28 Tex. Ct. App. 5 | Tex. App. | 1889
This conviction was for carrying a pistol. The appellant was indicted in the District Court and the papers certified down to the County Court. When the case was called for trial in the County Court counsel for appellant moved to quash because there was printed on the back of said indictment the following: “ Certified copy of indictment, class No. 2.” This endorsement was not signed by any one. It is contended that this endorsement shows that the indictment sent to the County Court was a copy. Not being signed by the district clerk or authenticated in any manner we think it shows nothing.
Upon inspection of the statement of facts one would be at a loss to de
All the facts objected to by appellant and set forth in bills bios. 12,13, 14, and 15 were irrelevant and absolutely foreign to the issue presented in the indictment. The learned judge gives the following reasons for holding them competent: “ Attention is called to the statement of facts to show that they were a part of the res gestee—that the parties named, John and Julius Baker, were apparently acting in concert to the accomplishment of a certain design.”
Res gestee of what? To the pistol transaction? Certainly not; for the pistol transaction occurred after the acts and sayings complained of had transpired, blor did these objectionable matters have the slightest relation to or connection with the subsequent carrying of the pistol.
Reason 2: Because “ acting in concert to the accomplishment of a certain design.” What design? The taking and carrying away of the little daughter? Or was it the intention and purpose of the Bakers to force Olive to accuse Mrs. Julius Baker of infidelity? Or was it the common purpose to seize the valuable papers belonging to Mrs. Baker? Or were the Bakers acting in concert in carrying the pistol?
Looking to the statement of facts we can clearly see a common purpose on the part of the Bakers with reference to the child, and there are strong circumstances tending to show that they acted together in requiring Olive to make the accusation against Mrs. Baker. But the facts complained of have not the slightest bearing upon the carrying of the pistol, and there was error in admitting them in evidence, because (1) irrelevant, and (2)strongly calculated to prejudice the case of appellant.
The charge is very voluminous, containing a great amount of foreign matters. With a view to another trial we will make these observations:
If appellant had on his person a pistol while in search for Olive, or had a pistol on his person while at Julius’s place, he would be guilty. But if Julius Baker had left the pistol in the barn, and appellant merely went to the barn, got it, and handed it to Julius, he would not be guilty.
The judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.
