Howell Bishop v. State

• Decision Date: 01 January 1875
• Citation: 43 Tex. 390
• Parties: HOWELL BISHOP v. THE STATE.
• Court: Texas Supreme Court

43 Tex. 390

HOWELL BISHOP

v.THE STATE.

Supreme Court of Texas.

1875.

APPEAL from Navarro. Tried below before the Hon. F. P. Wood.

Wm. Croft, for appellant, cited Mullins v. The State, 37 Tex., 337;Williams v. The State, 34 Tex., 558; Paschal's Dig., arts. 3385-3389; Kay v. The State, 40 Tex., 29.

George Clark, Attorney General, for the State.

ROBERTS, CHIEF JUSTICE.

The defendant was convicted for the theft of a certain cow, the property of Mrs. Lizzie Hill, and his punishment assessed at two years' confinement in the penitentiary.

The evidence was reasonably satisfactory that the cow was the property of Mrs. Lizzie Hill, though it was running in the range, about four years old, and unbranded, and she did not know that she had any such animal unbranded, and she had not seen it for eighteen months. She refused to sell the cow unless she could see it. There was some evidence tending to show that Bishop knew that the cow belonged to Mrs. Lizzie Hill.

The defendant proved that she said she did not claim any cattle as hers that were not branded. This she denied. He also proved by George Adams, nephew of Mrs. Lizzie Hill, and who attended to Mrs. Hill's cattle and lived with her, that he was present when Bishop bought this cow in a certain store in Corsicana from a man by the name of Keel, and that he went with them to a certain place at the junction of Post Oak and Elm creeks, where they found the cow on the same day. He further stated that he saw Keel give Bishop a list of marks and brands to collect.

Defendant proved by Clary that he saw Keel and Bishop at the same store about the same time, and heard them talking about some marks and brands. It was proved that Keel had been convicted and sent to the penitentiary for stealing cattle in Navarro county.

The evidence of appropriation of the property by Bishop was that the animal was found in his brand, with the original mark (which was Mrs. Hill's) changed into his mark, though it is not shown at what time it was done.

The version of the evidence, which may be consistent with Bishop's innocence, is that he bought the cow from Keel in 1873, and branded it and marked it in his brand and mark in the spring of 1874, after he conversed with Mrs. Hill, and understood her not to claim the cow; and that, upon suspecting that he had not obtained a good title from Keel, he tried to buy the cow from Mrs. Lizzie Hill in 1874.

A circumstance that tends to involve the whole matter in some uncertainty about the cow is that Wesley Beeman, an important witness for the prosecution, saw the cow before and after it was branded with Bishop's brand, and thought it wasin the “highnote” mark which he had purchased; and stated that Bishop told him that he was mistaken; that he, Bishop, had bought the cow from Mrs. Hill. It is suggested by defendant's counsel that Beeman may have misunderstood Bishop on account of the similarity in the sound of the names Hill and Keel.

The charge of the court did not instruct the jury upon the nature of the offense, further than to tell them that the defendant was charged “with the theft of a certain cow, the property of Mrs. Lizzie Hill, in the county of Navarro, on the 7th day of August, 1874.” This is in charge No. 1.

The balance of the charge was, for the most part, instructions to the jury to aid them in construing, sifting, and weighing the testimony before them. There was, however, no objection to the charge taken by the defendant besides that taken in a bill of exceptions at the time of the trial, which reads as follows:

“Be it remembered that at the time of the charging of the jury by the court on the trial of said case as aforesaid, and before the case was submitted to the jury, the court charged the jury as set out in charge No. 2, to which charge of the court defendant, by counsel, excepted, on the ground that it was calculated to mislead the jury as to their powers as jury to believe or disbelieve testimony without any rules of law.”

Charge two reads as follows:

“2d. You have been impaneled and duly sworn to try the defendant under this charge. The jury are the exclusive judges of the evidence, and will give such credit to the testimony of each witness who has testified before you as you may think the same is entitled to receive at your hands. In civil cases the jury are required to find their verdict according to the greatest weight or preponderance of testimony. All evidence given before them is taken as true until the same is impeached by positive testimony or circumstantial evidence. In criminal cases the rule is different. The jury must discard from their consideration any part or the whole of the testimony of any witness that they may regard as improbable or untrue, and find their verdict on such evidence as they may regard as true and worthy of credit. You will apply this principle and rule of evidence to this case now submitted to you for your verdict.”

This charge in effect instructs the jury, by way of illustrating their duty in weighing the evidence in the determination of this case, that in a civil case the jury must believe all evidence given before them until the same is impeached, and in a criminal case they must discard from their consideration any part or the whole of the testimony that they may regard as improbable. This is not correct as a legal proposition, and it is objectionable as an argumentative charge upon the weight of evidence. As to the first part of the proposition, it is not correct, because in law there is no difference between civil and criminal cases as to the right of the jury freely to weigh the evidence and find, according to their convictions, of its truth or falsity, except in the few cases wherein the law has prescribed artificial rules as to the character of proof or the number of witnesses. As to the last part of the proposition, it is not correct, because many improbable things actually do occur, and when detailed in evidence as part of any matter under investigation they are not to be discarded from the consideration of the jury because they are improbable. The improbability of the statement of a witness may diminish his credibility, but there is no rule of law prescribing that all improbable statements of a witness must be discarded from the consideration of the jury in arriving at the truth of the matter because they are improbable. It was a charge upon the weight of evidence because it in effect enjoined it upon the jury to leave out of view any statement of a witness that they might regard as improbable, and to proceed in arriving at their conclusion exclusively upon such as were in themselves probable; or, in other words, that the law excludes improbable statements as worthless.

It is to be particularly noticed that the record shows, and properly by a bill of exceptions shows, in this case, that this charge was excepted to by the defendant's counsel at the time of the trial and before the case had been submitted to the jury, and before they had retired to consider of their verdict; and that thus an opportunity was given to the judge to correct or withdraw the charge if he had deemed it to have been improper, upon a reconsideration of it then made, before the final submission of the case to the jury. This, in reference to the provisions of our Code of Criminal Procedure, will be found to be an important consideration in this case on appeal to this court, by the exception having been made, and shown by the bill of exceptions to have been made at the time of the trial, and to be much more beneficial to the defendant than if then not made, but made only afterwards on a motion for a new trial.

By article 3067, Paschal's Digest, it is provided that “whenever it appears by the record in any criminal action taken to the Supreme Court upon appeal by the defendant, that the instructions given to the jury were verbal, (except where so given by consent in a case of misdemeanor,) or that the district judge has departed from any of the requirements of the eight preceding articles, the judgment shall be reversed, provided it appears by the record that the defendant excepted to the order or action of the court at the time of the trial.” The two first of the eight articles referred to read as follows:

“Art. 3059. After the argument of any criminal cause has been concluded the judge shall deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case, but he shall not express any opinion as to the weight of evidence nor shall he sum up the testimony. This charge shall be given in all cases of felony, whether asked or not.

Art. 3060. It is beyond the province of a judge sitting in criminal causes to discuss the facts or use any argument in his charge calculated to rouse the sympathy or excite the passions of a jury. It is his duty to state plainly the law of the case.”

Thus a substantial infraction of this rule prohibiting a charge upon the weight of evidence is expressly made a ground for reversing a judgment when, by a bill of exceptions in the record, it is shown to have been excepted to at the time of the trial. It is to be observed that this charge is not an irrelevant abstraction, as is sometimes the case, which this court may entirely disregard as not in any way pertinent to the facts of the case, for Bishop's defense depended mainly on the statements of his mother and of Adams, and this charge gave the jury the liberty, and indeed required them, to entirely disregard them at once, though the witnesses had not been impeached, if they regarded them as improbable--not improbable and untrue, but improbable or untrue, between which there is practically a wide difference. If such a charge is not excepted to at the time of trial but presented in a motion for a new trial, which is the next point at which it could be presented, then its consideration by this court would be subject to another and a very different rule, which would be whether or not...