Garza v. State

• Citation: 66 S.W. 1098
• Parties: GARZA et al. v. STATE.
• Decision Date: 26 February 1902
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

66 S.W. 1098

GARZA et al. v. STATE.

Court of Criminal Appeals of Texas.

February 26, 1902.

Appeal from district court, Nueces county; Stanley Welch, Judge.

Alejos Garza and others were convicted of cattle theft, and appeal. Affirmed.

R. B. Creager, for appellants. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellants, Alejos Garza, Manuel Dominguez, and Mauricio Garcia, were convicted of cattle theft. The indictment alleged the possession in E. B. Raymond, who was holding the same for the owner Mrs. H. M. King, and negatives the consent of both. Mrs. King was sick at the time of the trial, and had been for some time. She was therefore unable to attend the court, and did not testify. The evidence further shows that Raymond had had the actual care, control, and management of the property for years; that the particular ranch of which he had control was located in Cameron county. Mrs. King resided in Nueces county, at the city of Corpus Christi, and was about 70 years of age. Counsel for appellant argued to the jury that, in the absence of Mrs. King, the state should have taken her deposition, in order to prove her want of consent to the taking. In this connection the court charged the jury, "You are instructed the depositions of a witness in a criminal case cannot be taken by the state through its prosecuting officers," and to this appellant interposed objection. In view of the argument and under the circumstances, we believe the court was correct in giving the instruction. The state cannot take the deposition of a witness in a criminal prosecution. Cline v. State, 36 Tex. Cr. R. 320, 36 S. W. 1099, 37 S. W. 722, 61 Am. St. Rep. 850.

The verdict of the jury found defendants guilty, and assessed their punishment at three years' confinement in the penitentiary. The court entered judgment on this verdict of three years against each of the defendants, and so pronounced the sentence. Exception was reserved to this on the theory that it was a joint verdict, and not a separate verdict, as to each. Some of the older cases so hold, but this has not been the rule since the case of Mootry v. State, 35 Tex. Cr. R. 457, 33 S. W. 877, 34 S. W. 126; Polk v. Same, 35 Tex. Cr. R. 495, 34 S. W. 633; and especially see Davidson v. Same, 40 Tex. Cr. R. 285, 49 S. W. 372, 50 S. W. 365.

The fifth ground of the motion for new trial complains of the remarks of the district attorney. This is simply made a ground of the motion, and is not reserved by...