SUPREME COURT RECORDS PAGE 17
File contributed by Lisa Lach and proofed/formated by Dena Stripling
*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
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
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.
*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 (Pas. Dig. art. 2987), 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. Cooper v. The State, 19 Tex. 459.
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
GEORGE JENKINS v. THE STATE.
30 Tex. 444, 1867 WL 4628 (Tex.)
END OF DOCUMENT
*1 1. An account rendered by the comptroller of public accounts against an assessor
and collector of taxes, and placed in the hands of a district attorney for suit, is
prima facie correct, and, when offered in evidence, no testimony to establish it is
necessary. Pas. Dig. art. 3707.
2. A district attorney has certain duties and powers, which are prescribed by the
legislature. He is an agent or attorney of special and limited, and not of general
3. When the comptroller of public accounts has officially decided that an assessor
and collector is in default to the state, and has furnished a district attorney with
an account of the indebtedness of the assessor and collector to the state, with
directions to bring suit therefor, the district attorney has no power to compromise
with the debtor, either before suit is brought, during its pendency, or after
4. All citizens are chargeable with notice of the acts of the legislature, and, among
them, of art. 193, Pas. Dig., which invalidates any admission by a district attorney
to the prejudice of the state.
ERROR from Bastrop. Tried below before the Hon. David Sheeks.
The state instituted two suits in the district court of Bastrop county against George
Allen, and his sureties, on two official bonds given by him as assessor and collector
of Bastrop county. Consent judgments, amounting in the two cases to fourteen hundred
dollars, were rendered in favor of the state on an alleged indebtedness, as shown by
the comptroller's statements, of some seven thousand dollars, besides license taxes
alleged to have been collected.
The grounds on which the rulings of this court are placed, obviate any necessity of
giving details of the cases.
The opinion here printed was rendered in one of the cases. The other was reversed and
remanded for the same reasons.
A district attorney has certain duties and powers, which are prescribed by the
legislature. He is an agent or attorney of special and limited, and not of general
All citizens are chargeable with notice of Pasch. Dig. art. 193, which invalidates any
admission by a district attorney to the prejudice of the State.
Under the statute, Pasch. Dig. art. 192, which provides that no admission made by the
district attorney, in a suit in which the state is a party, shall operate to the prejudice
of the state, in an action on an account rendered by the comptroller, the district
attorney cannot agree that judgment shall be rendered for a less sum. A judgment under
such an agreement will be set aside.
An account rendered by the comptroller of public accounts against an assessor and
collector of taxes, and placed in the hands of a district attorney for suit, is prima
facie correct, and, when offered in evidence, no testimony to establish it is necessary
under Pasch.Dig. art. 3707.
E. B. Turner, Attorney General, for the state.
Jones & Sayers, for the defendants in error.
MORRILL, C. J.
*2 The plaintiff sued Allen and sureties as assessor and collector, claiming a judgment
for fifteen thousand dollars, based upon the account current of Allen and the
comptroller of public accounts of the state, as furnished by the comptroller.
Defendants pleaded payments and discounts, etc. The judgment rendered was as follows, viz.:
"Now, on this the 27th day of May, A. D. 1869, came on this cause to be tried, the state
of Texas by her district attorney, and the defendants, Geo. Allen, John Fawcett, O. W.
Ship and George Warren, by their attorneys; and by agreement of parties, it is considered,
adjudged and decreed by the court that the state of Texas do have and recover of and
from the defendants, Geo. Allen, John Fawcett, O. W. Ship and Geo. Warren, the sum of
five hundred dollars and all costs of suit, for which execution may issue."
The attorney general has brought the cause to this court by error, and assigns as
error--first, that the judgment was rendered by agreement, when no person had authority
to make any agreement on the part of the state in the premises.
Art. 192 provides "that no admission made by the district attorney in any suit or
action in which the state is a party, shall operate to prejudice the interest of the
The account as rendered by the comptroller of public accounts, and which was placed
in the hands of the district attorney for suit, amounted, as above stated, to fifteen
thousand dollars. This account was prima facie correct, and no testimony was required
to substantiate the correctness of it. Art. 3707.
It might, therefore, be regarded as proven before the court that the defendants were
indebted to the state in said sum; and had the district attorney not consented to a
judgment of five hundred dollars, as matters stood when this agreement was made, the
state would have recovered three times this amount.
The propriety of the statute is as well illustrated and substantiated by this transaction
as by the one historically known as the cause of it.
A district attorney, as well as every other officer or agent of the state, has certain
prescribed duties to perform. He is an agent or attorney having a special and limited,
and not a general power. The several acts of the legislature comprise his duties, and
designate what he can do, as well as the method of so doing, and also what he is not
permitted to do. An attorney-at-law is supposed to have an equivalent to a general
power of attorney, to do whatever his principal could do in a case pending in court.
Whatever, therefore, is done by an attorney, in the legal discharge of his duties,
is the act of his principal, and is binding. But a district attorney has no such general
power; his powers are limited. When the comptroller of public accounts has officially
decided that an assessor and collector has been remiss in his duties, and has furnished
the district attorney with an account of his indebtedness, with directions to institute
suit thereon, the district attorney has no power to compromise with the debtor, either
before suit is brought, during the pendency of it, or after judgment.
*3 As every citizen is charged with a knowledge of the public acts of the legislature,
the defendant is charged with a knowledge of the fact that the district attorney had no
right to settle the account otherwise than according to the official statement of the
comptroller, and that the agreement made, whereby the comptroller's account was ignored,
Judgment is reversed, and cause remanded.
Reversed and remanded.
THE STATE v. GEORGE ALLEN AND OTHERS.
32 Tex. 273, 1869 WL 4814 (Tex.)
END OF DOCUMENT
*1 1. Indictment for murder charged that the fatal wounds were inflicted in the "breast,
side, and loins" of the deceased. Held, that the indictment was sufficient, notwithstanding
the omission to state in what particular part of side, breast, or loins the wounds were
2. Indictment for murder charged that the accused did "feloniously and of his malice
aforethought" kill and murder, but nowhere employs the statutory word ""unlawfully"
in charging the killing. Held good, on motion in arrest of judgment.
3. The jury are the exclusive judges of the credibility of witnesses, and of the
truthfulness or falsity of their statements.
APPEAL from Travis. Tried below before the Hon. J. P. Richardson.
The defendant was indicted by the grand jury of Bastrop county for the murder of
William Ward, and the venue changed to Travis county.
The indictment charged that the defendant and one M. T. Walters, and three other
persons unknown to the grand jurors, late of said county, with force and arms in
said county and State, on the 2d day of March, 1871, did then and there willfully,
feloniously, and of their malice aforethought, in and upon the body of William Ward,
a reasonable creature in being, make an assault, and that they, the said M. T.
Walters and George Thompson and said three unknown persons, certain six-shooting pistols
then and there charged with gunpowder and leaden balls, and then and there held in their
hands, did then and there feloniously and of their malice aforethought shoot off and
discharge to, at, and against the body of him, the said William Ward, and with the
leaden balls so shot off and discharged as aforesaid by force of the gunpowder aforesaid,
by them, the said Walter and the said Thompson and the said unknown persons, did then
and there feloniously and with their malice aforethought, assault, strike, penetrate,
and wound him, the said Ward, in the breast, side, and loins of him, the said Ward,
giving to him, the said Ward, then and there, six mortal wounds of the width of one
inch and of the depth of six inches each, of which said mortal wounds so inflicted
aforesaid by them, the said Thompson and the said Walters and the said unknown persons,
he, the said Ward, then and there, instantly died, and so the grand jurors aforesaid
upon their oaths aforesaid do say and present that the said Thompson and the said
Walters and the said unknown persons, in the form and by the means aforesaid, on the
day and year aforesaid, in the county and State aforesaid, then and there feloniously
and of their malice aforethought, him, the said William Ward, did kill and murder,
contrary to law and against the peace and dignity of the State.
On the trial of the case the defendant was convicted of murder in the second degree,
and confinement in the penitentiary for ten years was assessed as his punishment.
Defendant moved for a new trial on the grounds of newly- discovered evidence, and the
error of the court in informing the jury verbally in open court that they could find
the defendant guilty of murder in the second degree, after the charge of the court
had been given them and before they had returned a verdict.
*2 The motion for a new trial being overruled, defendant moved in arrest of judgment,
because the indictment did not charge that the defendant unlawfully made an assault
upon William Ward; because the indictment did not charge that the defendant did
unlawfully kill and murder the said Ward; because the indictment did not charge
that the defendant did willfully kill and murder the said Ward.
The motion in arrest of judgment was overruled, and defendant gave notice of appeal.
The jury are the exclusive judges of the credibility of witnesses, and of the truthfulness
or falsity of their statements.
An indictment for murder, alleging that defendants at a certain time and place feloniously,
willfully, and of their malice aforethought killed and murdered deceased, is sufficient,
without an averment that the killing was unlawful.
Jones & Sayers, for the appellant. The seventh assignment of errors raises the question as
to the sufficiency of the indictment. In the consideration of this feature of the case,
it will be necessary to institute a comparison between the bill of indictment and the
statute under which it was found. (Article 2266, Criminal Code, Paschal's Digest.) The
statute, it will be observed, uses the word "unlawfully," and also the phrase "malice
aforethought." As it would not be proper to charge the Legislature with the grammatical
impropriety of tautological expressions, it cannot be well maintained that it was
intended that the word and the phrase above quoted should be considered as synonymous
in meaning. Representing, as they most certainly do, prominent ideas in the statutory
definition of "murder," they, undoubtedly, have not only a different signification, but
become "terms of art"--thereby creating a necessity for their use in every properly drawn
indictment for murder. The pleader has wholly failed to employ the word "unlawfully," in
framing the indictment, which, for that reason, is fatally defective. But it may be
contended that, being drawn under the form prescribed by the common law, the indictment
will support a conviction. To this we reply, that, viewed in that light, the indictment
is bad, in not charging the appellant with "willfully" committing the assault and
killing. That the omission of the word "willfully" is fatal, see Archbold's Criminal
Pleading, Vol. II., 213-1.
It will be remembered that, as if to provide against any confusion of the different
degrees of homicide, the statute, in Article 2267 of our criminal code (Paschal's Digest),
makes a further distinction. Now, is not the defendant entitled to full and explicit
information as to the degree of the offense to which he is called to answer? It will
not do to say that the word "feloniously" sufficiently indicates the gravity of the
offense, because manslaughter is no less a felony than murder. Nor that the term
"malice aforethought" covers the idea, for it only represents the intention (Beauchamp
v. State, 6 Blackf., 300), and the intention is an essential requisite in every grade of
killing. We, therefore, respectfully submit that, inasmuch as the indictment lacks that
sufficiency and particularity necessary to advise the appellant of the charge which he
was to meet, it is bad, and should have been so held by the court below.
*3 But, further, the indictment does not show in what part of the body, and in which side
and breast, the wounds were inflicted, nor in which hand the weapon was held. (2 Hale,
185; Archbold's Criminal Pleadings, 384, 405.) These objections may appear somewhat
technical, but are none the less deserving of consideration. Surely, it cannot be
considered an over refinement in criminal pleading, to require the State to put forth
her accusation in such form and language as to fully apprise the defendant of the
exact crime with which he stands charged, that he may be enabled to make good his
W. P. Bacon, also for the appellant.
William Alexander, Attorney-General, for the State. The motion in arrest of judgment
sets up substantially three objections to the indictment; that it does not charge the
assault and the killing to have been done unlawfully-- that it does not charge the
killing to have been done willfully--and, that it does not charge the defendant individually
with assaulting and killing, but charges defendant, M. T. Walters, and three unknown
persons did so.
Dismissing the last as having in it little or no merit, it may be said in reply to the
two first, that, "one object which the Legislature sought to attain in the adoption of
the Code was to dispense with mere formalities, useless verbiage, and perplexing
circumlocutions in the definition of offenses, and in all the proceedings of the court
in the administration of the criminal law." "We think that the whole spirit of the Codes
authorizes the court to dispense with what the books call 'terms of art' in the
description of offenses in indictments, and also in every part of the indictment; and
that even so distinguished a word as 'feloniously' 'DD' (and the learned judge might
have added, the equally distinguished words 'unlawfully' and 'willfully') "is no
longer to be considered as a sine qua non in the administration of justice in this State."
(Calvin v. State, 25 Texas Rep., 793.)
The question is not, whether this, that, or the other word (even though a statutory word)
is found in the indictment, for "it is not in general necessary, in an indictment for
a statutable offense, to follow the exact words of the statute, substantial accuracy is
sufficient" (Drummond v. Republic, 2 Texas Rep., 157); but, do the words used describe
the offense created by the statute?
It is not necessary to adduce authority for the position, that it is not necessary to
state in an indictment anything which it is not necessary to prove; and certainly it
is not necessary to allege or prove anything of a negative character.
Tested by these rules, the indictment under consideration must be considered sufficient.
It charges that the defendants "willfully, feloniously, and of their malice aforethought,
did make an assault," etc. An assault is defined in the Code to be the attempt to use
unlawful violence. Is not then this murder, commencing in assault, charged to have
been unlawfully committed, when charged also to have been done willfully, feloniously
and with malice aforethought?
*4 And is it necessary, by the express use of the word "unlawfully," to negative the
defense that the killing was lawful, any more than to negative any other possible
defense? And would it be necessary for the State to prove the killing not to be
lawful, or should the defendant prove it to be lawful? And if the State proves the
killing, must she go on to prove that the slayer was not, for instance, a sheriff,
and did not, in the execution of his office, lawfully kill the deceased? And if it
is not proved, need it be alleged?
Again, the indictment alleges that the parties "then and there feloniously and of
their malice aforethought him, the said W. W., did kill and murder contrary to law,
and against the peace and dignity of the State."
As the word "willfully" is not found in the statutory definition of murder, it is
hardly necessary to add anything on that point.
The record in this case presents evidence of a peculiar practice, which we are
surprised to learn has been resorted to in our courts of justice when important
and grave questions of vital interest to the people are being determined. Surely
such practice is not calculated to aid in the investigation of truth, or to
forward the ends of justice. But we forbear comment further than may be necessary
to decide the questions presented by the appeal.
We think the exceptions taken to the indictment not well founded, and that the court
did not err in overruling the same. We have examined the statement of facts with great
care, and are not prepared to say that there was not sufficient evidence, if true,
to warrant the verdict, and the jury should be the exclusive judges of the credibility
of witnesses, and truthfulness or falsity of their statements.
We think the court did not err in refusing a new trial for the reasons set out in the
motion; and finally, we have been unable to discover any error in the rulings of the
court, which would induce us to believe that the appellant had not had a fair and
impartial trial, and certainly the verdict of the jury was as favorable to the
defendant as he had a right to expect under the testimony.
The judgment of the District Court is therefore affirmed.
GEORGE THOMPSON v. THE STATE.
36 Tex. 326, 1872 WL 7549 (Tex.)
END OF DOCUMENT
*1 1. Appeal does not lie from the action of a district court in overruling a motion
for new trial in a criminal case.
2. In this case the jury found the defendant guilty of rape; thereupon the court
remanded the defendant to jail to await sentence. A motion for new trial was
overruled, and an appeal taken. Held, that the supreme court had no jurisdiction
3. Hoppe v. The State, in 32 Tex., overruled.
APPEAL from Bastrop. Tried below before the Hon. J. P. Richardson.
The defendant was found guilty of rape. Upon the return of the verdict, it was
ordered by the court that the defendant, Albert Fulcher, be remanded to the county
jail, there to await judgment and sentence.
A motion for new trial was overruled, the record showing, "It is ordered by the
court that said motion be and the same is hereby overruled, to which ruling of
the court the defendant did then and there except, and gave notice in open court
of appeal to the supreme court of Texas."
Appeal does not lie from a decision of the district court overruling a motion for
new trial, in a criminal case for want of any final judgment. Thus, where defendant,
found guilty of rape, was remanded to await sentence, and moved for a new trial,
which was denied, and he appealed, held, that the appeal was premature.
Jones & Sayers, for appellant.
Attorney General, for the state.
No judgment was rendered on the verdict of the jury in the court below, in this case,
as disclosed by the record. The appeal was taken, and is prosecuted alone from the
action of the district court in overruling the motion for a new trial.
The court uniformly held, in a long line of decisions, from case of Shultz v. The State,
13 Tex. 401, to Lane v. Ellinger, 32 Tex. 369, inclusive, that without final judgment,
there could be no appeal to this court. The same rule has been held, both in civil and
criminal causes; and, indeed, the rule must be the same in both classes of cases, as
the reason of the rule is the same in both. The jurisdiction of this court is appellate
only, and is only conferred by positive law; there is no provision of the law which,
in any case, gives the right of appeal, except from judgments rendered against the parties
The rule above laid down, and which was so long and so consistently maintained by this
court, was disregarded and overruled in Hoppe v. The State, 32 Tex. 389.
In the opinion in that case, Mr. Justice Lindsay says: "We think the import of article
3151 is too clear and palpable to the understanding to be called in question, that the
convict may appeal from such a judgment to this court." The judgment here referred to
is the judgment of the district court overruling the motion for a new trial. In that
case, as in this, there was no judgment rendered on the verdict of conviction--no
judgment except that overruling the motion for a new trial.
*2 This section (3151, Pas. Dig.) certainly confers no jurisdiction on this court, and
it was not intended by the legislative mind to confer any. It only recognized an exercise
of such jurisdiction as is conferred by law; and this section must be construed in
connection and in harmony with the law conferring jurisdiction.
We think the opinion in Hoppe v. The State is based on a misconception of the true import
of the language used in article 3151; and especially does this so appear when construed
in connection with article 3183. The latter article reads as follows: "An appeal may be
taken by the defendant in every case where judgment of conviction has been rendered
against him in the district court," etc.
This is the law, and all of the law, which gives the right of appeal in this class of
cases. By its very terms the appeal only lies from the judgment of conviction
"rendered;" not from the judgment overruling the motion for a new trial; nor from
the verdict of the jury; nor from any part of the proceedings in the case. The very
language of article 3183 is its own best interpretation. What language can be
clearer or more conclusive?
Now, in view of the language used in article 3183, what is the true intent of article
3151? This latter article reads as follows: "When, from any cause whatever, a verdict
of conviction has been returned, and there is a failure to enter judgment and pronounce
sentence during the term, the judgment may be entered and sentence pronounced at the next
succeeding term of the court, unless a new trial has been granted, or the judgment
arrested, or an appeal has been taken."
A proper analysis of the above language clearly develops this meaning: When, for any
cause whatever, after a verdict of conviction has been returned, there is a failure
to enter judgment, the judgment may be entered at the next succeeding term of the court,
unless a new trial has been granted, or the judgment has been arrested; and if there
is a failure to pronounce sentence during the term, the sentence may be pronounced at
the next succeeding term of the court, unless an appeal has been taken.
Had the two failures in the district court, intended to be cured by that section, been
provided for, not in a single section and a single sentence, but in two distinct
sections, as is usual in the provisions of the code of procedure, the erroneous
construction placed by the court on article 3151, in Hoppe v. The State, would have
For the reasons set out in this opinion we are satisfied that this court should recede
from the ruling in Hoppe v. The State, and return to the former rulings on the subject
of appeals from the district court to this court.
OGDEN, P. J.
*3 I concur in the above opinion. The case is therefore dismissed for want of final
The cases of Smith and Fulcher v. The State, Nos. 1688 and 1689, will be dismissed,
for the reasons set forth in this opinion.
WALKER, J., dissenting.
It is not my purpose in writing a dissenting opinion to weaken or unsettle by criticism
the opinion of the majority of the court rendered in this case. The majority of the
court have boldly overruled the case of Hoppe v. The State, following, as we are told,
the previous rulings of the court. I am unable to find that the precise point raised
in this case has ever been adjudicated in any criminal case decided before Hoppe v. The
State. In Shultz v. The State, 13 Tex. 401; Burrell v. The State, 16 Tex. 147; in Calvin
v. The State, 23 Tex. 577, and in perhaps one or two earlier cases, in none of which
does it appear that an appeal had been taken from a judgment overruling a motion for a
new trial or a motion in arrest of judgment, the courts have held that an appeal would
not lie to the supreme court on a verdict of conviction where no final judgment had
been entered. I believe I have thus fairly stated the doctrine of the earlier cases.
I will restate it; it is this: An appeal will not lie from a verdict of conviction
where no final judgment has been entered. I will place this doctrine in juxtaposition
with the statute-- art. 3151, Pas. Dig. The article reads thus: "Where, from any cause
whatever, a verdict of conviction has been returned and there is a failure to enter
judgment and pronounce sentence during the term, the judgment may be entered and
sentence pronounced at the next succeeding term of the court, unless a new trial
has been granted, or the judgment arrested, or an appeal has been taken."
It is announced in the opinion of the majority of the court that this statute confers
no jurisdiction upon the supreme court. Certainly not. I do not for one moment claim
that it does; but the constitution confers an appellate jurisdiction upon this court,
and warrants the allowance of an appeal whenever, in the opinion of any member of the
court, any error in law has been committed in the district court. Suppose, then, a
failure to enter a final judgment on the verdict of conviction is the very error
complained of. Will it be contended for one moment that a judge of this court has
no power under the present constitution to grant the appeal?
I assert it as my unqualified belief that it would be the duty of any member of
this court, regarding the final judgment, so-called, as a sine qua non, to grant
the appeal for this reason alone, and it would be the duty of the court to correct
the error. But what is the force of article 3151? It provides that a final judgment
may be entered at a succeeding term of the court where it has been omitted at the
trial term, if a new trial has not been granted, the judgment arrested, or an appeal
taken. And suppose an appeal has been taken, then what does the legislature say? If
it is not said that nothing more shall be done in the district court until the
appeal has been determined, then the necessary action of the district court may be
had; but we may well ask ourselves what is properly to be regarded as a final
judgment in any case, and the question is fully answered in Kennedy v. Morrison, 31 Tex.
220. In delivering the opinion of the court the chief justice says: "In appealing from
the final or last judgment that was rendered in the cause, whether that judgment should
be the adjudication of the court, that the defendant go hence, etc., or that the
plaintiff have and recover, etc., or that a new trial be granted or refused to a
party applying for the same--in either of these cases the last judgment appealed
from brings up for the revision of this court all the previous proceedings or
*4 It might be insisted with much plausibility that a motion for a new trial, or
a motion in arrest, would be irregular and certainly unnecessary if no final
judgment had been entered on the verdict.
But this court would not allow an appeal, unless one or the other of these motions
had been made in the district court and overruled. Suppose, then, neither of
these motions be made in the district court where no final judgment has been
entered, and the court goes on and sentences the prisoner to the punishment to
which the jury has condemned him. This sentence will stand as a final judgment,
and in my opinion the prisoner can take no exception to it; and here, I think,
arises much of the difficulty attaching to this question. What is insisted on as
a final judgment should, under our law, be no more nor less than the sentence of
the court condemning the prisoner to suffer the penalty awarded by the verdict.
Our criminal law is peculiar. Under our system the court does not adjudge the
punishment. The jury fixes that. The judgment of the court can add nothing to it,
and diminishes nothing from it. All the court can do with it is to set it aside
and grant a new trial, or arrest it for some legal insufficiency of the record.
Is it necessary, then, in order to give force to the verdict, that the judge should
say, "I approve the verdict of the jury," or use some such unnecessary form of words,
as will indicate that the judge does what he cannot help doing?
Form, and form only, has prescribed that the judge, before the prisoner is taken to
the cell or the scaffold, shall address the prisoner, notifying him of his punishment,
and the time and manner of its execution, concluding with a benediction; but this is
the last ceremonial of the court; and if it be a judgment, it is the final judgment,
and no appeal can be taken from it; nor can it be pronounced, where an appeal has been
taken, until that appeal has been determined against the prisoner.
It was the opinion of the late presiding justice of this court, and is certainly
entitled to consideration, that the 3d section of the 5th article of the constitution
does away with all necessary controversy on this subject. The section reads thus:
"In criminal cases, no appeal shall be allowed to the supreme court, unless some judge
thereof shall, upon inspecting a transcript of the record, believe that some error
of law has been committed by the judge before whom the cause was tried."
I again recur to this, and maintain that, if it be error in law to omit the so-called
final judgment, the appeal should be allowed and the error corrected. But in attaching
the importance I do in this consideration to the foregoing clause of the constitution,
I by no means surrender the doctrine of Hoppe v. The State, 32 Tex. 389.
Here the question was fairly met, that a party convicted may appeal from a judgment
overruling his motion for a new trial, though no judgment has been entered upon the
verdict of conviction.
*5 It cannot be said that until judgment is entered on the verdict the prisoner has
no ground for a motion for a new trial, and nothing to appeal from. Such is not the
fact nor the law. The verdict of the jury fixing the measure of his punishment is
against him, and if he resist it by no motion, nor appeal, and sentence follow, his
doom is sealed. But to relieve the learned court that decided Hoppe v. The State
from any charge of inconsistency by reason of a supposed clash between Hoppe v. The
State and Lane v. Ellinger, I must examine the latter case; and though Lane v.
Ellinger is quoted as authority in the opinion of the majority of the court, I
think the most cursory examination of the case will show that it has nothing to
do whatever with the principle involved in the case at bar, and in Hoppe v. The
State. All that was decided in Lane v. Ellinger is simply that no writ of error
will lie to a refusal by a district judge to enter a final judgment in a cause.
I humbly submit that this case, thus fairly stated, gives no support whatever to
the opinion of the majority of the court. It was no doubt properly considered
by the court in Lane v. Ellinger that mandamus was the proper remedy. I submit
my opinion with all deference to the decision of a majority of the court.
ALBERT FULCHER v. THE STATE of TEXAS.
38 Tex. 505, 1873 WL 7444 (Tex.)
END OF DOCUMENT
IRA J. COX v. THE STATE.
41 Tex. 1, 1874 WL 7970 (Tex.)
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
*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.
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
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
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
*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
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
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