
    (86 Tex. Cr. R. 450)
    KENNEDY v. STATE.
    (No. 5556.)
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1919.)
    1. Indictment and information &wkey;>110(3)— “Indictment” following statute sufficient.
    The rule that it is sufficient if the indictment follows the language of the statute applies only where the indictment is framed under a statute which defines the acts constituting the offense in a manner that will inform accused of the nature of the charge, the test being, not that the indictment follows the statute, but that it is a compliance with the law prescribing the requisites of an indictment, an “indictment” being a written statement of the grand jury accusing person therein named of some act or omission which by law is declared to be an offense, such offense to be set forth in plain and intelligible words, in view of .Code Or. Proc. 1911, §§ 450, 451, and Const, art. 1, § 10.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Indictment.]
    2, Indictment ANp information <&wkey;>110(51)— Indictment charging procuring in words OF STATUTE INSUFFICIENT IN NOT ’ DISCLOSING ACTS OF ACCUSED.
    An indictment charging that defendant “did then and there unlawfully and willfully attempt to procure, and did procure, and was concerned in procuring,” a female named as an inmate of a house of prostitution, although following the words of the statute, held insufficient as not disclosing the acts or omissions of accused by which he was charged to have procured the female inmate in view of Code Cr. Proc. 1911, arts. 450 and 451, and Const, art. 1, § TO.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    Dave Kennedy was convicted of procuring, and he appeals.
    Reversed and remanded.
    Veale & Lumpkin, of Amarillo, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, Jv

The indictment contains several counts.- The first, upon which the conviction was had, charged that—

“Dave Kennedy did then and there unlawfully and willfully attempt to procure, and did procure, and was concerned in procuring Fannie Doty, a female, as an inmate of and for a house of prostitution in a house and place in said county and state where prostitutes then and there resorted for the purpose of plying their vocation as such prostitutes, and were so kept, as the said Dave Kennedy then and there well knew, contrary to the statutes in such cases made and provided and against the peace and dignity of the state.”

The sufficiency of this indictment was questioned in a motion to quash. The statute upon which it is founded makes it an offense to “procure, attempt to procure, or be concerned in procuring a female inmate for a house of prostitution.” The complaint is that the “acts or omissions” of the appellant by which he is charged to have procured the female inmate ate not disclosed by the pleading. To this the state answers that it is enough that the indictment followed the language of the statute. This rule applies in those instances only in which the indictment is framed under a statute which defines the act or acts constituting the offense in a manner that will inform the accused of the nature of the charge against him. The test is not that the indictment follows the statute, but that it is in compliance with the law prescribing the requisite of an indictment. 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 Crim. 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. - Hewitt v. State, 25 Tex. 722; Williams v. State, 12 Tex. App. 399; State v. Duke, 42 Tex. 462; Huntsman v. State, 12 Tex. App. 636; Johnson v. State, 42 Tex. Cr. R. 102, 58 S. W. 60, 51 L. R. A. 272; Vernon’s Texas Crim. Statutes, vol. 2, p. 192; Harris’s Texas Constitution, p. 86, note 41.

In Gray v. State, 7 Tex. App. 13, it is said in substance that, where following the language of the statute in charging the offense will fulfill the requirements of the indictment mentioned, the use of the language of the statute will be sufficient; but, where the language of the statute alone would be insufficient to set out the offense -in compliance with the rule, it is essential that averments be made showing the existence of the additional facts necessary to constitute the offense. This principle is reaffirmed in many cases. See Kerry v. State, 17 Tex. App. 178, 50 Am. Rep. 122; Bryan v. State, 54 Tex. Cr. R. 18, 111 S. W. 744, 16 Ann. Cas. 515; Huntsman v. State, 12 Tex. App. 646; Dunlap v. State, 40 Tex. Cr. R. 590, 51 S. W. 392; Hoskey v. State, 9 Tex. App. 202; Big-by v. State, 5 Tex. App. 101; McAfee v. State, 38 Tex. Cr. R. 124, 41 S. W. 627; Bishop’s New Crim. Procedure, vol. 2 p. 487.

It is stated in Bishop’s New Crim. Procedure, vol. 2, § 623, as follows:

“The doctrine is that, since the indictment on a statute must follow, besides the special rules which govern it, those also which govern other indictments, when the statutory words come short of this, other appropriate ones expanding it further must be added.”

The accused is entitled to a statement of the facts relied upon, and if these are not contained in the statute denouncing the offense, they must be supplemented by the pleader drawing the indictment. The statement of a legal conclusion or result will not suffice. Wharton’s Crim. Procedure, vol. 1, § 196; Strickland v. State, 19 Tex. App. 519; Bryan v. State, 54 Tex. Cr. R. 59, 111 S. W. 1035; La Grone v. State, 12 Tex. App. 426.

There are numerous act's which might result in procuring a female inmate for a house of ill fame. They might be acts amounting to fraud, force, or persuasion. In the present instance, according to the theory of the state developed under the evidence, the female was procured by means of a contract or agreement under which she was to receive certain compensation. To charge procuring is but the conclusion of the pleader. It is not a statement in plain and intelligible language of the acts or omissions relied upon. One who willfully “imputes” a want of chastity to a female commits the offense of slander, but the indictment which charges the language quoted from the statute is fatally defective in failing to'set out .the language charged to have been used by the accused. La Grone v. State, 12 Tex. App. 427.

“Disturbing religious worship” is an offense, but the indictment must describe the means used. Merely charging that ^the accused “disturbed” the congregation, while following the statute, does not comply with the law. Lockett v. State, 40 Tex. 4; Thompson v. State, 16 Tex. App. 159.

So in the offense of bigamy (Bryan v. State, 54 Tex. Cr. R. 59, 111 S. W. 1035) and murder (Strickland v. State, 19 Tex. App. 519) and in numerous other instances the necessity to do more than follow the statute is illustrated. See Wharton’s Crim. Procedure, vol. 1, § 196, and notes.

Pertaining to a statute framed in substantially the same language as ours, specific instances are furnished in which an indictment charging the offense of pandering in the language of the statute denouncing the offense have been condemned as insufficient in failing to designate the acts of the accused, instead of relying upon the conclusion that he procured the inmate, in Abrams v. State, 13 Okl. Cr. 11, 161 Pac. 332, and State v. Topham, 41 Utah, 39, 123 Pac. 888.

The case of McDowell v. State, 69 Tex. Cr. R. 548, 155 S. W. 521, without discussing the reason, declares an indictment drawn in the language of the statute mentioned sufficient, and a similar ruling was made in Baldwin v. State, 198 S. W. 305, though in that case the language in which the motion to quash was couched seems to have controlled. It is on account of these cases that we have gone into some detail in reviewing the principles applicable to indictments.

Believing that the indictment in the present instance falls short of complying with the requisities of an indictment as defined in both the Constitution and the statute, and that to sustain it against a motion to quash would do violence to the rules followed by this court in the numerous cases cited above and uniformly followed in other jurisdictions, we deem it our duty to overrule the cases mentioned above which conflict with this conclusion. We think the motion to quash should have been sustained, and that the decisions of this court’ to the contrary are clearly wrong.

The judgment of the trial court is reversed, and the cause remanded. 
      ®=»For other cases see same topic and KEY-NUMBER in all .Key-Numbered Digests and Indexes
     