statement in the indictment of that which is essential to the description of the offense. He further says that a statute authorizing,the omission of essential parts of the description of an offense would be in violation of the Constitution. In support of the opinions in Hewitt v. State and State v. Duke, the following authorities are cited, viz.: People v. Toynbee, 2 Parker’s Cr. R. N. Y. 329; Wynehamer v. People, Id. 421; People v. Toynbee, Id. 491; State v. Learned, 41 Me. 426 ; Murphy v. State, 24 Miss. 390 ; Norris v. State, 33 Miss. 373 ; Niles v. State, 24 Ala. 672 ; 28 Miss. 637 . In addition to the above cited authorities, we find the same principle maintained in the following other cases: Bryan v. State, 45 Ala. 88 ; United States v. Mills, 7 Pet. 142 ; U. S. v. Cook, 17 Wall. 174 ; U. S. v. Cruikshank et al. 92 U. S. 558 .
400 12 Texas Court op Appeals. [Austin Term,
Opinion of the court.
We think it clear from these authorities that the meaning of the word “indictment” in the Bill of Eights requires that it should state the essential acts or omissions which constitute the offense with which the party is accused. It must charge explicitly all that is essential to constitute the offense, and cannot be aided by intend-ments. A statement of a legal result, a conclusion of law, will not be sufficient; the facts constituting the crime must be set forth, that the conclusion of law may be arrived at from the facts so stated. (Bac. Abr. “Indictment,” Gh I.)
If such, then, was the meaning and scope of an indictment at the time of the adoption of the Bill of Eights, we must hold that it has the same meaning in the Bill of Eights, and that it is beyond the power of the Legislature to make that a good indictment which does not substantially come within the definition of an indictment as understood and used by the framers of the Constitution.
Does the indictment in question, or the form prescribed by the act of the Legislature which we have quoted, come within the meaning of an “ indictment ” as understood *300 and used in the Bill of Eights ? We think not. It charges no facts, acts or omissions constituting the offense of theft, as defined and described in our Code. It simply charges that the defendant “did steal, take and carry away.” The word “ steal ” is a legal result of facts,— a mere conclusion of law. The Penal Code, art. 139, provides, “ The words ‘ steal ■' or ‘ stolen,’ when used in this Code in reference to the acquisition of property, include property acquired by theft.” Is the indictment aided by this provision ? We think not. Suppose the allegation was that “A. B. did commit theft of the horse of C. D.,” would this not be simply charging a conclusion of law ? Would it be sufficient in an indictment for murder to charge that A. B. did murder C. D., or in an indictment for arson to say that A. B. did commit arson on the house of C. D. ? Surely it would not. Then upon what principle or authority could it be held that it would sufficient to charge in theft that A. B. did steal a horse from O. D. ?
1882.] Prather v. The State. 401
Syllabus.
It is the opinion of this court that the indictment in this case is fatally defective, and that the form of indictment for theft prescribed in the act of the Legislature hereinbefore quoted is repugnant to the Constitution, and that a defendant who has been tried upon such an indictment has not been tried “by due course of the law of the land.” (Bill of Rights, section 19.)
The judgment, therefore, is reversed and the prosecution dismissed.
Reversed and dismissed.
. All emphasis here and throughout is mine unless otherwise noted.
. Successive constitutions required indictment or information: e.g., Constitution of 1845, Article I, Bill of Rights, § 8: "... and no person shall be holden to answer for any criminal charge but on indictment or information, ex-cept_" Accord: Constitution of 1861. Article I, Bill of Rights, § 8; Constitution of 1866, Article I, Bill of Rights, § 8; Constitution of 1869, Article I, Bill of Rights, § 8.
. In "An Act establishing jurisdiction and powers of the District Courts," § 4 assigned to them all criminal cases prosecuted “by indictment, information or presentment for treason, murder and other felonies, crimes and misdemeanors" except those exclusively cognizable in some other court; § 33 provided for organization of the grand juries “to enquire and present all trea-sons, murders, felonies or other misdemeanors whatsoever.” Act of December 22, 1836, 1 Gam-mel’s 1258, at 1260, 1268.
There was "an Act Punishing Crimes and Misdemeanors," § 42 of which in pertinent part provided: "No person accused of any criminal offense shall be set at liberty ... after arraignment on account of any error or imperfection in the indictment or information, but the same proceedings shall be had again as though such person had never been arraigned.” Act of December 21, 1936, 1 Gammel’s 1247, at 1253.
. Promptly, the first Legislature enacted three superceding laws, viz: an act regulating juries, § 10 providing for grand jury "to enquire of and present all crimes and offenses cognizable in the district court,” and § 28 repealing contravening laws, Act of May 4, 1846, 1 Gammel's 1476, at 1479 and 1483; an act to organize district courts et cetera providing, inter alia, in § 2 substantially the same criminal jurisdiction and power previously delineated in § 4 of the Act of December 22, 1836, supra n. 2, Act of May 11, 1846, 2 Gammel’s 1506; an act to regulate proceedings in district court, § 158 of which expressly repealed the district court act of December 22, 1936, supra n. 2, Act of May 13, 1846, 2 Gammel’s 1669, at 1713. The next Legislature promulgated "An Act concerning Crimes and Punishments,” in the nature of a penal code effective January 1, 1849, when all laws and parts of laws in conflict were repealed. Act of March 20, 1848, Acts 1848, 2nd Leg., Ch. 152, § 74, 3 Gammel’s 219, at 232; that act was supplemented by Act of February 11, 1854, Acts 1854, 5th Leg. Ch. 49, 3 Gammel’s 1502, sections 65-69, bearing on charging instruments, attached hereto as Appendix A.
. Initially the Legislature directed the Attorney General to undertake the codification project. However, apparently he failed to perform satisfactorily, for in 1854 the Legislature authorized the Governor to appoint three commissioners to perform the task. Acts 1854, 5th Leg., Ch. 55, p. 76, 3 Gammel's 152.
John W. Harris, Esq., O.C. Hartley, Esq., and James Willie, Esq. were appointed, and in 1855 they submitted to the Legislature a proposed penal code and code of criminal procedure which, with amendments, were adopted at its adjourned session on August 28, 1856 and August 26, 1856, respectively. Willie was then assigned to oversee publication and to prepare an index to each code. Both were reproduced in a single volume: The Penal Code of Texas (Galveston News 1857). Each came to be known as "Old Code,” one penal code, the other code of criminal procedure.
. Having updated both codes, the Legislature then passed "An act to provide for a digest of the Laws of Texas,” again authorizing the Governor to contract with qualified persons for preparation and publication of “a new and revised Digest of all the General Statute Laws of this State down to and including those passed at the present session of the Legislature,” in accordance with specified terms and conditions. Act of February 15, 1858, Acts 1958, 7th Leg., Ch. 157, p. 252, 4 Gammel’s 1125. The product is Oldham & White, Digest of the General Statute Laws of the State of Texas (John Marshall & Co. Austin 1859), hereafter "0. & W.”.
. Initially Chapter III implements the constitutional mandate in former article I, § 8, thus: that all felonies shall be presented by indictment only, except in specially provided cases; that misdemeanors may be presented by either information or indictment; that all offenses known to the penal laws of the state must be prosecuted by indictment or information, except contempt of court and special cases in which inferior courts exercise jurisdiction. O.C. 390-392; O. & W. 390-392.
. See, e.g., Haecker v. State, 571 S.W.2d 920, at 921 (Tex.Cr.—App.1978); Figueroa v. State, 71 Tex.Cr.R. 371 , 159 S.W. 1188 (1913); Meyer v. State, 65 Tex.Cr.R. 587 , 145 S.W. 919, 920 (1912); State v. Elliott, 41 Tex. 224, at 226 (1874) (rules with respect to indictments applicable to informations).
. As applied to the offense of theft the court held the Act "repugnant to the Constitution [Bill of Rights, § 10] and that a defendant who has been tried under such an indictment has not been tried 'by due course of the law of the land.’ (Bill of Rights, section 19).” Williams v. The State, 12 Tex.App. 395 , at 401 (1882). In its entirety the Williams opinion by Judge Willson is such a compelling refutation to the majority views in this cause that it is attached hereto as Appendix B. And lest it be regarded an aberration, shortly the court reversed and dismissed a capital rape conviction had under the same “common-sense indictment" law in Brinster v. The State, 12 Tex.App. 612 (1882), and similarly disposed of convictions for other offenses.
In Brinster, supra, under that law the charging part of the indictment alleged: “Joseph Brinster, an adult male, did rape Mrs. Mattie McL. Davis, a female." For the court Judge Hurt quickly struck it down, viz:
"This indictment does not allege a single act which enters into and composes one of the elements of rape. An indictment is a written statement of a grand jury, accusing a person therein named of some act or omission punished by law. Subjecting the indictment in this case to the above definition, it evidently follows that it is no indictment at all. But we are not disposed to enlarge. See the case of Williams v. State decided at this term, opinion by Judge Willson. (Ante, p. 395.) The judgment is reversed and the prosecution dismissed."
Id., at 613 (emphasis by Judge Hurt).
See Rodriguez v. The State, 12 Tex.App. 552 (1882); Hodges v. The State, 12 Tex.App. 554 (1882); Young v. The State, 12 Tex.App. 614 (1882); Allen v. The State, 13 Tex.App. 28 (1882); Flores v. The State, 13 Tex.App. 337 (1883); Brown v. The State, 13 Tex.App. 347 (1883); Gabrielsky v. The State, 13 Tex.Cr.App. 428 , at 439 (1883); Insall v. The State, 14 Tex. App. 145 (1883); Drye v. The State, 14 Tex.App. 185 , at 191 (1883) (“common sense” indictment for murder “fatally defective”); see also, Carter, supra at 303-306.
. Writing for the Supreme Court Justice Wheeler continued:
"... This I take to be what is meant by the certainty mentioned in the books. And it consists in two parts — the matter to be charged and the manner of charging it. As to the matter to be charged, whatever circumstances are necessary to constitute the crime imputed 'must be set out.’ And again, ‘When the circumstances go to constitute the crime, they must be set out.’ It is otherwise when the crime alleged is such, independently of the circumstances; for then they may aggravate, but can not constitute the offense. The character of the facts on which the question of guilt or innocence depends is to be determined by the jury. ‘But the jury cannot take cognizance of them unless they appear upon the record, which they cannot do without an averment.’
'As to the manner of making the averments, in all cases those which are descriptions of crime, must be introduced upon the record by averments in opposition to argument and inference.' "
Ibid, (emphasis in original).
. Article 27.08, supra, reads:
"There is no exception to the substance of an indictment or information except:
1. That it does not appear therefrom that an offense against the law was committed by the defendant;
2. That it appears from the face thereof that a prosecution for the offense is barred by a lapse of time, or that the offense was committed after the finding of the indictment;
3. That it contains matter which is a legal defense or bar to the prosecution; and
4. That it shows upon its face that the court trying the case has no jurisdiction thereof.”
. Article 27.09(2), supra, reads in relevant part:
"Exceptions to the form of an indictment or information may be taken for the following causes only:
******
2. The want of any requisite prescribed by Articles 21.02 and 21.21."
In both indictments and informations, “[t]he offense must be set forth in plain and intelligible words.” Articles 21.02(7) and 21.21(7), supra. This requirement of "form” is clarified by Article 21.03, supra:
"Everything should be stated in an indictment which is necessary to be proved."
Article 21.04, supra:
“The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.”
Article 21.11, supra:
“An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment; and in no case are the words 'force and arms’ or ‘contrary to the form of the statute’ necessary.”
and by Article 21.17, supra:
“Words used in a statute to define an offense need not be strictly pursued in an indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”
Finally, under Article 21.23, V.A.C.C.P.:
"The rules with respect to allegations in an indictment and the certainty required apply also to an information.”
. Ironically, in Janecka v. State, 739 S.W.2d 813 (Tex.Cr.App.1987), this Court itself overruled Brasfield v. State, supra, nearly two years after amended Articles 1.14 and 28.10, and Article V, § 12, all supra, became effective.
. We can affirm the court of appeals opinion in this cause by implementing the Brasfield notion of "substance” in Article 1.14(b), supra. The defect at issue in this cause is failure to comply with Article 21.15, supra, which requires particularity of pleading "[w]henever recklessness or criminal negligence enters into or is a part or element of any offense).]” In construing this and precursor provisions the Court has characterized charging instruments suffering such a failure as "fatally defective," see Scott v. State, 171 Tex.Cr.R. 53 , 344 S.W.2d 457 (1961); Short v. State, 387 S.W.2d 50 (Tex.Cr.App.1965); Jones v. State, 388 S.W.2d 716 (Tex.Cr.App.1965). In Gengnagel v. State, supra, we accordingly designated this defect "fundamental,” and reversed the conviction though no objection was voiced in the trial court. We have never held, however, that such an indictment is insufficient to charge an offense, at least not in the sense it failed to allege an element of the offense. Such a defect could reasonably come within the meaning of "substance” contemplated by Bras-field, supra, viz: specificity of allegation more than is necessary to state an offense, but nevertheless which must originate in a grand jury finding. Given this understanding of “substance,” such a defect may now be amended under Article 28.10, supra; moreover, failure to object will "waive or forfeit" error raised for the first time on appeal or collateral attack, under Article 1.14(b), supra.
In short, we can hold the defect in this cause to be nonjurisdictional without ever deciding whether “charging ... the commission of an offense” under Article V, § 12(b), supra, requires allegation of every constituent element.
.These difficulties could be addressed, Professor Dix suggests:
"by giving broad meaning to the phrase ‘defect, error, or irregularity ... in an indictment or information’ as used in article 1.14(b). This phrase might reasonably be read as encompassing not only the defect itself but also other aspects of the proceeding that flow from or are based on the defect. Thus, such matters as evidence admissibility and the appropriateness of jury instructions, when based upon an unobjected to ‘defect, error, or irregularity’ of the charging instrument, might be among the matters which the defendant 'waives and forfeits’ the right to raise and which cannot be ‘raised on appeal or in any post conviction proceeding.’ ”
Dix, supra, at p. 40, n. 137. There is no indication from the materials before us that the Legislature even pondered these difficulties, however, much less that it intended “defect, error, or irregularity ... in an indictment or information” to be construed so sweepingly.
. Emphasis in the original.
. If failing to allege every element of an offense is a defect of "substance,” surely a "written instrument” purporting to be an "indictment” or "information,” but alleging no element of any statutorily defined offense, would also suffer a defect of "substance." If the majority is right, presumably the Legislature intended a charging instrument suffering any manner of "substance” defect nevertheless to be adequate to "charg[e] ... the commission of an offense" under Article V, § 12(b) — even when patently it does not. Apparently even the most grossly defective charging instrument will invest a trial court with jurisdiction.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9762489. Public record. Not legal advice.