SUPREME COURT RECORDS PAGE 5

 

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Supreme Court of Texas.

ADOLPH SCHUTZE

v.

THE STATE.

October, 1867.

 

*1 In an indictment under articles 2417 and 2418 of Paschal's Digest it is

sufficient to charge the offense in the language of the statute, which reads

as follows: "Every person who shall butcher beef, for the market of any town

or village, shall keep lists of the marks and brands of all the cattle

slaughtered by him, and stating from whom purchased, and, at least once in

each month, shall return the same, verified by his oath, to the clerk of the

county court, who shall cause the same to be recorded in his office, and

keep them subject to the inspection of the public, which oath may be taken

before any person authorized by law to administer oaths; and the clerks

shall be entitled to such fees as is [are] provided by law for similar

services. Should any butcher fail to render such list for any month by the

15th day of the next succeeding month, he shall be deemed guilty of a

misdemeanor, and on conviction shall be fined not less than fifty or more

than one hundred dollars for each offense, one-half of which shall go to the

informer, and the other to the jury fund, as above provided; and, if he

return a false list, shall be guilty of false swearing, and liable to

prosecution therefor, as in other cases."

Where the defendant was indicted as "J. S.," and judgment was rendered

against him as "A. S.," the case was reversed, and the court directed to

render the judgment in accordance with the indictment and verdict of the

jury.

APPEAL from BASTROP. The case was tried before Hon. JOHN IRELAND, one of the

district judges.

The indictment charged that Julius SCHUTZE and____MILLER, whose christian

name to the grand jurors is unknown, etc., etc., did then and there butcher

beef for the market of the town of BASTROP, and that they, the said SCHUTZE

and MILLER, butchering as aforesaid, then and there failed to return a list

with the marks and brands, stating in said lists from whom they purchased

all the cattle slaughtered by them in the month aforesaid, for the market

aforesaid, verified by their oath, to the clerk of the county court of

BASTROP county, by the 15th day of the next ensuing month of June, A. D.

1866.

The defendants moved to quash the indictment, because it charged no offense

against the law, and because the charges are vague and indefinite; which

motion was overruled, and SCHUTZE plead "not guilty." The jury found him

guilty, and assessed his fine at $50. He moved an arrest of judgment and for

a new trial, which motion was overruled. The charge of the court was

general, but the facts are not given.

The verdict was against SCHUTZE. His recognizance to appear in the district

court described him as Adolph SCHUTZE. The style of the judgment is, The

State v. SCHUTZE & MILLER. The verdict, "that the jury found the defendant

SCHUTZE, guilty," etc. The judgment was to recover against Adolph SCHUTZE.

The recognizance to the supreme court on appeal describes him as Adolph

SCHUTZE. He was therefore indicted as Julius SCHUTZE, while convicted as

Adolph SCHUTZE.

 

Under Pasch.Dig. arts. 2417, 2418, declaring that every person who shall

butcher beef shall keep lists of all cattle slaughtered, etc., an indictment

which charges, substantially, that the defendant failed to return lists of

the marks and brands of slaughtered cattle showing from whom the cattle were

purchased, as required by law, negatives such a compliance with the statute

as would exonerate him, and is sufficient.

 

Where accused was indicted as "J. S.," and judgment was rendered as "A. S.,"

the case was reversed, and the court directed to render the judgment in

accordance with the indictment and verdict.

HANCOCK & WEST, for the appellant.

E. B. TURNER, Attorney General, for the state.

 

CALDWELL, J.

*2 The indictment charges that the defendant "did then and there butcher

beef for the market of the town of BASTROP, * * * and did then and there

fail to return lists of the marks and brands, stating in said lists from

whom purchased, of all cattle slaughtered by him."

The indictment is not so artistically drawn as to escape criticism, yet we

do not encounter the embarrassments which beset the counsel of defendant in

determining its legal sufficiency.

The object of the law is to compel butchers to keep a record of all cattle

slaughtered by them, with evidence of the identity of each animal, that

crime might be prevented, or detected and punished. The law prescribes what

this evidence shall consist of.

It is enacted that every person who shall butcher beef * * * shall "keep

lists" of all cattle slaughtered, with the names of persons from whom

purchased, together with the marks and brands, and such "lists," verified by

affidavit, shall be recorded by the clerk of the county court.

The lists would not be complete without these requirements. In contemplation

of law, it would be no list at all. The clerk would not be authorized to

record a partial one. It must state from whom purchased, marks and brands,

and if of one's own raising, the fact should be so stated.

From this it would seem, that to charge substantially a failure to return

lists of cattle slaughtered, as required by law, negatives such a compliance

as would exonerate the defendant, and would be sufficient.

The pleadings are all regular, and except the judgment there is no error.

Judgment is entered against Adolph SCHUTZE, a party unknown to the record,

which is evidently a mistake. For which cause it must be reversed and

remanded, with instructions to enter judgment in accordance with the

pleadings and verdict of the jury.

Reversed and remanded.

The State v. Max SOLOMONS, ordered not printed, decided the same point.

 

 

 

Supreme Court of Texas.

GEORGE JENKINS

v.

THE STATE.

October, 1867.

 

*1 While the application for continuance stated that the defendant could

prove by three women that he won the coat which he is charged with stealing

from another freedman on the day, etc. (see statement), the showing is not a

compliance with the code. Pas. Dig. art. 2987. On the first application, if

the statute be complied with, a continuance is granted, of course.

When not in accordance with the statute, it is addressed to the sound

discretion of the court.

Where the property was stolen, and the party was found in possession of it

three hours afterwards, he is, prima facie, guilty, and unless there be

proof to rebut this presumption, the verdict will not be disturbed.

APPEAL from BASTROP. The case was tried before Hon. JOHN IRELAND, one of the

district judges.

The defendant was indicted for stealing a coat. He moved for a continuance,

and on the ground that he was almost a total stranger in that community;

that he had beea in the county but a few days before he was arrested in this

case; that he had been confined in the county jail ever since he was accused

of the charge; that he could prove by three women of color that he won the

coat which he is charged with stealing from another freedman, on the day and

about one hour before he was arrested, etc.; that, being a stranger, and

having no friends or relatives in the county, he had not been able to learn

the names of the three freedmen; that he could prove that he came honestly

by the coat; expected to procure the attendance of such witnesses, etc. The

motion was overruled, but the point does hot seem to have been saved by bill

of exceptions. It was proved that the coat stolen was worth $30; that the

accused was fo!lowed, and the coat found upon his person; that he said he

had won the coat behind the livery stable with cards; but that he had ruade

contradictory statements as fo where he said he had won it.

The charge of the court was in accordance with the statute. The defendant

was found guilty, and his punishment assessed at two years in the

penitentiary. He moved for a new trial, which was overruled, and he

appealed.

 

It is error to refuse an application for a first continuance on defendant's

compliance with the statutory requirements therefor.

 

The granting of a continuance on the ground of the absence of witnesses,

when the application is based upon causes not contemplated in the statute,

rests in the discretion of the court in view of all the facts.

 

An application for a continuance on the ground of the absence of witnesses,

by a defendant charged with the larceny of a coat, stating that "he can

prove by three women that he won the coat from another freedman, on the day,

and about an hour before, he was arrested; that, being a stranger, and

having no friends or relatives in the county, he had not been able to learn

the names of the three women, but expected to procure the attendance of such

witnesses,"-does not comply with Pasch.Dig. art. 2987, requiring a first

application for continuance on such ground to state the name of the witness

and his residence, if known, or that his residence is unknown; the diligence

which has been used to procure his attendance; the facts which are expected

to be proved; that the witness is not absent by the procurement of the

defendant; and that the application is not made for delay.

 

If the court is satisfied of the relevancy of the evidence of absent

witnesses set up for a continuance, it should, on motion, grant a new trial.

A. D. MCGINNIS, for the appellant, insisted that the motion for continuance

was improperly overruled, and that the defendant was wrongfully convicted.

William ALEXANDER, Attorney General, for the state.

 

 

CALDWELL, J.

*2 We see no error in the record. The indictment is unobjectionable, and

charges the offense in the language of the statute. The application for a

continuance states, that "he (defendant) can prove by three women that he

won the coat he is charged with stealing from another freedman, on the day

and about an hour before he was arrested;" and that the names and residence

of witnesses are unknown.

This does not comply with the statute, and is

addressed to the discretion of the court. An application for a first

continuance, in the terres of the law, relieves thc court of its discretion,

and the continuance is granted as of course. Not so when the application is

based upon causes not contempiated in the statute. Then the discretion of

the court is invoked in view of ail the facts.

After trial and conviction, with a full knowledge of all the evidence, the

court is better prepared to judge of the relevancy of the cause set up for a

continuance, and, if satisfied that injustice has been done, upon motion, a

new trial ought to be awarded.

The evidence fully sustained the verdict. The defendant was found in

possession of the property within three hours after it was stolen. This is

prima facie evidence of guilt; and, unless there is some proof to rebut this

presumption, the jury were warranted in so finding.

There being no error, the judgment of the court below is

Affirmed.

 

 

Supreme Court of Texas.

CHARLEY CLARK, FREEDMAN,

v.

THE STATE.

October, 1867.

 

*1 Where, on a trial for rape, the defendant asked the court to instruct the

jury that if the prisoner procured the consent of the party ravished by

promises, the jury could not find him guilty.

The evidence being fluctuating, the instruction ought to have been given,

although the court had charged in the language of the statute.

Where witnesses stated positively that the girl ravished was over fourteen

years old, and others were of the opinion that she was only ten, a new trial

ought to have been granted.

APPEAL from BASTROP. The case was tried before Hon. JOHN IRELAND, one of the

district judges.

Charles CLARK, alias STEINER, a freedman, was indicted for a rape, for that,

etc., he did then and there, feloniously and violently, make an assault on

and upon one Ann WASHINGTON, a freed girl, and her, the said Ann WASHINGTON,

violently and against her will, and therefore feloniously, did ravish and

carnally know.

One witness swore to the evidences of violence, and that the girl violated

was a child. Another swore to her statements of violence immediately after

the act, and in her own examination the outraged girl swore to the force;

that she tried to halloo, but the prisoner put his hand over her mouth. But

on cross- examination she swore that she consented on a promise of some

candy. Three witnesses swore to the fact that she was over fourteen years of

age. It was also proved that she stated to a witness that she consented, and

by an expert that she was over fourteen years of age. The court instructed

the jury, that if she consented, and was over fourteen years of age, they

would find the defendant not guilty; if not, find him guilty. The jury found

the defendant guilty, and he was sentenced to twenty years' imprisonment in

the penitentiary. The defendant moved for an arrest of judgment and for a

new trial, which motions were overruled, and he appealed. There was a bill

of exceptions, which seems not to have been noticed.

 

On the trial of an indictment for rape, where the evidence was conflicting

with regard to consent on the part of the person on whom the alleged offense

was committed, and the court was asked to charge the jury "that if the

defendant procured the consent, etc., by promises," the jury could not find

him guilty, held, that the court should have charged the jury as requested.

A. D. MCGINNIS, for the appellant, insisted that the word "will" was not an

equivalent to the word "consent" in the indictment, and discussed the facts of the case.

E. B. TURNER, Attorney General, for the state, insisted that as the evidence

was conflicting, the verdict should not be disturbed.

 

 

CALDWELL, J.

*2 The defendant was tried and convicted of "rape," at the June term

district court for 1867.

A reversal of the judgment is sought on the ground, among others hot

necessary to notice, that the court erred in refusing charges asked by the

defendant. The general charge of the court was simply the statutory

definition of the offense, with instructions as to the punishment, if found

guilty.

The defendant's counsel asked the court to charge, "that if the defendant

procured the consent of Ann WASHINGTON * * * by promises," the jury could

not find him guilty. The evidence was very conflicting with regard to

consent on the part of the person on whom the alleged offense was committed.

There was also conflicting testimony about her age: some of the witnesses

placing it at ten, others at fourteen years.

It is in proof that the girl stated before the examining court, in her

examination in chief, that she refused the solicitations of defendant, but

upon cross-examination admitted that upon promises of reward submitted to

his embraces. Upon trial in the district court, with equal simplicity, she

denied having given ber consent, and on cross-examination admitted that she

had.

It was also in proof, that the girl had admitted several days after the

alleged offense that she had consented. Under these circumstances, we think

the minds of the jury ought to have been more particularly directed to the

gist of the offense. The charge asked by the defendant would have done this,

and should have been given.

We look in vain for any evidence to sustain the verdict, unless the jury

concluded that the person upon whom the alleged offense was perpetrated was

under ten years of age. This they could not have done without a total

disregard of the evidence, as none of the witnesses estimated her age "under

ten." Judgment reversed, and new trial awarded.

Reversed and remanded.

 

Supreme Court of Texas.

ROBERT GILL

v.

THE STATE.

October, 1867.

 

*1 The act of 4th March, 1863, was not repealed by the act upon the same

subject of 13th November.

Both acts being on the same subject, stand, so far as the latter does not

supply the former.

APPEAL from BASTROP. The case was tried before Hon. JOHN IRELAND, one of

the district judges.

The defend??nt was indicted under the act of 4th March, 1863, to regulate

the sale of beef cattle, etc., for that he butchered beef for the market,

etc., without keeping and recording lists of marks and brands, as by that

act required. By a motion to quash, and one in arrest of judgment after

conviction, the defendant raised the question as to whether the act had

been repealed by the 3d section of the act of 1866. This was the only

question decided in that case.

 

Act March 4, 1863, Pasch.Dig. arts. 2417, 2418, regulating the sale and

slaughter of beef cattle, and imposing penalties for its violation, was not

impliedly repealed by Act Nov. 13, 1866, prescribing more stringent

regulations on the same subject, and affixing a greater penalty for its

violation.

George W. JONES, for appellant, insisted that the act of 13th November,

1866, repealed the act regulating beef cattle.

No brief for the state has been furnished the reporter.

 

CALDWELL, J.

The defendant was indicted at the December term of the district court for

1866, under article 2417 of Paschal's Digest. The alleged offense was a

"failure to return lists of the marks and brands, stating in said lists from

whom purchased, of all cattle slaughtered," etc., verified by affidavit as

therein required. Trial and conviction at the June term, 1867.

It is insisted by the defendant that the act of November, 1866, on the same

subject, creates a new and different offense, and repeals the act under which

he was indicted, without substituting any penalty, which would entitle him to

a discharge.

We think not. Both acts are on the same subject, and have the same object in

view. The repealing statute only supplies more stringent rules of

registration of marks and brands, and affixed a greater penalty for its

violation. There is no error, and the judgment is

Affirmed.

 

Supreme Court of Texas.

CALLAHAN, ALIAS W. D. JACKSON,

v.

THE STATE.

October, 1867.

 

*1 When the case was called for trial the witnesses of the state were

absent, and the prosecuting attorney moved for a continuance, which the

accused opposed; the case was continued, and four days afterwards, the

witnesses having appeared, the continuance was set aside, whereat the

accused said he was surprised, and protested, but did not move a continuance

for want of witnesses. There was no error in this.

Where the charge defined theft in the language of the code, and the proof

was clear that the property was stolen in one county and sold by the accused

in another, there was no error in the charge, nor was the court obliged to

treat the statements of the prisoner, when selling the property, as

confessions.

When the record does not show whether the prisoner was present when the

verdict was rendered or not, the court will not presume that he was absent.

Where the property stolen in one county was the next day sold by the accused

in another, he saying that he had bought the property, and giving reasons,

not proved to be true, why he wanted to sell, there was no error in refusing

a new trial.

APPEAL from BASTROP. The case was tried before Hon. JOHN IRELAND, one of

the district judges.

The defendant was convicted of stealing oxen and other cattle in Caldwell

county and carrying them into BASTROP county, where he sold them.

There was a bill of exceptions, which merely recited what appeared in

motions and orders upon those motions. They gave the following facts: "That

on the 17th day of December, of this year, this case was called for trial,

and the state, by attorney, moved the court to continue this case for the

want of witnesses for the state, which application the court considered and

granted, and the case was regularly continued. That on the 21st day of this

month the counsel for the state, by motion, asked the court to set aside the

continuance of this case, granted four days before, to which the defendant,

by his counsel, excepted; because the case had been previously continued by

the state until the next term of this court, and could not re-open the case

and call the same for trial at this term of the court, because it would be a

surprise to defendant, unless he consented for the case to be re-opened,

which the defendant refused to do.

Which exceptions were overruled by the court, and forced into trial, or

required to show cause, by affidavit, why he should not be compelled to try

this case.

The cause was opened, because it was stated by the court, when the cause was

continued, over the protest of defendant, that if the state's witnesses

could be got before the court adjourned, the cause would be opened and

tried; and after the cause was re-opened defendant offered no reason why the

cause should not be tried."

*2 The facts proved were as follows:

"The state introduced, as a witness, A. L. BROCK, who testified that in the

early part of this year he missed from his pasture thirteen yoke of work

oxen; that witness examined around the pasture and found where the fence had

been let down and put up recently, and followed the tracks of the oxen, in a

northwest direction, a short distance; the tracks of the oxen were quite

plain for five or six miles, but after that he could only track them when

they crossed roads; that the weather was dry, and little impression was made

except where roads were crossed; afterwards the trail of the oxen turned in

the direction of BASTROP; that after following a whole day witness returned

home, and the next day, February 3, came over to BASTROP county; within a

few miles of BASTROP, in BASTROP county, in the edge of the Colorado valley,

witness discovered his oxen in Mr. FORT's pasture and identified them; that

witness got twelve yoke of his oxen from Mr. FORT. Witness, on

cross-examination, stated he resided west of Lockhart, in Caldwell county,

and that Blanco county was northwest from his residence. Witness, being

re-examined, stated his oxen were worth $35 a yoke. Witness also stated he

sold one yoke of his missing oxen to Mr. FORT.

A. W. FORT, a witness for the state, testified that in February of this year

the defendant, under the name of W. D. JACKSON, sold him thirteen yoke of

oxen for $150 in gold and a mule; that the next day after this sale Mr. A.

L. BROCK came to his house, claimed twelve of said yoke of oxen witness had

bought from defendant, and carried them away, and described a yoke witness

had sold to DURAND, of Austin, Texas. Witness, on cross-examination, stated

that defendant told him that he had purchased the oxen in Blanco county;

that defendant expected some friends to have met him here from Evergreen

with money to carry the oxen to a better market, and also to purchase corn

for them; that corn in the Colorado valley was worth $1 per bushel; that

defendant was out of money, and his oxen poor, and was willing to sacrifice

the oxen, as he was here, and was not able to go further with them. Witness

did not know the direction from BROCK's house to Blanco county, but knew

BROCK lived four or five miles west of Lockhart, in Caldwell county.

____ DURAND, a witness for the state, testified that he traded with Mr. FORT

for one of the yoke of oxen FORT bought from defendant; that witness was

present when Mr. FORT bought the oxen from defendant, and heard defendant

say he was compelled, on account of the scarcity of money and the fact that

the oxen were poor, the weather cold, and the oxen falling off every day, to

sell them at a sacrifice; that he (defendant) gave $30 a yoke for said oxen

in Blanco county; that at first defendant asked FORT $30 a yoke for the

oxen, but FORT refused to give that, and defendant finally sold all thirteen

yoke of said oxen to FORT for $150 gold and a mule. Witness stated he traded

for one of the yoke of oxen FORT bought from defendant, and described the

yoke of oxen as Mr. FORT described it."

*3 The court, in its charge, defined theft in the language of article 745 of

the penal code, and put the hypothesis in the proper language.

The defendant's counsel asked instructions, which treated the statements of

the prisoner to the purchaser of the oxen as confessions, which the court

refused. The jury found the defendant guilty, and assessed the punishment at

four years' imprisonment in the penitentiary.

The defendant moved in arrest of judgment and for a new trial, which motions

were overruled, and he appealed.

 

 

The record, on appeal, showed that when the cause was called for trial, the

witnesses for the state being absent, the defendant insisted upon a trial;

but a continuance was granted with the express understanding that such

continuance should be set aside on the appearance of the witnesses.

Afterwards, the witnesses appearing, the continuance was set aside, and the

defendant protested, but did not move a continuance. Held, that the court

did not err, as defendant should have made a showing if he had ground for a

continuance.

 

Where the record does not show whether the prisoner was present when the

verdict was rendered or not, the court will presume, on appeal, that he was

absent.

 

Where in a prosecution for theft the charge defined theft in the language of

the code and the proof was clear that the property was stolen in one county

and sold by the accused in another, there was no error in the charge, nor

was the court obliged to treat the statements of the prisoner, when selling

the property, as confessions.

A. D. MCGINNIS, for appellant. I. The court erred in re-opening the

continuance of the case, against the protest of appellant, and forcing a

trial of the same.

II. The court erred in refusing the charges to the jury requested by

defendant's counsel.

III. The court erred in overruling the motion of appellant for new trial and

in arrest of judgment.

IV. The court erred in receiving the verdict of the jury in the absence of

appellant and his counsel, and in not having the jury polled.

On the first point, see Pas. Dig. art. 1461; Sayles, Prac. secs. 476, 477,

478, and 527. While it is deemed the above references are sufficient to

establish the point contended for, yet the case of MCCOY v. JONES, 9 Tex.

363, determines the action of the lower court to be erroneous.

*4 On the second point, he cited the criminal code, art. 664.

On the third point, it was urged that the record did not show that the

prisoner was present when the jury returned the verdict.

The motion in arrest of judgment should have been sustained, because the

indictment is clearly defective, in not stating what Monday in March, 1866,

it was found and returned into court by the grand jury of BASTROP county, so

as to enable this court to determine whether any legal district court was at

that time held. It is also suggested the indictment is defective, because it

fails to charge directly that appellant was found with the property in

BASTROP county. But the indictment on its face charges the theft to have been

committed in Caldwell county, where he should have been prosecuted, unless he

had actually been found with the property in BASTROP county. This allegation,

being material to give BASTROP county jurisdiction, should have been expressly

charged in the language of the law. No brief for the state has been furnished to

the reporter??

 

 

MORRILL, C. J.

The first error assigned is, that the court erred in re-opening the

continuance of the cause against the protest of CALLAHAN. The record shows

that when the cause was called for trial, the witnesses for the state being

absent, the defendant insisted upon a trial, but a continuance was granted

with the express understanding that it should be set aside on the appearance

of the witnesses. When this took place, therefore, the defendant, if his

witnesses were not present, could have made a showing for continuance, if he

had any cause; but he assigned no cause, and we see no cause of error in the

court ordering a trial.

The second, third and fourth errors, to the effect that the court erred in

his charge to the jury and in refusing the charges requested, and also in

receiving the verdict of the jury in the absence of the defendant and his

counsel, can be disposed of by a statement of the fact, that the charge

given was as favorable to the defendant as the law allowed, and there was

nothing in the record showing the absence of the defendant on the rendition

of the verdict, and we cannot presume either that the court erred in this

respect, or, if it were so, that the counsel for the defendant would have

neglected to have so incorporated in the record, that it could be examined

and corrected by this court.

We see no error in the rulings and charge of the court, and the testimony

was sufficient to authorize the verdict of the jury. The judgment is

Affirmed.

 

 

COX

When the location of a county boundary is a material fact to be determined, evidence

of general reputation is admissible in criminal as in civil cases.

 

The failure of the court to give an instruction on the trial of a criminal cause,

fully embracing all the facts necessary to constitute the offense, will not be cause

for reversal, if it clearly appears from the evidence that such instruction could

not have resulted in protecting any right of the accused.

 

*1 APPEAL from Travis. Tried below before the Hon. J. P. Richardson.

Cox was indicted for theft from a house situate in Bastrop county, within four hundred

yards from the county line of Travis county. The article in the Code of Criminal

Procedure permitting the venue to be laid in Travis when the offense was committed

in Bastrop is as follows: "An offense committed on the boundary line of any two

counties, or within four hundred yards thereof, may be prosecuted and punished in

either county, and the indictment or information may allege the offense to have

been committed in the county where it is prosecuted."

The court gave in charge the statutory definition of theft, and did not instruct

the jury that the taking of personal property from the possession of one holding

it for another must, to constitute theft, be a taking without the consent of the

person so holding it; but no instruction was asked on that point, nor were

exceptions taken to the charge as given. The evidence was, however, conclusive

that the taking was without the consent either of the owner or his agent having

charge of the property.

The evidence was circumstantial, and is detailed in the opinion. Verdict of guilty,

from which Cox appealed.

Evans & Cunningham, for appellant, contended--

1. That the court did not give in charge all the law applicable to the case, and

that the judgment should be reversed, citing Pas. Dig. arts. 3059, 3060; Brown v.

The State, 23 Tex., 200.

2. That parol evidence should not have been admitted to establish by common reputation

the location of the county line between Travis and Bastrop counties; that the English

doctrine allowing it grew out of the fact that, as their county boundaries were not

established by act of Parliament, there could be no other evidence than that of general

reputation; but in the American States county boundaries were fixed by law, which, being

the best evidence, should have been resorted to.

3. That the State could not allege the offense to have been committed in Travis, and

prove it in Bastrop county.

4. That this court should take cognizance of errors apparent upon the face of the record,

though not assigned, when the same go to the foundation of the action, and especially

where the life or liberty of the citizen is involved. (Scott v. The State, 31 Tex., 410;

Campbell v. Stokes, 2 Wend., 146; Palmer v. Lorillard, 16 Johns., 343; Harrison v. Nixon,

9 Pet., 503; Jones v. Black, 1 Tex., 529; Rankert v. Clow, 16 Tex., 13; Hollingsworth v.

Holshousen, 17 Tex., 47; Wetmore v. Woodhouse, 10 Tex., 33; Salinas v. Wright, 11 Tex.,

577; Earle v. Thomas, 14 Tex., 583; Pettus v. Perry, 4 Tex., 488; Petty v. Cleveland,

2 Tex., 405.)

George Clark, Attorney General, for the State.

 

DEVINE, ASSOCIATE JUSTICE.

*2 The defendant was indicted in the county of Travis; indictment charging that, on

the 7th day of February, 1874, the accused, in said county and State, did then and there,

in the county of Bastrop, within four hundred yards from the county line of Travis

county, unlawfully and fraudulently take from the possession of R. T. Hill, "and out

of the dwelling-house occupied by said Hill," certain moneys belonging to "W. H.

Caldwell, without the consent of the said Hill, the person having possession of said

money, and with the intent," & c., &c.

The jury found the accused guilty, as charged, and assessed his punishment at five years'

imprisonment in the penitentiary.

The defendant's motion for a new trial was overruled, notice of appeal given, and the case

is presented for revision on the following assignments of error: "That the court erred

in not instructing the jury that the taking of personal property from the possession of

one holding it for another must be a taking without the consent of the person so holding

it." The charge of the court in this respect might have been fuller. The omission in

this case is, however, not material; it was not absolutely necessary for the protection

of any right which the accused might have. The evidence of W. H. Caldwell, the owner of

the money charged to have been stolen, and of R. T. Hill, in whose possession it was at

the time of the theft, is positive on this point; both witnesses state they did not give

their consent, and the defendant made no proof contradictory of this evidence.

The second assignment, "that the court erred in instructing the jury that general

reputation of the location of the county line is evidence of such location," suggests

no real error.

Mr. Greenleaf, in his treatise on Evidence, vol. 1, p. 152, states the rule as follows:

"In matters of public interest all persons must be presumed conversant, on the principle

that individuals are presumed to be conversant in their own affairs; and as common

rights are naturally talked of in the community, what is thus dropped in conversation

may be presumed to be true. It is the prevailing current of assertion that is resorted

to as evidence, for it is to this that every member of the community is supposed to be

privy and to contribute his share. Evidence of common reputation is, therefore, received

in regard to public facts, * * * on ground somewhat similar to that on which public

documents not judicial are admitted, namely, the interest which all have in their truth,

and the consequent probability that they are true."

Appellants in their brief contend that the English rule as to common report, or

traditionary evidence in proving boundaries, and, as in this case, the boundary line

between the counties of Bastrop and Travis, "being handed down by tradition from

generation to generation," was allowed "in accordance with the well-known principle

of the law of evidence, that it was the best evidence the nature of the case admitted

of;" but that "this doctrine is not applicable to this country, especially to the

newest of the American States." In Noyes v. Ward, 19 Conn. Rep., p. 268, in an action

of trespass vi et armis, where defendant assaulted "the city highway surveyor," for

interference with the land of defendant, the court held that such evidence, to show

a moving in of defendant's fences twenty-one years before, was proper, and say,

"Proof of general reputation was admissible in this case for the purpose of showing

the existence and extent of the highway in question."

*3 In Boardman et al. v. The Lessees of Reed and Ford, 6 Peters, 328, Justice McLane,

in delivering the opinion, says: "That boundaries may be proved by hearsay testimony

is a rule well settled, and the necessity or propriety of which is not even questioned."

"Landmarks are frequently found of perishable materials, which pass away with the

generation in which they are made; by the improvement of the country, and from other

causes, they are often destroyed. It is therefore important in many cases that

hearsay or reputation should be received to establish ancient boundaries."

In Ralston v. Miller, 3 Rand., (Va. Rep.,) p. 44, the question grew out of the location

of a building on the corner of a street in the city of Richmond, and the controversy was

whether ancient use, and general reputation of that use or occupation, should on the

trial outweigh the depositions and survey of a surveyor as to the true line. The court

said "that ancient reputation and possession were entitled to infinitely more respect

in deciding on the boundaries of the lots than any experimental surveys." In the

American notes to 1 Phillips & Arnold on Evidence, from page 220 to 227, the citations

from decisions of the courts of New Hampshire, Massachusetts, Connecticut, New York,

Pennsylvania, Maryland, Virginia, North and South Carolina, Tennessee, and other States

show that evidence of hearsay or general reputation to prove boundary lines has been

extended quite as far in those States as in the English courts.

Mr. Greenleaf, in his work on Evidence, in a foot-note, pages 167 and 168, says: "The

admission of traditionary evidence in cases of boundary occurs more frequently in the

United States than in England," and that "the general practice in this country in the

admission of traditionary evidence as to boundaries seems to agree with the common law,

as stated in the text."

The boundary lines of Travis and Bastrop were shown by the evidence to be less than four

hundred yards from the house from which the money was charged to have been stolen. The

testimony of R. T. Hill on this point is as follows: "From where common report in the

neighborhood says that the line between Travis and Bastrop counties is, is two hundred

and fifty yards from my house, from which the money was taken; I have stepped the

distance." This line had been in existence nearly twenty-eight years, and acknowledged

as the dividing line. There is nothing in the cross-examination of this witness, neither

is there any evidence in the statement of facts, that either weakens or contradicts

the evidence for the State on the question of the county line.

The 3d assignment of error, "that the court erred in not granting a new trial, and in

overruling the defendant's motion for a new trial," is based on the grounds set out in

the motion for a new trial, which are as follows: "The verdict of the jury is contrary

to the law as given in the charge of the court. The verdict of the jury is contrary to

the evidence as adduced on the trial of this cause. The verdict of the jury in assessing

the punishment of defendant at five years in the penitentiary is cruel and excessive."

*4 The first ground for a new trial it is not necessary to consider. The second, that

the verdict of the jury is contrary to the evidence, does not appear to be borne out

by an examination of the statement of facts in the record.

The defendant was indicted for stealing from the dwelling-house and possession of

R. T. Hill, and without his consent, one hundred and sixty dollars, the property of

him, I. C. Caldwell. The uncontradicted evidence of the witness proved that the money

was in the trunk, and it locked, when the white family went to church in the morning;

on their return, in the evening, Mr. Hill, the owner of the trunk, unlocked it, and

missed the one hundred and sixty dollars, mostly in silver, of Caldwell's, and one

hundred and forty dollars in gold and twenty in silver belonging to himself. The

witness, Caldwell, learning that defendant had been there, started next morning,

traced the accused to Webberville, and there learned from the ferryman that the

accused had crossed the river at the ferry the evening before. Witness went on to

the railroad, learned that he had gone down on the last train, followed down and

arrested defendant at Hempstead, in Austin county; carried him to this city, and

delivered him to the sheriff of Travis county. The accused had on his person when

arrested two hundred and ninety-three dollars and forty-five cents, ($293 45,)

chiefly gold, and among the keys found in his possession at the time of his arrest

was one which unlocked the door of Mr. Hill's house. The evidence showed further,

that he had been in the employ of Mr. Hill a short time; that he told Hill he had

no money; that he received his wages from time to time in small sums; that when

discharged there was coming to him on his wages only the trifling sum of five dollars

and twenty-five cents. The negro woman, Betty, testified that, having gone from the

kitchen to her house while the white family were absent at church, she found the

defendant changing a portion of his clothing; that he accompanied her to the kitchen,

and had something to eat; that she was in the kitchen when he came to her house;

how long defendant was there before she saw him witness could not tell; he walked

about the yard; witness saw him off and on about every ten minutes; did not see

him go into Mr. Hill's house; he stayed there about an hour; she saw him when he

left the premises. This witness stated that defendant told her on the day referred

to "that he was going to Austin to gamble; that he had in his life won money at

playing cards, and that he intended to try it again." Witness had frequently seen

the keys found on the person of the accused; they belonged to him. Defendant told

her that the door-key (which unlocked the door of Hill's house) belonged to his

father's door, and was one that he had before he left his father's house. This

witness stated "there were three families of colored people living on the premises

outside of the yard palings," and within a few hundred yards of Mr. Hill's house

there were as many as twenty or twenty-five colored people living." She further

stated that two colored men came into the yard that day, and it was customary for

them to do so. This embraces all the material facts in the case, and, taking them

in their regular and necessary order, they form the links of an unbroken chain of

evidence that encircles the defendant, and from which he has not attempted to escape

by explanation or opposing evidence; and from the ability and interest displayed in

his behalf by his counsel it is reasonable to presume that if evidence existed it

would have been produced, or an effort made to obtain it.

*5 It is true, as stated in the brief, that some other person residing in the

immediate neighborhood may or might have taken the money; but applying to the

evidence in this case the tests which men apply when endeavoring to form a final

judgment on any of the important transactions of ordinary life, every conclusion

must be that the defendant was guilty as charged in the indictment.

The evidence shows him to have been well acquainted with the premises. Among the

keys found on his person is one which unlocked the door of the house; the

explanation is that it belonged (from his statement) to his father, and was the

door-key of his father's house. What reason there was for his carrying this key

with him while in the employment of R. T. Hill, and why he carried it away to

Hempstead, is not shown. It could not be for its value, and it certainly was

not for legitimate use. On the day of the theft he makes his visit to the house

or premises of Mr. Hill. And for what purpose did he remain and loiter around

the yard for an hour? Here he is found with a key to open the door in his possession,

and evidently staying there to find an opportunity to do so unobserved. The trunk

containing the money is in the room, and the key to unlock the trunk hanging with

a bunch of household keys in the room in their usual place. On that day the money,

about three hundred and twenty dollars, in gold and silver, is stolen from the

trunk. Defendant told the witness Betty on that day that he was going to Austin;

yet he crosses the river that evening at Webberville, takes the train going down

instead of up the country, and is arrested at Hempstead. Upon his person is found

two hundred and ninety-three dollars and forty-five cents, ($293 45,) principally

in gold, being about the amount stolen, after deducting traveling expenses, &c.,

&c. The question may be asked, where did he obtain this amount; was it by honest

industry, or gaming during a week or two, or at any time previous to his arrest?

He does not account nor attempt even to account for it, and his own statements show

he had no money when in Hill's employ or when he left, save $5 25. Taking, then, all

these facts--his knowledge of the premises; his visit there during the absence of

the family; his loitering around the house during an hour, to the cook's knowledge,

and how long before she found him in her house she does not know; his telling her he

was going to Austin, and his leaving the neighborhood, passing through Bastrop and

Washington counties, and arrested at Hempstead, in the direction opposite to that he

stated he was going; among his keys one found that unlocked the door of the house

from which the money was stolen, the key not belonging to him, and the only fact

connected with its possession that he told the witness it belonged to his father's

house; without funds when he was discharged by Mr. Hill, and the day after the

theft with two hundred and ninety-three dollars and forty-five cents ($293 45)

in his possession, a sum nearly equal to the amount stolen--against these facts

not one word of evidence was offered to break or weaken their force against him.

*6 All the facts and circumstances of this case, when taken together, were sufficient

to lead the mind of the jury to the deliberate conclusion that the accused, and no

other person, committed the offense charged. There was therefore no error in refusing

a new trial.

That the verdict is cruel and excessive in assessing the punishment at five years in

the penitentiary is not apparent. The jury had the exclusive power to determine the

amount of his punishment within the periods declared in the Penal Code; having done

so, it is not a matter of revision.

The judgment is

AFFIRMED.

Tex. 1874.

IRA J. COX v. THE STATE.

41 Tex. 1, 1874 WL 7970 (Tex.)

END OF DOCUMENT

 

==========================

 

A statement in the concluding argument by the district attorney, insisting that the

fact that the acting justice of the peace held accused to bail was evidence that the

justice thought him guilty, is a reversible irregularity.

 

 

In an indictment for theft of several articles of the aggregate value of over $20, it

is sufficient to allege such aggregate value. It is not necessary that the separate

value of each article be set out.

 

 

To convict upon an indictment for theft of several articles, where the aggregate value

only of such articles is alleged, the testimony must show the theft of all of the

articles alleged to have been stolen.

 

 

 

On trial of an indictment for theft, a charge that mere possession of property recently

stolen is prima facie evidence of theft, which casts upon the defendant the necessity

of explaining such possession, is error; the rule being that the possession of property

recently stolen is evidence against the accused, which may be considered by the jury

in connection with the other testimony in the case.

 

*1 APPEAL from Bastrop. Tried below before the Hon. J. P. Richardson.

Calvin Thompson was indicted for theft of "four barrow hogs and two sow hogs of the

aggregate value of thirty dollars."

On the trial the owner of the hogs testified that his "hogs were missing about first

of April, 1874. Some time about the first of July the two sows came home without the

others and in the mark of the defendant."

* * "When the two sows came back I told Jim Williams, a freedman, who was living with

me, to go to the defendant's house and look for my hogs. In a day or two Williams told

me he saw four of my hogs in a pen on the premises of the defendant. I then applied for

a search-warrant and went to defendant's house. This was about 6th July; found four hogs

in defendant's pen, being the four barrows described in the indictment."

There was a conflict in the evidence as to ownership. Thompson's claim to the hogs had

been public, and no attempt at concealment of the hogs was shown. No other evidence was

given as to the two sows.

M. W. Trigg, for defendant, testified that some time in the spring of 1874 defendant came

to witness for advice about a lot of his hogs that had come up with their mark changed.

Witness advised him he had better go slow about taking hogs--to put up the hogs and keep

them until somebody came and claimed them, in which event he could try the right of

property in the hogs. This was before the arrest.

H. J. Wamel, for defendant, testified that he was a justice of the peace in Bastrop

county; that about the last of March or first of April witness went to defendant's

house to see about the election, which was soon to come off; while there defendant

called the attention of witness to and asked witness to look at some of his hogs,

the marks of which had been recently changed. The defendant asked witness what he

must do about them. Witness told defendant to put them up in a pen and let the person

who had changed the mark come and claim them; that in that way the party could be

caught and prosecuted. These hogs were the same described in the indictment.

The judge, after defining theft and its punishment, charged the jury as follows: "If

hogs are going at large in their range, they are in possession of the owner, and if they

are taken from the range, they are taken from the possession of the owner.

"Possession of property which has been recently stolen is prima facie evidence of theft,

and it devolves upon the defendant to explain such possession so as to rebut that

presumption or so as to raise a reasonable doubt in your minds of his guilt.

If the defendant took the hogs in good faith, believing them to be his own, then he

is not guilty of theft, and you should return a verdict of not guilty."

The defendant asked the following instructions:

*2 "A preponderance of testimony in favor of the State in a criminal prosecution for

theft as to the title to the property is not sufficient to warrant a conviction.

But when there is a conflict of testimony relative to the title in order to convict

the defendant of theft, the State must show beyond a reasonable doubt that the

defendant took the hogs in the indictment not only unlawfully but fraudulently."

Which was refused by the judge because "sufficiently given in the general charge,

so far as it applies to this case."

In the concluding argument by the district attorney it was insisted that the fact

that the other witness, Wamel, acting justice of the peace, held the witness to bail,

was evidence that said Wamell thought him guilty, to which the defendant objected

upon the ground that the argument was not fair and legitimate, as the defendant

could not reply, and appealed to the court, but the court in the presence of the

jury told the district attorney to proceed.

The jury found the defendant guilty, and assessed his punishment at two years'

confinement in the penitentiary; upon this, judgment was rendered. Motions for

new trial and in arrest of judgment were overruled and defendant appealed.

Jones, Sayers & Russell, for appellants.

A. J. Peeler, Assistant Attorney General, for the State.

 

 

MOORE, ASSOCIATE JUSTICE.

Whenever the value of the property alleged to have been stolen is an element for

determining the grade of the offense or the extent of its punishment, it is

unquestionably necessary to allege in the indictment the value of the stolen

property. Obviously, therefore, when the difference between grand and petit larceny

is distinguishable merely by the value of the property stolen, not only must its

value be stated, but where several articles are stolen, unless the value of each

article stolen is alleged instead of the aggregate value of the whole, if there

is a failure in the proof of the larceny of some of them, a general verdict would

not be justified by the evidence or warrant a judgment, because in such case the

indictment would not show the value of the articles proved to have been stolen

or the grade of offense of which the defendant should be adjudged guilty. It is

therefore generally customary, and is certainly more prudent, to allege the

separate value of the articles stolen, rather than to charge merely their

aggregate value. Still, if the indictment is in all other respects sufficient,

on sound reason it cannot be held to be defective merely because it alleges the

aggregate value instead of the several individual values of the articles charged

to have been stolen. That under such character of indictments parties may escape

conviction for the lesser grade of offense, is an objection to the policy, and

not to the legal sufficiency of such indictments.

But while we do not think the motion to arrest the judgment on this ground should

have been sustained, we think the application for a new trial should have been

granted, because the verdict is not warranted by the evidence. In all ordinary

criminal cases it is said that a general verdict of ""guilty" is a finding for

the State of everything which is well charged in the indictment. Thus, it finds

that the defendant stole every article specified in the indictment, and that they

are of the value charged. If the evidence is not sufficient to warrant these

conclusions, then it cannot be said that a general verdict which imports them

is justified by it or should be sustained. In this case there certainly can be

no pretense that the testimony in the record will warrant the conviction of

appellant for stealing the two sows. "That they came home some time about the

first of July in the mark that defendant gives," which is all the testimony,

is altogether insufficient to sustain the verdict as to them, is too obvious

for comment. Yet the only testimony as to value was with reference to the

aggregate value of all the hogs as laid in the indictment. And even as to the

four barrow hogs, while there is much and strongly conflicting testimony as

to which of the claimants was the owner of them, there is little, if any, credit

to be given to appellant's witnesses, which warrants the belief that they were

fraudulently and feloniously taken by him.

*3 In view of the facts of this case and the issue presented by them, there was

error in the charge given by the court as well in its refusal to give that asked

by the defendant. When property is shown to have been recently stolen and there

is no question as to its title, but the point in dispute is whether the defendant

is the thief, unquestionably proof of possession of the property by the defendant

shortly after it was stolen may be adduced as evidence tending to prove defendant

guilty of the theft. But even then it is not strictly correct to charge the jury

that mere possession of property recently stolen is prima facie evidence of the theft,

which devolves upon the defendant the necessity of explaining such possession, so as

to rebut the presumption or raise a reasonable doubt in the minds of the jury of

defendant's guilt.

Such charge reverses the rule as to the burthen of proof, and transfers it from the

State to the defendant. The charge in effect tells the jury, if defendant is shown

to have been in possession of the stolen property, they should find a verdict against

him, unless he can rebut the presumption or raise a reasonable doubt in their minds of

his guilt, while the true rule is that the possession of property recently stolen is

evidence against the accused, which, like all other evidence, is to be taken and

considered by the jury in connection with the other testimony in the case. And unless

the jury, on consideration of it in connection with the other evidence before them,

are satisfied of the guilt of the accused beyond all reasonable doubt, they should

acquit him. In this case there was no controversy in regard to the possession of the

four barrows in question. Appellant not only admitted possession, but claimed them

as his property, and supported his claim by strong testimony tending to establish its

truth. Under such circumstances, the issue upon which the case should have been

decided was whether the hogs, if not his property, were taken by the defendant,

believing them to be his, or whether he took them fraudulently and with the intent

to deprive the owner of them. This issue is clearly presented in the charge asked

by appellant and it should have been given.

The character of discussion indulged in by the district attorney in his concluding

address to the jury, as shown by the bill of exceptions, was not justified or

warranted by the evidence in the case or what had been said by appellant's counsel,

to which it is claimed to have been a legitimate response. And such line of argument

should not have been insisted upon by him or allowed by the court when objected to

by defendant's counsel. But whether it was, notwithstanding the charge of the court

in reference to it, given at the instance of defendant, calculated to do him such

injury as should, if it stood alone, require a reversal of the judgment, need not

on the present occasion be decided, as this must be done for the reasons already

stated. We deem it, however, of sufficiently grave importance and so highly

objectionable as to require the decided condemnation of the court. Zeal in behalf

of their clients, or desire for success, should never induce counsel in civil

causes, much less those representing the State in criminal cases, to permit themselves

to endeavor to obtain a verdict by arguments based upon any other than the facts

in the case and the conclusions legitimately deducable from the law applicable to

them.

*4 The judgment is reversed and the case remanded.

REVERSED AND REMANDED.

Tex. 1875.

CALVIN THOMPSON v. THE STATE.

43 Tex. 268, 1875 WL 378 (Tex.)

END OF DOCUMENT