Harris v. State

2 S.W. 830, 21 Tex. Ct. App. 478, 1886 Tex. Crim. App. LEXIS 176

Opinion

On Motion for Rehearing,

Willson, Judge.

At a former day of the present term of this court, the judgment of conviction in this case was affirmed without an opinion in writing. Defendant, by his counsel, now moves for a, rehearing, the only ground of his motion being that the statement of facts does not show sufficient legal proof of the value of the property embezzled.

The indictment charges the embezzlement of numerous articles of clothing, and alleges the value of each article separately, the aggregate values amounting to about fifty dollars. It is shown by the statement of facts that Mrs. Morris, a witness for the State, testified as follows: “The defendant obtained the clothing mentioned in the indictment to wash and return upon a day named, a few days thereafter. The values are about as alleged, amounting to more than twenty dollars.” It is insisted that this mode of proving the value of the articles is not permissible, because reference must be had to the indictment in order to make it certain, and the indictment was not read in evidence.

Notwithstanding the earnest and confident manner in which counsel for defendant has urged this objection to the conviction, we must hold that the objection is not a sound one. It is true that the indictment was not formally read in evidence to the jury, nor was it necessary that it should have been so read. It was read in the presence of the jury as a pleading in the case, and its contents were thus before the jury and within their knowledge. It was a record in the case, a part of the judicial proceedings in the case, and for all the purposes of the case could be referred to and considered, the same as if had been formally read in evidence. A court will take judicial notice of the record before it on trial, and of all the proceedings and pleadings in such case. (1 Whart. Ev., sec. 325, and cases there cited; Robinson v. Brown, 82 Ill., 279.) It was judicially known, therefore, to the court, that the goods alleged to have been embezzled were alleged in the indictment to be of a certain value, which value exceeded twenty dollars, and the testimony of the witness that said goods were of about the value alleged in the indictment, and of a greater value than twenty dollars, was admissible, and was sufficient to establish the allegation of value and show that the offense committted was a felony.

Opinion delivered June 9, 1886.

We can see no error in the affirmance of the conviction, and the motion for a rehearing is overruled.

Motion overruled.