Davis v. State

Court of Appeals of Texas

Davis v. State

4 S.W. 590, 23 Tex. Ct. App. 210, 1887 Tex. Crim. App. LEXIS 52

CourtCourt of Appeals of Texas

DecidedMarch 16, 1887

DocketNo. 2287

StatusPublished

This text of 4 S.W. 590 (Davis v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Davis v. State, 4 S.W. 590, 23 Tex. Ct. App. 210, 1887 Tex. Crim. App. LEXIS 52 (Tex. Ct. App. 1887).

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Opinion

Hurt, Judge.

Appellant, Simon Davis, was indicted jointly with J. C. Davis and G. W. Jones for the theft of a horse, the [211]*211property of Fount Brown. Upon the trial the parties severed, and appellant was tried alone. There was a verdict of guilty and a judgment thereon, from which appeal is taken.

Opinion delivered March 16, 1887.

The state was permitted to prove, over objection, that the animal stolen was a mare. It is urged that the allegation and proof of the descriptive character of the property are variant. To this we do not agree.

The district attorney, on cross examination of Tennessee Davis, appellant’s wife, proved, over his objection, that appellant’s mule and mare came up to his house a little after dark. His counsel urges that as the witness was the wife of the defendant on trial, the cross examination must be germane to the matter brought out in the examination in chief, and that there was nothing in it to authorize proof of the facts named. Abstractly considered, these positions may be correct; but reversal does not of consequence follow, unless the fact proved was in some way calculated to prejudice his rights. Looking, therefore, to all the facts in evidence, we can not perceive ¡.how such injury could result.

There was evidence introduced by the State, showing, or tending to show, that other horses were stolen at the same time and from the same neighborhood from which the mare was stolen. The charge of the court, however, fails to instruct the jury for what purposes such testimony could be used; and this omission was brought to notice on the motion for a new trial. Under the facts of this case, we are of opinion that this was reversible error. For conviction the State relied upon circumstantial evidence alone; and, while the omission was neither excepted to at the time nor was the proper charge requested, we must yet look to the whole record in passing upon injury vel. non.

Thus looking, it is evident that such testimony was calculated to sensibly prejudice the case; for it would require but slight evidence, when aided by this testimony, to satisfy the jury that appellant was guilty of the theft of the mare. For this error in the charge of the court, the judgment must be reversed and the cause remanded.

Reversed and remanded.

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Hurt, Judge.

Appellant, Simon Davis, was indicted jointly with J. C. Davis and G. W. Jones for the theft of a horse, the [211]*211property of Fount Brown. Upon the trial the parties severed, and appellant was tried alone. There was a verdict of guilty and a judgment thereon, from which appeal is taken.

Opinion delivered March 16, 1887.

The state was permitted to prove, over objection, that the animal stolen was a mare. It is urged that the allegation and proof of the descriptive character of the property are variant. To this we do not agree.

The district attorney, on cross examination of Tennessee Davis, appellant’s wife, proved, over his objection, that appellant’s mule and mare came up to his house a little after dark. His counsel urges that as the witness was the wife of the defendant on trial, the cross examination must be germane to the matter brought out in the examination in chief, and that there was nothing in it to authorize proof of the facts named. Abstractly considered, these positions may be correct; but reversal does not of consequence follow, unless the fact proved was in some way calculated to prejudice his rights. Looking, therefore, to all the facts in evidence, we can not perceive ¡.how such injury could result.

There was evidence introduced by the State, showing, or tending to show, that other horses were stolen at the same time and from the same neighborhood from which the mare was stolen. The charge of the court, however, fails to instruct the jury for what purposes such testimony could be used; and this omission was brought to notice on the motion for a new trial. Under the facts of this case, we are of opinion that this was reversible error. For conviction the State relied upon circumstantial evidence alone; and, while the omission was neither excepted to at the time nor was the proper charge requested, we must yet look to the whole record in passing upon injury vel. non.

Thus looking, it is evident that such testimony was calculated to sensibly prejudice the case; for it would require but slight evidence, when aided by this testimony, to satisfy the jury that appellant was guilty of the theft of the mare. For this error in the charge of the court, the judgment must be reversed and the cause remanded.

Reversed and remanded.

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4 S.W. 590, 23 Tex. Ct. App. 210, 1887 Tex. Crim. App. LEXIS 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-state-texapp-1887.