Stephens v. State , 10 Tex. Ct. App. 120 ( 1881 )


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  • White, P. J.

    The bill of exceptions shows that after the statement of facts in the case had been agreed to by the counsel, approved and certified by the judge, and filed by the clerk, on the verbal motion of the prosecuting officer, the judge added to the statement by interlineation a certain omitted statement of one of the witnesses with regard to the value of the money. This *123was done over objections of defendant’s counsel, but the bill of exceptions does not show that the objection was that no such testimony was adduced; on the contrary, the fact that there was such evidence, if not conceded, is not controverted by the bill, and the objection seems to have been urged solely to the right and authority of the judge to change the statement of facts, after it was filed as part of the record, under the circumstances detailed.

    Before .his approval, the rule is well settled, that the judge may amend, add to or correct the statement submitted to him, so as to make it speak the truth fully, with regard to the facts proven. King v. Russell, 40 Texas, 124; Courtney v. The State, 3 Texas Ct. App. 258. And in Deggs v. The State, 7 Texas Ct. App. 359, it is said: “A purpose of the law in requiring that the statement of facts should be approved by the judge, was to enable that officer to supply omissions which had been made by counsel, either through accident or design, and which were essential to a proper presentation of the case on appeal.” In this view of the object and purpose of the law, it occurs to us that the court could at any time during the term, and whilst it had control of the record, upon a proper representation that an error of omission or commission had been committed in preparing the statement, correct the same according to the truth of the matter. But after the statement has been agreed to, certified and filed, such correction should never be made except in most palpable cases of error, or upon the most satisfactory proof of the same. In this instance, as before stated, there seems to be no question with regard to the fact of the correctness of the judge’s statement and addenda, so far as it purported to give the omitted testimony. We cannot see how the action can be held erroneous.

    Serious objection and complaint is made to that portion of the charge to the jury contained in the following language, 'viz.: “The confessions of the defendant are in *124evidence before you, and if in your best judgment you shall give no credit to the witness who professed to detail them, you will then look to the other testimony in the case, and apply to it the rules relating to circumstantial testimony. If you give credence to the witness who professed to detail the confessions, you need not apply to the evidence those rules as to circumstantial testimony. ”

    This charge, it occurs to us, was directly upon the weight of the testimony. It was in effect, if not in fact, tantamount to telling the jury “if you believe the testimony of the witness who has testified to defendant’s confessions, then you will not look to or consider the other evidence in the case.” This was, in the contingency mentioned, depriving the defendant of the benefit of any testimony offered by him, by requiring the jury not to look to of consider it. A charge in every respect similar was given in the case of Rice v. The State, 3 Texas Ct. App. 451 and upon consideration of which the same was declared erroneous, the court holding that “it is not the province of the judge to say to the jury .on what evidence they should convict. The jury are the exclusive judges of the facts proved and of the weight of the testimony; and a charge to the jury is not unexceptionable if it expresses or intimates any opinion on the weight of evidence, or the credibility of statements made by the accused or the witnesses.” [Citing Ross v. The State, 29 Texas, 499; Jones v. The State, 13 Texas, 175; Butler v. The State, 3 Texas Ct. App. 48.] See also Lunsford v. The State, 9 Texas Ct. App. 217.

    Because the charge of the court was upon the weight of evidence in the particular pointed out, the judgment rendered below is reversed and the cause remanded for a new trial.

    Beversed and remanded.

Document Info

Citation Numbers: 10 Tex. Ct. App. 120

Judges: White

Filed Date: 7/1/1881

Precedential Status: Precedential

Modified Date: 9/3/2021