Welsh v. State , 11 Tex. 368 ( 1854 )

Lipscomb, J.

The defendant in the Court below, who is the appellant in this Court, was indicted, with another, for wilfully and knowingly cutting down and carrying away trees, upon the land of Wm. Taylor, not being the land of them, the said Denman and Welsh, without having the consent of William Taylor, contrary to the form of the statute. This indictment was framed under the statute of 20th March, 1848. (Hart. Dig. Art. 493, 494.) The appellant was convicted, and his-co-defendant Denman acquitted, and judgment rendered against him, and a motion for a new trial overruled. The defendant appealed to this Court.

The first ground of error assigned and brought to our consideration, is the overruling the motion for a new trial. The ground upon which the motion for a new trial was rested, is surprise at the evidence of the witness for the prosecution, being altogether different from what it was believed it could possibly be. It is supported by the single affidavit of the appellant, that the facts, sworn to by the witness, are not true, and that their untruth can be proven by three witnesses residing in the county of Walker. The affidavits of these persons, referred to, were not submitted, showing that they would testify ■to those facts being different from what the witness for the prosecution had testified to ; nor is there any reason why such affidavits were not produced. The affidavit shows that the persons referred to lived in the county, and one of them was the co-defendant who had been acquitted, in this case. The rule is well established in this Court, and believed generally to prevail in all Courts, that on a motion for a new trial, upon the ground of newly discovered evidence, the motion should be supported by the affidavit of the persons referred to as witnesses, by whom the facts relied on can be proven, or good reason should be shown why it was out of the power of the applicant to procure their affidavits. For the reason that this was not done, the motion was very properly overruled.

Whether the criticism on the language of the Judge, in saying in his charge, that the words “knowingly and wilfully” are in law synonymous, be just as a question of philology, is of no sort of consequence in this case, because the indictment follows the precise words of the statute, and that is entirely sufficient. (State v. West, 10 Tex. R. 554.) The case just cited was an indictment for cutting and removing a land-mark under Art. 386, Hart. Dig.; the indictment pursued the words of the statute; and on motion it was quashed, because it did not allege that the stake or corner tree, was marked as a corner tree or boundary line, or that the defendant knew them or either of them to be such 'corner or boundary lines. The judgment of the Court was reversed, on an appeal; and we say that it is a general rule, that it is sufficient that indictments follow the language of the statute: we rule too, “that such land- “ marks are supposed to be alike open to the observation and “ knowledge of all men, and if a man destroys them, it must “ be presumed to have been done knowingly and intentionally. a If it was not so done, but was through inadvertence, ac- “ cident or mistake, that would be matter of defence, that “ must come from the defendant, and need not be anticipated “ or stated in the indictment.” If then, the defendant had the consent of the own&r, or had inadvertently cut the trees on the land of Taylor, it was a matter of defence. The statement of facts shows that it was proven on the trial, that the appellant admitted he was cutting timber from the land of Taylor, without his consent.

It was not necessary for the State to prove Taylor’s title to the land; because it was admitted by the appellant. The objection, that the Court below refused to charge the jury, that they had a right, from the manner and position of a witness giving testimony before them, to attach whatever credit they might think proper to his statements, is too vague and uncertain, and was therefore properly overruled. The judgment is affirmed.

Judgment affirmed.