Guajardo v. State , 24 Tex. Ct. App. 603 ( 1888 )

Hurt, Judge.

This appeal is from a conviction for theft of a horse, and the case is submitted by the Assistant Atterney General on confession of error.

Over objection of appellant, the State proved that he. appellant, had lived in the penitentiary as a convict for the last four or five years. This fact being elicited by a question not necessarily calling for such an answer, counsel for appellant also moved the court to exclude this matter from the consideration of the jury, and, the court refusing, an exception was reserved. We will not discuss the competency of such supposed evidence. The action of the court in admitting and refusing to exclude this matter from the jury was simply, whether intended or not, an outrage upon the rights of the accused. .

Opinion delivered February 1, 1888.

It may be contended that, as no reason or ground of objection was stated by counsel for appellant, defendant can not complain of the ruling of the court. The rule upon this subject is that, if the evidence is obviously competent and admissible as tending to prove any of the facts put in issue by the pleadings, then a reason should be assigned for objecting to it. (Rules for District Courts, No. 57.) That appellant had lived as a convict in the penitentiary for the last four or five years was not, competent and admissible evidence to prove, or tend to prove, any issue raised in this case, hence no ground of objection to its admissibility was required.

This is a case depending alone for conviction upon circumstantial evidence. The rules applicable to such a" case should be given in charge to the jury. This was not done, which was error.

For the errors above noticed, the judgment is reversed and the cause remanded.

Reversed and remanded.