Gomez v. StateGomez v. State
- Reporters:
- , ,
- Before:
- Davidson
Cаttle theft is the offense; the punishment, two- years in the Stаte penitentiary.
The record is before us without а statement of facts. An affidavit of appellant’s counsel appears, by which an issue is raised аs to whether or not the failure to obtain a statеment of facts was chargeable to the appellant. In the light of the disposition of the case, it becomes unnecessary to determine this issue.
Bill of Exception No. 3 reads as follows:
“Be it remembered that upon the trial of the abovе entitled and numbered cause, the court in its written chаrge delivered to the jury,. failed to charge all the law applicable- to and demanded ’ by the facts in evidence in that the evidence fairly raises the issue as to the possession of the said animаl at the time of the alleged taking; and the said chаrge of the court wholly failed to submit the issue as to whether the possession of said animal was in the said S. Brown or Charlie Holbretch at the time of the alleged taking; and the defendant before the court’s charge was read to the jury presented his objections in writing thereto as follows: -‘3. Because said charge wholly fails to present defendant’s affirmative defense that the animal alledged to have been stоlen was not taken from the possession of S. Brown as alleged in the indictment/
/‘And the court after considering said objection overruled the same, -to which аction and ruling of the court defendant then *221 and therе excepted, and tenders this bill of exceptiоns, and asks that the same be signed and filed as a part of the record in this cause.”
This bill of exception is approved by the trial judge without qualification. Such approval constitutes a certificate by the trial judge that, upon the trial of this case, he fаiled, over the proper and timely objectiоns of the appellant, to submit an affirmative defense arising under the facts in evidence.
It is now deemed axiomatic that the trial court’s failure, over а proper exception, to submit to the jury an аffirmative . defense arising under the facts constitutes rеversible error.
Under such a certificate, it remains for this court to do that which the trial judge should have done under the circumstances, namely: award appellant a new trial. See: Hart v. State, 122 S. W. (2d) 193; 135 Tex. Cr. R. 565; and authorities to the same effect collated in 13 Texas Digest, Sec. 1111 (4).
The judgment of the trial court is reversed аnd the cause remanded.
The foregoing opiniоn of the Commission of Appeals has been exаmined by the Judges of the Court of Criminal Appeals and approved by the Court.