Sanders v. State , 17 Tex. Ct. App. 222 ( 1884 )

White, Presiding Judge.

In a misdemeanor case, if a radical, fundamental error occurs in the charge given to the jury, it is reversible error even though the charge was not excepted to on the trial. (Haynes v. The State, 2 Texas Ct. App., 84; Marks v. The State, 10 Texas Ct. App., 334.)

Attention of the court was specially called to the objectionable ■charge by appellant’s motion for a new trial in this case. The charge complained of is in these words and is found in the first paragraph, viz.: “If you believe that Ed. Sanders and Adeline Blacklock, the defendants in this case, in the county of Busk and State of Texas, at any time within two years before the filing of the indictment in this case, did then and there, as charged in the indictment in this case, live together and have carnal intercourse with each other, or did then and there have habitual carnal intercourse with each other without living together, the said Adeline Blacklock being then and there lawfully married to another man — other than the said Ed. Sanders — you will find them each guilty of adultery; otherwise you will.” Under this charge it is manifest that the jury were left no alternative but to find defendants guilty, as they did by the verdict. It may be that subsequent portions of the charge, when it is considered as a whole, tended to correct this error to some extent, but we cannot say that it did not control the jury to the prejudice of appellant. A special charge was asked for defendant, which was properly overruled because the main proposition therein ■stated was not law, and the instruction was moreover obnoxious in its being upon the weight of evidence.

For the error we haxTe pointed out in the charge of the court, the judgment is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered November 26, 1884.]