43 Tex. 525 | Tex. | 1875
It has been decided at this term of the court that a District Court, having discharged the grand jury that was regularly organized for the term, may revoke and set aside the order, and reassemble them for the purpose of finding indictments.
We know of no authority, either on principle or practice, for issuing a venire to enable the sheriff to select a new grand jury after that for the term has been discharged. The law provides that the County Court shall select from the jury list the names of twenty good intelligent and practical citizens, to serve as a grand jury at the next ensuing term of the District Court. (Gen. Laws, 13th Leg., 1873, p. 82; Paschal’s Dig., art. 2816.)
A motion to set aside an indictment shall be based on one of two grounds, one of which is, “ that the indictment was not found by at least twelve grand jurors.” (Paschal’s Dig., art. 2950.) If this would authorize the exception taken to the indictment in this case,., the record of the order of the court below in summoning and organizing a new grand jury is not authenticated by being contained in a bill of exceptions, or otherwise, in such way as that we
It seems to be the design of our code to cut off all objections to the organization of a grand jury unless they are made in the challenges allowed at the time of its organization, or come strictly under the motion allowed to set aside the indictment after it is found by the grand jury. (Paschal’s Dig., arts. 2830, 2832, 2950.)
We have no established precedent over the question sought to be raised by this exception.
The motion for new trial set forth various grounds relating to the finding of the jury contrary to the evidence, to the charge of the court, and to the misfortune of defendant in not getting the testimony of Lou Roberts on account of her sickness.
The evidence of one witness, Mrs. Stovall, was quite strong that the defendant was the man who stole the watch and chain, somewhat shaken, however, by the aid given her by the district attorney in helping her at a former trial to point out the defendant in the court-house. The proof of an alibi by his associates, by whom he could be expected to prove it, was also reasonably full and pertinent. If he had also had the testimony of Mrs. Lou Roberts, it would certainly have tended to weaken the evidence of his identity by the one witness, and he was deprived of this testimony by her sickness after he had sent for and procured her attendance in time to give her testimony in court.
The jury, it would seem, not fully satisfied with the evidence of the identity of the person of defendant as the thief who took the watch and chain, returned into court and propounded to the judge the question, “ when a party is found in possession of stolen property, what weight has the proof of that fact in establishing the guilt or innocence of the defendant?” The judge, instead of telling them that they were the judges of the weight of that as well as all the other testimony, and that he could only
Suppose A, who has had a horse stolen from his stable, employs B to pursue the thief and recover his horse for him, and B undertakes the business, and some time after-wards B places the horse in a livery stable and tells A that he can get the horse there by paying eight dollars, which amount it has cost him to recover the horse for him; B is not asked for any explanation as to how or from whom he got the horse, or about where or who is the thief that stole him: now, is the possession of the stolen horse by B, who is the agent of A to recover him, a fact from which the presumption arises that B is the person who stole the horse ? Certainly not; for his possession is prima fade legal, as agent of the owner. He may be proved to be the thief by other evidence, in connection with his possession, which removes its prima fade legality, but certainly not by the force of the presumption alone of his possession of the stolen property. In such case there is no presumption against him to be removed, or which places him under any obligation of explaining his possession or how He obtained it; and if he is not asked about how or from whom he got it his silence amounts to nothing.
We are of opinion that this charge of the court was, in this respect, well calculated to mislead the jury by allowing the defendant’s possession to have the full weight of the presumption against him, just as though he had not
Reversed and remanded.