Newton v. State

• Decision Date: 31 January 1912
• Citation: 143 S.W. 638
• Parties: NEWTON v. STATE.
• Court: Texas Court of Criminal Appeals

143 S.W. 638

NEWTON v. STATE.

Court of Criminal Appeals of Texas.

January 31, 1912.

Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.

Willis Newton was convicted of theft, and he appeals. Affirmed.

J. R. Stubblefield, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, tried, and convicted of theft, and sentenced to two years confinement in the state penitentiary. This is the second appeal in this case; the judgment of this court on the former appeal being reported in 138 S. W. 708, in which will be found a statement of the case.

On this trial, in his first bill of exceptions, appellant complains that when the district attorney asked T. B. Roberts, "Now, at the time you first went to the gin, what time of day was that?" the court asked, "Which gin?" It appears from the record that the cotton, alleged to have been stolen, was stolen from the Red Tiger gin and carried to the Merchants' & Farmers' gin, and the testimony of the witness shows that morning he had tracked a wagon from the Red Tiger gin to the other gin. The question of the court could not in any way improperly influence the jury, but when the objection was made the court instructed the jury: "The court's remarks were directed to the district attorney, and you will not pay any attention at all to any remark the court makes to either one of counsel. You get your evidence from the witnesses only, and you will remember that you pay no attention to the court's remarks." The bill is incomplete, in that it states only it was objected to, and no grounds of objection are stated.

While J. D. Carsey was testifying as a witness, the district attorney asked him, "State whether or not that some of the tracks that you discovered there were made by the boot heel of the boot that you made for the defendant?" to which the witness answered, "Yes, sir." Defendant objected to this testimony, on the ground that it called for the opinion and conclusion of the witness. The testimony of this witness goes into minute particulars as to the way he knew the tracks he saw at the place from which the cotton was taken were made by boots he had made for this defendant, in that he had repaired them, and he could tell by the tracks the repair work he had done. This is not a conclusion or opinion, but a statement of a fact that he knew the track was made by boots made by him for defendant. Counsel for appellant may not see how the witness could so testify; but the fact is he did so testify. The argument of counsel might go to its weight, but not to its admissibility. Again, while this witness was on the stand, the defendant reserved a bill to the following proceedings, as stated in the bill: The court stated to the district attorney, "On objection, I want you to show that this witness can state that positively, as a matter of knowledge;" whereupon the district attorney said: "He does state it." The court then said, "You prove that by the witness." The bill states no ground of objection to this evidence, but merely states that he excepted to this matter, and the bill is insufficient to bring this matter before us for review, but, as qualified by the court, it presents no error, if considered. The court says: "When defendant's counsel made the objection to the witness testifying that some of the tracks were made by the boots witness had made for the defendant, the court told counsel that he would sustain the objection, unless the district attorney could show that the witness could state positively that he knew such fact. And when the district attorney said that the witness does state it, the court admonished the district attorney that it was improper for him to make such statement, and for him to prove it by the witness, and then the court instructed the jury not to consider the said remark of said district attorney."

In his fifth bill, defendant sets out at length the remarks of the court made to the jury for the week, when it was impaneled on July 10th, and then recites: "Between five and ten minutes after the above remarks, the following exception was taken in open court to the court's remarks: J. R. Stubblefield: The defendant I represent specially excepts to the remarks of the court, in the presence and hearing of the jury, with reference to the defendant testifying, and especially that part of the charge in which the court informed the jury that the matter was left entirely to...