McGrew v. State , 31 Tex. Crim. 336 ( 1892 )

Defendant was charged with and convicted of cattle theft, and his punishment assessed at confinement in the penitentiary for a term of two years, from which conviction he prosecutes this appeal.

In so far as the ruling of the court on defendant's application for a continuance is concerned, no error in perceivable. We do not deem the testimony material; but, if material, then the bill of exceptions shows that the district attorney admitted the facts stated in the application to be true, and they went to the jury as evidence in the case. Willson's Crim. Stats., sec. 2184.

By article 603, Code of Criminal Procedure, it is provided, that "in all cases less than capital the defendant is required, when his case is called for trial, before it proceeds further, to plead by himself or counsel. whether or not he is guilty;" and article 604 provides, that "by the term 'called for trial' is meant the stage of the cause when both parties have announced that they are ready, or when a continuance, having been applied for, has been denied." In this case the application for a continuance was overruled, and the parties announced ready for trial. The defendant at that time was not required to enter his plea, but the jury were empanelled and sworn. The district attorney having read the indictment, the defendant was then called upon to make his plea to the same, which he refused to do, upon the ground that he should have been required to plead before the jury was empanelled, or rather after his continuance had been overruled, and the announcement of ready for trial had been made; and that he, not having been required to announce at that time, could not be required to plead to the indictment after it had been read.

By article 660, Code of Criminal Procedure, the order of proceeding in trials is provided, and subdivision 1 thereof requires the indictment shall be read to the jury; subdivison 2, that the special pleas, if any, shall be read by defendant's counsel; and if the plea of not guilty is relied upon, it will also be so stated. The uniform practice in this State, as we understand it, in felony cases less than capital, has been to require the plea to be entered after the indictment has been read, because by this rule all pleadings which present the issues to be tried before the jury enable them to understand what it is they are required to try. Articles 603, 604, supra, which would seem to require that the plea of not guilty must be interposed before the reading of the indictment, are simply directory, and not mandatory. We think the clear intention and spirit of the articles of the code with regard to this matter are, that the plea must be entered before the introduction of any testimony on the trial of the cause, so that the jury may know what issues they are called upon to try; and where the plea has been interposed before the introduction of any testimony, the object and purpose of the statute has been fully subserved. This may be illustrated, as we think, conclusively, by reference to the practice provided for in capital cases. By article 516, Code of Criminal Procedure, it is specially provided in such latter cases that the indictment shall be read, and the defendant asked whether he is guilty or not, as therein charged, notwithstanding the fact that it is also required that he shall have been previously arraigned for the purpose of having the indictment read, and hearing his plea thereto. Article 509. The object and purpose of the provisions of this code are mainly for the purpose of having the issues to be tried fixed by the pleadings before the introduction of testimony pertinent to these issues, so that the jury may be able to see the pertinency of the testimony, and properly apply it to the issues; and where this has been done, we think the objects and purposes of the law have been fully subserved.

Where the defendant refuses, as in the case at bar, to plead after the indictment has been read, the court has the right, and it is its duty, to interpose the plea of not guilty for him, as is provided in article 517, with regard to capital cases, which provision has uniformly been held to be applicable alike to all cases of felony. We are clearly of opinion that in all cases of felony less than capital, where, after reading the indictment, the defendant is called upon to plead, and he pleads not guilty, or in case he stands mute and refuses to plead, the court causes his plea of not guilty to be entered for him, the object, purpose, and spirit of the statute have been fully complied with.

There was no error in admitting the record of the mark and brand of the alleged owner, J.E. Bartlett. The designation of the place as on the ribs and hip where the brand was to be placed was sufficient. Hayes v. The State, 30 Texas Ct. App. 404[30 Tex. Crim. 404]; Harwell v. The State, 22 Texas Ct. App. 251[22 Tex. Crim. 251]. Its being a regularly recorded brand was evidence of ownership, and properly introduced as such. We know of no statute which requires the record of a brand to designate whether it is for horses or cattle.

The first objection to the charge is, that it assumed the ownership of the property to be in J.E. Bartlett, the alleged owner. The charge is not obnoxious to this objection. The opening paragraph of the charge simply stated to the jury the nature of the case, which was that the defendant was charged in the indictment with the theft of one head of cattle, the property of J.E. Bartlett. This was not an assumption on the part of the court that the animal was the property of Bartlett, but was simply a statement that the indictment so charged; and was not properly a part of the charge, but merely a preliminary statement of the nature of the accusation against the defendant.

The fourth paragraph of the court's charge is called in question. The proposition announced in this charge was that "animals upon their accustomed range are in law in possession of the owner." This proposition is well established law in this State, and is, we think, manifestly correct, both as matter of law and fact. Willson's Crim. Stats., secs. 1273, 1297, and authorities there collated; Alford v. The State, ante, p. 299. Until the possession of the owner is ousted by some other person who exercises actual care, control, and management of the aninial, it is in possession of the owner.

Objection is made to the charge of the court in regard to accomplices' testimony. This objection we do not consider maintainable. While it is true the charge did not tell the jury in so many words that Ricks was an accomplice, still it gave them the rules of law with regard to accomplices' testimony, and followed almost literally the form for such a charge prescribed by Judge Willson in his invaluable work on forms (Willson's Criminal Forms, 714a), which has been held time and again amply sufficient, especially in the absence of any special requested instruction making the charge more explicit in its application to the facts of the case. Suffice it to say, the general charge, together with the special requested instructions as given, we think fully covered the law applicable to the facts in the case, and defendant has no right to complain. The court did not err in declining to give the special requested instructions which were refused.

The only remaining error assigned is the insufficiency of the evidence to support the conviction. In this we do not concur with the learned counsel for appellant. We are of opinion that every allegation in the indictment is sustained by the proof adduced on the part of the State; and having found no reversible error in the record, the judgment is affirmed.

Affirmed.

Judges all present and concurring.