Hubotter v. State

32 Tex. 479 | Tex. | 1870

Lindsay, J.

Neither the exception to the ruling of the court allowing the attorney for the State to challenge a juror after the panel had been accepted, nor to the permission to prove the value of the cattle in United States currency, can be regarded as an error which requires the revision of this court. In the conduct of public trials, for the attainment of the ends of justice there must be a large discretion accorded to tribunals of original' jurisdiction; and unless that discretion is most unwisely or wantonly exercised, an appellate court would transcend its authority to attempt to control it. The object of the investigation is to secure a fair and impartial trial; and if, at any time in its progress, either party should discover that a juror is in the box who is incompetent to try the cause, no reason can be perceived why, at the instance of either party, the progress of the cause may not be arrested, and a competent juror substituted in his place. Nothing in the Criminal Code forbids it, and the demands of justice most obviously require it. In the case of Hanks v. The State of Texas, 21 Texas, 526, it is held if a juror who sat upon the trial had prejudged the case, and the fact was not known till after the trial—and, of course, not known at the time of his acceptance as a juror—it was good cause for a new trial. Unless, therefore, the right of challenge by the State had been exhausted at the time of the discovery of the obnoxious juror in the box, it can be regarded in no other light than the exercise of a sound and wise discretion by the court to allow the challenge to be made, and the substitution of an unexceptionable juror in his place.'

This indictment was founded upon Article 2410, as amended by the act of the 12tli of November, 1866. Its language is, “ if any person shall steal any ‘ neat ’ cattle, sheep, goat or hog, he shall be punished by confinement in the penitentiary not less than two, nor more than five years.” The amendment omits the word “ neat ” in the article. The obvious purpose of the Legislature was to leave the word “ cattle” in the act, with its popular and well understood acceptation. The word, originally, certainly had a more extensive and comprehensive meaning than it now. has in the American. States.. Tt. has.still a more extended signification in English parlance; and to give the term the restricted meaning which it only possesses in general American phraseology, the Englishman still uses some qualifying adjective, such as "black ovneat cattle. The popular signification of the word in this, country, however,, is well understood, without particularity of definition. Manifestly, in, its popular, as well as in the sense in which the Legislature uses it in the amendment, it means a sp>ecies of animals having an essential, identity in qualities, to be taken and considered either collectively or individually : just as sheep, hogs or goats, with which it is associated in the act, and is thus contradistinguished from other species of animals which are scientifically arranged under the generic term “ cattle.” Mo one would pretend that in indicting a felon for stealing a sheep, a goat or a hog, it would be necessary to aver that the animal was a buck or ewe, a boar or a sow. The difference in relation to a horse or a gelding, an ass or a mule, results alone from the discrimination made by the Legislature itself, in Article 2409, Paschal’s Digest.

The court is of opinion, therefore, that the indictment is good under the law; that the charge is sustained by the proof, and that there was no ruling by the court on ,the trial which could prejudice the legal rights of the party convict.

Wherefore, the judgment is affirmed.

Affirmed.