Massey v. State

29 Tex. Ct. App. 159 | Tex. App. | 1890

HURT, Judge.

This is a conviction for the theft of two head of cattle.

Frank Kirby, a witness called for the defendant, testified favorably for him. In explaining his connection with the transaction he testified that defendant came to him and made inquiry as to the whereabouts of cattle in a certain brand—S A. He told defendant that a cow in that brand and two unmarked heifers were running at a certain place, and that they were considered estrays. He and the defendant and one George Copeland went to the place and found the two heifers. They did not find the cow in the S A brand, but the witness told defendant that the two heifers belonged to that cow. The witness declined to help defendant drive away the cattle because he had no suitable horse.' Defendant then hired George Copeland, and the two drove the cattle away. The witness had nothing more to do with the cattle.

George Copeland, called for the defendant, testified favorably for him. His explanation of his own connection with the transaction agrees in all respects with that given by the witness Kirby. Up to the time he helped defendant drive the cattle he knew nothing about them—had never seen them. He, the witness, had been arrested and tried for the theft of the two heifers, and had been acquitted of that charge.

It should also be stated that the witness Kirby, above referred to, had been arrested for taking these cattle. The case against him had been terminated by entering a nolle prosequi.

In the general charge the court instructed the jury as follows:

“5. All persons are principals who are guilty of acting together in the commission of an offense. When an offense is actually committed by one or more persons, but others are present and, knowing the unlawful intent, aid by acts or encourage by words or gestures those actually engaged in the commission of the unlawful act, such persons so aiding or encouraging are principal offenders, and may be prosecuted and convicted as such.” A bill of exceptions was saved, which shows that the defense specially excepted to the charge “because the court charged upon the law of principal in section 5 when there was no evidence calling for such a charge, and was calculated to prejudice the jury against the defendant’s witnesses Copeland and Kirby and discredit them, and was an indirect charge upon the credibility of the said witnesses.”

This objection to the charge was again urged before the trial court in the motion for a new trial.

While the charge objected to was absolutely correct, there was no evidence demanding it, and under the facts attending this matter it was calculated to impress the jury that the witnesses Kirby and Copeland were connected criminally with the theft, and hence suspicion was cast upon their evidence. The charge being excepted to at the time, and there being no evidence requiring it, the judgment for this reason must be reversed. The court did not err in excluding the testimony of Van Housier and

Crow as set out in bills of exception Hos. 2 and 3.

Other questions presented will not be noticed as they are not likely to arise upon another trial. The judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.