Leeper v. State, No. 3512

No. 3512 | Tex. App. | Oct 25, 1890

WILLSON, Judge.

There are two counts in the indictment, but the defendant was tried upon the second count only, and upon that count convicted. In said count it is charged that one Layton McDonald offered to bribe one Mouchette, a witness who had been attached to testify in a certain criminal cause, to disobey said attachment, etc., and that the defendant, prior to the commission of said offense by said McDonald, advised, commanded, and encouraged said McDonald to commit said offense., It is alleged that the bribe .offered by McDonald was “ $350 in money.”

Exceptions were presented to the indictment, and were in- our opinion properly overruled. It was not necessary to allege the kind or value of the money offered as a bribe. 3 Bish. Crim. Proc., secs. 75, 136, 137, and note 6 to sec. 137. In all respects we think the indictment is a good one.

It is claimed as error that the court refused to give an instruction requested by counsel for defendant explaining the rules as to the consideration and sufficiency of circumstantial evidence. We do not think the court erred in refusing to give such charge. The case is not one of circumstantial evidence only. The testimony of the witness Mouchette is direct as to the guilt of both McDonald and the 'defendant.

In his amended motion for a new trial the defendant complains that the court erred in failing to charge the jury “that before they could convict the defendant the evidence must be sufficient to establish the guilt beyond a reasonable doubt of the principal McDonald,” and in failing to charge that the uncorroborated testimony of an accomplice would not be sufficient to convict the principal, McDonald, etc. These alleged deficiencies in the charge were not excepted to at the trial, nor did the defendant request any instructions calling attention thereto. This being the state of the case before this court, we are to determine, first, whether the charge of the court is defective as claimed; and second, if defective, is it materially eo—that is, was its insufficiency calculated to injure the rights of the defendant? Willson’s Grim. Stats., sec. 3363. ,

Upon an examination of the charge given to the jury we find that the jury were instructed in effect that in order to find the defendant guilty they must believe that the principal, McDonald, was guilty as charged in the indictment, and that the defendant, prior to the commission of the offense by McDonald, advised, commanded, or encouraged said McDonald to commit said offense. In concluding the charge the usual instruction as to presumption of innocence and reasonable doubt is given. It would have been more favorable to the defendant, and not objectionable, if the charge had instructed the jury directly that before they could find the defendant guilty they must believe from the evidence beyond a reasonable doubt that McDonald committed the offense as charged in the indictment. Such is the law of the case. Poston v. The State, 12 Texas Ct. App., 408; Cohea v. The State, 11 Texas Ct. App., 622.

With respect to accomplice testimony the charge states the rules of law correctly, but does not directly apply the instruction to the issue of the guilt of the principal, McDonald. It was no doubt intended by the learned judge that the instructions as to accomplice testimony should be considered and applied by the jury in determining the issue of McDonald’s guilt as well as in determining the issue of defendant’s guilt. This intention, however, is not clearly expressed in the charge, and the jury might have concluded that the instructions applied only to the issue of • the defendant’s guilt, independently of the guilt of McDonald. In this respect we think the charge is defective, and under the peculiar facts of this case we think the defect was calculated to injure the rights of the defendant.

Such being our view, we reverse the judgment and remand the cause for a new trial.

Reversed and remanded.

Judges all present and concurring.