Campbell v. State
| Decision Date | 01 January 1874 |
| Citation | 42 Tex. 591 |
| Parties | STEWART CAMPBELL v. THE STATE. |
| Court | Texas Supreme Court |
APPEAL from Colorado. Tried below before the Hon. L. Lindsay.
Stewart Campbell was indicted, November, 1872, for theft of a work ox, of the value of twenty-five dollars.
On his trial, after the State and the defendant had closed (the witnesses having been placed under the rule), and examined, and the jury had received the charge of the court, and had retired, and had been out for twelve hours, the jury came back to the court-room, and requested permission to re-examine Henry S. Clark, a witness for the State, and the alleged owner of the ox alleged to have been stolen.
This permission was given by the court, and the foreman of the jury, W. H. Carlton, under the direction of the court and without interference on the part of the counsel for the State or for the defendant, propounded to the witness, Clark, certain questions, to wit:
“Who told you that Stewart Campbell had your ox?”
To which question the witness, Dr. H. S. Clark, replied that “William or Bill English had told him that Stewart Campbell, the defendant, had his ox.”
“Did the defendant, Stewart Campbell, tell you that he had your ox in his possession?”
To which the witness replied that he did tell him so, and promised to return him the ox the next day, but that he stated at the same time that he (defendant) thought that Boatwright claimed the ox, or that it had been in Boatwright's possession.
“Was the brand plain upon the animal at the time?”
To which the witness replied that it was.
The foreman of the jury did not ask the witness merely to recapitulate the testimony which he had given upon the stand, but asked him the said questions, to which the answers as given were made; after which the jury, under the direction of the court, retired from the room. Whereupon the counsel for defendant desired the court to note his exception to the proceeding which had been had in the matter of the re-examination of the witness Clark, without opportunity to defendant to cross-examine.
The court added to the bill of exceptions the explanation that when the jury applied to the court, through their foreman, to recall the witness, Dr. H. S. Clark, he admonished the jury that the witness could only be interrogated in reference to testimony which he had previously given, and about which they or some of them were not fully satisfied; and when the interrogatories were propounded to the witness and he answered them, the court, as well as the witnesses, considered his answers as an effort to reiterate what he had previously attempted to convey to the minds of the jurors.
The court had charged the jury upon theft, not giving the Article 2610 b in charge, concerning theft by fraudulently taking cattle from their accustomed range.
Defendant was convicted of theft, and punishment fixed at two years confinement in the penitentiary.
Oscar M. Watkins, for appellant.
N. G. Kittrell, for State.
The court erred in permitting Clark, the witness for the State, to be recalled and examined in the manner shown by the bill of exceptions, after the case had been submitted to the jury. The circumstances under which a witness who has testified may be recalled, and the extent and character of his re-examination are clearly and plainly laid down in Article 615, Code of Criminal Procedure, which reads as follows, to wit:
“If the jury disagree as to the statement of any particular witness, they may, upon applying to the court, have such witness brought upon the stand, and he shall be directed by the judge to detail his testimony in respect to the particular points of disagreement, and no other, and he shall be further instructed to make his statement in the language used upon his examination as nearly as he can.”
It seems quite probable from the contents of the bill of exceptions, that the attention of the court was not directly called to this article of the Code, when the jury applied to have the witness re-examined. Obviously it was not observed either in letter or spirit. What are its provisions?
First. It seems the jury...
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...which is done accomplishes the substantial purpose of the statute." The correct application of the rule we think is expressed in Campbell's Case, 42 Tex. 591, "Whenever there is reason to apprehend that injury may have resulted to the defendant, especially in a case of felony, from the fail......
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...point of disagreement, and no other, and as nearly as he can in the language used in his examination. Rev. St. art. 1963; Campbell v. State, 42 Tex. 591. There can be no re-examination of the witnesses. In the case cited the court "It may be insisted with much force that this article of the......
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