Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 417
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1875.] LAMKIN V. THE STATE. 417
Opinion of the Court.
of the owner was unknown to the grand jury, the name of
the occupant might have been given; or, if not occupied, the
fact should have been averred, with such allegations descriptive
of the house as would identify it. A house in the town of
Gonzales, where the jurors were holding their sessions, admitted
of further designation than that contained in the indictment.
If the evidence before the grand jury did not furnish the
information, it might have been obtained from other sources
and brought before them.
The place where the offense was committed entered into the
punishment, and the name of the owner or occupant, or some
certain description of it, should have been given in the indictment.
In burglary and arson, the indictment must show the
name of the owner or occupant of the house, if known, or give
some description of the place. In the case of Alexander v.
The State (29 Texas, 495), charging the defendant with selling
liquor without a license, it was held that the indictment must
aver at whose house or establishment, or to whom the vending
took place, or some other fact tending to identify the transaction.
The rule is applicable to the charge for stealing from a
Theft from a house differs from theft from the person, and
both differ from simple theft in the circumstances under which
the act is committed, and in the degree of the punishment
attached to the offense. And hence the facts and'circumstances
constituting the offense must be averred, and the averment
must be made with sufficient certainty to designate the place,
and enable the defendant to plead the judgment in bar of a
second prosecution. It would hardly be contended that the
name of the person robbed, if known, could be omitted in
charging robbery or theft fiom the person. It is a question of
identity, and, as such, it applies not only to the name of the
person robbed, where that is the charge, but also applies to the
name of the owner of the house or the party in possession,
where theft from a house is the charge. To constitute the
offense of stealing property fiom a house, the property must be
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/425/: accessed April 22, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .