Quintano v. State.

• Decision Date: 11 March 1891
• Citation: 16 S.W. 258
• Parties: QUINTANO v. STATE.
• Court: Texas Court of Appeals

16 S.W. 258

QUINTANO v. STATE.

Court of Appeals of Texas.

March 11, 1891.

Appeal from district court, El Paso county; T. A. FALVEY, Judge.

R. H. Harrison, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was tried and convicted for bringing a stolen horse into the state after having committed the theft of said horse in the territory of New Mexico, and his punishment assessed at five years' confinement in the penitentiary. From this conviction an appeal is prosecuted to this court. There is a bill of exceptions reserved to the charge as an entirety, in which the only objection urged is thus stated: "Because the same did not instruct the jury fully upon the law governing in this case, under the facts proved." The court's qualification of this bill of exception is thus stated: "When the charge was read to the jury, the defendant's attorney excepted to the charge, without assigning any reason." We are not called upon to consider this exception. "Bills of exception, when too indefinite to point out distinctly the matter complained of as error, will not bring such matter properly before this court for review." Smith v. State, 22 Tex. App. 316, 3 S. W. Rep. 684; Williams v. State, 22 Tex. App. 497, 4 S. W. Rep. 64. The primary object or purpose of a bill of exception reserved to a charge of the court is to call the attention of the trial judge to the particular matter complained of, so that he may be afforded an opportunity to correct any error he may have fallen into, to the end that the rights of the defendant may not be prejudiced. A general exception does not accomplish this. Another reason why the bill of exception should point out specifically the errors complained of is to enable this court to ascertain what error was committed without having to examine other portions of the record. This is not done by a general exception. The bill must be so certain and full in its statements that the errors complained of are made to appear by the allegations of the bill itself. Willson, Crim. St. § 2368. Tested by these rules, the bill is insufficient to bring before this court any supposed errors in the charge which are calculated to injure the rights of the defendant. Smith v. State, 22 Tex. App. 321, 322, 3 S. W. Rep. 684; Mace v. State, 9 Tex. App. 110; Snith v. State, 15 Tex. App. 139; Lewis v. State, 18 Tex. App. 401. Viewing the entire case and charge as presented, we do not see that defendant was injured in any way by the court's charge. In the motion for new trial, it is alleged that error was committed by the court, in that the court failed to charge upon the law of alibi. There was some testimony going to show that defendant was at or near El Paso at the time of the commission of the theft, some miles away in the territory of New Mexico. When the defendant relies upon the evidence going to prove an alibi, the trial court should usually charge upon that theory. Such has been the decision of the law by this court in several cases. Deggs v. State, 7 Tex. App. 359; McGrew v. State, 10 Tex. App. 539; Long v. State, 11 Tex. App. 381; Granger v. State, Id. 454; Ninnon v. State, 17 Tex. App. 650; Hunnicutt v. State, 18 Tex. App. 498.

But the omission of the trial court to charge with reference to alibi is not such error as will ordinarily cause a reversal of the conviction, unless the charge be excepted to because of such omission, or unless special instruction upon that subject be requested and refused. Davis v. State, 14 Tex. App. 645; McAfee v. State, 17 Tex. App. 131; Clark v. State, 18 Tex. 467; Ayres v. State, 21 Tex. App. 399. "We are not aware of any statute or decision which requires the trial court to instruct the jury specifically upon this defense, when not requested to do so. It is sufficiently embraced, we think, in the general charge that the defendant is presumed by the law to be innocent until his guilt is established, by competent evidence, beyond a reasonable doubt." Davis v. State, 14 Tex. App. 656. The court charged the jury that, before they could convict defendant, they must believe from the evidence, beyond a reasonable doubt, that the defendant, in the territory of New Mexico, on July 4, 1890, did then and there fraudulently take the horse mentioned in the indictment from the possession of J. H. Bailey without his consent; that Bailey was the owner of the horse; and that defendant took said horse with intent at the time of the taking to deprive the owner of the value of same, etc. The court further charged in this connection the law of circumstantial evidence fully and favorably to defendant. There was no error committed by the court in failing to charge upon the theory of alibi. Defendant took the stand as witness, and testified in his case that he had never had possession of the horse alleged in the indictment to have been stolen. The district attorney, on cross-examination of the defendant, asked him if he had not stated to the witness Bailey that he (defendant) had had possession of said horse, and that he had gotten same from another Mexican in El Paso county, near Mundy's Spring. Defendant replied that he had not so stated; whereupon Bailey was brought on the stand, and testified that defendant had so stated to him in the presence of defendant's counsel. It is further shown that this conversation occurred in jail at El Paso, and that the witness Bailey went to see defendant at the request of and in company with one McGinnis, defendant's counsel, and the conversation occurred during that visit. The court, in qualifying the bill of exceptions, says that "defendant, by his attorney, objected on the ground that defendant was in jail at the time. The court admitted the testimony, holding that when defendant made a witness of himself the same rules were open to the state to impeach his testimony as that of any other witness." There were other objections that will be noticed further on. In this holding the court committed no error. Whether defendant was in jail or not is not material. This question to some extent involves a construction of the Act 1889, (Acts 1889, p. 37,) which provides "that exception four (4) to article 730, chapter 7, title 8, of the Code of Criminal Procedure of the state of Texas, be, and the same is hereby, repealed, and that hereafter any defendant in a criminal action shall be permitted to testify in his own behalf therein; but a failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause: provided, that where there are two or more persons jointly charged or indicted, and a severance is had, the privilege of testifying shall be extended only to the person on trial. Sec. 2. Whereas, the law, as it now exists, prohibits defendants in criminal actions from testifying therein, thereby often suppressing a knowledge of all the facts in the cause, therefore an imperative public necessity and emergency exists that the constitutional rule which requires all bills to be read on three several days be suspended, and that this act take effect from its passage, and it is so enacted." The requisite number of votes failed to carry the emergency clause, and it became a law 90 days after adjournment of the legislature. Some phases of this law have already been passed upon by this court, but the question as to the extent of the cross-examination, etc., of the defendant as a witness has not been before this court prior to this time. This is the question at issue under appellant's bill of exception. By the repeal of section 4 of article 730 of the Code of Criminal Procedure, and the provisions of the act of 1889, a defendant has the right or privilege of testifying in his own case. When he takes the stand as a witness, he for the time being, to some extent at least, loses his identity as a defendant, and becomes a witness in the case. He is not compelled to testify, and his failure to do so cannot be urged against him, and counsel are prohibited from alluding to such failure on his part to testify. Should state's counsel so far forget the provisions of this law as to allude to or comment on the defendant's failure to testify in his own behalf, that matter will constitute reversible error. Hunt v. State, 28 Tex. App. 149, 12 S. W. Rep. 737. The act leaves it discretionary with the defendant on trial whether he will or will not become a witness, and it forbids his being compelled to do so against his consent. Such is the construction given kindred legislation in every state in the federal Union where defendants have the privilege of testifying in their case when charged with crime. The following and other states have at one time or another adopted statutes essentially like the act of 1889, above quoted, to-wit: Nevada, New York, California, Massachusetts, Indiana, Connecticut, New Hampshire, and Tennessee. In all of these states the decisions are practically harmonious, to the extent of holding that when a defendant, at his own option, under such a law as the act of 1889, becomes a witness, he "occupies the position of any other witness; is liable to be cross-examined as to any matter pertinent to the issue; may be contradicted and impeached as any other witness, and is to be subjected to the same tests. State v. Clinton, 67 Mo. 380 et seq., (see the authorities cited in this case;) State v. Cox, Id. 392; State v. Rugan, 68 Mo. 214; Peck v. State, 6 S. W. Rep. 389, (Tennessee case;) McDonald v. Com., (Ky.) 4 S. W. Rep. 687; State v. Buella, (Mo.) 1 S. W. Rep. 764; Whart. Crim. Ev. (9th Ed.) §§ 430-433. See authorities collated in Peck v. State, (Tenn.) 6 S. W. Rep. 391, 392. In the last cited case we find this language: "It is earnestly insisted that such ruling operates to destroy the elementary principle of law that the state cannot go into proof of the general character of the accused until he first opens the door. The contention is not logical. The general rule remains...