Tucker v. State , 96 Tex. Crim. 356 ( 1923 )

Upon more mature consideration of this case in the light of the motion for rehearing we have concluded that our former opinion may have been erroneous. About an equal number of witnesses testified that the yearling in question belonged to appellant, as did those for the State, that it belonged to prosecuting witness. It appears from the record that after prosecuting witness spoke to appellant about the marks on the animal appellant came to the cow-pen of prosecuting witness and claimed the animal as his; also that he filed a complaint against said prosecuting witness for theft of same. Appellant testified that he owned the cow which was the mother of the yearling in question and that he milked her from the time it was born until it was about a year old; that he marked it and turned it out and that it ran in a field very near to the home of prosecuting witness from that time until it was taken up. Appellant's brother swore that he had been knowing the yearling in question since it was born and that it belonged to appellant. James Murray swore that he knew the cattle of appellant and that the yearling in question belonged to appellant. He had known appellant's cattle for a long time. Appellant's father swore that he had known this yearling ever since it was born and that it belonged to appellant. That there was bad blood between the two men, appellant and prosecuting witness, is also admitted. They had had a cutting and shooting scrape some years before the loss of the animal in question, and had not spoken to each other during the interim, though they lived comparatively near to each other. The case on its facts is very similar to Moran v. State, 94 Tex.Crim. Rep., 249 S.W. Rep., 475, in which we held that where the testimony was so uncertain upon the issue of fraudulent intent in the taking, we would not be warranted in sanctioning the conviction. The evidence pro and con relative to the identity of the animal and the ownership thereof raised an issue which in all probability under ordinary circumstances would have been litigated in a civil suit over property rights. In view of the close issue thus made by the evidence we have become exceedingly doubtful as to the effect of the argument used by the State's attorney in his closing remarks to the jury, which is quoted in the former opinion. We have come to the conclusion that statements of this character should not be sanctioned, and we fear same come within the rule laid down of injury which can not be remedied by an instruction attempting to withdraw same from the consideration of the jury. It is a direct and pointed appeal to any member of any sect, organization or clan to demonstrate his sincerity to the teachings and doctrines of such organization by returning a verdict of guilty in this case. It was an appeal to any man on the jury who for any reason, real or fancied, might have believed that the criminal laws are not being enforced as they should be to demonstrate his belief in that position by returning a veridict of guilty in this case. If the case was not so close upon its facts and upon the issue of fraudulent intent there would be less likelihood of danger from such an appeal, but taking the two together, the near balance of the testimony on the question of a fraudulent taking, and the plain error of such an appeal, we are unwilling that this verdict should stand, and appellant's motion for rehearing is granted, the affirmance set aside, and the judgment reversed and the cause remanded.

Reversed and remanded.

ON REHEARING. January 16, 1924.