Gose v. State

Winkler, J.

The indictment charges the appellant with theft of a yearling, the property of William Benshaw, averred to have been committed in Wise County, on April 3,1878. At the September term of the District Court, — to wit, on October 8, 1878, — the accused was tried on a plea of not guilty, found guilty by a jury, and his punishment assessed at confinement in the penitentiary for two years, and judgment was entered accordingly. A motion for a new trial was made and overruled, and this appeal taken.

The following are the errors assigned : —

1. That the court failed to charge the jury “ all the law applicable to the case.”

2. The court failed to “ define the offence of theft,” in the charge.

3. Error in refusing to give to the jury special charges asked by the defendant, as shown by bill of exceptions No. 2.

4. The court erred in refusing to exclude the testimony of the witness Shoemaker, as shown by bill of exceptions No. 1.

5. The court erred in his remarks to and conduct towards the jury, as shown by bill of exceptions No. 3.

6. The court erred in receiving and recording the verdict of the jury, as shown by said bill of exceptions No. 3.

7. The court erred in forcing the jury to agree upon a verdict at so late an hour of the night, as shown by said bill of exceptions No. 3.

8. The court erred in making the remarks mentioned in said bill of exceptions No. 3, by which the jurors “ Hobson et al.” were influenced, as shown by their affidavits attached to the defendant’s motion for a new trial.

9. The court erred in entering the judgment of conviction herein.

10. The court erred in overruling the defendant’s motion for a new trial.

It is not proposed, in this opinion, to consider separately the numerous errors assigned in the order presented, but only to so group them together as to present the questions of law involved, and to respond, so far as deemed necessary, to the views presented by counsel in argument, and necessary to a proper determination of the case as here presented by the record.

The first, second, and third supposed errors assigned call in question the sufficiency of the general charge, and the necessity of the charges asked by the accused. It was, unquestionably, the duty of the judge who presided at the trial to give to the jury trying the case such written instructions (it being a felony case, a written charge was required) as that, applying the facts to the law, the jury could determine the question raised by the pleadings, — whether the accused was guilty of the crime charged against him or not. This was properly done by the charge given; which, whilst it did not attempt in so many words to ‘6 define the offence of theft,” did inform the jury what facts were necessary to be proved in order to warrant the jury in convicting the accused of the offence charged in the indictment, and to which he had pleaded not guilty. The following extract from the charge of the court will show that the jury were thereby properly instructed as to all the constituent elements of the crime of theft as defined in the Code, and as fully as if the article defining the offence had been copied into the charge.

They were instructed as follows on this branch of the subject : “If you believe from the testimony that the defendant, Biddleman Gose, on any day prior to and within three years of the third day of October, 1878, in the county of Wise, and State of Texas, did steal, take, and carry away, from and out of the possession of William Renshaw, the yearling mentioned in the indictment, and that said yearling was the property of said Renshaw, and was taken from the possession of said Renshaw without his consent, by defendant, with the fraudulent intent on the part of the defendant to deprive the said William Renshaw of the value of said yearling, and to appropriate the same to the use and benefit of the defendant, then you will find the defendant guilty, and assess his punishment,” etc. The charge in this respect was sufficient (Keef v. The State, 44 Texas, 582), and is a sufficient compliance with the requirements of the Code of Procedure, which makes it the duty of the judge to “ deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to" the case,” and whether asked to do so or not. Art. 594 (Pasc. Dig., art. 3095).

In a subsequent portion of the charge, the jury were properly instructed as to the presumption of innocence, and the reasonable doubt, and were also told that they were the exclusive judges of the credibility of the witnesses.

Of the charges asked by the defendant, and which the judge refused to give, the first is as follows : “ Before the jury can consider the fact of possession of the property charged to have been stolen, as an inculpatory fact, it must be shown that the possession was recent.” The principle of law enunciated in this instruction is not correct. Ordinarily, the fact is, that statements made by one who is found in possession of property which has been recently stolen may be given in evidence, to be considered by the jury, in connection with the other testimony in the case, in determining as to the guilt or innocence of the accused. Watkins v. The State, 2 Texas Ct. App. 73, and cases there cited. But that is not the question here presented. The instruction asked did not state the law correctly, nor was it applicable to the facts proved on the trial. If this was the law, as it was here claimed, any one, if believed, could manufacture evidence which would acquit him of any charge of theft, or any other unlawful acquisition of the property of another.

The substance of the second paragraph of the charge asked by the defendant was embodied in the general charge, and it was not necessary that it should be repeated. The general charge embraced “ every material allegation in the indictment,” necessary to be proved, and all that was requisite on the subject of reasonable doubt.

In the third paragraph, the court was asked to charge that “ every man’s character is presumed to be good until the contrary is shown.” We fail to discover that the general character of the accused was involved in the trial of the case. The State could not, and the accused did not, put it in issue; the investigation seems to have been confined to the case on trial; no mention is made of the general character of the accused in the statement of facts. All the presumptions of law which the accused was entitled to Under the circumstances were embraced in the general charge, to the effect that “ the defendant is presumed innocent until his guilt is established to the satisfaction of the minds of the jury, beyond a reasonable doubt.” The' judge was not required, and it would have been improper for him, to have encumbered the charge with an issue not made by the pleadings, or arising upon the testimony. There was no error in refusing to give the instructions asked by the defendant.

All the legal principles involved in the fourth, fifth, sixth, seventh, and eighth supposed errors assigned are more clearly and fully presented in the several bills of exceptions alluded to in the several assignments of error, and will be noticed, so far as deemed material, in connection with the bills of exception set out in the transcript.

, In bill of exceptions No. 1, it is recited, in substance, that, on the trial, counsel for the prosecution asked the witness Shoemaker if he ever arrested the defendant; to which the witness answered that about last May he (witness) went to Denison, in Grayson County, and got the defendant, who was there in the calaboose. This being all the testimony of said witness, defendant’s counsel moved the dourt to strike out all of said witness’s testimony, because it “ had not been connected in any way with the transaction here being inquired into, and was immaterial in itself, and improper; ” which the court refused to do. As a matter of practice, the proper motion would have been to exclude the testimony from the jury, instead of moving to strike it out; but this is of little moment.

Generally, proof of an isolated, independent fact, not bearing upon the issue being tried, would be inadmissible; and, if admitted on the idea that it would be properly connected by other testimony, and not so connected, it would, on motion, be excluded from the jury. Such questions are largely within the discretion of the court. If the evidence here objected to was introduced to raise the presumption of guilt arising from flight, the court did not err in permitting it to go to the jury, in connection with other testimony, for the consideration of the jury. Whether it was so connected, or not, does not very clearly appear. Whether the testimony was admissible or not, it is not deemed of sufficient importance to have any appreciable value in determining the issue involved, and is not sufficient to cause a reversal of the judgment. Boon v. The State, 42 Texas,, 237.

The second bill of exceptions relates to the charge of the court, and this has already been considered, and the questions raised passed upon herein.

In bill of exceptions No. 3, several questions of practice are presented in the several matters complained of. It appears from the bill of exceptions that the jury had some difficulty in agreeing on a verdict, and became impatient to be discharged from the consideration of the case. On first coming into court, they informed the judge that they could not agree, and being asked whether they disagreed as to matter of law or fact, replied that they disagreed as to matter of fact; and the court declined to excuse them from the further consideration of the case. This seems to have taken place about forty-five minutes past ten o’clock, p. m. At about eleven o’clock on the same night they again appeared before the court, and informed the court that they had agreed upon a verdict, which was read. And here the bill of exceptions recites: “ Whereupon the defendant demanded that the jury be polled; * * * the court ordered the list of the jury to be called, and the name of Neri Hobson being first called, and he being asked, ‘ Is this your verdict?’ answered, ‘It is, because it had to be.’ The court then informed the juror that he had no power to force any juror to agree to a verdict, and that the juror must say then whether this was his verdict or not; whereupon the juror replied that ‘ it is, but not without doubts.’ The court required the juror to say whether the same was his verdict or not; to which he answered it was. The other jurors answering that it was their verdict, the court then asked the jury collectively if they all agreed to the verdict; which was assented to. The court then approved and received the same. To which action of the court, and the action of the court in telling the jury that some jury must pass upon this case, and as well them as any, and the action of the court in refusing to discharge the .jury, and in keeping said jury together at so late an hour, defendant excepts.”

In this connection, it may be noticed that there are appended to the motion for a new trial affidavits of the juror Hobson and two others, intimating that they had been coerced into returning an unwilling verdict, by the requirements of the judge. The application for a new trial was overruled. This ruling is the tenth error assigned. The ninth and only remaining error assigned is also in relation to the same subject.

After a careful consideration of the several grounds of complaint set out in the bills of exception and in the motion for a new trial, we are of opinion that the judge acted in the premises within the bounds allowed in the exerelse of a proper discretion, and that no such error was committed as would warrant a reversal of the judgment rendered against the appellant. The most remarkable feature is the very commendable patience manifested by the judge in dealing with a refractory jury. The judgment of the District Court is affirmed.

Affirmed.