Ernster v. State, 29117
Decision Date | 06 November 1957 |
Docket Number | No. 29117,29117 |
Citation | 308 S.W.2d 33,165 Tex.Crim. 422 |
Parties | Cletus P. ERNSTER, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Kelly, Hunt & Cullen, Richard D. Cullen, Victoria, R. E. L. Looney, Looney, Clark & Moorhead, Donald S. Thomas, Mary Joe Carroll, and Everett L. Looney, Austin, for appellant.
Wiley L. Cheatham, Dist. Atty., Cuero, Will Wilson, Atty. Gen. of Texas, Lonny F. Zwiener, and George P. Blackburn, Asst. Attys. Gen. of Texas, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is misrepresenting a written instrument affecting property as denounced by Article 1000, Vernon's Ann.P.C.
We are met at the outset with an objection to the court's charge, which we have concluded is determinative of this appeal.
The appellant did not testify or offer any evidence save that relating to his reputation for being a peaceable and law-abiding citizen.
Several extraneous offenses were admitted in evidence on the theory that they were admissible on the issue of motive and intent.
In his charge limiting the jury's consideration of these extraneous offenses to the purpose for which they were admitted, the court failed to instruct the jury that they could not consider such collateral crimes against the appellant unless they believed beyond a reasonable doubt that the appellant was guilty thereof.
By proper objection, the appellant called this omission to the court's attention, but such objection was overruled.
In the early case of Taylor v. State, 50 Tex.Cr.R. 381, 97 S.W. 474, 476, decided in 1906, this Court, speaking through Judge Davidson, said:
'The jury should be plainly informed that, before they could consider any collateral matters growing out of this transaction or connected with it, as evidence against defendant, even bearing upon his intent, motive, etc., those alleged collateral forgeries must be found to be forgeries.'
In Pelton v. State, 60 Tex.Cr.R. 412, 132 S.W. 480, 484, decided in 1910, the Taylor case is cited with approval, and the Court said:
'In order for these collateral matters to be used by the jury as evidence on the intent of the defendant, we think they must believe from the evidence beyond a reasonable doubt that they are forgeries.'
In Lankford v. State, 93 Tex.Cr.R. 442, 248 S.W. 389, decided in 1923, this Court, speaking through Judge Lattimore, said:
In Miller v. State, 122 Tex.Cr.R. 59, 53 S.W.2d 790, 791, decided in 1932, in an opinion by Judge Christian, the Lankford case was cited with approval, and the Court said:
In Vaughn v. State, 135 Tex.Cr.R. 205, 118 S.W.2d 312, decided in 1938, this Court made the same statement as has been quoted above from the Miller case.
In Nichols v. State, 138 Tex.Cr.R. 324, 136 S.W.2d 221, decided in 1940, this Court again cited the Lankford case with approval and said:
'In limiting such proof, the charge of the court was deficient, in that it failed to instruct the jury that they could not consider the alleged extraneous offenses unless appellant's guilt of such offenses had been shown by legal evidence beyond a reasonable doubt.'
As against this array of authorities, there seem to be three cases which might be construed as holding to the contrary.
In Campbell v. State, 131 Tex.Cr.R. 377, 99 S.W.2d 602, this Court held, and rightly so we think, that where the appellant's own evidence put him in possession of the chickens involved in the extraneous theft the failure to charge the jury in line with the authorities hereinbefore quoted was not error. It should be remembered, however, that in the case at bar, the State's witnesses, and they alone, testified about the extraneous offenses.
In the two relatively recent opinions of this Court in Vigil v. State, 148 Tex.Cr.R. 91, 184 S.W.2d 926, and Campbell v. State, 294 S.W.2d 125, this Court quoted a charge with approval which did not contain any instruction on reasonable doubt. A reading of the opinions in such cases will reveal, however, that the objection now urged for our consideration was not considered nor discussed by the Court, and such opinions are therefore not authoritative on the question here presented.
We have concluded that the authorities hereinbefore cited...
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...evidence unless they believed beyond a reasonable doubt that the defendant committed such offense. See, e.g., Ernster v. State, 165 Tex.Crim. 422, 308 S.W.2d 33, 34-35 (1957); Nichols v. State, 138 Tex.Crim. 324, 136 S.W.2d 221, 221-22 (1940); Vaughn v. State, 135 Tex.Crim. 205, 118 S.W.2d ......
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