Fisher v. State

Citations

• 33 Tex. 792

Syllabus

<p>1. In a trial lor the theft of sundry articles, it was error to permit the State to prove that some of the articles were stolen on the day charged in the indictment, and the remainder on a previous day. Nor was this error-purged by the court instructing the jury that the defendant could not be convicted of two offenses when hut one was charged in the indictment; for this instruction could not counteract the probable prejudice and injustice already done the defendant by the improper admission of the evidence, nor could it render certain which one of the offenses proved, a general verdict of “guilty ” was based upon.</p> <p>2. Although it was not necessary to prove that the theft was committed on the day charged, nor that every one of the alleged articles was stolen ; yet it would be in contravention of the first principles of law and of the administration of justice to permit the prosecutor, for the purpose of , securing a conviction, to unite several distinct offenses in the same indictment, or to* indict a party for one offense and then prove several offenses on the trial.</p> <p>3. The true rule is, that when two or more felonies are charged in the same indictment, the indictment may be quashed, or the prosecutor be compelled to elect on which charge he will proceed ; and if the fact that two. or more offenses are contained in the indictment be not discovered until the trial is in pi'ogross, the prosecution should then be abandoned, except as to the one offense which the prosecutor elects to proceed upon.</p>