Mitchell v. State

• Decision Date: 13 March 1901
• Citation: 62 S.W. 572
• Parties: MITCHELL v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

62 S.W. 572

MITCHELL v. STATE.¹

Court of Criminal Appeals of Texas.

March 13, 1901.

Appeal from Erath county court; L. N. Frank, Judge.

Tom Mitchell was indicted for injuring and defacing a public building, and he appeals. Affirmed.

Daniel & Keith and J. M. Carter, for appellant. D. E. Simmons, Acting Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted for injuring and defacing a public building, and his punishment assessed at a fine of five dollars. The charging part of the indictment is as follows: "That Tom Mitchell, on or about the 27th day of March, 1898, and anterior to the presentment of this indictment, in the county of Erath and state of Texas, did then and there unlawfully and willfully injure and deface a public building then and there situated, to wit, Rose School House, a public building of Erath county, and held for public use," etc. Appellant insists this indictment is defective. Under the forms and precedents, we think it is a good indictment. Willson, Cr. Forms, No. 297; White, Ann. Pen. Code, §§ 833, 834.

The court permitted the witnesses Lawson and Buchanon to testify: "After I had eaten my dinner, I went back to the school house. The first thing that attracted my attention, on going into the house, was the water bucket and dipper, which were mashed and broken to pieces." Appellant objected because the breaking of the dipper and bucket was not traced to defendant, and because prejudicial to the rights of defendant, the same being immaterial, irrelevant, and inadmissible. At the request of appellant, a charge was given instructing the jury to disregard the testimony about the breaking of the dipper and bucket. This certainly cures any error in the action of the court admitting this testimony, if it was error.

Over defendant's objection, Will Leverett testified: "I was standing about 40 steps away when defendant led his horse out of the house, and John Deisher, who was standing in about three feet of defendant, remarked that Tom's horse had been through the academy." Appellant objected to this testimony, because it was not shown that defendant either heard, replied to, answered, or acquiesced in said remark or statement at the time said declaration was made by the said Deisher; because the evidence shows it was Will Deisher's horse, and not defendant's, that he led out of the house. The bill is approved, with the explanation that the proof showed defendant was in three or four feet of John Deisher at the time...