Riggins v. State

• Citation: 60 S.W. 877
• Parties: RIGGINS v. STATE.
• Decision Date: 06 February 1901
• Court: Texas Court of Criminal Appeals

Page 877

60 S.W. 877

RIGGINS v. STATE.

Court of Criminal Appeals of Texas.

February 6, 1901.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

George Riggins was convicted of assault with intent to murder, and he appeals. Reversed.

Robt. B. Seay, for appellant. D. E. Simmons, Acting Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of an assault with intent to murder, and his punishment assessed at seven years' confinement in the penitentiary. In the view we take of this record, it is only necessary to consider two questions.

By bill of exceptions No. 1 it is made to appear: "That the county attorney proposed in the presence of the jury to take the prisoner, attorneys, judge, officers of the court, and the jury on the ground where the alleged assault with intent to murder was committed, to examine back of store and adjoining grounds. To this proposition counsel for defendant replied, `There is no use of making a proposition of that kind, because such a proposition would be perfectly illegal and void.' Thereupon the court asked counsel for defendant, `Will you agree to it?' Counsel for defendant refused to answer. Thereupon the court the second time asked defendant's counsel if he would agree to take the jury and defendant on the grounds. Counsel for defendant then said he would agree to the proposition of the county attorney. The court also asked defendant if he would agree, and he assented. Whereupon the court adjourned to the grounds, and the jury, together with the officers, carefully removed the rubbish and examined the grounds and the soil, and remained upon the grounds about ten minutes, and then adjourned to the court house; defendant having accompanied the court and jury, and being present at the scene with the court and jury and counsel. Wherefore defendant now presents this bill of exceptions, and states to the court that it was error for the county attorney to make such a proposition in the presence of the jury, because to refuse the same would be prejudicial to defendant. It was improper and erroneous for the court to make said proposition to defendant's counsel and to defendant, and thereby drive defendant to accept or refuse. It was error for the court, under Texas law, to allow the jury to go out and obtain evidence which was not testified to by any witness in the court house, where all proceedings are required to be held, and to allow the jury to obtain evidence not testified to by any witness, and about which defendant could not cross-examine the witnesses, and which could not be put in the records of this cause." The court appends the following explanation to the bill: "If defendant's counsel ever made any statement about it being illegal to take the jury and prisoner to the scene above mentioned, until this bill of exceptions was presented, on September 26, 1900, five days after the trial, the court did not hear such statement. It is a fact that both defendant's counsel and defendant in person agreed to the proceedings had as cited in the bill, and that defendant in person and his attorneys went and were present, and that the first objection to the proceeding was made known to the court five days after the trial, to wit, on September 25, 1900." As far back in our jurisprudence as Smith v. State, 42 Tex. 444, appellant's contention has been sustained. Roberts, C. J., delivering the opinion of the court in that case, said: "In order, however, to turn the balance in this conflict of evidence as to the re-marking of the sow against Smith, Houston brought the sow to town; and after the matter had been thrown in doubt by the contradictory statements of the witnesses the district attorney proposed to have the jury leave the box, go to the place where the sow was put up, and inspect her ears, so as to determine this doubtful question for themselves by a personal view. The defendant consented to this, which his counsel might have done, whether he thought it a proper proceeding, as part of this trial, or not, so as to show that he was not afraid of any mode of trial, and because an objection might betray to the jury a want of confidence in their judgment and skill in ascertaining the fact for themselves, whether or not the ears of the sow had been re-marked, by the appearance then exhibited on a close personal inspection and view of them." As indicated by appellant in his bill, he was constrained by the peculiar exigencies of the occasion to agree to the proffer on the part of the county attorney to view the place of the alleged crime, rather than leave the impression upon the jury he was afraid of the facts that might be disclosed. It was wrong to place appellant in this character of an attitude and, further, it was wrong to permit the jury to inspect the premises. Judge Roberts, in the case above cited, further says: "There is thus no authority found in this state for such a mode of enlightening the minds of the jury as to the material facts of a case which they have to try. The fact of such a proposition being made indicates an opinion of a necessity for additional aid to the evidence already adduced, to relieve the case from the doubt and uncertainty in which it was involved by the conflicting evidence." Article 1451, Rev. St., provides: "All vouchers, views, essoigns, and also trials by wager...