Alston v. State
| Decision Date | 01 January 1874 |
| Citation | 41 Tex. 39 |
| Parties | FANNY ALSTON v. THE STATE. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Leon. Tried below before the Hon. John B. Rector.
No brief for appellant.
George Clark, Attorney General, for the State, cited Pas. Dig., arts. 2372, 3127; De Warren v. State, 29 Tex., 465;Slaughter v. State, 24 Tex., 410;8 Leigh, 743; 2 Whart. Am. Cr. Law, sec. 1840.
The appellant and Gideon Holmes were jointly indicted for theft of twenty pounds of bacon from the smoke-house of David Price. On the trial Price testified that the bacon was taken from his smoke-house, and that on making search it was found in the house of Holmes, where defendant, Alston, also lived; that at the time the bacon was taken defendant had been for some four or five days in his employ, cooking and doing other household work during his wife's illness, eating and sleeping on the place, and having free access to all the buildings and apartments. After finding the bacon Price returned home, where defendant was, and accused her of the theft, which she stoutly denied. Holmes was arrested, and, on the examination before the justice of the peace, Fanny Alston was sworn as a witness for the defense. According to the testimony of the justice and of Price, she was not under arrest, but gave her testimony freely, and without compulsion or persuasion. She testified that she took the bacon, thinking no one would care, carried it to the wash-place wrapped up in some clothing, and sent it home by Gideon Holmes. Upon this the justice ordered her arrest. The admission of these statements in evidence was objected to, on the ground that defendant was not cautioned not to criminate herself, and on the further ground that they could not be proved by parol testimony. The court instructed the jury as to theft from a house, and after defining what constituted a domestic servant, added, that if they found the defendant was a domestic servant at the time she took the bacon, if she took it, she could not be convicted under that indictment. The jury brought into court the following verdict: “We, the jury, find the defendants guilty, and assess their fine at twenty-five dollars.” This verdict the court refused to receive, and instructed them to consider further. Afterwards they returned the following: “We, the jury, find the defendants guilty, and assess the punishment at two years' imprisonment in the State penitentiary.” Upon motion a new trial was granted to Holmes, but refused to Fanny Alston, who has appealed to this court. The bills of exception and assignments of error present several questions:
First. Did the court err in refusing to receive the first verdict, and did the verdict operate as an acquittal of theft from a house? This verdict was informal, was not responsive to the issue under the charge of the court, and was correctly rejected. (Pas. Dig., arts. 3092, 3093; Slaughter v. State, 24 Tex. 410.) Nor do we think this informal verdict operated as an acquittal of the higher grades of theft. The statute gives an informal verdict the force of an acquittal only in cases where “it manifestly appears that the verdict is intended as an acquittal.” (Pas. Dig., art. 3093.) Outside of the statute, and tested by the rules of the common law, the conclusion is the same. The Supreme Court of Iowa, after an examination of numerous authorities, lays down this general rule: That when the verdict, especially if intended to be a verdict of guilty, is so defective and uncertain that the court does not know for what offense to pass judgment, it may be set aside by the court, even against the defendant's objection, and the proceeding is no bar to another trial. (State of Iowa v. Redman, 17 Iowa, 335.)
Was there error in admitting defendant's confessions, or in allowing them to be established by oral evidence?
Article 3126, Pas. Dig., is as follows: “The confession of a defendant may be used in evidence against him if it appear that the same was freely made, without compulsion or persuasion, under the rules hereafter prescribed.” As the...
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