9 Tex. Ct. App. 124 | Tex. App. | 1880
There are several errors patent upon the record in this case, either of which must be deemed fatal to the conviction.
1. As appears from a bill of exceptions duly saved and certified, before the process of empanelling the jury was begun, the defendant objected in limine to any person being sworn and empanelled as a juror who did not understand and speak the English language ; which objection was overruled by the court. Thereupon the jurors, as summoned, were called, and the defendant exercised his right of peremptory challenges until.they were exhausted; after which eight jurors, whose names are set out, were called, and upon their voir dire stated that they did not speak or understand the English language. The defendant then challenged each of these jurors for cause on that account, which challenges were disallowed, and the jurors accepted over his objection. When the argument was reached, counsel for defendant asked the privilege of addressing the jury in the Spanish language, that being the only language understood by a majority of the jury. This was refused, although no objection was interposed by the State.
The right of a defendant charged with felony to be tried by jurors who undersand the English language is not an open question in this State. In Lyle’s Case, 41 Texas, 172,
2. After having forced such a jury upon the prisoner, in violation of his constitutional privileges, the error was magnified by a refusal to permit his counsel to address them in a language they could comprehend, or to consume at least a part of the time allotted him for argument in that language. The initial error would, of course, not have been cured by allowing an argument of that character, but the concession would at least have enabled counsel to present their views of the case in a manner intelligible to the jury, instead of being forced to resort to pantomime in so far as eight of the jurors were concerned. This was not permitting the prisoner to be heard by himself or counsel, or both. Const.,Art. L, sect. 10.
3. Although the statement of facts fails to set out any evidence adduced in support of appellant’s plea of former conviction, yet it is apparent from the charge of the court that such evidence was in fact adduced. The jury were instructed that if they believed from the evidence “that the animals described in the indictment are the same as those described in
4. It is not clear to us that the verdict is sustained by the law and the evidence. The facts in evidence, as made to appear to us, are not conclusive in establishing the actual complicity of appellant in the perpetration of the theft, but tend rather to support the conclusion that he received stolen property, knowing the same to have been stolen. Under a general indictment for theft, a conviction may be had for the offence above named (Parchman v. The State, 2 Texas Ct. App. 228) ; and upon another trial, if the facts are the same as developed upon the former trial, the attention of the court and the prosecuting officer is called to this feature of the law and the case. If the facts should show an actual participancy by appellant in the original fraudulent taking, a conviction may be sustained for the offence charged, although the appellant may not have been personally present at such taking. Welsh v. The State, 3 Texas Ct. App. 413; Scales v. The State, 7 Texas Ct. App. 361.
The judgment is reversed and the cause remanded.
Reversed and remanded.