SUPREME COURT RECORDS PAGE 5
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Supreme Court of Texas.
*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
APPEAL from BASTROP. The case was tried before Hon. JOHN IRELAND, one of the
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.
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
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.
*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.
*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
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
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, 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
Supreme Court of Texas.
CHARLEY CLARK, FREEDMAN,
*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
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
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.
*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
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
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.
*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
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.
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
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
Supreme Court of Texas.
CALLAHAN, ALIAS W. D. JACKSON,
*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
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
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
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
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
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
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
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
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
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
*4 The judgment is reversed and the case remanded.
REVERSED AND REMANDED.
CALVIN THOMPSON v. THE STATE.
43 Tex. 268, 1875 WL 378 (Tex.)
END OF DOCUMENT