Page 753

62 S.W. 753

COLEMAN 
v. 
STATE.

Court of Criminal Appeals of Texas.
April 24, 1901.


Appeal from district court, Freestone county; L. B. Cobb, Judge.
Josh Coleman was convicted of murder, and he appeals. Reversed.
Robt. A. John, Asst. Atty. Gen., for the State.
DAVIDSON, P. J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 
confinement in the penitentiary for a term of 25 years. The indictment charges "that Josh Coleman, on or 
about the ____ day of ____, one thousand and nine hundred, A. D. 1900, and anterior to the presentment 
of this indictment, in the county of Freestone," etc. Motion was made in arrest, because the indictment 
fails to allege the date of the commission of the offense. White's Ann. Code Cr. Proc. art. 439, subd. 6, 
provides that in the indictment the date of the commission of the offense shall be stated, and it shall be 
anterior to the presentment of the indictment, and not so remote that the prosecution charged is barred 
by limitation. In Barnes' Case (Tex. Cr. App.) 59 S. W. 882, a similar indictment to this was held fatally 
defective. That case cites State v. Tandy, 41 Tex. 291. For collation of authorities, see White's Ann. Code 
Cr. Proc. § 343. For this omission in the indictment, which is not a formal, but substantial, one under all 
the authorities, it is fatally defective, and the motion in arrest of judgment should have been sustained. 
The judgment is reversed, and the prosecution ordered dismissed.