41 Tex. 253 | Tex. | 1874
The appellant was tried at August term, 1873, of the District Court of Smith county, on an indictment for theft of nine hides, the trial resulting in a verdict of guilty, and the punishment being fixed at two years in the penitentiary. A motion for a new trial was in due time filed, and being overruled, notice of appeal was given. The record recites that the prisoner was brought into court and sentence pronounced upon him as per verdict of the jury, “ evidenced by the judgment in rec
There is a motion to dismiss the appeal, on the ground that there is no final judgment, and that the statement of facts was not made out and approved at the term of court when the verdict was rendered. • The statute provides that “when, from any cause whatever, a verdict of conviction has been returned, and there is a failure to enter judgment and pronounce sentence during the term, the judgment may be entered and sentence pronounced at the next succeeding term of the court, unless a new trial has been granted, or the judgment arrested, or an appeal has been taken.” (Pas. Dig,, art. 3151.) The final judgment, entered in accordance with this statute, appears to be final and complete. The validity of such judgments has been
But we think it was competent for the court, under the circumstances of this case, to certify the statement of facts, and that we may regard it as properly a part of the record. The sufficiency of the excuse for the failure to have the statement signed and certified at the proper time was a matter largely within the discretion of the court below, and may be taken for granted if, finder the law, the court had the power to grant the relief.
The statute directs the statement of facts to be made out and signed “ during the term at which the trial was had,” but it also contemplates that judgment be rendered at that term. (Pas. Dig., arts. 1490, 3147.) The trial may well be held incomplete until all the issues of law as well as oí fact have been determined and the final judgment entered. Until this is done no appeal can be prosecuted. The right of appeal is secured by the Constitution as amended, and is carefully guarded by the law. When the verdict is returned within less than six hours of the time prescribed by law for the adjournment of the term, it directs that court be held during the whole of Saturday night and Sunday to enable the defendant to prepare his cause for the Supreme Court. (Pas. Dig., art. 3150.) Article 3189 is as follows: “An appeal may be taken by the defendant at any time during the term of the court at which the conviction is had.” Chief Justice Marshall defines conviction as a “ technical term applicable to judgment in a criminal prosecution.” (Ammidon v. Smith, 1 Wheat., 461; see also Bouv. Law Dict., tit. Conviction.) The Criminal Code terms an accused person a “convict” only after “final condemnation.” (Pas. Dig., art. 1628.) It may be true that conviction ordinarily signifies the finding of a verdict of guilty,
Indeed, if we look to the letter of the law, a defendant is secured an appeal at the term of court at which final judgment is entered and sentence pronounced. Article 3192, Pas. Dig., reads: “When the defendant fails to appear until after sentence is pronounced, the appeal shall nevertheless be allowed, if demanded, and have the effect of suspending the execution of the sentence and all other proceedings as fully as if taken at the proper time.” We think this means a substantial appeal, and that the court, until judgment has been entered, is authorized in a case like the present, when it is practicable to do so, to incorporate into the record a bill of exceptions or a statement of facts essential to a fair presentation of the case for revision.
Regarding the statement of facts as properly before us, we find the main question presented is as to the sufficiency of the evidence to support the verdict. It seems by the evidence that between Saturday morning, about 10 o’clock, and the following Monday, nine beef hides, of the value of three dollars each, belonging to-Kennedy, were taken, without his consent, from his slaughter-pen, where they were hanging on a pole to dry. On the following Saturday the defendant sold two of these hides to a tanner, who had been notified to watch for them. It is contended that the defendant, if guilty of theft at all, is only proved to have taken property of less than $20 value, and is not subject to imprisonment in the penitentiary. The proposition in general terms is, that proof of possession of part of stolen property will not support a verdict of guilty of theft of the remainder. Appellant’s counsel have cited no authority for this proposition, and the examination we have made leads us to a different conclusion. The rule is laid down, both by elementary writers and in the reports, that the jury may
But the indictment describes the hides by giving color, brands, and in some cases the locality of the brand; and . the evidence not only fails to come up to the same minuteness of description as to most of the hides, but may be correctly said to vary from that description. Thus the indictment describes “one red and white spotted hide, branded thus, H H, on the side.” One witness speaks of hides of a “ white and black spotted color, brands not- remembered.” Another says they were mostly of a “white and spotted color,” and at first did not remember any branded H H., but after being shown the brands H H described in the indictment, said he thought that one or two of the hides lost were branded with something like that brand. Bo far as this evidence goes there is not only a failure to prove the brand H H on the side, as alleged, but the proof shows a different color in fact. “White and spotted” and “white and-black spotted” differ from “red and white spotted.” With the exception of three or four hides, the variance is about as in the example given. It was unnecessary to use such minuteness of description in the in
In a charge of theft of a “ black horse,” the objection of ■ color is unnecessary, yet as it is descriptive of the subject-matter of the charge, it cannot be rejected and the man convicted of stealing a brown horse or a white horse. (15 Me., 476; 3 Starkie, 151; 30 Me., 29; 1 Greenl. Ev., § 65.) Greenleaf lays down the rule thus: “Where a person or thing necessary to be mentioned in an indictment is described with unnecessary particularity, all the circumstances of the description must be proved, for they are all made essential to the identity. (1 Greenl. Ev., § 65.) This rule is substantially recognized in the decisions of the court. We know of no exception to it which would justify us affirming this judgment.
The judgment is reversed and the case remanded.
Reversed and Remanded.