23 Tex. Ct. App. 260 | Tex. App. | 1887
A complaint which states that the affiant “has good reason to believe and does believe” that the accused has committed the offense charged is valid. (Code Crim. Proc., art. 236; Brown v. The State, 11 Texas Ct. App., 451.)
It is charged in the complaint and information that the building alleged to have been defaced was a “public building,” and was “held for public use by Cooke county.” These allegations bring the case fully within the statute and the decisions, and the information is a good one. (Penal Code, arts. 417, 418; Brown v. The State, 16 Texas Ct. App., 245; Pratt v. The State, 19 Texas Ct. App., 276; Willson’s Crim. Forms, 297.)
There is no error in the charge of the court except that it omitted to instruct the jury as to the legal meaning of the word “willful.” (Thomas v. The State, 14 Texas Ct. App., 200.) But the charge as given was not excepted to, nor did the defendant ask an instruction supplying this omission, and hence, this being a misdemeanor case, the error will not be revised. (Loyd v. The State, 19 Texas Ct. App., 321.) As to the special charges asked and refused, the first was substantially embraced in the court’s charge, and the second does not, in our opinion, state the law.
It was not error to overrule defendant’s motion to transfer the cause to the District Court because of the supposed disqualification of the county judge. The fact that the title to the school house was vested in said county judge, in his official capacity, for the use of the county, did not render him incompetent to try the cause. (W. & W. Cond. Rep., sec. 304; W. Cond. Rep., sec. 260.)
There had been a former trial and conviction of defendant in this case, and a new trial had been granted him. Upon the second trial, which resulted in the conviction now before us, the State proved by a witness the former conviction. A bill of exceptions shows that this proof was made before the defendant had time to interpose an objection to it, but that he at once, as soon as said testimony was delivered, objected to it, but it was permitted to go to the jury without instructions from the court that it should be disregarded by them. This testimony was not legitimate, and was calculated to prejudice the defendant. Hav-
ing been admitted without defendant having had an opportunity of objecting to it, it should have been excluded upon his motion, and the jury should have been cautioned and instructed by the court to disregard it, and to consider the case as if there had been no former trial and conviction therein. Our statute provides emphatically that the “former conviction shall be regarded as no presumption of guilt, nor shall it be alluded to in argument.” (Code Crim. Proc., art. 783; Hatch v. The State, 8 Texas Ct. App., 416.) Neither should the State be allowed to prove it upon the subsequent trial. It is no part of the case, and such evidence is not admissible for any purpose.
It is shown by bills of exception that counsel for the State, in the concluding argument, stated that seven as good men as there were in the county had assisted in employing counsel to prosecute this case. This statement was outside of the record, was not legitimate argument, and was calculated to prejudice the defendant. Counsel should have been reprimanded by the court for making it, and the jury should have been told by the court to disregard it, and to treat it as it deserved to be treated —that is, as a covert and unwarranted attempt to improperly influence their minds against the defendant. Again, the same counsel for the State, in the closing argument, alluded to certain testimony offered by the State, and which had been rejected by the court, and stated that he could have proved certain facts by said testimony had not the defendant interposed objections. This was not legitimate argument, was injurious error, and should have been promptly and emphatically condemned by the court, and its injurious tendency, as far as possible, removed from the minds of the jury.
Because of the material errors above mentioned, the judgment is reversed and the cause is remanded.
Reversed and remanded.
