Ernster v. State

308 S.W.2d 33, 165 Tex. Crim. 422, 1957 Tex. Crim. App. LEXIS 2379

• Court: Court of Criminal Appeals of Texas
• Decided: November 6, 1957
• Docket: 29117
• Status: Published

Opinions

MORRISON, Presiding Judge.

The offense is misrepresenting a written instrument affecting property as denounced by Article 1000, V.A.P.C.

We are met at the outset with an objection to the court’s charge, which we have concluded is determinative of this appeal.

The appellant did not testify or offer any evidence save that relating to his reputation for being a peaceable and law-abiding citizen.

Several extraneous offenses were admitted in evidence on the theory that they were admissible on the issue of motive and intent.

In his charge limiting the jury’s consideration of these extraneous offenses to the purpose for which they were admitted, the court failed to instruct the jury that they could not consider such collateral crimes against the appellant unless they believed beyond a reasonable doubt that the appellant was guilty thereof.

By proper objection, the appellant called this omission to the court’s attention, but such objection was overruled.

In the early case of Taylor v. State, 50 Texas Cr. Rep. 362, 97 S.W. 474, decided in 1906, this court, speaking through Judge Davidson, said:

“The jury should be plainly informed that, before they could consider any collateral matters growing out of this transaction or connected with it, as evidence against defendant, even bearing upon his intent, motive, etc., those alleged collateral forgeries must be found to be forgeries.”

In Pelton v. State, 60 Texas Cr. Rep. 412, 132 S.W. 480, decided in 1910, the Taylor case is cited with approval, and the court said:

“In order for these collateral matters to be used by the jury as evidence on the intent of the defendant, we think they must believe from the evidence beyond a reasonable doubt that they are forgeries.”

In Lankford v. State, 93 Texas Cr. Rep. 442, 248 S.W. 389, decided in 1923, this court, speaking through Judge Lattimore, said:

“It is the settled law in this state that when evidence of collateral crimes is introduced for one of the various purposes for which such evidence becomes admissible, the jury should be instructed that they cannot consider against the defendant such collateral crimes, unless it has been shown to their satisfaction that the accused is guilty thereof. This has been held to be the correct doctrine as applicable to collateral forgeries, thefts, and other crimes, and we can see no sort of reason for attempting to draw a distinction between the application of said rule in other felony cases and the one now under consideration. If it be true that the jury must be instructed as to a collateral theft or forgery or other collateral crime under our established decisions, that they must believe that guilt of the accused in such collateral crime has been shown beyond a reasonable doubt before same can be considered against him in determining his guilt in the case on trial, then the same rule is applicable here, and the jury should have been told that they could not consider as a g'uilty circumstance appellant’s selling intoxicating liquor in violation of law on the dates named, unless such guilt was shown by legal evidence beyond a reasonable doubt. For authorities supporting our position see Fry v. State, 78 Texas Cr. Rep. 435, 182 S.W. 331; Fry v. State, 86 Texas Cr. Rep. 73, 215 S.W. 560; Martin v. State, 36 Texas Cr. Rep. 632, 36 S.W. 587, 38 S.W. 194; Ham v. State, 4 Texas App. 645.”

In Miller v. State, 122 Texas Cr. Rep. 59, 53 S.W. 2d 790, decided in 1932, in an opinion by Judge Christian, the Lankford case was cited with approval, and the court said:

“In an exception to the charge it was pointed out that the jury should be instructed that they could not consider the alleged extraneous offenses unless appellant’s guilt of such offenses was shown by legal evidence beyond a reasonable doubt. This exception was well taken.”

In Vaughn v. State, 135 Texas Cr. Rep. 205, 118 S.W. 2d 312, decided in 1938, this court made the same statement as has been quoted above from the Miller case.

In Nichols v. State, 138 Texas Cr. Rep. 324, 136 S.W. 2d 221, decided in 1940, this court again cited the Lankford case with approval and said:

“In limiting such proof, the charge of the court was deficient, in that it failed to instruct the jury that they could not consider the alleged extraneous offenses unless appellant’s guilt of such offenses had been shown by legal evidence beyond a reasonable doubt.”

As against this array of authorities, there seem to three cases which might be construed as holding to the contrary.

In Campbell v. State, 131 Texas Cr. Rep. 377, 99 S.W. 2d 602, this court held, and rightly so we think, that where the appellant’s own evidence put him in possession of the chickens involved in the extraneous theft the failure to charge the jury in line with the authorities hereinbefore quoted was not error. It should be remembered, however, that in the case at bar, the state’s witnesses, and they alone, testified about the extraneous offenses.

In the two relatively recent opinions of this court in Vigil v. State, 148 Texas Cr. Rep. 91, 184 S.W. 2d 926, and Campbell v. State, 163 Texas Cr. Rep. 545, 294 S.W. 2d 125, this court quoted a charge with approval which did not contain any instruction on reasonable doubt. A reading of the opinions in such cases will reveal, however, that the objection now urged for our consideration was not considered nor discussed by the court, and such opinions are therefore not authoritative on the question here presented.

We have concluded that the authorities hereinbefore cited require the reversal of this conviction.

Upon another trial, the learned trial judge should be admonished that he has no authority to excuse prospective jurors without challenge and on his own motion merely because they state they have a prejudice in the case. As authority, we cite the recent case of Ex parte Bronson, 158 Texas Cr. Rep. 133, 254 S.W. 2d 117.

My brother DAVIDSON concurs in this opinion but expresses the conviction that the extraneous offenses introduced by the state in making out its case in chief were not admissible in the first place. A majority of the court, however, have concluded they were because of the peculiar nature of the facts before us.

The judgment is reversed and the cause remandd.