Sullenger v. State

• Decision Date: 19 January 1916
• Docket Number: (No. 3883.)
• Citation: 182 S.W. 1140
• Parties: SULLENGER v. STATE.
• Court: Texas Court of Criminal Appeals

182 S.W. 1140

SULLENGER v. STATE.

(No. 3883.)

Court of Criminal Appeals of Texas.

January 19, 1916.

On Motion for Rehearing, February 23, 1916.

Appeal from District Court, Randall County; Hugh L. Umphres, Judge.

Rube Sullenger was convicted of cattle theft, and he appeals. Reversed and remanded.

R. R. Hazlewood, of Amarillo, Frank Ford, of Decatur, and Veale & Lumpkin, of Amarillo, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

This is an appeal from a conviction for cattle theft, with the lowest punishment assessed.

In view of the disposition we shall make of this case, we see no necessity of making any statement of the testimony. We have carefully considered all of the special charges requested by appellant. Those presenting any proper charge were covered by the court's charge. None of the others should have been given.

Mr. Branch, in his Criminal Law, § 203, so aptly lays down the rules which show when a charge on circumstantial evidence is unnecessary, we quote them with approval;

"If defendant admits that he did the killing in a murder case, or the taking in theft, or that he did the act which constitutes the factum probandum, whatever be the offense charged, it is not necessary to charge on circumstantial evidence."

"Where an act has been proved by direct evidence, a charge on circumstantial evidence is not required because the intent with which the act was committed is sought to be established by circumstances."

Mr. Branch cites many cases of this court, which are in point, establishing both these rules. We deem it unnecessary to copy them here, but cite the following, some of which he cites: Usher v. State, 47 Tex. Cr. R. 93, 81 S. W. 309; Huffman v. State, 28 Tex. App. 174, 12 S. W. 588; Flagg v. State, 51 Tex. Cr. R. 603, 103 S. W. 855; Houston v. State, 47 S. W. 468; Alexander v. State, 40 Tex. Cr. R. 407, 49 S. W. 229, 50 S. W. 716; Barnes v. State, 53 Tex. Cr. R. 629, 111 S. W. 943; Baxter v. State, 43 S. W. 87. A large number of additional cases could be collated, but we deem it unnecessary.

Several witnesses testified, in substance, that appellant admitted the taking of the cow with which he was charged by the indictment of stealing a black muley cow, the property of H. M. Jackson. His defense was that he bought the cow, and that his taking of her was under a claim of right by reason of his purchase. These questions were properly submitted in his favor by the court's charge. The circumstantial and positive evidence was amply sufficient to sustain the verdict that appellant stole the cow, and was also amply sufficient to show that his claimed purchase was false, and that his claim that he took the cow under such claim was also false.

Paragraphs 5 and 6 of the court's charge also covered appellant's said defenses sufficiently, so that it was unnecessary to charge specifically that, if appellant bought the cow from one Smith, to acquit him. Under the testimony his defense of claimed purchase from Smith necessarily embraced his claimed possession by virtue of his claimed purchase.

Appellant has various bills to the testimony of several witnesses about his taking and possession, etc., of a red cow. This testimony was all admissible, because of his claimed defenses. And the court correctly ruled in every instance, as presented by his bills on that subject. Neither does any of his bills about Jackson's brand and the testimony of the several witnesses on that subject show any error. This character of testimony is admissible, since the amendment of article 7160 of the Revised Statutes by the act of March 31, 1913, p. 129, the amendment to that article providing that it shall not apply in criminal cases. Neither does any of appellant's bills to testimony that was offered present any error. They are numerous. We have considered them all, but think it unnecessary to discuss any of them in detail.

Appellant's first bill of exception to the court's refusal to sustain his objection to the juror Herman Meyers shows that said juror was a German, had lived in America only about five years, that he could read and write the English language a little bit only, and that he could only understand a little English, just enough to tell what people were talking about, and did not understand all that was asked him touching his qualifications as a juror, and that, if he was taken on the jury, he could not understand all that was said, and would have to guess at a part of it from what he heard. The bill further shows that this juror was forced upon appellant, over his objections after he had exhausted all of his peremptory challenges on other jurors more objectionable than he was. This question has been so thoroughly considered and discussed by the opinions of this court and of the Supreme Court when it had criminal jurisdiction that we deem it unnecessary to discuss it here. We merely cite the cases where the question has been discussed and decided. Lyles v. State, 41 Tex. 172, 19 Am. Rep. 38; Etheridge v. State, 8 Tex. App. 133; McCampbell v. State, 9 Tex. App. 124, 35 Am. Rep. 726; Nolen v. State, 9 Tex. App. 419; Mitchell v. State, 36 Tex. Cr. R. 278, 33 S. W. 367, 36 S. W. 456. For this error alone it will be necessary to reverse and remand this cause.

Appellant's bill challenging the juror Currie presents no error.

Reversed and remanded.

On Motion for Rehearing.

The state urges that this court erred in holding that the juror Meyers was disqualified as shown by appellant's bill No. 1, as held in the original opinion. We have again examined this question and the authorities applicable thereto, and are confirmed in our opinion that the holding of this court was correct.

The state contends, and we think properly, that a large discretion is vested in the trial judge in passing upon the qualification of a juror. While this is true, when an appellant's bill, properly allowed and approved by the trial judge, clearly shows that a juror is disqualified, and the appellant made the proper objection and preserved the question by proper bill, then the trial judge could not be held to properly exercise his discretion in holding the juror qualified. If the law is that a juror is disqualified, this court could not sanction the holding of a...