30 Tex. Ct. App. 623 | Tex. App. | 1892
Appellant and one King were jointly indicted for the theft of a certain yearling, alleged to be the property of Dario Sanchez. The indictment also contained a count for illegal branding and marking a certain head of cattle, the property of said Sanchez. There was severance, and appellant was placed on trial and convicted of illegal branding and marking.
When the trial began counsel for appellant moved the court to require the State to elect which of the two offenses the prosecution would proceed upon. This was refused, and exceptions duly reserved. When the State had introduced all of its evidence the motion was renewed, and was again overruled and exceptions taken. In support of these motions we have an argument from Mr. Bethel Coopwood, which can not be excelled for research and cogency. We believe, however, that the same question might have been raised by a motion to quash. Then, if the indictment would not be bad on a motion to quash, the ruling of the court upon the motions that were made would be correct. We have held, that if the same transaction is referred to, a count for theft and one for illegal branding and marking could properly be inserted in the same bill, though these two offenses be not the same; or, that the principles announced in other cases would sustain such a holding. We have not the time to elaborate the proposition, but it is believed to be sound. It is not at all free from doubt.
Sot infrequently records coming before this court impress the writer with the belief that some trial judges are of opinion that though such evidence of distinct separate crimes may not serve either of the specified purposes, still it will be harmless if restricted by the charge to the jury. If, in fact, it is connected with the transaction under investigation, and tends to serve one of the purposes mentioned above, it should be received; but if it is not so connected, or if connected does not tend to serve one of the purposes mentioned, then it is not competent evidence, and it will be error to receive it, though restricted or withdrawn from the jury, for it is known to the profession and this court, from the results shown in hundreds of cases brought here, that if there be strong suspicion against the accused, though the evidence be not sufficient to authorize conviction, and there is evidence of other offenses before the jury, conviction will follow notwithstanding such evidence, when admissible, is properly and carefully limited by the charge, or, when inadmissible, be entirely withdrawn from the jury.
Article 662, Code Criminal Procedure, provides: “At the request of either party the witnesses on both sides may be sworn and placed in the custody of an officer, and removed out of the court room to some place where they can not hear the testimony as delivered by any other witnesses in the case.” Article 665 requires that the witnesses be attended by an officer, and in no case shall they be allowed to hear the testimony in the case, or any part thereof. Article 666: “Witnesses when placed under the rule shall be instructed by the court that they are not to converse with each other or with any other person about the case except by permission of the court, and that they are not to read any report of or comment upon the testimony in the case while under the rule, "and the officer who attends the witnesses shall report to the court at once any violation of its instructions, and the party violating the same shall be punished for contempt of court.” That these provisions of the law were most flagrantly violated can not be questioned, and violated not only by the witnesses, but by the chief deputy sheriff. While it is true that the trial judge is invested with a wide discretion in all matters relating to this procedure, and that such discretion will not be revised on appeal unless it has been abused, the right to have the witnesses under the rule should not be denied or substantially abridged at the arbitrary discretion of the judge. McMillan v. The State, 7 Texas Ct. App., 142.
Did the court err in refusing to strike out the testimony of the witness Trivinio, and was such error prejudicial to defendant1? This de
Reversed and remanded.
Davidson, J., absent.