Parks v. State
| Decision Date | 10 June 1891 |
| Citation | 16 S.W. 532 |
| Parties | PARKS v. STATE. |
| Court | Texas Court of Appeals |
Harris & Saunders, for appellant. R. H. Harrison, Asst. Atty. Gen., for the State.
Appellant was convicted of the theft of two head of cattle. The indictment contains three counts,—one charging theft of two head of cattle, one for receiving said cattle from McGuire, and the remaining one for receiving the cattle from some one to the grand jurors unknown, etc. There being no evidence to support either count alleging the reception by appellant of the cattle from anybody, the court limited the consideration of the jury in his charge to the count charging theft. The jury, by their verdict, found the defendant guilty as charged in the indictment. It is contended that this verdict is uncertain, illegal, and unintelligible, because there were three counts in the indictment, and the district attorney did not elect upon which count he would rely for a conviction. It will be observed that there was but one offense before the jury for their consideration, to-wit, that of theft of the cattle. Where there are several counts in an indictment, and the court limits the jury in their finding to one of said counts only, it is tantamount to an election by the state to rely upon that count alone. Dalton v. State, 4 Tex. App. 333; Weathersby v. State, 1 Tex. App. 643. The court is not required to charge upon a case not made, nor supported by any facts, except it be to direct an acquittal. It is the duty of the court to charge the law of the case. Where there is no evidence to support one or more of the counts included in the indictment it would not be incumbent upon the court to give in charge the law upon such count or counts. The court might have required that such unsupported counts be dismissed by the district attorney, or he might have informed the jury that the unsupported counts would be disregarded by them, and either of the latter modes of practice would have been perhaps the better practice; or the court could have instructed the jury to return a verdict for appellant upon the two latter counts, and then, under appropriate instructions, submitted the count charging the theft of the cattle. But the action of the court was tantamount to this. There was no error in the matter complained of, and we can see no reason why the verdict is not sufficiently certain to support the judgment when we look to the charge of the court. The court informed the jury that appellant was being tried for theft, and limited them in their finding to that offense alone, and the verdict is responsive to the charge, as well as to the indictment. Willson, Crim. St. § 2004; Dalton v. State, 4 Tex. App. 333; Weathersby v. State, 1 Tex. App. 643. Appellant was hired to C. L. McGuire to assist him in driving a few head of cattle from Coryell county to Temple, in Bell county. He was a boy 18 years of age. McGuire was driving the cattle for Mr. Sauls of Temple. Before starting on this trip his father...
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Ex parte McAfee
...supplied.) This has long been the law in Texas. Stephens v. State, 36 Tex.Cr.R. 386, 37 S.W. 425 (App.1896), cited Parks v. State, 29 Tex.App. 597, 16 S.W. 532 (1891), and held that the submission to the jury by the trial court of only one count of the indictment is tantamount to an electio......
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...court in his charge to the jury and limiting the jury in their consideration to that count, is an election by the state. Parks v. State, 29 Tex. App. 597, 16 S. W. 532. See Branch's Crim. Law, § 300, for collation of cases. The rule laid down in the Parks Case was this: Where there are seve......
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Smith v. State, 15402.
...See Weathersby v. State, 1 Tex. App. 646; Dalton v. State, 4 Tex. App. 333; Mathews v. State, 10 Tex. App. 279; Parks v. State, 29 Tex. App. 597, 16 S. W. 532. Appellant also excepted to the charge of the court on the law of principals in that he thereby authorized a conviction of the appel......
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Morris v. State, 21752.
...court's charge. Chappell v. State, 58 Tex. Cr.R. 401, 126 S.W. 274; Wright v. State, 98 Tex.Cr.R. 513, 266 S.W. 783; Parks v. State, 29 Tex.App. 597, 16 S.W. 532, 533. In the Parks case it was said by Judge Davidson: "Where there are several counts in an indictment, and the court limits the......