Dresch v. State

14 Tex. Ct. App. 175, 1883 Tex. Crim. App. LEXIS 150

Opinion

Willson, Judge.

It has been repeatedly held that the record must show affirmatively that the jury which tried the case were sworn. When the record omits to show this, the conviction can not stand. (Berry v. The State, 10 Texas Ct. App., 315, and cases there cited.) In this case the record is silent upon this important point. It recites that "both parties having announced ready for trial, comes a jury of good and lawful men, to wit, Phil. Stewart and five others, who having heard the indictment read, the plea of .not guilty,” etc. It nowhere states that the jury were sworn, and unless they were in fact sworn, the verdict would be a nullity. (Code Crim. Proc., Art. 657.) Because of this fatal omission in the record, the judgment must be reversed and the cause remanded.

There are other errors apparent from the record which, in our opinion, would demand a reversal of the judgment. It appears from the evidence that the goats which were alleged to have been stolen by the defendant were, at the time of the taking thereof, in the possession and under the care, management and control of the alleged owner’s son, and yet there is no evidence that the goats were taken without this son’s consent. Such evidence we think was necessary. (Wilson v. The State, 12 Texas Ct. App., 481.)

We think, furthermore, that the evidence is insufficient to support this conviction. It fails to show with any degree of certainty a fraudulent intent in taking the goats, conceding that defendant did take them. But one of the goats, the old “billy,” was certainly identified as the property of Frank Gaines, the alleged owner, except by the testimony of Frank Gaines and his wife, who, it is true, stated that the “nanny ” goats belonged to them, but failed to identify them by any particular marks. Under the circumstances of this case this evidence of ownership, to say the best of it, should be considered cautiously, and not received with implicit confidence. While, however, it may be admitted that the goats were the property of Frank Gaines, as charged, still we think there is a total want of evidence proving or even tending to prove that the defendant took them with the fraudulent intent to deprive the owner of the value thereof, and to appropriate the same to his own use. We think the evidence reasonably shows the contrary—that the goats in question got into the flock which defendant had charge of, without his knowledge or consent, and that whatever ownership he exercised over them was under the bona fide belief that they belonged to the flock of goats of which he at the time had charge.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

Opinion delivered May 9, 1883.