McIver v. State

555 S.W.2d 755 (1977)

Linda McIVER, Appellant, v. The STATE of Texas, Appellee.

No. 54616.

Court of Criminal Appeals of Texas.

September 21, 1977.

*756 Anthony F. Constant, Corpus Christi, court appointed on appeal, for appellant.

Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

DOUGLAS, Judge.

Linda McIver appeals from a conviction for the offense of murder. Trial was before the court. Punishment was assessed at fifty years.

Appellant contends that the evidence is insufficient to sustain the conviction. She argues that there was a material variance between the indictment and the proof as to the manner and method of death.

The indictment alleges that the deceased was struck and stabbed with a blunt instrument and a sharp instrument "which were, to the grand jurors, unknown."

When an indictment alleges that the deceased was killed "by some means, instrument, and weapon, to the grand jury unknown," it is incumbent upon the State to prove that the grand jury, after efforts to do so, was unable to find out the kind and character of weapon or instrument used. No such proof was offered in the instant case. Under our prior decisions, such failure constitutes reversible error. Jones v. State, 132 Tex.Cr.R. 216, 104 S.W.2d 42 (1937). See 4 Branch's Ann.P.C.2d, Section 2261, page 622.

For the reasons stated above, the judgment is reversed and the cause is remanded.