Barbee v. State, No. 2288

No. 2288 | Tex. App. | Mar 12, 1887

From this citation it evidently appears that in any and all cases, owing to the peculiar provisions of our code bearing upon this subject, the indictment will be sufficient if it contains or follows the language of the statute defining the offense. The argument of the learned judge has for its object this conclusion reserved by defendant, which recites as follows: “T. F. Briscoe was allowed by the court, over objections of the defendant, to testify as follows: ‘John Barbee came with Meazel in a buggy to my house on Sunday evening after the assault, and wanted to compromise the matter. I told him to wait till I got on the stand; that was the only way I would compromise. John and Billie Barbee came again to my house last May. Billie Barbee asked me how much money it would take to compromise. He said he came there for the defendant.’” The defendant was not present when these overtures for a compromise were made. Defendant objected to this evidence upon the ground that it was hearsay, etc.

In an explanation appended to the bill of exception the trial judge gives as a reason for admitting said testimony that a part of the conversations between the witness, Briscoe and John and Billie Barbee had been drawn out by the defendant on the cross examination of said witness, and that, on re-examination of the witness by the State, it was competent to prove the whole of said conversation; and he refers to the statement of facts in support of his ruling. Upon examination of the statement of facts, it does not appear that any portion of said conversations was drawn out by the defendant. On the contrary, said statement shows that the only conversations, or parts of conversations, testified to by the witness Briscoe were drawn out by the prosecution on the re-examination of said witness.

We are of the opinion that this testimony was inadmissible. It was purely hearsay. It was not shown that the defendant had authorized John or Billie Barbee to make said statements, or any other statements, or to take any action whatever in relation to the transaction in which he was involved. He is in no way by the evidence connected with the acts and declarations of said parties, and can not be held responsible therefor, and should not be prejudiced thereby. (Langford v. The State, 9 Texas Ct. App., 287; Tyler v. The State, 11 Texas Ct. App., 388; Washington v. The State, 17 Texas Ct. App., 197; Favors v. The State, 20 Texas Ct. App., 155.)

That this illegal evidence was calculated to prejudice the rights of the defendant, there can be no question. The witness Briscoe, with whom the said conversations were had, was the husband of the woman alleged to have been assaulted, and the efforts of John and Billie Barbee to compromise the matter,-as they stated, by authority of the defendant, with the representative of the injured party, would strongly tend to produce in the minds of the jury the belief that the defendant was guilty of the charge. It amounted almost to a confession of guilt.

Opinion delivered March 12, 1887.

There is but one objection that we perceive to the charge of of the court. It should have instructed the jury that they were the exclusive judges of the facts proved, and of the weight to be given to the testimony. (Code Crim. Proc,, art. 728; Wilbanks v. The State, 10 Texas Ct. App., 642.)

Because of the error of the admission of illegal evidence, and the error mentioned in the charge of the court, the judgment is reversed and the cause is remanded.

In view of another trial of this cause, we deem it not improper to remark that while the evidence may be sufficient to support a conviction for an aggravated assault and battery, it leaves our minds in doubt as to the intent of the defendant in making the assault, whether his intent was to accomplish carnal knowledge of the woman by force or by persuasion. We are inclined to the opinion that the evidence in this particular is insufficient, but we refrain from so deciding. The judgment is reversed and the cause remanded.

Reversed and remanded.