Dalton v. State

Citations

• 4 Tex. Ct. App. 333

Syllabus

<p>1. Indictment—Joinder of Several Offenses. —It is permissible to charge two or more offenses in separate counts of the same indictment; and when the charges are substantially for the same offense, and the several counts are introduced for the purpose of meeting the evidence as it may transpire, the State will not be required to elect.</p> <p>2. Time of Election between Counts.—If the duty to elect be incumbent on the State, the authorities are not agreed as to the juncture at which it will be enforced; but, it seems, the State will be allowed to proceed far enough with its testimony to identify the transactions involved in the indictment.</p> <p>3. Case Stated.— One count of an indictment charged the theft of a “gelding,” and another the theft of a “horse,” the description of the animals being otherwise identical. The State was not required to elect on which count it would try the accused, but the court, in its charge to the jury, restricted their inquiry to the first count. A general verdict of guilty being returned, the accused moved in arrest of judgment because the State was not required to elect, and because the verdict does not show on which count it was found. Held, that, the charge of the court being tantamount to an election by the State to proceed upon the first count, and the verdict being responsive to the charge and supported by that count, the motion in arrest was correctly overruled. Held,, further, that the better practice would have been for the prosecution, after sounding its evidence, to have made its election, or to have entered a nolle prosequi upon the second count; but that, as the record stands, the verdict and judgment are pleadable in bar of another indictment for the offense charged in the second count.</p>