Jones v. State , 22 Tex. Ct. App. 680 ( 1887 )

Willsow, Judge.

This conviction is under Article 470 of the Penal Code. It is charged in the indictment that the defendant, with intent to defraud, put into a bale containing cotton, a commodity usually sold by weight, sand and dirt, mixed with the said cotton, the same being an article of less value than the said cotton with which the said bale was apparently packed. It is shown very conclusively by the evidence that the defendant did put sand into said cotton, but he did so while the cotton was in the seed, before it had been ginned; and it is also sufficiently shown by the evidence that in doing the act his intention was to increase the weight of the cotton and thereby defraud the purchaser of said cotton.

In his charge to the jury the trial judge, among other instructions, gave the following: “ It matters not at what time the said sand or dirt was put into the cotton, provided it was done by the defendant, and so done for the purpose and with the intent to defraud, and in a manner calculated to accomplish such purpose at the time.” We believe this to be a correct statement of the law. It is not necessary, to constitute the offense, that the defendant should have been present at the time of packing and baling the cotton, and at that very time should have put the sand into the bale. The sand was mingled with the cotton by him, and went into the bale by his act as effectually as if he had put it into the bale when the cotton was packed. By putting the san'd into the seed cotton, he put it into the bale of cotton. Such we hold to be the meaning of the law.

But we are of the opinion that this paragraph of the charge is upon the weight of evidence. It assumes as a fact that the sand or dirt was put into the cotton. This was a primary and most material fact to be proved by the State. It was a fact to be found by the jury and not to be assumed by the court. 11 The charge must not comment upon the weight of evidence, or assume facts which it is the province of the jury to find, or lead the jury to infer what is the opinion of the judge upon the facts.” (Stephenson v. The State, 4 Texas Ct. App., 591; Searcy v. The State, 2 Texas Ct. Ap., 440; Webb v. The State, 8 Texas Ct. App., 115.) This instruction was promptly and specifically excepted to, and the error is presented to us by bill of exception. We must hold, therefore, that this error, whether in our judgment material or immaterial, must have the effect to set aside the conviction. (Code Crim. Proc., 685; Paulin v. The State, 21 Texas Ct. App., 436.)

Opinion delivered January 22, 1887.

There is still another error in the charge which is also presented by proper bill of exception. The charge copies the whole of Article 470 of the Penal Code, which article defines two separate and distinct offenses (Holden v. The State, 18 Texas Ct. App., 91), with but one of which offenses the defendant was charged. The charge of the court should have been limited to the law of the case—the case as made by the indictment and the evidence. (Tooney v. The State, 5 Texas Ct. App., 163; Steagald v. The State, ante, 464.)

It was not error for the court to modify the special charge requested by defendant before giving the same to the jury. This power is expressly conferred upon the trial judge and in this instance was exercised in the manner prescribed by the statute. (Code Crim. Proc., Art. 679.)

Because of the errors in the charge above mentioned the judgment is reversed and the cause is remanded.

Reversed and remanded.