Carroll v. State

• Decision Date: 12 December 1906
• Citation: 98 S.W. 859
• Parties: CARROLL v. STATE.
• Court: Texas Court of Criminal Appeals

98 S.W. 859

CARROLL v. STATE.

Court of Criminal Appeals of Texas.

December 12, 1906.

Appeal from District Court, Hill County; W. C. Wear, Judge.

Ed Carroll was convicted of horse theft, and appeals. Reversed and remanded.

Morrow & Smithdeal, for appellant. J. E. Yantis, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for horse theft. Appellant did not testify in his own behalf. After the jury had retired, they had a ballot resulting in nine for conviction and three for acquittal. The question was asked whether appellant did not testify, and some of the jurors swear that one of the jurors stated that he knew better. On another occasion one of the jurors mentioned the fact that appellant did not testify, and asked the reason. To this the reply was made that there was no necessity for it, as the sheriff had testified to what defendant would testify. It seems that one juror asked why appellant did not testify, and to this reply was made that the jury could not consider that. This is about the substance of this ground of the motion for new trial. We are of opinion that, under our decisions, this is such an infringement of the statute prohibiting comment and criticism or allusion to the failure of the defendant to testify as requires a reversal.

The statements, admission, or confessions, whichever they may be termed, made by appellant to the sheriff, were introduced in evidence by the state to the effect that appellant had escaped from the county convict farm in Navarro county, and that the officers were pursuing him with hounds, and to escape arrest he took the horse in question, and rode him to Ft. Worth, turned him loose, and there bought a horse and went on to the Indian Territory. Later on, the horse in question was recovered at the point designated by appellant, near Ft. Worth, where he had been running from the time appellant turned him loose until recovered by the owner. The court charged the jury that there must be a fraudulent taking of the property before they could convict, and further, if they should believe at the time appellant took the horse he was pursued by officers of Navarro county and to evade them he took the horse, with no intention of permanently appropriating the same to his own use and benefit, but intended simply to use the horse temporarily, or they had a reasonable doubt in regard to this matter they should acquit. This was a correct charge. Subsequently, however, the court instructed the jury, if appellant took the horse fraudulently with the intent to permanently deprive the owner of it, and did not simply intend to use it temporarily, and that he abandoned the horse north of Ft. Worth, because the horse was ridden down, and unable to travel further, they should find him guilty, although they might believe appellant realized no pecuniary benefit from said horse. If appellant took the horse, with intent to defraud, it would make no difference whether he rode him to Ft. Worth to escape the officers or not. The offense was complete the moment he fraudulently took him into possession. If he did not take him fraudulently with the intent to appropriate him, but simply to steal a ride, the fact that he abandoned the horse later on would make no difference. Whenever the taking is not fraudulent no subsequent appropriation could be theft. While the court's charge announced a correct proposition, it has the appearance of having singled out the fact of abandonment to the jury as evidence in the court's mind that the original taking was fraudulent, which was evident by the subsequent abandonment. If the court should see proper upon another trial to give this question in charge to the jury, the converse of it, it occurs to us, in fairness should be given; that is, if the horse was not fraudulently taken, the fact that the horse was ridden down and abandoned would not be evidence of an original fraudulent taking. There is a bill of exceptions in the record to the action of the court overruling the plea of jeopardy. The facts as raised by the bill show that appellant had been previously placed upon trial for the same transaction under a different indictment; that the other indictment charged that appellant "fraudulently took the horse from E. D. Paker, same being the personal property of said E. D. Parker, without the consent of the said E. D. Parker," etc. Upon the last trial, after the announcement of ready, impanelment of the jury, reading the indictment, and plea of not guilty, Parker was placed upon the stand as a witness. Defendant then brought to the attention of the...