Speers v. StateSpeers v. State
- Reporters:
- , ,
- Before:
- Martin
Offense, failure to stop and render aid after striking a person with an automobile, penalty confinement in the county jail for thirty days and a fine of $500.
Appellant and Fred Paris were employees of a wholesale and retail tire сoncern in Amarillo and as such had the use of trucks to drive. On the night in question apрellant and Fred Paris were in one of their employer’s trucks, and picking up two companions, they went north on the public highway a few miles and returning to Amarillo ran over and fatally injured oné-T. H. Graham. Testimony was introduced that Graham at thе time was intoxicated. Fred Far is was driving the truck at the time and appellant and one Elliott were in the front seat with him. According to testimony introduced by appellant, the injury to Graham was an unavoidable accident. No eyewitnesses for the state denied this or testified to any circumstances rebutting such theory. It furthеr appears that when appellant and his companions left the sсene, the injured party was in charge of and being cared for by others, and that appellant and Paris, learning of the serious nature of Graham’s injury, consulted with their employers, and went immediately to the sheriff’s office. Appellant wаs not driving nor in any way assisting in the operation of the truck when the injury occurred.
Since the case must be reversed because of the prejudicial character of questions and remarks of the court, we do not pass, on the suffiсiency of the evidence.
The record shows the trial court on several occasions interrupted the examination of witnesses with questions. Some of these are not presented by bills of exception. The two presentеd by proper bills are as follows: The state used one of appellаnt’s companions on the said trip as a witness, whose testimony was rather favorable to appellant. Asked by the state if, at the time of the occurrence, anything was said about running over that man, the witness answered he did not remember. The court, without any apparent excuse, immedi *31 ately remarked in the рresence of the jury: “If you remember it you had better be telling it. I don’t know whether you do or not.” Again witness was asked about a statement he had made out of court. During an argument between counsel over this, the court remarked: “If he has made a sworn statement here and another one somewhere else, the remedy against him is perjury and not to introduce a statement he made in the сase. I think you have to examine these witnesses about these statements outside of the presence of the jury.” These remarks with the attendant circumstаnces were such as to make it plainly apparent, we think, to the jury that thе court was of the opinion this witness was concealing something to assist aрpellant and was probably guilty of perjury. Both remarks of the court were imрroper, and violative of Art. 707, C. C. P., which expressly inhibits any remark calculated tо convey to the jury the court’s opinion of the case, or any comment upon the weight of the evidence. For cases supporting these views sеe: Pharr v. State, 7 Tex. Crim. App. 472; Harrell v. State, 39 Tex. Crim. Rep. 204; Johnson v. State, 9 Tex. Crim. Apр. 558; Moncallo v. State, 12 Tex. Crim. App. 171; Drake v. State, 65 Tex. Crim. Rep. 282; Mitchell v. State, 65 Tеx. Crim. Rep. 545; McGee v. State, 37 Tex. Crim. Rep. 668.
A verdict of guilty under the character оf evidence found in this record makes an injury to the appellant from the above more than a probability. It seems practically certain that the court’s action contributed to, if it did not in fact directly cause the return of such a verdict. At least, the probability of injury is too great to be overlookеd.
The judgment is reversed and cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been exаmined by the Judges of the Court of Criminal Appeals and approved by the Court.