Clark v. State

18 Tex. Ct. App. 467, 1885 Tex. Crim. App. LEXIS 133

• Court: Court of Appeals of Texas
• Decided: June 13, 1885
• Docket: No. 3612
• Status: Published

Opinion

Hurt, Judge.

This is a conviction for arson in burning the courthouse of Montague county.

The first error assigned is that the jury “ was not duly sworn.” Upon this subject the record states that the jury “ were lawfully . . . sworn to try said cause ” (we have omitted “ impaneled ”). Does the record show what oath was administered to the jury? We think not. Does it appear that a different oath was administered to the jury than that required by the Code? If not, we will presume that the proper oath was administered. The record states that the jury were “ lawfully sworn to fry said cause.” Suppose it had stated that the jury “ were lawfully sworn,” omitting “to try said cause.” Evidently it would not have been obnoxious to the objection urged. Does the addition of the words “ to try said cause ” alter the sense already conveyed by the words “ were lawfully sworn.” Clearly not. For if the jury were lawfully sworn it was unquestionably “ to try said cause.” But again: does this entry “ were lawfully sworn to try said cause ” convey the idea that this was the form of the oath taken by the jury, and are we to understand from this entry that the jury only swore that they would “ try said cause? ” This we think would be preposterous.

The witness Peveler was a very important witness for the defendant. By him defendant proved that, on the night of the burning of the court-house, he, the defendant, was at home; in fact, if Peveler swore the truth, defendant was not at Montague and did not burn the court-house. Over the objections of defendant, the State introduced in evidence “ the records of the district court of Montague county,” -which records showed that Peveler then stood indicted for breaking open the jail of Montague county in the fall of 1884. What records of said court were introduced is not shown, neither appearing in the bill of exceptions or statement of facts. The court-house was burnt in March, 1884.

The sheriff testifies that he arrested the defendant in October, 1884. But after a very careful inspection of this record, we have not been able to discover any fact or circumstance tending to show that defendant was ever in jail on this or any other charge previous to this conviction. The question, therefore, presented by the bill of exceptions is: Had the State the right to introduce in evidence the records of the court, showing that an indictment ivas pending in said court against the witness for breaking open the jail of said county? What purpose could this evidence serve? Was it for the purpose of impeaching this witness? If so, it was clearly, under the facts as presented in this record, inadmissible.

Was it for the purpose of showing that the witness was partial to the defendant? If so, certainly there should have been some evidence tending to show that the defendant was in jail when it was charged that Peveler broke the same. But suppose that defendant had been in jail at the time it is charged that Peveler broke open the same. Does the indictment prove or tend to prove that defendant was guilty of breaking the same. By no means. For, in law, indictments furnish no evidence of guilt for any purpose whatever, save in cases where bail or no bail is the question. But if the indictment did furnish evidence of guilt, it certainly cannot be inferred that the object of Peveler was to liberate defendant, unless there be proof that defendant was in jail. Nor must we be understood as holding that, if there was proof that defendant was in jail, at the time Peveler is charged to have broken open the jail, then this evidence objected to would be admissible.

We are of the opinion that, under the circumstances of this case, there was error in permitting the district attorney to introduce in evidence the records of the district court for the purpose of showing that Peveler was then indicted for breaking open the jail of Montague county. That, as presented by this record, the fact that Peveler was then charged by indictment with theft or murder was as pertinent and relevant as the fact that he was charged with breaking the jail of Montague county; and we have found no authority going to the extent that evidence of pending prosecution for felonies against a witness is admissible, unless prosecuted for the same offense as charged against the defendant, or where the witness, being charged with or suspected of the same offense, it is to his interest to convict the party on trial, etc. If indicted for the same offense, either as an accomplice, principal or accessory, he is incompetent for defendant, and if introduced by the State defendant may show that he is suspected of or indicted for the same offense, and by this means establish the fact that he is an interested witness.

We deem it necessary to say that, after a careful examination of the other grounds relied upon for the reversal of the judgment by appellant, we' do not think them, or either of them, well taken.

The charge of the court with reference to the necessity of corroborating the witness Bandy Howell, who was an owned accomplice, is in substance the statute relating thereto, and we think sufficient. It is true that there is no charge upon the subject of alibi, but it is also true that the charge of the court was not excepted to for this omission, nor instructions requested supplying this defect. Looking, therefore, to the whole record, we do not think this omission calculated to injure the defendant, and hence we would not reverse because of this defect.

Because of the error of the court in permitting the proof that the witness Peveler was indicted for breaking open the jail, the judgment is reversed and the case remanded.

Reversed and remanded.

[Opinion delivered June 13, 1885.]