Bergstrom v. State

36 Tex. 336

• Court: Texas Supreme Court
• Decided: July 1, 1872
• Status: Published

Opinion

Ogden, J.

The charge of the court to the jury in this case was not applicable to the facts proven on the trial, and was therefore calculated to mislead, and probably did mislead the jury in their verdict.

There was no evidence before the jury that appellant slaughtered the animal, as charged in the indictment, or that he in any way aided or assisted in slaughtering the same, nor that the animal was slaughtered with the knowledge or consent of appellant. But, on the contrary, it was proven positively that appellant did not kill, nor assist in killing, the animal as charged, and had no knowledge of the killing. It was, therefore, error iii the court to charge the jury, that if they believed the defendant killed the beef for market, or authorized it to be done, and that he failed to exhibit the hide for inspection, etc., then they should find him guilty.

The third charge of the court is still more obnoxious to criticism, as it assumes, without any evidence to support the assumption, that defendant and Jagge did kill the animal as charged, and it instructs the jury, that if they believe the defendant and Jagge were partners, and that they failed to exhibit the hide, make the report with bill of sale, then they should find the defendant guilty.

For these errors in the charge the court should have granted a new trial; and for the error in refusing to grant a new trial the judgment is reversed and the cause is remanded.

Beversed and remanded.