Clark v. State

• Decision Date: 13 April 1887
• Citation: 5 S.W. 115
• Parties: CLARK v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 115

5 S.W. 115

CLARK v. STATE.¹

Court of Appeals of Texas.

April 13, 1887.

Appeal from county court, Cooke county.

The conviction was for defacing a public school building, and the penalty assessed was a fine of five dollars. The defacing of the school-house was amply proved by the state, and was not controverted by the defense. The state located the defendant and one Blackburn together near the school-house on the night of the offense, and adduced strong circumstantial proof inculpating them. Blackburn, for the defense testified, in substance, that, in order to obtain shelter from the extreme cold for the defendant, who was drunk and in danger of freezing, he, (Blackburn,) without the knowledge, advice, consent, or co-operation of the defendant, broke open the school-house in the manner described in the indictment, being unable to effect an entrance in any other manner. He had been indicted for that offense, was arraigned for trial, pleaded guilty, and paid the fine assessed against him.

Potter & Hughes, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

A complaint which states that the affiant "has good reason to believe, and does believe," that the accused has committed the offense charged, is valid. Code Crim. Proc. art. 236; Brown v. State, 11 Tex. App. 451.

It is charged in the complaint and information that the building alleged to have been defaced was a "public building," and was "held for public use by Cooke county." These allegations bring the case fully within the statute and the decisions, and the information is a good one. Pen. Code, arts. 417, 418; Brown v. State, 16 Tex. App. 245; Pratt v. State, 19 Tex. App. 276; Willson, Crim. Forms, 297.

There is no error in the charge of the court, except that it omitted to instruct the jury as to the legal meaning of the word "willful." Thomas v. State, 14 Tex. App. 200. But the charge, as given, was not excepted to, nor did the defendant ask an instruction supplying this omission; and hence, this being a misdemeanor case, the error will not be reviewed. Loyd v. State, 19 Tex. App. 321. As to the special charges asked and refused, the first was substantially embraced in the court's charge, and the second does not, in our opinion, state the law.

It was not error to overrule defendant's motion to transfer the cause to the district court, because of the supposed disqualification of the county judge. The fact that the title to the school-house was vested in him, in his official capacity, for the use of the county, did not render him incompetent to try the case. W. & W. Cond. Rep. § 304; 2 W. Cond. Rep. § 260.

There had been a former trial and conviction of defendant in this case, and a new trial had been granted him. Upon the second trial, which resulted in the conviction now before us, the state proved by a witness the former conviction. A bill of exceptions shows that this proof was made before the defendant had time to interpose an objection to it; but he at once, as soon as said testimony...