Moree v. State

• Decision Date: 07 December 1904
• Citation: 83 S.W. 1117
• Parties: MOREE v. STATE.
• Court: Texas Court of Criminal Appeals

83 S.W. 1117

MOREE v. STATE.

Court of Criminal Appeals of Texas.

December 7, 1904.

Appeal from District Court, Parker County; J. W. Patterson, Judge.

Ance Moree, alias John Thomas, was convicted of larceny, and he appeals. Affirmed.

Preston Martin, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of horse theft, and his punishment assessed at two years' confinement in the penitentiary; hence this appeal.

On the trial appellant objected to the witness Mrs. Cobb, as court stenographer, reading from her stenographic notes the defendant's testimony on a former trial of this case. The bill embraces all of appellant's testimony delivered at said former trial, and, without here copying the same, we will state that it is not a confession of the offense, but is a statement exonerating him, and denying the evidence of state's witnesses as to matters inculpatory of appellant. Following this, however, as developed in the cross-examination, and which was evidently adduced for the purpose of impeachment, appellant is shown to have stated that he had gone under different aliases at different times, and that he had been charged with theft in the Territory, and pleaded guilty thereof; that he had never stolen but three cows; that he was charged with stealing them, and pleaded guilty; they agreed to nolle pros. in that case if he would plead guilty. The exceptions contained in the original bill presented by counsel to the judge showed that appellant assigned a number of reasons for his objection to the introduction of said testimony. It appears that the court, in signing the bill, embodied the reasons assigned by appellant, except one which the court appears to have eliminated; his explanation being as follows: "That said testimony was not offered by the state for the purpose of impeachment of any witness or evidence offered by the defendant upon the trial of his case before this jury, but was only offered by the state's attorney for the sole purpose of getting before the jury his statement with reference to having been in the penitentiary for theft of cattle in the Indian Territory, and for the purpose of creating in the minds of the jury great and lasting prejudice against this defendant, and for the further reason that said testimony is irrelevant and immaterial and not pertinent to any issue in the trial of this case, and for the reason that defendant had not and did not testify in the trial of his case before this jury; and for the reason that the state had no right to offer statement or confession made by defendant unless such statement or confession was to or concerning his guilt, and all the evidence as read to the jury by the court's stenographer purported to be evidence given by defendant at the former trial of his case, to the effect that he did not have anything to do with the taking of the horses alleged to have been stolen on or about the 15th of August, 1902, but that he was in the Indian Territory, a distance of some 325 miles from the place where the horses were alleged to have been stolen, all during the month of August, 1902, and knew nothing of the theft of said horses." It appears from an affidavit filed by appellant's counsel in this connection that he prepared said bill of exceptions immediately after the trial of the case, and turned the same over to the county attorney, who kept it in his possession several days, but would not agree with defendant's counsel on said bill; that he then presented said bill to the court for his approval, and the court, after keeping the same for two or three days, filed and ordered filed said bill of exceptions No. 1. But the court, without the knowledge or consent of the defendant or his counsel, and against the wishes of both defendant and his counsel, changed and modified said bill, and, without the consent of defendant or his counsel, struck from said bill as presented to the court by defendant's counsel the objection contained therein, as heretofore stated. It will be seen by an examination of the record that the grounds of objection in the bill signed by the judge nowhere embrace or point out the particular matter of objection urged by appellant in that portion of the bill eliminated. The bill signed and filed by the judge does not contain any objection to the stenographer's report to the effect that testimony of appellant at a former trial, in which on cross-examination he admitted he had been charged and convicted of other crimes, was not admissible for the purpose of impeaching appellant as a witness. In other words, the bill, as presented and filed by the court, not containing this special ground of objection to said testimony, cannot be considered or reviewed on that account. This brings up the question whether or not appellant has presented this matter in such a way as can be reviewed. We understand Exon's Case, 33 Tex. Cr. R. 461, 26 S. W. 1088, to lay down the rule with reference to bill of exceptions which follows the rule laid down by civil courts construing articles 1360 to 1369, Rev. St. 1895, on this subject. Under this decision, appellant can only take a bill of exceptions from the bystanders after the bill presented by him to the judge has been disapproved, and the court is not authorized to take appellant's bill and explain or modify it without his consent. It has been held, if the bill which has been corrected by the judge is accepted and filed by the defendant's attorney, the latter is estopped from claiming it is unfair. Jones v. State, 33 Tex. Cr. R. 7, 23 S. W. 793. Here it does not appear that appellant's counsel was afforded any opportunity by the judge to agree to his correction. If the judge could not approve the bill, and appellant's counsel did not agree to the correction, then he should have disapproved the bill, and prepared and filed his own bill of exceptions, and appellant would then have been afforded the opportunity to appeal to bystanders for a bill of exceptions. If appellant had treated the court's action as a refusal, under the circumstances,...