Kirk v. State

• Decision Date: 20 November 1895
• Citation: 32 S.W. 1045
• Parties: KIRK v. STATE.
• Court: Texas Court of Criminal Appeals

32 S.W. 1045

KIRK v. STATE.

Court of Criminal Appeals of Texas.

November 20, 1895.

Appeal from Coryell county court.

Charley Kirk appeals from a conviction. Reversed.

E. A. McDowell, S. B. Hawkins, and White & Mingo, for appellant. Mann Trice, for the State.

HURT, P. J.

The appellant in this case was convicted of robbery, and given 10 years in the penitentiary.

The indictment is sufficient as to the coins described. The description of the property in this indictment is "certain silver coins, to wit, three silver dollars in coin, of the value of three dollars, one fifty cent piece in coin, of the value of fifty cents, one ten cent piece in coin, of the value of ten cents, and one nickel coin, of the value of five cents." It will be noticed that these are not designated as money or coin of the United States, but we will presume, and so hold, that an allegation after this form refers to money of the United States of America. Menear v. State, 3 Tex. App. 475, 17 S. W. 1082; Nelson v. State (just decided) 32 S. W. 900.

To corroborate the prosecutor, who swears positively that appellant was the party who assaulted and robbed him, the state introduced evidence of horse tracks found near the place of robbery, and circumstances which tended strongly to show that they were made by the appellant's horse. The appellant objected to this evidence, on the ground that it was immaterial. In ruling upon the admissibility of this testimony, the learned judge below remarked, in the hearing of the jury, that he thought that evidence of that character was highly material. To these remarks, appellant, by counsel, objected, reserving his bill of exceptions. Article 677, Code Cr. Proc., provides that, in charging the jury, the court shall not express any opinion as to the weight of the evidence. Article 729 provides that, in ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of same, or its bearing in the case, but shall simply decide whether or not it be admissible; nor shall he at any stage of the proceedings previous to the return of the verdict make any remark calculated to convey to the jury his opinion of the case. Now, let us suppose that, in the charge of the court, he had instructed the jury, with reference to the horse tracks, that he believed this was highly important and material testimony; would he not have been charging the jury in regard to the weight of the testimony? Most evidently he would. It is the object of our Code, gathered from every provision relating to that subject, to prohibit the judge from expressing any opinion as to the weight of the testimony or credibility of the witnesses. The court can neither do this in its charge nor in ruling upon the admissibility of testimony. See Wilson v. State, 17 Tex. App. 525; Crook v. State, 27 Tex. App. 198, 11 S. W. 444; Reason v. State (Tex. Cr. App.) 30 S. W. 780; Lawson v. State (decided at present term) 32 S. W. 895.

It was to the interest of the state, under the facts of this...