Capps v. State

Court of Criminal Appeals of Texas

Capps v. State

48 S.W. 517, 40 Tex. Crim. 103, 1898 Tex. Crim. App. LEXIS 225

CourtCourt of Criminal Appeals of Texas

DecidedDecember 21, 1898

DocketNo. 1921.

StatusPublished

Cited by3 cases

This text of 48 S.W. 517 (Capps v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Capps v. State, 48 S.W. 517, 40 Tex. Crim. 103, 1898 Tex. Crim. App. LEXIS 225 (Tex. 1898).

Pincite

Opinion

DAVIDSON, Judge.

Appellant was convicted of burglary, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

There was no error in overruling the motion to quash the indictment, nor the motion for continuance, as presented by the record. The application does not even pretend to show diligence, and the facts expected to he proved are stated in such a general way that they amount to nothing.

While the witness Barnes was upon the stand, without objection, the State was permitted to prove that defendant requested said Barnes not to let anyone see the pistol taken from him. This is the pistol shown to have been taken from the alleged burglarized house. Upon cross-examination, the defendant proved by this witness that he was under arrest at the time of making said statement. He then moved the court to exclude said testimony. The court, on objection of the State, refused to do so, because it came too late; and further, because “the defendant should not be permitted to experiment in such manner with the evi *104 deuce.” Where illegal testimony has been admitted without objection, the accused has the right, in proper time, to move its exclusion; and, if it is not excluded, upon proper exception reserved, this court will reverse the judgment. Branch v. State, 15 Texas Crim. App., 96; Thomas v. State, 17 Texas Crim. App., 437; Phillips v. State, 22 Texas Crim. App., 139; Gose v. State, 6 Texas Crim. App., 121; Marshall v. State, 5 Texas Crim. App., 273; Rountree v. State, 10 Texas Crim. App., 110. Of course, this rule applies to testimony drawn out by the State, and not to illegal testimony elicited by defendant. Speights v. State, 1 Texas Crim. App., 551; Moore v. State, 6 Texas Crim. App., 563. For the error in refusing to exclude said testimony, the judgment is reversed and the cause remanded.

Reversed and remanded.

Free access — add to your briefcase to read the full text and ask questions with AI

DAVIDSON, Judge.

Appellant was convicted of burglary, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

There was no error in overruling the motion to quash the indictment, nor the motion for continuance, as presented by the record. The application does not even pretend to show diligence, and the facts expected to he proved are stated in such a general way that they amount to nothing.

While the witness Barnes was upon the stand, without objection, the State was permitted to prove that defendant requested said Barnes not to let anyone see the pistol taken from him. This is the pistol shown to have been taken from the alleged burglarized house. Upon cross-examination, the defendant proved by this witness that he was under arrest at the time of making said statement. He then moved the court to exclude said testimony. The court, on objection of the State, refused to do so, because it came too late; and further, because “the defendant should not be permitted to experiment in such manner with the evi *104 deuce.” Where illegal testimony has been admitted without objection, the accused has the right, in proper time, to move its exclusion; and, if it is not excluded, upon proper exception reserved, this court will reverse the judgment. Branch v. State, 15 Texas Crim. App., 96; Thomas v. State, 17 Texas Crim. App., 437; Phillips v. State, 22 Texas Crim. App., 139; Gose v. State, 6 Texas Crim. App., 121; Marshall v. State, 5 Texas Crim. App., 273; Rountree v. State, 10 Texas Crim. App., 110. Of course, this rule applies to testimony drawn out by the State, and not to illegal testimony elicited by defendant. Speights v. State, 1 Texas Crim. App., 551; Moore v. State, 6 Texas Crim. App., 563. For the error in refusing to exclude said testimony, the judgment is reversed and the cause remanded.

Reversed and remanded.

Cite This Page — Counsel Stack

Bluebook (online)

48 S.W. 517, 40 Tex. Crim. 103, 1898 Tex. Crim. App. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/capps-v-state-texcrimapp-1898.

Opinion

Related

Cite This Page — Counsel Stack