Beason v. State

• Decision Date: 12 February 1902
• Citation: 67 S.W. 96
• Parties: BEASON v. STATE.
• Court: Texas Court of Criminal Appeals

67 S.W. 96

BEASON v. STATE.

Court of Criminal Appeals of Texas.

February 12, 1902.

Appeal from district court, Clay county; A. H. Carrigan, Judge.

Lee Beason was convicted of burglary, and he appeals. Reversed.

Barrett & Barrett, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant, Lee Beason, was charged by indictment with burglarizing a house occupied and controlled by Paul Schucht with the intent to commit the crime of theft, and that he did fraudulently take 15 bushels of corn, of the value of $6. His trial resulted in his conviction, and his punishment assessed at confinement in the penitentiary for a term of two years.

This is the second appeal (Beason v. State, 63 S. W. 633, 2 Tex. Ct. Rep. 921), and is a companion case to Murmutt v. State, 67 S. W. 508, involving substantially the same issues. The record contains eight bills of exception. The bills will be treated seriatim.

1. The facts show that the burglary committed and the theft which was consummated in its perpetration occurred some time between 12 o'clock noon of February 24th, and 12 o'clock of February 25, 1901, being Sunday and Monday, respectively. Appellant was arrested on Tuesday, February 26th, about 11 o'clock. When arrested he was in company with his codefendant, Murmutt. This arrest was upon a charge by information and complaint of theft of the corn from the house alleged to have been burglarized. On Thursday, February 28th, appellant duly entered his plea of guilty to the the offense of theft in the county court of Clay county, and a judgment was on that day entered adjudging him guilty, assessing his punishment at a fine of $25 and 10 days' imprisonment in the county jail. Subsequent to this judgment appellant was arrested, charged with burglarizing the said house, and was indicted by the grand jury of Clay county on March 19, 1901. Upon the trial of his case the state introduced the complaint and information and the judgment upon his plea of guilty in the theft case, to the introduction of which appellant objected as shown by his first bill of exceptions. This evidence was admissible. The facts clearly show that the plea was entered for the identical theft that is alleged in the indictment in this case, it being alleged in this case as one of the elements of burglary. The objection that appellant was not admonished will not apply to a judicial confession in the nature of a plea of guilty in a misdemeanor, but only applies to felonies. Johnson v. State, 39 Tex. Cr. R. 625, 48 S. W. 70; Berliner v. Same, 6 Tex. App. 181. We are now discussing only its admissibility. The legal effect of said plea of guilty and its probative force will be discussed later.

2. Bills of exception Nos. 1 and 2 complain that the court erred in permitting the witness Paul Schucht to give his opinon as to whether a man could step in at the south window of the west room of the house alleged to have been burglarized without raising it, and his opinion as to whether or not the door could have been opened by stock that were in the inclosure where the house was situated, his opinion as to the latter being based upon the fact that there was no evidence of stock being near the entrance in question. These two questions will be thoroughly discussed in the Murmutt Case, supra.

3. Bills Nos. 3, 4, 5, and 6 all involve the same subject-matter. A synopsis of the bills may be stated. In bill No. 4 an exception was taken to the following remarks of the district attorney: "The facts in this case are so clear that you can't have a reasonable doubt as to the defendant's guilt; and, if you do not convict this defendant, we had just as well tear down our court houses, and stop paying our officers salaries to try to enforce the law. The grand jury has done all that they could do. I have prosecuted this case with all my might, and the officers of the court have done all that they could do; and his honor, the judge on the bench, is not going to help turn a guilty man loose. He is not that kind of a man that would let criminals go free. It is true that, if the jury return a verdict of not guilty, the case will be ended; and, if this court thinks this defendant is not guilty, the jury should not think that he would sit there and let him be convicted. He is not made of that kind of stuff. If a defendant is not guilty, there is no danger of his being convicted, because there are too many courts for this case to go through for an innocent man to be convicted in the courts of Texas." The bill shows that this argument was made in reply to the following argument of defendant's counsel, which is quoted, as follows: "Gentlemen of the jury, I am now about to close this case. You see from evidence there have been several trials in this cause, which is indicative of the fact that there is something wrong about this matter, and illustrates the adage that `a thing is never settled until it is settled right.' Therefore, gentlemen of the jury, I hope you will settle this case right, and end it by returning a verdict of not guilty; that a verdict of not guilty in a criminal case is so authoritative that it cannot be gainsaid by any power in this state; that it is the highest and most binding proceeding in such a case." In bill No. 5 the language complained of, as used by the district attorney, is as follows: "The state has proven that defendant stole the corn mentioned in the indictment by his plea of guilty. Do you believe that such a man as Judge Allen, your county judge, would let a man plead guilty that was not guilty and did not want to plead? You know that he would not. There is no circumstantial evidence in this case. The old court decided that when a man confessed his crime it was positive evidence, notwithstanding the fact that a little 2x4 court has since decided to the contrary. And I will say to you, gentlemen, you have positive evidence in this case, although the court may think it the safest to give you in charge the rule governing circumstantial evidence." And in bill No. 6, the following language, used by the district attorney and the court, is complained of: "The district attorney, in his argument before the court and jury, stated to the court, in the presence and hearing of the jury, and read an authority to the court to the effect that, where a defendant had confessed his guilt, that a charge on circumstantial evidence should not be given; and that the rule of circumstantial evidence should not be given in this case, because this defendant had confessed the crime. And the court thereupon remarked, in the presence and hearing of the jury, `I agree with you in your contention; but you know the court has ruled different in this case, and I can't say whether I will charge on circumstantial evidence.'" As a rule of practice it has been uniformly held that an improper argument,— which, for the purpose of this case, must be conceded,—is not ground for reversal unless appellant not only objected to the same at the time, but followed up this objection by requesting the court by a charge in writing to instruct the jury to disregard the same; and that this charge so requested was refused by the court. White's Ann. Code Cr. Proc. § 766, and authorities cited. The exception to this rule is where the argument is so obviously of a character that it is injurious in its nature, and such a flagrant disregard of the rights of the defendant that it will be assumed a written charge requested and granted will not cure the error. However, in this case, the cruicial test is not the impropriety of the district attorney in his argument, but rather the injury inflicted on appellant by the conduct of the learned judge. To better understand this, it will be necessary to state the history of this case. This was its second trial, the former trial being reversed by this court upon the sole ground that the trial court had failed to give a charge upon circumstantial evidence. The facts on this appeal and upon the former appeal are identical. If it was a case of circumstantial evidence on the first trial, it was likewise a case of circumstantial evidence on the second trial. The reluctance of the trial judge on the second trial to treat it as a case of circumstantial evidence justifies this court in making a critical review of that proposition, because, if this court was in error in holding in the first instance that it was a case of circumstantial evidence, the remarks made by the trial judge on this trial might be rendered harmless. The court will assume, in approaching the discussion of this proposition, that the learned trial judge understood that, if the case was one of circumstantial evidence, it was his duty to give the jury in charge the law upon the same. This rule is so universal in its acceptation, and has been so repeatedly announced by not only this court but the courts of other jurisdictions, that it would be a useless consummation of time and space to enter into its discussion. It is equally as well settled that a case is not to be treated as a case of circumstantial evidence requiring a charge upon the same where some of the material issues incriminating and inculpatory rest solely upon that kind of evidence. The distinction between circumstantial evidence and direct evidence is that in the first instance the facts apply directly to the factum probandum, while circumstantial evidence is proof of a minor fact, which, by indirection, logically and rationally demonstrates the factum probandum. This is illustrated by proof of recent possession of stolen property. In such a case, resting alone upon such inculpatory evidence, the eye of no witness saw the thief in the act of taking the property stolen. But the witness may testify directly to the fact of seeing the thief, recently after the crime, in possession of the stolen property, and, when his possession was challenged, either declined to explain or gave an explanation which was false, from which...