Hankins v. State

Citation45 S.W. 807
Decision Date11 May 1898
CourtTexas Court of Criminal Appeals

Appeal from Bosque county court; W. B. Thompson, Judge.

Action by the state against John Hankins. Accused was convicted, and appeals. Reversed.

W. W. Walling and Mann Trice, for the State.


Appellant was convicted of willfully, and without the consent of the owner thereof, opening and leaving open a gate leading into the inclosure of another, under article 794, Pen. Code 1895, and appeals.

The evidence on the trial showed the inclosure to be a pasture. It is contended by appellant that, in order to constitute an offense under the article in question, the inclosure should be cultivated land, and that said article was intended only to protect agricultural crops. The statute does not bear out this construction.

There were several charges asked by appellant, and refused by the court. We will not enter into a discussion of these, as the law was properly given in the court's charge as it applied the law to the evidence adduced. Nor did the court err in charging the jury that if the defendant, acting alone or in concert with others, did willfully, and without the consent of the owner, open and leave open the gate in question, he would be guilty. The evidence discloses that his two brothers were with him at the time, and it is also indicated from the testimony that they were particeps criminis; and it would be immaterial which one opened the gate, or left it open. The testimony shows that defendant was in front, and opened the gate; that his two brothers came through the gate immediately after the defendant, and left the gate open, and they all rode away, and were compelled by the owner and his brother to return and close said gate.

Bill of exceptions No. 4 recites that: "The county attorney used the following language in his closing argument to the jury, to wit: `The defendant failed to get on the stand as a witness for himself, and should have done so.' Counsel for appellant excepted at once, by a proper bill." The court qualifies the bill of exceptions as follows: "When said remarks were made by the county attorney, and excepted to by defendant's counsel, the court immediately stated that said remarks were excluded from the consideration of the jury." This precise question came up in Hunt v. State, 28 Tex. App. 149, 12 S. W. 737, and the judgment was reversed. That case has been followed by this court in all subsequent cases. Why prosecuting officers will...

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