Gresser v. State

• Decision Date: 05 May 1897
• Citation: 40 S.W. 595
• Parties: GRESSER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 595

40 S.W. 595

GRESSER v. STATE.

Court of Criminal Appeals of Texas.

May 5, 1897.

Appeal from district court, Fayette county; H. Teichmuller, Judge.

Ali Gresser was convicted of assault with intent to kill, and appeals. Affirmed.

Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of an assault with intent to murder, and given five years in the penitentiary; hence this appeal.

The only bill of exceptions is to the action of the court in authorizing the jury to take with them into the jury room a pair of shoes which were introduced in evidence, and which the testimony tended to show belonged to the defendant, and were worn by him on the night of the alleged assault with intent to murder. It appears that the jury, after they had been considering of their verdict, applied to the court to allow them to take to their jury room the pair of shoes in question, which was granted, over the objection of the appellant. The bill does not disclose what particular use said shoes were put to by the jury, and it cannot be assumed by us that they were used for any purpose inconsistent with the testimony for which they were introduced; that is, they were introduced as a circumstance to enable the jury to identify the defendant as being the party who fired the shots on the night of the alleged assault with intent to murder. If said shoes were used only for such purpose, and no other is disclosed, we fail to see how the carrying of them into the jury room for inspection could prejudice the appellant. See Spencer v. State (Tex. Cr. App.) 30 S. W. 46, and Jackson v. State, 28 Tex. App. 373, 13 S. W. 451. These decisions may not be in harmony with the case of Bouldin v. State, 8 Tex. App. 332; but we do not believe the latter case is supported by the better authorities, and we hold, in accord with the Spencer Case, supra, and the authorities therein cited, that, before a case will be reversed because the jury were permitted by the court to take with them some article introduced in evidence, it must appear that such article was used by the jury in some manner inconsistent with and outside of the testimony, and to the prejudice of the defendant. In this case the only question at issue was as to the identity of the defendant as being the person who shot at the prosecutor on the night in question. The prosecutor was his father, and he testifies that he took the party shooting at him to be the defendant. The evidence shows motive on the part of defendan...