Holsey v. State

Decision Date22 October 1887
PartiesHOLSEY v. STATE.
CourtTexas Court of Appeals

Appeal from district court, Bexar county; GEORGE H. NOONAN, Judge.

The conviction was for the theft of Frank Sherwood's two certain mules, and the penalty assessed was a term of five years in the penitentiary. The state proved, in substance, that Sherwood's two mules were stolen from his camp, in Bexar county, some time during the night of April 1, 1886. During the succeeding month, Sherwood found and recovered them from the possession of W. Ray, in Travis county. Several witnesses, including relatives of the defendant, testified that the defendant sold the said mules to the said Ray between the tenth and twentieth days of the said April. The defense relied upon a bona fide purchase of the mules by the defendant, and one witness, strongly corroborated by circumstances testified to by two or three others, testified that the defendant purchased the said mules from one John Rawles on the fourth day of the said April. There was a direct conflict on a material point between the chief witness for the defense and an important witness for the state, which was resolved in favor of the latter. A number of witnesses upheld the defendant's reputation for honesty and integrity, which, in fact, being put in issue by himself, was assailed but by a single witness, and by him only to the extent that his association with suspected stock thieves had made him an object of police surveillance.

No appearance for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

Article 660, Code Crim. Proc., which prescribes the order in which a trial before a jury shall be conducted, provides, in subdivision 3, that "the district attorney, or the counsel prosecuting in his absence, shall state to the jury the nature of the accusation, and the facts which are expected to be proved by the state in support thereof." This subdivision of said article we construe to be merely directory, and a disregard thereof is not, in our opinion, per se such error as invalidates a conviction. "Whenever there is reason to apprehend that injury may have resulted to the defendant, especially in a case of felony, from a failure to observe directions given the court by the legislature, we think, unquestionably, the judgment should be reversed." Campbell v. State, 42 Tex. 591. There is no apparent reason for apprehending that a disregard of the direction contained in subdivision 3 resulted injuriously to the defendant, and it is not made to appear in the record that any injury did result to him therefrom. This requirement is quite different from that contained in subdivision 1 of said article, and which this court has held to be mandatory, and a disregard of which is, per se, material error, although injury to the defendant be not shown to have resulted therefrom. Wilkins v. State, 15 Tex. App. 420; ...

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  • McCue v. State
    • United States
    • Texas Court of Criminal Appeals
    • 3 Diciembre 1913
    ...I know without exception, that the state will not be permitted to show the character of the associates of the accused. In Holsey v. State, 24 Tex. App. 35, 5 S. W. 523, it is "There is no rule of law which will permit an inquiry into the character of defendant's associates, and in permittin......
  • Murphy v. State
    • United States
    • Texas Court of Criminal Appeals
    • 6 Abril 1988
    ...the State was prohibited from adducing evidence of particular misconduct to prove character. Wharton's, supra, § 61; Holsey v. State, 24 Tex.App. 35, 42, 5 S.W. 523 (1887); Thompson v. State, 38 Tex. Cr.R. 335, 42 S.W. 974, 977 (1897). 6 As is the case today, the State sometimes could admit......
  • State v. Moore
    • United States
    • Missouri Supreme Court
    • 16 Junio 1890
    ...560; Mason v. State, 32 Ark. 238; Hart v. State, 57 Ind. 102; Com. v. Hurd, 123 Mass. 438; State v. Wood, 46 Ia. 116; 63 Ind. 223; Holser v. State, 5 S.W. 523; v. Com., 5 S.W. (Ky.) 366; People v. Raschke, 15 P. 13; Kelly's Crim. Law, sec. 601, 328; State v. Warden, 94 Mo. 648. (2) The jury......
  • Moore v. State
    • United States
    • Texas Court of Criminal Appeals
    • 24 Noviembre 1993
    ..."there is reason to apprehend that injury may have resulted to the defendant." There is a redemptive caveat, however. Holsey v. State, 24 Tex.App. 35, 5 S.W. 523 (1887): "... We will remark, however, that in the conduct of trials the directions prescribed by the statute should be strictly f......
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