Martin v. State , 25 Tex. Ct. App. 557 ( 1888 )

Willson, Judge.

I. When a defendant is dissatisfied with the charge of the court, and desires to except thereto, he must state to the court at the time the charge is given to the jury that he excepts thereto; but he is not required to specify his exceptions until the jury has retired from the box. But, before the verdict is returned, he must specify his exceptions, in order that the court may correct the charge if, in the opinion of the court, it is erroneous or insufficient. (McCall v. The State, 14 Texas Ct. App., 353; Phillips v. The State, 19 Texas Ct. App., 158.)

In this case the bills of exception to the charge of the court were not reserved in the manner required. After the jury had retired from the box, counsel for defendant stated to the court that he desired to except to the charge of the court. Thereupon the court asked the counsel to state the grounds of exception; that the court was ready to supply any omission, or correct any error which might be in the charge, if pointed out. Counsel did not comply with this request of the court, and did not specify exceptions to the charge until after the return of the verdict. We are not, therefore, called upon to consider the exceptions to the charge, and decline to do so, there being no fundamental error pointed out, or perceived by us, in the charge.

II. In so far as the special charges requested by the defendr ant, and refused by the court, are correct in principle, and demanded by the evidence, they were substantially and sufficiently embodied in the charge given to the jury, and no error was committed in refusing them.

III. On the trial, over the objections of the defendant, the State was permitted to prove the acts and declarations of one Freeman occurring both before and after the escape of Paschall from the jail, and when the defendant was not present. These acts and declarations were in relation to said escape, and tended strongly to prove that Paschall had been wilfully permitted to escape from jail by the guards. There can be no question but that this testimony was calculated to injure the rights of the defendant, and if it was improperly admitted the error is material, and the conviction must be set aside.

Opinion delivered June 9, 1888.

We are of the opinion that said testimony was inadmissible. There was no sufficient proof of the existence of a conspiracy between Freeman and the defendant to permit Paschall to escape, to warrant the admission in evidence of the acts and declarations of Freeman performed and made when the defendant was not present. It is still clearer that the acts and declarations of Freeman performed and made after the escape of Paschall, and not in the presence of the defendant, were not admissible evidence against the defendant. Such testimony would not have been legitimate, even if° the proof had established a conspiracy between Freeman and the defendant to permit the escape of Paschall. (Phillips v. The State, 6 Texas Ct. App., 383; Willey v. The State, 22 Texas Ct. App., 408; Cortez v. The State, 24 Texas Ct. App., 511.)

Because of the error committed in admitting the testimony objected to, proving acts and declarations of Freeman, the judgment is reversed and the cause is remanded.

jReversed and remanded.