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SUPREME COURT RECORDS PAGE 5
File contributed by Lisa Lach and
proofed/formated by Dena Stripling Supreme Court of Texas. ADOLPH SCHUTZE v. THE STATE. October, 1867. *1 In an indictment under articles 2417 and 2418
of Paschal's Digest it is sufficient to charge the offense in the language
of the statute, which reads as follows: "Every person who shall butcher
beef, for the market of any town or village, shall keep lists of the marks and
brands of all the cattle slaughtered by him, and stating from whom
purchased, and, at least once in each month, shall return the same, verified by
his oath, to the clerk of the county court, who shall cause the same to be
recorded in his office, and keep them subject to the inspection of the
public, which oath may be taken before any person authorized by law to
administer oaths; and the clerks shall be entitled to such fees as is [are]
provided by law for similar services. Should any butcher fail to render such
list for any month by the 15th day of the next succeeding month, he shall
be deemed guilty of a misdemeanor, and on conviction shall be fined
not less than fifty or more than one hundred dollars for each offense,
one-half of which shall go to the informer, and the other to the jury fund, as
above provided; and, if he return a false list, shall be guilty of false
swearing, and liable to prosecution therefor, as in other cases." Where the defendant was indicted as "J.
S.," and judgment was rendered against him as "A. S.," the case was
reversed, and the court directed to render the judgment in accordance with the
indictment and verdict of the jury. APPEAL from BASTROP. The case was tried before
Hon. JOHN IRELAND, one of the district judges. The indictment charged that Julius SCHUTZE
and____MILLER, whose christian name to the grand jurors is unknown, etc., etc.,
did then and there butcher beef for the market of the town of BASTROP, and
that they, the said SCHUTZE and MILLER, butchering as aforesaid, then and
there failed to return a list with the marks and brands, stating in said lists
from whom they purchased all the cattle slaughtered by them in the month
aforesaid, for the market aforesaid, verified by their oath, to the clerk
of the county court of BASTROP county, by the 15th day of the next
ensuing month of June, A. D. 1866. The defendants moved to quash the indictment,
because it charged no offense against the law, and because the charges are
vague and indefinite; which motion was overruled, and SCHUTZE plead
"not guilty." The jury found him guilty, and assessed his fine at $50. He moved
an arrest of judgment and for a new trial, which motion was overruled. The
charge of the court was general, but the facts are not given. The verdict was against SCHUTZE. His
recognizance to appear in the district court described him as Adolph SCHUTZE. The style
of the judgment is, The State v. SCHUTZE & MILLER. The verdict,
"that the jury found the defendant SCHUTZE, guilty," etc. The judgment was to
recover against Adolph SCHUTZE. The recognizance to the supreme court on appeal
describes him as Adolph SCHUTZE. He was therefore indicted as Julius
SCHUTZE, while convicted as Adolph SCHUTZE. Under Pasch.Dig. arts. 2417, 2418, declaring
that every person who shall butcher beef shall keep lists of all cattle
slaughtered, etc., an indictment which charges, substantially, that the defendant
failed to return lists of the marks and brands of slaughtered cattle
showing from whom the cattle were purchased, as required by law, negatives such a
compliance with the statute as would exonerate him, and is sufficient. Where accused was indicted as "J. S.,"
and judgment was rendered as "A. S.," the case was reversed, and the court directed to
render the judgment in accordance with the indictment and verdict. HANCOCK & WEST, for the appellant. E. B. TURNER, Attorney General, for the state. CALDWELL, J. *2 The indictment charges that the defendant
"did then and there butcher beef for the market of the town of BASTROP, * *
* and did then and there fail to return lists of the marks and brands,
stating in said lists from whom purchased, of all cattle slaughtered by
him." The indictment is not so artistically drawn as
to escape criticism, yet we do not encounter the embarrassments which beset
the counsel of defendant in determining its legal sufficiency. The object of the law is to compel butchers to
keep a record of all cattle slaughtered by them, with evidence of the
identity of each animal, that crime might be prevented, or detected and
punished. The law prescribes what this evidence shall consist of. It is enacted that every person who shall
butcher beef * * * shall "keep lists" of all cattle slaughtered, with the
names of persons from whom purchased, together with the marks and brands,
and such "lists," verified by affidavit, shall be recorded by the clerk of the
county court. The lists would not be complete without these
requirements. In contemplation of law, it would be no list at all. The clerk
would not be authorized to record a partial one. It must state from whom purchased,
marks and brands, and if of one's own raising, the fact should be
so stated. From this it would seem, that to charge
substantially a failure to return lists of cattle slaughtered, as required by law,
negatives such a compliance as would exonerate the defendant, and would be
sufficient. The pleadings are all regular, and except the
judgment there is no error. Judgment is entered against Adolph SCHUTZE, a
party unknown to the record, which is evidently a mistake. For which cause it
must be reversed and remanded, with instructions to enter judgment in
accordance with the pleadings and verdict of the jury. Reversed and remanded. The State v. Max SOLOMONS, ordered not printed,
decided the same point. Supreme Court of Texas. GEORGE JENKINS v. THE STATE. October, 1867. *1 While the application for continuance stated
that the defendant could prove by three women that he won the coat which
he is charged with stealing from another freedman on the day, etc. (see
statement), the showing is not a compliance with the code. Pas. Dig. art. 2987.
On the first application, if the statute be complied with, a continuance is
granted, of course. When not in accordance with the statute, it is
addressed to the sound discretion of the court. Where the property was stolen, and the party was
found in possession of it three hours afterwards, he is, prima facie,
guilty, and unless there be proof to rebut this presumption, the verdict
will not be disturbed. APPEAL from BASTROP. The case was tried before
Hon. JOHN IRELAND, one of the district judges. The defendant was indicted for stealing a coat.
He moved for a continuance, and on the ground that he was almost a total
stranger in that community; that he had beea in the county but a few days
before he was arrested in this case; that he had been confined in the county
jail ever since he was accused of the charge; that he could prove by three
women of color that he won the coat which he is charged with stealing from
another freedman, on the day and about one hour before he was arrested, etc.;
that, being a stranger, and having no friends or relatives in the county, he
had not been able to learn the names of the three freedmen; that he could
prove that he came honestly by the coat; expected to procure the attendance
of such witnesses, etc. The motion was overruled, but the point does hot
seem to have been saved by bill of exceptions. It was proved that the coat
stolen was worth $30; that the accused was fo!lowed, and the coat found upon
his person; that he said he had won the coat behind the livery stable with
cards; but that he had ruade contradictory statements as fo where he said he
had won it. The charge of the court was in accordance with
the statute. The defendant was found guilty, and his punishment assessed at
two years in the penitentiary. He moved for a new trial, which
was overruled, and he appealed. It is error to refuse an application for a first
continuance on defendant's compliance with the statutory requirements
therefor. The granting of a continuance on the ground of
the absence of witnesses, when the application is based upon causes not
contemplated in the statute, rests in the discretion of the court in view of
all the facts. An application for a continuance on the ground
of the absence of witnesses, by a defendant charged with the larceny of a
coat, stating that "he can prove by three women that he won the coat from
another freedman, on the day, and about an hour before, he was arrested; that,
being a stranger, and having no friends or relatives in the county, he
had not been able to learn the names of the three women, but expected to
procure the attendance of such witnesses,"-does not comply with Pasch.Dig.
art. 2987, requiring a first application for continuance on such ground to
state the name of the witness and his residence, if known, or that his
residence is unknown; the diligence which has been used to procure his attendance;
the facts which are expected to be proved; that the witness is not absent by
the procurement of the defendant; and that the application is not made
for delay. If the court is satisfied of the relevancy of
the evidence of absent witnesses set up for a continuance, it should,
on motion, grant a new trial. A. D. MCGINNIS, for the appellant, insisted that
the motion for continuance was improperly overruled, and that the defendant
was wrongfully convicted. William ALEXANDER, Attorney General, for the
state. CALDWELL, J. *2 We see no error in the record. The indictment
is unobjectionable, and charges the offense in the language of the
statute. The application for a continuance states, that "he (defendant)
can prove by three women that he won the coat he is charged with stealing from
another freedman, on the day and about an hour before he was arrested;"
and that the names and residence of witnesses are unknown. This does not comply with the statute, and is addressed to the discretion of the court. An
application for a first continuance, in the terres of the law, relieves
thc court of its discretion, and the continuance is granted as of course. Not
so when the application is based upon causes not contempiated in the
statute. Then the discretion of the court is invoked in view of ail the facts. After trial and conviction, with a full
knowledge of all the evidence, the court is better prepared to judge of the
relevancy of the cause set up for a continuance, and, if satisfied that injustice
has been done, upon motion, a new trial ought to be awarded. The evidence fully sustained the verdict. The
defendant was found in possession of the property within three hours
after it was stolen. This is prima facie evidence of guilt; and, unless there
is some proof to rebut this presumption, the jury were warranted in so
finding. There being no error, the judgment of the court
below is Affirmed. Supreme Court of Texas. CHARLEY CLARK, FREEDMAN, v. THE STATE. October, 1867. *1 Where, on a trial for rape, the defendant
asked the court to instruct the jury that if the prisoner procured the consent
of the party ravished by promises, the jury could not find him guilty. The evidence being fluctuating, the instruction
ought to have been given, although the court had charged in the language
of the statute. Where witnesses stated positively that the girl
ravished was over fourteen years old, and others were of the opinion that
she was only ten, a new trial ought to have been granted. APPEAL from BASTROP. The case was tried before
Hon. JOHN IRELAND, one of the district judges. Charles CLARK, alias STEINER, a freedman, was
indicted for a rape, for that, etc., he did then and there, feloniously and
violently, make an assault on and upon one Ann WASHINGTON, a freed girl, and
her, the said Ann WASHINGTON, violently and against her will, and therefore
feloniously, did ravish and carnally know. One witness swore to the evidences of violence,
and that the girl violated was a child. Another swore to her statements of
violence immediately after the act, and in her own examination the outraged
girl swore to the force; that she tried to halloo, but the prisoner put
his hand over her mouth. But on cross- examination she swore that she
consented on a promise of some candy. Three witnesses swore to the fact that
she was over fourteen years of age. It was also proved that she stated to a
witness that she consented, and by an expert that she was over fourteen years of
age. The court instructed the jury, that if she consented, and was over
fourteen years of age, they would find the defendant not guilty; if not,
find him guilty. The jury found the defendant guilty, and he was sentenced to
twenty years' imprisonment in the penitentiary. The defendant moved for an
arrest of judgment and for a new trial, which motions were overruled, and he
appealed. There was a bill of exceptions, which seems not to have been
noticed. On the trial of an indictment for rape, where
the evidence was conflicting with regard to consent on the part of the person
on whom the alleged offense was committed, and the court was asked to charge
the jury "that if the defendant procured the consent, etc., by
promises," the jury could not find him guilty, held, that the court should have
charged the jury as requested. A. D. MCGINNIS, for the appellant, insisted that
the word "will" was not an equivalent to the word "consent" in
the indictment, and discussed the facts of the case. E. B. TURNER, Attorney General, for the state,
insisted that as the evidence was conflicting, the verdict should not be
disturbed. CALDWELL, J. *2 The defendant was tried and convicted of
"rape," at the June term district court for 1867. A reversal of the judgment is sought on the
ground, among others hot necessary to notice, that the court erred in
refusing charges asked by the defendant. The general charge of the court was
simply the statutory definition of the offense, with instructions as
to the punishment, if found guilty. The defendant's counsel asked the court to
charge, "that if the defendant procured the consent of Ann WASHINGTON * * * by
promises," the jury could not find him guilty. The evidence was very
conflicting with regard to consent on the part of the person on whom the
alleged offense was committed. There was also conflicting testimony about her
age: some of the witnesses placing it at ten, others at fourteen years. It is in proof that the girl stated before the
examining court, in her examination in chief, that she refused the
solicitations of defendant, but upon cross-examination admitted that upon
promises of reward submitted to his embraces. Upon trial in the district court,
with equal simplicity, she denied having given ber consent, and on
cross-examination admitted that she had. It was also in proof, that the girl had admitted
several days after the alleged offense that she had consented. Under
these circumstances, we think the minds of the jury ought to have been more
particularly directed to the gist of the offense. The charge asked by the
defendant would have done this, and should have been given. We look in vain for any evidence to sustain the
verdict, unless the jury concluded that the person upon whom the alleged
offense was perpetrated was under ten years of age. This they could not have
done without a total disregard of the evidence, as none of the
witnesses estimated her age "under ten." Judgment reversed, and new trial
awarded. Reversed and remanded. Supreme Court of Texas. ROBERT GILL v. THE STATE. October, 1867. *1 The act of 4th March, 1863, was not repealed
by the act upon the same subject of 13th November. Both acts being on the same subject, stand, so
far as the latter does not supply the former. APPEAL from BASTROP. The case was tried before
Hon. JOHN IRELAND, one of the district judges. The defend??nt was indicted under the act of 4th
March, 1863, to regulate the sale of beef cattle, etc., for that he
butchered beef for the market, etc., without keeping and recording lists of
marks and brands, as by that act required. By a motion to quash, and one in
arrest of judgment after conviction, the defendant raised the question as
to whether the act had been repealed by the 3d section of the act of
1866. This was the only question decided in that case. Act March 4, 1863, Pasch.Dig. arts. 2417, 2418,
regulating the sale and slaughter of beef cattle, and imposing penalties
for its violation, was not impliedly repealed by Act Nov. 13, 1866,
prescribing more stringent regulations on the same subject, and affixing a
greater penalty for its violation. George W. JONES, for appellant, insisted that
the act of 13th November, 1866, repealed the act regulating beef cattle. No brief for the state has been furnished the
reporter. CALDWELL, J. The defendant was indicted at the December term
of the district court for 1866, under article 2417 of Paschal's Digest.
The alleged offense was a "failure to return lists of the marks and
brands, stating in said lists from whom purchased, of all cattle slaughtered,"
etc., verified by affidavit as therein required. Trial and conviction at the
June term, 1867. It is insisted by the defendant that the act of
November, 1866, on the same subject, creates a new and different offense, and
repeals the act under which he was indicted, without substituting any
penalty, which would entitle him to a discharge. We think not. Both acts are on the same subject,
and have the same object in view. The repealing statute only supplies more
stringent rules of registration of marks and brands, and affixed a
greater penalty for its violation. There is no error, and the judgment
is Affirmed. Supreme Court of Texas. CALLAHAN, ALIAS W. D. JACKSON, v. THE STATE. October, 1867. *1 When the case was called for trial the
witnesses of the state were absent, and the prosecuting attorney moved for a
continuance, which the accused opposed; the case was continued, and
four days afterwards, the witnesses having appeared, the continuance was
set aside, whereat the accused said he was surprised, and protested,
but did not move a continuance for want of witnesses. There was no error in
this. Where the charge defined theft in the language
of the code, and the proof was clear that the property was stolen in one
county and sold by the accused in another, there was no error in the charge,
nor was the court obliged to treat the statements of the prisoner, when
selling the property, as confessions. When the record does not show whether the
prisoner was present when the verdict was rendered or not, the court will not
presume that he was absent. Where the property stolen in one county was the
next day sold by the accused in another, he saying that he had bought the
property, and giving reasons, not proved to be true, why he wanted to sell,
there was no error in refusing a new trial. APPEAL from BASTROP. The case was tried before
Hon. JOHN IRELAND, one of the district judges. The defendant was convicted of stealing oxen and
other cattle in Caldwell county and carrying them into BASTROP county,
where he sold them. There was a bill of exceptions, which merely
recited what appeared in motions and orders upon those motions. They gave
the following facts: "That on the 17th day of December, of this year, this
case was called for trial, and the state, by attorney, moved the court to
continue this case for the want of witnesses for the state, which
application the court considered and granted, and the case was regularly continued.
That on the 21st day of this month the counsel for the state, by motion,
asked the court to set aside the continuance of this case, granted four days
before, to which the defendant, by his counsel, excepted; because the case had
been previously continued by the state until the next term of this court, and
could not re-open the case and call the same for trial at this term of the
court, because it would be a surprise to defendant, unless he consented for
the case to be re-opened, which the defendant refused to do. Which exceptions were overruled by the court,
and forced into trial, or required to show cause, by affidavit, why he
should not be compelled to try this case. The cause was opened, because it was stated by
the court, when the cause was continued, over the protest of defendant, that
if the state's witnesses could be got before the court adjourned, the
cause would be opened and tried; and after the cause was re-opened
defendant offered no reason why the cause should not be tried." *2 The facts proved were as follows: "The state introduced, as a witness, A. L.
BROCK, who testified that in the early part of this year he missed from his
pasture thirteen yoke of work oxen; that witness examined around the pasture
and found where the fence had been let down and put up recently, and followed
the tracks of the oxen, in a northwest direction, a short distance; the
tracks of the oxen were quite plain for five or six miles, but after that he
could only track them when they crossed roads; that the weather was dry,
and little impression was made except where roads were crossed; afterwards the
trail of the oxen turned in the direction of BASTROP; that after following a
whole day witness returned home, and the next day, February 3, came over to
BASTROP county; within a few miles of BASTROP, in BASTROP county, in the
edge of the Colorado valley, witness discovered his oxen in Mr. FORT's
pasture and identified them; that witness got twelve yoke of his oxen from Mr.
FORT. Witness, on cross-examination, stated he resided west of
Lockhart, in Caldwell county, and that Blanco county was northwest from his
residence. Witness, being re-examined, stated his oxen were worth $35 a
yoke. Witness also stated he sold one yoke of his missing oxen to Mr. FORT. A. W. FORT, a witness for the state, testified
that in February of this year the defendant, under the name of W. D. JACKSON,
sold him thirteen yoke of oxen for $150 in gold and a mule; that the next
day after this sale Mr. A. L. BROCK came to his house, claimed twelve of
said yoke of oxen witness had bought from defendant, and carried them away,
and described a yoke witness had sold to DURAND, of Austin, Texas. Witness,
on cross-examination, stated that defendant told him that he had purchased
the oxen in Blanco county; that defendant expected some friends to have met
him here from Evergreen with money to carry the oxen to a better market,
and also to purchase corn for them; that corn in the Colorado valley was
worth $1 per bushel; that defendant was out of money, and his oxen poor,
and was willing to sacrifice the oxen, as he was here, and was not able to go
further with them. Witness did not know the direction from BROCK's house to
Blanco county, but knew BROCK lived four or five miles west of Lockhart,
in Caldwell county. ____ DURAND, a witness for the state, testified
that he traded with Mr. FORT for one of the yoke of oxen FORT bought from
defendant; that witness was present when Mr. FORT bought the oxen from
defendant, and heard defendant say he was compelled, on account of the scarcity
of money and the fact that the oxen were poor, the weather cold, and the
oxen falling off every day, to sell them at a sacrifice; that he (defendant)
gave $30 a yoke for said oxen in Blanco county; that at first defendant asked
FORT $30 a yoke for the oxen, but FORT refused to give that, and
defendant finally sold all thirteen yoke of said oxen to FORT for $150 gold and a
mule. Witness stated he traded for one of the yoke of oxen FORT bought from
defendant, and described the yoke of oxen as Mr. FORT described it." *3 The court, in its charge, defined theft in
the language of article 745 of the penal code, and put the hypothesis in the proper
language. The defendant's counsel asked instructions,
which treated the statements of the prisoner to the purchaser of the oxen as
confessions, which the court refused. The jury found the defendant guilty,
and assessed the punishment at four years' imprisonment in the penitentiary. The defendant moved in arrest of judgment and
for a new trial, which motions were overruled, and he appealed. The record, on appeal, showed that when the
cause was called for trial, the witnesses for the state being absent, the
defendant insisted upon a trial; but a continuance was granted with the express
understanding that such continuance should be set aside on the
appearance of the witnesses. Afterwards, the witnesses appearing, the
continuance was set aside, and the defendant protested, but did not move a
continuance. Held, that the court did not err, as defendant should have made a
showing if he had ground for a continuance. Where the record does not show whether the
prisoner was present when the verdict was rendered or not, the court will
presume, on appeal, that he was absent. Where in a prosecution for theft the charge
defined theft in the language of the code and the proof was clear that the
property was stolen in one county and sold by the accused in another, there was no
error in the charge, nor was the court obliged to treat the statements of
the prisoner, when selling the property, as confessions. A. D. MCGINNIS, for appellant. I. The court
erred in re-opening the continuance of the case, against the protest of
appellant, and forcing a trial of the same. II. The court erred in refusing the charges to
the jury requested by defendant's counsel. III. The court erred in overruling the motion of
appellant for new trial and in arrest of judgment. IV. The court erred in receiving the verdict of
the jury in the absence of appellant and his counsel, and in not having the
jury polled. On the first point, see Pas. Dig. art. 1461;
Sayles, Prac. secs. 476, 477, 478, and 527. While it is deemed the above references
are sufficient to establish the point contended for, yet the case
of MCCOY v. JONES, 9 Tex. 363, determines the action of the lower court to
be erroneous. *4 On the second point, he cited the criminal
code, art. 664. On the third point, it was urged that the record
did not show that the prisoner was present when the jury returned the
verdict. The motion in arrest of judgment should have
been sustained, because the indictment is clearly defective, in not stating
what Monday in March, 1866, it was found and returned into court by the
grand jury of BASTROP county, so as to enable this court to determine whether any
legal district court was at that time held. It is also suggested the
indictment is defective, because it fails to charge directly that appellant was
found with the property in BASTROP county. But the indictment on its face
charges the theft to have been committed in Caldwell county, where he should
have been prosecuted, unless he had actually been found with the property in
BASTROP county. This allegation, being material to give BASTROP county
jurisdiction, should have been expressly charged in the language of the law. No brief for
the state has been furnished to the reporter?? MORRILL, C. J. The first error assigned is, that the court
erred in re-opening the continuance of the cause against the protest of
CALLAHAN. The record shows that when the cause was called for trial, the
witnesses for the state being absent, the defendant insisted upon a trial, but
a continuance was granted with the express understanding that it should be
set aside on the appearance of the witnesses. When this took place,
therefore, the defendant, if his witnesses were not present, could have made a
showing for continuance, if he had any cause; but he assigned no cause, and we
see no cause of error in the court ordering a trial. The second, third and fourth errors, to the
effect that the court erred in his charge to the jury and in refusing the
charges requested, and also in receiving the verdict of the jury in the absence
of the defendant and his counsel, can be disposed of by a statement of
the fact, that the charge given was as favorable to the defendant as the
law allowed, and there was nothing in the record showing the absence of the
defendant on the rendition of the verdict, and we cannot presume either
that the court erred in this respect, or, if it were so, that the counsel for
the defendant would have neglected to have so incorporated in the record,
that it could be examined and corrected by this court. We see no error in the rulings and charge of the
court, and the testimony was sufficient to authorize the verdict of the
jury. The judgment is Affirmed. COX When the location of a county boundary is a
material fact to be determined, evidence of general reputation is admissible in criminal
as in civil cases. The failure of the court to give an instruction
on the trial of a criminal cause, fully embracing all the facts necessary to
constitute the offense, will not be cause for reversal, if it clearly appears from the
evidence that such instruction could not have resulted in protecting any right of the
accused. *1 APPEAL from Travis. Tried below before the
Hon. J. P. Richardson. Cox was indicted for theft from a house situate
in Bastrop county, within four hundred yards from the county line of Travis county. The
article in the Code of Criminal Procedure permitting the venue to be laid in
Travis when the offense was committed in Bastrop is as follows: "An offense
committed on the boundary line of any two counties, or within four hundred yards thereof,
may be prosecuted and punished in either county, and the indictment or information
may allege the offense to have been committed in the county where it is
prosecuted." The court gave in charge the statutory
definition of theft, and did not instruct the jury that the taking of personal property
from the possession of one holding it for another must, to constitute theft, be a
taking without the consent of the person so holding it; but no instruction was
asked on that point, nor were exceptions taken to the charge as given. The
evidence was, however, conclusive that the taking was without the consent either
of the owner or his agent having charge of the property. The evidence was circumstantial, and is detailed
in the opinion. Verdict of guilty, from which Cox appealed. Evans & Cunningham, for appellant,
contended-- 1. That the court did not give in charge all the
law applicable to the case, and that the judgment should be reversed, citing
Pas. Dig. arts. 3059, 3060; Brown v. The State, 23 Tex., 200. 2. That parol evidence should not have been
admitted to establish by common reputation the location of the county line between Travis
and Bastrop counties; that the English doctrine allowing it grew out of the fact that,
as their county boundaries were not established by act of Parliament, there could be
no other evidence than that of general reputation; but in the American States county
boundaries were fixed by law, which, being the best evidence, should have been resorted to. 3. That the State could not allege the offense
to have been committed in Travis, and prove it in Bastrop county. 4. That this court should take cognizance of
errors apparent upon the face of the record, though not assigned, when the same go to the
foundation of the action, and especially where the life or liberty of the citizen is
involved. (Scott v. The State, 31 Tex., 410; Campbell v. Stokes, 2 Wend., 146; Palmer v.
Lorillard, 16 Johns., 343; Harrison v. Nixon, 9 Pet., 503; Jones v. Black, 1 Tex., 529;
Rankert v. Clow, 16 Tex., 13; Hollingsworth v. Holshousen, 17 Tex., 47; Wetmore v. Woodhouse,
10 Tex., 33; Salinas v. Wright, 11 Tex., 577; Earle v. Thomas, 14 Tex., 583; Pettus v.
Perry, 4 Tex., 488; Petty v. Cleveland, 2 Tex., 405.) George Clark, Attorney General, for the State. DEVINE, ASSOCIATE JUSTICE. *2 The defendant was indicted in the county of
Travis; indictment charging that, on the 7th day of February, 1874, the accused, in
said county and State, did then and there, in the county of Bastrop, within four hundred
yards from the county line of Travis county, unlawfully and fraudulently take from
the possession of R. T. Hill, "and out of the dwelling-house occupied by said
Hill," certain moneys belonging to "W. H. Caldwell, without the consent of the said Hill,
the person having possession of said money, and with the intent," & c.,
&c. The jury found the accused guilty, as charged,
and assessed his punishment at five years' imprisonment in the penitentiary. The defendant's motion for a new trial was
overruled, notice of appeal given, and the case is presented for revision on the following
assignments of error: "That the court erred in not instructing the jury that the taking of
personal property from the possession of one holding it for another must be a taking
without the consent of the person so holding it." The charge of the court in this
respect might have been fuller. The omission in this case is, however, not material; it was not
absolutely necessary for the protection of any right which the accused might have. The
evidence of W. H. Caldwell, the owner of the money charged to have been stolen, and of R.
T. Hill, in whose possession it was at the time of the theft, is positive on this
point; both witnesses state they did not give their consent, and the defendant made no proof
contradictory of this evidence. The second assignment, "that the court
erred in instructing the jury that general reputation of the location of the county line is
evidence of such location," suggests no real error. Mr. Greenleaf, in his treatise on Evidence, vol.
1, p. 152, states the rule as follows: "In matters of public interest all persons
must be presumed conversant, on the principle that individuals are presumed to be conversant
in their own affairs; and as common rights are naturally talked of in the community,
what is thus dropped in conversation may be presumed to be true. It is the prevailing
current of assertion that is resorted to as evidence, for it is to this that every
member of the community is supposed to be privy and to contribute his share. Evidence of
common reputation is, therefore, received in regard to public facts, * * * on ground
somewhat similar to that on which public documents not judicial are admitted, namely, the
interest which all have in their truth, and the consequent probability that they are
true." Appellants in their brief contend that the
English rule as to common report, or traditionary evidence in proving boundaries,
and, as in this case, the boundary line between the counties of Bastrop and Travis,
"being handed down by tradition from generation to generation," was allowed
"in accordance with the well-known principle of the law of evidence, that it was the best
evidence the nature of the case admitted of;" but that "this doctrine is not
applicable to this country, especially to the newest of the American States." In Noyes v.
Ward, 19 Conn. Rep., p. 268, in an action of trespass vi et armis, where defendant
assaulted "the city highway surveyor," for interference with the land of defendant, the
court held that such evidence, to show a moving in of defendant's fences twenty-one
years before, was proper, and say, "Proof of general reputation was admissible
in this case for the purpose of showing the existence and extent of the highway in
question." *3 In Boardman et al. v. The Lessees of Reed and
Ford, 6 Peters, 328, Justice McLane, in delivering the opinion, says: "That
boundaries may be proved by hearsay testimony is a rule well settled, and the necessity or
propriety of which is not even questioned." "Landmarks are frequently found of
perishable materials, which pass away with the generation in which they are made; by the improvement
of the country, and from other causes, they are often destroyed. It is
therefore important in many cases that hearsay or reputation should be received to
establish ancient boundaries." In Ralston v. Miller, 3 Rand., (Va. Rep.,) p.
44, the question grew out of the location of a building on the corner of a street in the
city of Richmond, and the controversy was whether ancient use, and general reputation of
that use or occupation, should on the trial outweigh the depositions and survey of a
surveyor as to the true line. The court said "that ancient reputation and
possession were entitled to infinitely more respect in deciding on the boundaries of the lots than
any experimental surveys." In the American notes to 1 Phillips & Arnold on
Evidence, from page 220 to 227, the citations from decisions of the courts of New Hampshire,
Massachusetts, Connecticut, New York, Pennsylvania, Maryland, Virginia, North and
South Carolina, Tennessee, and other States show that evidence of hearsay or general
reputation to prove boundary lines has been extended quite as far in those States as in the
English courts. Mr. Greenleaf, in his work on Evidence, in a
foot-note, pages 167 and 168, says: "The admission of traditionary evidence in cases of
boundary occurs more frequently in the United States than in England," and that
"the general practice in this country in the admission of traditionary evidence as to
boundaries seems to agree with the common law, as stated in the text." The boundary lines of Travis and Bastrop were
shown by the evidence to be less than four hundred yards from the house from which the
money was charged to have been stolen. The testimony of R. T. Hill on this point is as
follows: "From where common report in the neighborhood says that the line between Travis
and Bastrop counties is, is two hundred and fifty yards from my house, from which the
money was taken; I have stepped the distance." This line had been in existence
nearly twenty-eight years, and acknowledged as the dividing line. There is nothing in the
cross-examination of this witness, neither is there any evidence in the statement of facts,
that either weakens or contradicts the evidence for the State on the question of
the county line. The 3d assignment of error, "that the court
erred in not granting a new trial, and in overruling the defendant's motion for a new
trial," is based on the grounds set out in the motion for a new trial, which are as
follows: "The verdict of the jury is contrary to the law as given in the charge of the court.
The verdict of the jury is contrary to the evidence as adduced on the trial of this
cause. The verdict of the jury in assessing the punishment of defendant at five years in the
penitentiary is cruel and excessive." *4 The first ground for a new trial it is not
necessary to consider. The second, that the verdict of the jury is contrary to the
evidence, does not appear to be borne out by an examination of the statement of facts in
the record. The defendant was indicted for stealing from the
dwelling-house and possession of R. T. Hill, and without his consent, one hundred
and sixty dollars, the property of him, I. C. Caldwell. The uncontradicted evidence
of the witness proved that the money was in the trunk, and it locked, when the white
family went to church in the morning; on their return, in the evening, Mr. Hill, the
owner of the trunk, unlocked it, and missed the one hundred and sixty dollars, mostly
in silver, of Caldwell's, and one hundred and forty dollars in gold and twenty in
silver belonging to himself. The witness, Caldwell, learning that defendant had
been there, started next morning, traced the accused to Webberville, and there
learned from the ferryman that the accused had crossed the river at the ferry the
evening before. Witness went on to the railroad, learned that he had gone down on
the last train, followed down and arrested defendant at Hempstead, in Austin
county; carried him to this city, and delivered him to the sheriff of Travis county.
The accused had on his person when arrested two hundred and ninety-three dollars
and forty-five cents, ($293 45,) chiefly gold, and among the keys found in his
possession at the time of his arrest was one which unlocked the door of Mr. Hill's
house. The evidence showed further, that he had been in the employ of Mr. Hill a
short time; that he told Hill he had no money; that he received his wages from time
to time in small sums; that when discharged there was coming to him on his wages
only the trifling sum of five dollars and twenty-five cents. The negro woman, Betty,
testified that, having gone from the kitchen to her house while the white family were
absent at church, she found the defendant changing a portion of his clothing;
that he accompanied her to the kitchen, and had something to eat; that she was in the
kitchen when he came to her house; how long defendant was there before she saw him
witness could not tell; he walked about the yard; witness saw him off and on about
every ten minutes; did not see him go into Mr. Hill's house; he stayed there
about an hour; she saw him when he left the premises. This witness stated that
defendant told her on the day referred to "that he was going to Austin to gamble;
that he had in his life won money at playing cards, and that he intended to try it
again." Witness had frequently seen the keys found on the person of the accused;
they belonged to him. Defendant told her that the door-key (which unlocked the door
of Hill's house) belonged to his father's door, and was one that he had before he
left his father's house. This witness stated "there were three families
of colored people living on the premises outside of the yard palings," and within a
few hundred yards of Mr. Hill's house there were as many as twenty or twenty-five
colored people living." She further stated that two colored men came into the yard
that day, and it was customary for them to do so. This embraces all the material
facts in the case, and, taking them in their regular and necessary order, they form
the links of an unbroken chain of evidence that encircles the defendant, and from
which he has not attempted to escape by explanation or opposing evidence; and from
the ability and interest displayed in his behalf by his counsel it is reasonable to
presume that if evidence existed it would have been produced, or an effort made to
obtain it. *5 It is true, as stated in the brief, that some
other person residing in the immediate neighborhood may or might have taken
the money; but applying to the evidence in this case the tests which men apply
when endeavoring to form a final judgment on any of the important transactions of
ordinary life, every conclusion must be that the defendant was guilty as charged
in the indictment. The evidence shows him to have been well
acquainted with the premises. Among the keys found on his person is one which unlocked
the door of the house; the explanation is that it belonged (from his
statement) to his father, and was the door-key of his father's house. What reason
there was for his carrying this key with him while in the employment of R. T. Hill,
and why he carried it away to Hempstead, is not shown. It could not be for its
value, and it certainly was not for legitimate use. On the day of the theft
he makes his visit to the house or premises of Mr. Hill. And for what purpose
did he remain and loiter around the yard for an hour? Here he is found with a
key to open the door in his possession, and evidently staying there to find an
opportunity to do so unobserved. The trunk containing the money is in the room, and the key
to unlock the trunk hanging with a bunch of household keys in the room in their
usual place. On that day the money, about three hundred and twenty dollars, in gold
and silver, is stolen from the trunk. Defendant told the witness Betty on that
day that he was going to Austin; yet he crosses the river that evening at
Webberville, takes the train going down instead of up the country, and is arrested at
Hempstead. Upon his person is found two hundred and ninety-three dollars and
forty-five cents, ($293 45,) principally in gold, being about the amount stolen, after
deducting traveling expenses, &c., &c. The question may be asked, where did he
obtain this amount; was it by honest industry, or gaming during a week or two, or at
any time previous to his arrest? He does not account nor attempt even to account
for it, and his own statements show he had no money when in Hill's employ or when he
left, save $5 25. Taking, then, all these facts--his knowledge of the premises; his
visit there during the absence of the family; his loitering around the house
during an hour, to the cook's knowledge, and how long before she found him in her house
she does not know; his telling her he was going to Austin, and his leaving the
neighborhood, passing through Bastrop and Washington counties, and arrested at Hempstead,
in the direction opposite to that he stated he was going; among his keys one found
that unlocked the door of the house from which the money was stolen, the key not
belonging to him, and the only fact connected with its possession that he told the
witness it belonged to his father's house; without funds when he was discharged by
Mr. Hill, and the day after the theft with two hundred and ninety-three dollars
and forty-five cents ($293 45) in his possession, a sum nearly equal to the
amount stolen--against these facts not one word of evidence was offered to break or
weaken their force against him. *6 All the facts and circumstances of this case,
when taken together, were sufficient to lead the mind of the jury to the deliberate
conclusion that the accused, and no other person, committed the offense charged.
There was therefore no error in refusing a new trial. That the verdict is cruel and excessive in
assessing the punishment at five years in the penitentiary is not apparent. The jury had
the exclusive power to determine the amount of his punishment within the periods
declared in the Penal Code; having done so, it is not a matter of revision. The judgment is AFFIRMED. Tex. 1874. IRA J. COX v. THE STATE. 41 Tex. 1, 1874 WL 7970 (Tex.) END OF DOCUMENT ========================== A statement in the concluding argument by the
district attorney, insisting that the fact that the acting justice of the peace held
accused to bail was evidence that the justice thought him guilty, is a reversible
irregularity. In an indictment for theft of several articles
of the aggregate value of over $20, it is sufficient to allege such aggregate value. It
is not necessary that the separate value of each article be set out. To convict upon an indictment for theft of
several articles, where the aggregate value only of such articles is alleged, the testimony
must show the theft of all of the articles alleged to have been stolen. On trial of an indictment for theft, a charge
that mere possession of property recently stolen is prima facie evidence of theft, which
casts upon the defendant the necessity of explaining such possession, is error; the
rule being that the possession of property recently stolen is evidence against the accused,
which may be considered by the jury in connection with the other testimony in the
case. *1 APPEAL from Bastrop. Tried below before the
Hon. J. P. Richardson. Calvin Thompson was indicted for theft of
"four barrow hogs and two sow hogs of the aggregate value of thirty dollars." On the trial the owner of the hogs testified
that his "hogs were missing about first of April, 1874. Some time about the first of
July the two sows came home without the others and in the mark of the defendant." * * "When the two sows came back I told Jim
Williams, a freedman, who was living with me, to go to the defendant's house and look for
my hogs. In a day or two Williams told me he saw four of my hogs in a pen on the
premises of the defendant. I then applied for a search-warrant and went to defendant's house.
This was about 6th July; found four hogs in defendant's pen, being the four barrows
described in the indictment." There was a conflict in the evidence as to
ownership. Thompson's claim to the hogs had been public, and no attempt at concealment of
the hogs was shown. No other evidence was given as to the two sows. M. W. Trigg, for defendant, testified that some
time in the spring of 1874 defendant came to witness for advice about a lot of his hogs
that had come up with their mark changed. Witness advised him he had better go slow about
taking hogs--to put up the hogs and keep them until somebody came and claimed them, in
which event he could try the right of property in the hogs. This was before the
arrest. H. J. Wamel, for defendant, testified that he
was a justice of the peace in Bastrop county; that about the last of March or first of
April witness went to defendant's house to see about the election, which was soon
to come off; while there defendant called the attention of witness to and asked
witness to look at some of his hogs, the marks of which had been recently changed.
The defendant asked witness what he must do about them. Witness told defendant to
put them up in a pen and let the person who had changed the mark come and claim them;
that in that way the party could be caught and prosecuted. These hogs were the same
described in the indictment. The judge, after defining theft and its
punishment, charged the jury as follows: "If hogs are going at large in their range, they are
in possession of the owner, and if they are taken from the range, they are taken from
the possession of the owner. "Possession of property which has been
recently stolen is prima facie evidence of theft, and it devolves upon the defendant to explain
such possession so as to rebut that presumption or so as to raise a reasonable doubt
in your minds of his guilt. If the defendant took the hogs in good faith,
believing them to be his own, then he is not guilty of theft, and you should return a
verdict of not guilty." The defendant asked the following instructions: *2 "A preponderance of testimony in favor
of the State in a criminal prosecution for theft as to the title to the property is not
sufficient to warrant a conviction. But when there is a conflict of testimony
relative to the title in order to convict the defendant of theft, the State must show
beyond a reasonable doubt that the defendant took the hogs in the indictment not
only unlawfully but fraudulently." Which was refused by the judge because
"sufficiently given in the general charge, so far as it applies to this case." In the concluding argument by the district
attorney it was insisted that the fact that the other witness, Wamel, acting justice of
the peace, held the witness to bail, was evidence that said Wamell thought him guilty,
to which the defendant objected upon the ground that the argument was not fair
and legitimate, as the defendant could not reply, and appealed to the court, but
the court in the presence of the jury told the district attorney to proceed. The jury found the defendant guilty, and
assessed his punishment at two years' confinement in the penitentiary; upon this,
judgment was rendered. Motions for new trial and in arrest of judgment were
overruled and defendant appealed. Jones, Sayers & Russell, for appellants. A. J. Peeler, Assistant Attorney General, for
the State. MOORE, ASSOCIATE JUSTICE. Whenever the value of the property alleged to
have been stolen is an element for determining the grade of the offense or the
extent of its punishment, it is unquestionably necessary to allege in the
indictment the value of the stolen property. Obviously, therefore, when the
difference between grand and petit larceny is distinguishable merely by the value of the
property stolen, not only must its value be stated, but where several articles are
stolen, unless the value of each article stolen is alleged instead of the
aggregate value of the whole, if there is a failure in the proof of the larceny of some
of them, a general verdict would not be justified by the evidence or warrant a
judgment, because in such case the indictment would not show the value of the
articles proved to have been stolen or the grade of offense of which the defendant
should be adjudged guilty. It is therefore generally customary, and is certainly
more prudent, to allege the separate value of the articles stolen, rather
than to charge merely their aggregate value. Still, if the indictment is in
all other respects sufficient, on sound reason it cannot be held to be
defective merely because it alleges the aggregate value instead of the several
individual values of the articles charged to have been stolen. That under such character
of indictments parties may escape conviction for the lesser grade of offense, is
an objection to the policy, and not to the legal sufficiency of such
indictments. But while we do not think the motion to arrest
the judgment on this ground should have been sustained, we think the application
for a new trial should have been granted, because the verdict is not warranted by
the evidence. In all ordinary criminal cases it is said that a general verdict
of ""guilty" is a finding for the State of everything which is well charged in
the indictment. Thus, it finds that the defendant stole every article specified
in the indictment, and that they are of the value charged. If the evidence is not
sufficient to warrant these conclusions, then it cannot be said that a
general verdict which imports them is justified by it or should be sustained. In
this case there certainly can be no pretense that the testimony in the record
will warrant the conviction of appellant for stealing the two sows. "That
they came home some time about the first of July in the mark that defendant
gives," which is all the testimony, is altogether insufficient to sustain the
verdict as to them, is too obvious for comment. Yet the only testimony as to value
was with reference to the aggregate value of all the hogs as laid in the
indictment. And even as to the four barrow hogs, while there is much and
strongly conflicting testimony as to which of the claimants was the owner of them,
there is little, if any, credit to be given to appellant's witnesses, which
warrants the belief that they were fraudulently and feloniously taken by him. *3 In view of the facts of this case and the
issue presented by them, there was error in the charge given by the court as well
in its refusal to give that asked by the defendant. When property is shown to have
been recently stolen and there is no question as to its title, but the point in
dispute is whether the defendant is the thief, unquestionably proof of possession
of the property by the defendant shortly after it was stolen may be adduced as
evidence tending to prove defendant guilty of the theft. But even then it is not
strictly correct to charge the jury that mere possession of property recently stolen
is prima facie evidence of the theft, which devolves upon the defendant the necessity
of explaining such possession, so as to rebut the presumption or raise a reasonable
doubt in the minds of the jury of defendant's guilt. Such charge reverses the rule as to the burthen
of proof, and transfers it from the State to the defendant. The charge in effect
tells the jury, if defendant is shown to have been in possession of the stolen
property, they should find a verdict against him, unless he can rebut the presumption or
raise a reasonable doubt in their minds of his guilt, while the true rule is that the
possession of property recently stolen is evidence against the accused, which, like all
other evidence, is to be taken and considered by the jury in connection with the
other testimony in the case. And unless the jury, on consideration of it in connection
with the other evidence before them, are satisfied of the guilt of the accused beyond
all reasonable doubt, they should acquit him. In this case there was no
controversy in regard to the possession of the four barrows in question. Appellant not only
admitted possession, but claimed them as his property, and supported his claim by
strong testimony tending to establish its truth. Under such circumstances, the issue upon
which the case should have been decided was whether the hogs, if not his
property, were taken by the defendant, believing them to be his, or whether he took
them fraudulently and with the intent to deprive the owner of them. This issue is
clearly presented in the charge asked by appellant and it should have been given. The character of discussion indulged in by the
district attorney in his concluding address to the jury, as shown by the bill of
exceptions, was not justified or warranted by the evidence in the case or what
had been said by appellant's counsel, to which it is claimed to have been a legitimate
response. And such line of argument should not have been insisted upon by him or
allowed by the court when objected to by defendant's counsel. But whether it was,
notwithstanding the charge of the court in reference to it, given at the instance of
defendant, calculated to do him such injury as should, if it stood alone, require a
reversal of the judgment, need not on the present occasion be decided, as this must
be done for the reasons already stated. We deem it, however, of sufficiently
grave importance and so highly objectionable as to require the decided
condemnation of the court. Zeal in behalf of their clients, or desire for success, should
never induce counsel in civil causes, much less those representing the State
in criminal cases, to permit themselves to endeavor to obtain a verdict by arguments
based upon any other than the facts in the case and the conclusions legitimately
deducable from the law applicable to them. *4 The judgment is reversed and the case
remanded. REVERSED AND REMANDED. Tex. 1875. CALVIN THOMPSON v. THE STATE. 43 Tex. 268, 1875 WL 378 (Tex.) END OF DOCUMENT |
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