Rummel v. State

• Decision Date: 11 December 1886
• Citation: 3 S.W. 763
• Parties: RUMMEL v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

3 S.W. 763

RUMMEL v. STATE.¹

Court of Appeals of Texas.

December 11, 1886.

Appeal from district court, Frio county.

The indictment charged the appellant and Manuel Ingle, jointly, with the theft of a calf, the property of one L. J. W. Edwards, in Frio county, Texas, on the twenty-ninth day of April, 1885. A severance being awarded, the appellant was placed upon his trial, was convicted, and awarded a term of two years in the penitentiary. It was affirmatively proved by the state that appellant and Ingle took possession of the Edwards animal near the residence of one Austin, separating it from its mother and other animals, and driving it off. The defense set up was that the animal was taken as the animal of one House, the employer of Ingle; but it was claimed to have been taken at a point many miles distant from the Austin place.

Price & Merriwether and J. T. Bivens, for appellant, controverting the rulings announced in the opinion. Asst. Atty. Gen. Burts, for the State.

HURT, J.

Appellant and Manuel Ingle were jointly indicted for the theft of a calf, the property of L. J. W. Edwards, and upon severance appellant was placed upon trial and convicted. Both parties called for the "rule," and the witnesses were sworn and placed thereunder. One Nuckols, who was in attendance on the court as a juror, was present at the trial, heard the testimony of Mrs. Rummel, a witness for defendant, and informed counsel for defendant, while she was testifying, or just after she had finished, that he knew some material facts in connection with her testimony. Counsel for appellant then offered Nuckols as a witness. The state objected because he had been present, hearing the testimony of the witnesses, and had not been under the rule, and counsel for appellant stated that neither he nor his client was ever advised that Nuckols knew any facts, and especially the facts proposed to be proved by him. The learned judge rejected the witness, and the court took a recess for the space of two hours, awaiting the arrival of another witness. At the expiration of the two hours the court met, and the trial proceeded with the examination of the witnesses. After one witness had been examined for defendant, Nuckols was again offered, and the state again objected, also upon the ground that after hearing that Nuckols was a material witness for defendant, and his counsel had neglected to have him placed under the rule, but permitted him to remain in the court-room and hear the...