Conn v. State , 11 Tex. Ct. App. 390 ( 1882 )

Hurt, J.

Colhns, Thomas and appellant (Conn) were indicted for the theft of two yoke of oxen. A severance being had (upon the application of Colhns), Conn was tried and convicted. Judgment being entered upon the verdict, Conn appeals.

The first matter we will notice is the charge of the court. While it is true in law that if the accused were present, and, knowing the unlawful intent, aids, abets, assists, encourages, stands guard, etc., he would be as guilty as the person actually engaged in the commission of the offense, yet it is not always proper to give abstract rules of law in charge to the jury. There must be evidence tending to show that defendant comes within the provisions of the rule; if not, the rule is abstract, and to give it in charge without support in the facts is assuming. It tends frequently to the supposition of the existence of the facts necessary to bring the prisoner within the operation of the rule; thus making the rule self-sustaining, independent of the facts. Again this charge tends to impress the jury with the belief that defendant did aid and encourage, etc.; for if he did not, why charge upon this subject ? It is the duty of the trial court to charge the law applicable to every phase of the case made by the evidence, or any part of the evidence, leaving the jury to pass upon the strength of the evidence; but the court should never charge a rule of law, though perfectly sound, which has no support in the evidence.

We have examined the statement of facts, but found no fact which can be made the basis of this charge. The only fact which can be tortured into such evidence is that, when the oxen were purchased by Collins at Cobb’s in the presence of the two Cobbs, defendant was told to turn them out in the direction of Matonia; and this he did. There is no question but that Conn was a mere hired hand, in the employ of Collins. This being the case, the evidence must tend to show guilt in Collins, and guilty knowledge in Conn in connection with the above act of driving the oxen out of the pen in the direction of Matonia. The evidence must show that Collins was engaged in the theft of the cattle, and that Conn knew this, and that when he turned them out of the lot, he intended thereby to aid, encourage, or assist Collins in the theft. The act (there being nothing said by Conn) must not only aid, encourage, or assist in the theft, but such an effect must have been intended. If the natural consequence of the act tends to aid, assist, or encourage in the theft, that it was intended to have such effect is presumed.

If, however, the act isolated from the other facts was not calculated to have such effect, the evidence must show the intent with which the act was done. This may be done by the surrounding facts or circumstances. When these are looked to, they not only fail to indicate a wrong intent, but tend strongly to rebut such an inference. The oxen had been purchased by Collins at the house of Wm. Cobb in the presence of Key, Wm. Cobb and S. S. Cobb. A bill of sale was taken, and it was witnessed by the Cobbs, and correctly described the oxem The trade being consummated, Collins told defendant “Go turn out the oxen, and let them graze on the road towards Flatonia.” This he did, and this was all he did. This act, viewed in connection with the immediate circumstances, cannot justly be construed in a culpable light. It must be viewed in the light of these facts,—■ the facts immediately attending the act of defendant, to wit, turning the oxen out of the pen; for there is no evidence connecting defendant with the oxen prior to the sale to Collins. (The Reporters will give the evidence..) We are of the opinion that the court erred in giving the charge complained of; and we are also of the opinion that the evidence fails to support the verdict, and that a new trial should have been awarded.

Bill of exceptions No. one informs us that the cause was submitted to the jury about 10 o’clock, P. M., on the ith of November, and that at three o’clock of the 5th, without agreeing they came into court, and presented to the court a piece of paper “containing writing,” the purport and effect of which was not made known to defendant or his attorney; that the court, after reading it, said: “'I can answer your communication, but I don’t think it proper; I think I covered the point in my charge;” and thezz went on to say “ there is another case here that cazzziot be tried till this is decided; it is ruining,'—the State pays you two dollars a day, and unless you decide I will keep you till Monday znorning.”

Article 696, Code Crim. Procedure, enacts that “The jury, after having retired, may ask further instructions of the judge touching aziy matter of law. For this purpose the jury shall appear before the judge, in opezi court, in a body, and through their foreznan state to the court, either verbally or hr writing, the particular point of law upon which they desire further instructiozis, and the court shall give such instructions in writing; but no instruction shall be given except upon the particular point on which it is desired.” The court must instruct upon the point presented in the request of the jury, and this must be done in writing. If not proper matter for instruction, the court must inform the jury of this fact in writing. In this instance the defendant, his attorneys, nor this court, so far as the record shows, is informed of the contents of the paper presented to the judge. From the answer of the judge thereto it evidently contained a request for further instructions upon some point. If the point was a proper one for instruction, the court was left no alternative but to respond. The Code is imperative; hence the necessity,—the absolute necessity,— of disclosing the contents of this paper. Defendant excepted to this secret, ex parte proceeding between the jury and the judge; and we think he had just cause to object to and protest against this very anomalous conduct.

The spirit and genius of our Codes are opposed to any and every thing which militates a,gainst a fair, open and public trial No step in the trial can be taken, in the absence of the defendant. If allowed to be done or had secretly, his presence would be a mockery,— a very serious farce to defendant. Why the judge informed the jury of the fact,— than which none was better known to each and every member thereof,— that the State paid them two dollars each per day, we cannot comprehend. Taking the facts immediately attending this matter, we find a wrong impression was made upon the jury. These remarks and all of like character are wrong, and should not be indulged in.

It appears by the 4th bill that “the district attorney said to the jury, ‘ They have severed and Conn is put on trial, and you are told he was only a hired hand. They hope thus to clear this man and then he is to swear his confederate clear. I tell you this is the trick.’ To which the defendant objected, and asked the court to stop such statements; which was refused by the court. Continuing, the district attorney said, ‘ Good men in this county, and the best men in Gonzales county, desire the conviction of this man and his partner.’ To all of which the defendant objected. The court overruled the objections, remarking, i he speaks at his peril; I will sign your bill of exceptions.’ ”

Collins had the right to place Conn on trial first, and, if acquitted, make a witness of him. This is not only permitted by the Code, but is in perfect accord with reason and justice; and the judge should not have permitted for a moment, an attack, such as the above, upon proceedings which are not only just but expressly authorized -by the very Code of laws for a supposed breach of which the defendant was being tried. If to place Conn on trial first, with a view of acquittal and to make him a witness, be a trick, it is one expressly provided for by law. If Conn be guilty, the State could defeat the trick by proving his guilt, under the rules of law. This response of the judge is astonishing indeed. Considering the very obnoxious and flagrant remarks of the district attorney, we cannot conceive how it were possible for any person save defendant to be in peril. That the district attorney was not is very evident from the fact that defendant’s motion for a new trial was promptly overruled. We are left to conclude from the latter part of the remark, to wit, “I will sign your bill of exceptions,” that the danger or peril was to be from the hands of this court; if so, we are equal to the occasion; for we will not permit one accused of theft or any other offense to be convicted by such means, though all of the good, better, or best men of this State desire his conviction.

We will not discuss why or how these remarks of the district attorney injure the rights of defendant. Nor will we quote authorities in condemnation of these remarks, nor to show that it was the duty of the judge to have promptly stopped the district attorney, and inform the jury that they should not be influenced by the wishes of good or bad men, but that they should and must try defendant by the law and the evidence of the witnesses,— witnesses sworn in the case.

The witness James Schuler was related to Collins. The district attorney asked and obtained leave to lead, and did propound leading questions to this, the State’s, witness. There was no disposition to evade or answer in a doubtful or double sense, nor was there a disposition shown not to answer frankly, plainly and pertinently each and every question propounded. This being the case, was the fact that witness was related to Collins, who, though jointly indicted, was not on trial, a good and sufficient ground to authorize leading questions ? We think not.

Por the errors above indicated the judgment is reversed and the cause remanded.

Reversed and remanded.