Reese v. State

• Decision Date: 12 November 1902
• Parties: REESE v. STATE.
• Court: Texas Court of Criminal Appeals

70 S.W. 424

REESE v. STATE.

Court of Criminal Appeals of Texas.

November 12, 1902.

Appeal from district court, Baylor county; Jo. A. P. Dickson, Judge.

T. F. Reese was convicted of crime, and appeals. Reversed.

Holman & Dalton and A. H. Britain, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of the theft of one head of cattle, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

Appellant assigns a number of errors, but it is only necessary to consider the exception reserved to the following portion of the charge of the court: "Evidence introduced before you tending to show that the defendant killed and took an animal branded lazy NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, in Archer county, a short time before the alleged killing of the animal in controversy, can only be considered by you as tending to develop the res gestæ of the alleged offense for which defendant is on trial, if you find it so tends, and as a circumstance for the purpose of developing the intent of the defendant (if you find it so tends) in the killing of the animal described in the indictment, and to develop the intent of the defendant with respect to the alleged fraudulent taking of the animal for the theft of which he is on trial; for you cannot convict the defendant for the theft, if any there was, of any other property than that named in the indictment." Appellant contends that this charge is on the weight of the evidence, inasmuch as, in the introductory portion thereof, the jury were told, with reference to the proof introduced to show the theft of another animal on the same occasion by appellant, that said evidence tended to show the theft of such other animal. This has been held by an unbroken line of decisions to be upon the weight of the testimony, and erroneous, because it gave the jury the opinion of the judge that the testimony tended to show such other theft; that the testimony had an aim, leaning and contributed to show that defendant committed such other offense. Williams v. State, 38 Tex. Cr. R. 128, 21 S. W. 645; Santee v. State (Tex. Cr. App.) 37 S. W. 436; Hudson v. State, 66 S. W. 668, 4 Tex. Ct. Rep. 167; Nelson v. State, 67 S. W. 320, 4 Tex. Ct. Rep. 550; Reese v. State, 68 S. W. 283, 5 Tex. Ct. Rep. 34. Evidently the state introduced the evidence in regard to the other alleged theft for a purpose, — that is, to show the...