I have an old case that I am getting ready for trial on Wednesday. The indictment is for injury to a child and alleges SBI and that Defendant broke the leg of the victim. It does NOT allege a manner and means nor does it state "by manner and means unknown to the Grand Jury." Trial is set Wednesday. Do I have to amend the indictment to include "by manner and means unknown to the Grand Jury"? Shall I call the jury off?!

[This message was edited by JSH on 06-18-09 at .]

Isn't your manner and means the breaking of the leg?

That's not a manner or means. That's the result of the manner or means. You shouldn't be pleading the result. That is included by pleading the element "caused serious bodily injury."

If the defendant hasn't filed a motion to quash, then you are fine. The indictment alleges an offense, and that's enough. But, you could volunteer to narrow the indictment by alleging how the offense occurred:

"by striking the child by a manner or means unknown to the grand jury."

If the defendant is going to demand a continuance because of that change and you want to get to trial, then just leave the indictment alone.

I would suggest that you go forward on Wednesday without any amendment. It is too late for the defendant to file a motion to quash. The manner and means of committing an offense are simply a form of notice to the defense. If the defendant needed more notice, a motion to quash would have been filed.

Never too late to file a motion to quash. I have seen them filed just prior to voir dire. (Actually I think I have the T-shirt around here someplace. )

When they do that the only choice you have is to move to amend the indictment. Of course, you can't amend the indictment over defendant's objection on the day of trial.

So, worst case is that day of trial your indictment gets quashed because the judge decides to hear the motion "in an abundance of caution" and you can not amend to add the manner or means because the defendant objects. You will have to then re-indict and start the whole process over. (ok, so I hate that T-shirt)

Or, you can amend the indictment now - giving the defense it's 10 days prep.

The defense might be just as willing to keep the trial date and waive their 10 days. Particularly if their trial strategy is not changed.

Long story short, I would contact both the defense and the trial judge and try and avoid the problem if possible.

I respectfully disagree. A motion to quash must be filed 7 days before a pre-trial hearing date pursuant to CCP Art. 28.01 Sec. 1 (4). If one is not timely filed, the matter is waived. A judge can always decide to hear it if it is not timely filed, but is not required to do so.

I agree with Ken. Furthermore, in a case like you describe, I find it hard to imagine a cogent argument on appeal for how the defendant would be harmed. "If I had known they were going to prove a manner and means unknown to the grand jury, I would have prepared a completely different defense, your honor."

If the defendant in your case makes an untimely motion, I would oppose it on the grounds that it is made entirely for delay unless he can express how he would have prepared differently for the "unknown to the G.J." allegation that would have been in the indictment otherwise.

Ken and Wes are right, but I've often seen judges entertain out of time motions to quash, or as many defendants refer to them, motions to squash.

Oh, I know there is a deadline in the code. I just have never seen a judge hold a defendant to it. Again, the "abundance of caution." And I have also experienced the rest of the allegory as well! Indictment quashed - start over!

Why, why, why risk a judge with an over inflated worry for reversal when you can fix it?

[This message was edited by Scott Holden on 05-22-07 at .]

Aren't "striking the child" and "breaking the leg of the child" different ways of saying the same thing? How is that not the manner and means? Is it the simple fact that it did not say "by breaking the leg of the child with the defendant's hands"?

quote:

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Originally posted by Jeremy Warren:
Aren't "striking the child" and "breaking the leg of the child" different ways of saying the same thing? How is that not the manner and means? Is it the simple fact that it did not say "by breaking the leg of the child with the defendant's hands"?

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The difference is that "breaking the leg" would be like saying "stopping the heart" in a murder case. The notice contemplated is the manner and means of causing the injury, not what the injury was. "striking the leg with a baseball bat" or "shooting the victim with a firearm" are descriptive of his conduct, which is what the manner and means are supposed to describe.

It's a technical distinction, which is why I think the defendant would be unable to show harm from a denial of a motion to quash here--because you are correct in that the manner and means decription will give the defendant no more real notice than the current allegations.

Even better, "striking the victim with a baseball bat," without stating specifically where on the victim the bat struck. Read a previous thread in which "cutting the victim's throat with a knife" vs. "cutting the victim's neck with a knife" or something like that was an issue. "Cutting the victim with a knife" is manner and means; on what part of the body the victim was cut is evidentiary.

Thanks for the help all. Defendant didn't raise the issue and the jury is deliberating right now.

Gretchen, I have always used something like struck the said X in the head with a bat. Do I not need to allege the injured part ?

I hope someone will correct me if I'm wrong, but no, you don't need to allege those. As an example, the manner is "by hitting V" and the means is "with a bat." The exact location on the victim or the injury resulting from the hit are evidentiary/surplusage. See link below to a previous thread, and JB's explanation, complete with case law.

Previous thread

Fred Felcman, longtime First Assistant in Fort Bend, always said allege generally. For example, if hit with a bat, just say "by striking V with a bat". If defense then files a quash motion, then amend to say "by striking V in the head with a bat".

There is nothing in the law that requires the prosecutor to allege where the victim was struck. It is a mistake to include it in a charging instrument, as the prosecutor is taking on a more specific task of proof than is required.

You must allege how the person was injured (by striking) and with what (with an object). That's it.

And, the choice of words should be as general as permitted (striking is a more general word than, say, punching). This is particularly true for the object used to do the striking. And, if suggested by the evidence, always include an allegation that it was done by a manner or means unknown to the grand jury. We don't always know exactly how something happened, but we more often know that something happened from the result.

Pop Quiz: When an indictment alleges in a murder case that the victim was struck with a deadly weapon, namely: an object unknown to the grand jurors, during trial I know that I can bring in a grand juror to say "his head was beaten in" and we don't know how.

I have also heard though that there is a case out there that says it's not necessary to bring a grand juror in. Does anybody know that case or if that is true?

Anybody have experience with this issue? Things to avoid? Thanks!

The court of criminal appeals, however, has expressly disavowed the "due diligence" rule of Matson. See Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001); Fagan v. State, 89 S.W.3d 245, 249 (Tex. App.-Texarkana 2002, pet. ref'd) ("The rule requiring the state to show that the grand jury exercised due diligence in determining the instrumentality of the offense is no longer relevant to our analysis."). A non-essential element of the charge, such as an allegation that the object used to cause injury was unknown to the grand jury, may properly be excluded from a hypothetically correct jury charge. In re A.J.G., 131 S.W.3d 687, 694 (Tex. App.-Corpus Christi 2004, pet. denied); see Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). So long as the essential elements of the crime charged have to be found by the jury in order for a guilty verdict to be returned, the State does not have to additionally and separately prove the good faith and due diligence of the grand jury in determining non-essential elements of the charge, such as what kind [*14] of weapon was used. See Malik, 953 S.W.2d at 240; A.J.G., 131 S.W.3d at 694.

Accordingly, we conclude that the State did not err by failing to prove that the grand jury used due diligence in it attempts to determine what kind of weapon was used, as this is no longer necessary. We overrule Mireles's third issue.

[For a good case discussing and summarizing the law in this area, see 89 SW3d 245.]

Thanks JB. I will take a look at that case.