Bouldin v. State , 8 Tex. Ct. App. 332 ( 1880 )

White, P. J.

The sixth subdivision of the charge of the court to the jury is almost, if not literally, a copy of the charge of the court with regard to the relative weight, character, and effect of circumstantial and positive proof, when compared together, which was delivered by the same presiding judge to the jury in the case of Monroe Harrison v. The State, decided at the present term, ante, p. 183. In that case the charge was dissected and its inherent defects and errors were fully pointed out, both in so far as it was upon the weight of evidence and in so far as it was incorrect as an attempted enunciation of the principles of law applicable to those two branches or classes of evidence. It is only necessary, on this branch of the case, to refer for its disposition to the opinion of Judge Clark in Harrison’s case.

It was error for the court to permit the jury to take with them into their room, when they retired to consider of their findings, the rifle gun and balls which had been exhibited and testified about by the witnesses. As was said by the Supreme Court in the case of Smith v. The State, 42 Texas, 444, “If by this means they [the jury] or either of them did obtain a personal knowledge of a material fact in the cause before finding their verdict, and it was considered by them in finding their verdict, then they acted upon a fact known to themselves, not developed publicly on the trial as to how they understood it, concerning which defendant has had no opportunity to cross-examine them as witnesses, and upon which, being unknown, the defendant or his counsel have not been heard, and of which the judge trying the cause had no information, either on the trial, in giving his charges, or on the motion for a new trial.”

We are further of opinion that the court erred, as shown by the third bill of exceptions, in not permitting defendant to prove, if he could, his willingness to try his shoe in the footprints found upon the ground, and supposed to have been made by the assassin, and also that he requested the parties having him under arrest to measure his horse’s foot and apply the measure to the horse-tracks supposed to have been made by the animal ridden by the assassin to and from the place of killing. The evidence being wholly circumstantial, every fact and circumstance calculated to illuminate the transaction should have been permitted to go to and be weighed by the jury. There is no telling what effect the fact that defendant was willing to subject himself and horse to tests of actual measurement with the physical facts appearing from the tracks left upon the ground would have had upon a jury passing upon a case wholly of circumstantial evidence. If it was much or little, defendant was nevertheless entitled to have the jury to know, by the evidence, that when he was first brought to face the tracks of the murderer he did not shun contact or comparison with them, but, on the contrary, was anxious and insisted that the best tests that could have been made should then and there be made by those investigating the matter and holding him in custody as the perpetrator of the deed.

Because of the errors indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.