Fisher v. State
| Decision Date | 01 January 1870 |
| Citation | 33 Tex. 792 |
| Parties | KING FISHER v. THE STATE. |
| Court | Texas Supreme Court |
1. In a trial for the theft of sundry articles, it was error to permit the state to prove that some of the articles were stolen on the day charged in the indictment, and the remainder on a previous day. Nor was this error purged by the court instructing the jury that the defendant could not be convicted of two offenses when but one was charged in the indictment; for this instruction could not counteract the probable prejudice and injustice already done the defendant by the improper admission of the evidence, nor could it render certain which one of the offenses proved, a general verdict of “guilty” was based upon.
2. Although it was not necessary to prove that the theft was committed on the day charged, nor that every one of the alleged articles was stolen; yet it would be in contravention of the first principles of law and of the administration of justice to permit the prosecutor, for the purpose of securing a conviction, to unite several distinct offenses in the same indictment, or to indict a party for one offense and then prove several offenses on the trial.
3. The true rule is, that when two or more felonies are charged in the same indictment, the indictment may be quashed, or the prosecutor be compelled to elect on which charge he will proceed; and if the fact that two or more offenses are contained in the indictment be not discovered until the trial is in progress, the prosecution should then be abandoned, except as to the one offense which the prosecutor elects to proceed upon.
APPEAL from Goliad. Tried below before the Hon. D. D. Claiborn.
The material facts are disclosed in the opinion. Two years confinement in the penitentiary was the penalty assessed by the jury.
John A. Green and Pryor Lea, for the appellant.
No brief for the state has reached the hands of the reporter.
The defendant was indicted for the theft from the store house of H. Greenly, on the nineteenth day of June, 1870, of a quantity of tobacco, candy, a knife and a pair of pants. On the trial the district attorney offered to prove that defendant stole a portion of the articles on the nineteenth of June and the balance on the twelfth of the same month; to which evidence counsel for the defendant objected, and moved the court to confine the evidence to one date and to one offense. The objection was overruled by the court, and the district attorney was permitted to prove, or attempt to prove, two distinct offenses committed on two distinct days. The court charged the jury that “the defendant cannot be...
To continue reading
Request your trial
-
Drake v. State
...the pleadings to the different aspects in which the evidence on trial may present a single transaction." Id., at 114.See also Fisher v. The State, 33 Tex. 792 (1870-1871); Lunn v. The State, 44 Tex. 85 (1875); Simms v. The State, 10 Tex.App. 131, 159-160 (Ct.App.1881). Thus, any thought tha......
-
State v. Mackey
...acts occurring subsequent to the one on which the prosecution is based is not competent or admissible. Lunn v. State, 44 Tex. 85; Fisher v. State, 33 Tex. 792. separate acts of intercourse are shown or sworn to by the prosecutrix, defendant should not be called upon to defend himself agains......
-
Phillips v. State
...Case law has given four reasons for the rule: • to protect the accused from the introduction of extraneous offenses, see Fisher v. State, 33 Tex. 792, 794 (1870); • to minimize the risk that the jury might choose to convict, not because one or more crimes were proved beyond a reasonable dou......
-
Hartis v. State
...36 S.W.3d 121, 123-25 (Tex.Crim. App.2000) (en banc); O'Neal v. State, 746 S.W.2d 769, 772-73 (Tex.Crim.App.1988) (en banc); Fisher v. State, 33 Tex. 792, 794 (1870). We now examine whether these purposes were frustrated by the trial court's The need to ensure a unanimous verdict is not at ......