Wolfe v. State , 25 Tex. Ct. App. 698 ( 1888 )

Hurt, Judge.

This conviction is for the theft of hogs, the property, as alleged, of John E. Mclver.

The one question presented by counsel for appellant is, was the offense committed within limitation? The statement of facts makes all the witnesses say that the transaction was in ‘"84;”— not “ 1884”—but that the hogs were taken in “’84.” It was necessary to a legal conviction for the State to prove that the offense was committed within five years of the presentment of the bill of indictment. On this point the witnesses say, speaking of the date of the offense, that it occured in ’84. This is sufficient; for if in any part of 1884 it would be within limitation.

In common parlance “’84” means “1884.” It is preposterous to indulge the idea that the witnesses were relating matters which occurred in 1784, a hundred years ago. The Bingham ■case is not in point. In that case the time proved was “187.” This was not a common manner of expressing the date of a transaction. When, however, it was said that the time of the transaction was in “’84,” “’85,” “’86,” “’87” or “’88,” we know ’the date with as much certainty as if the 18 had been prefixed. We are not to be understood that such loose methods would be tolerated in indictments.

There is a very serious conflict in the evidence, and if the writer had been called upon to pass, in the first instance, upon the guilt of the appellant, a different result would have been reached. The evidence as to what the brother of the appellant said about the hogs was clearly inadmissible; but not being objected to, the matter is beyond the revisory powers of this court. Looking alone to that which supports the verdict, we can not ■say that it is insufficient. The jury were the judges of the credibility of the witnesses and the weight to be given to their test:mony; and they may have altogether rejected or disbelived the testimony in favor of the accused.

We believe, however, that under the peculiar facts of this -case> the following charge was unfair to the appellant: “It is your peculiar province to determine all questions of fact, and you are the sole and exclusive judges of the weight of the evidence, and the credibility of the witnesses; and'when, if at all, witnesses disagree in their testimony, it is for you to reconcile such disagreement, as far as possible, and if you can not do so, it is for you to determine from all the facts and circumstances-in evidence, and the relation of the witnesses to the defendant or injured party, their interest in the case, their intelligence and • their manner of testifying, to whose testimony you will give credit, and to what extent.” The defendant introduced several, witnesses who swore to the general bad character for truth and veracity of one of the most important witnesses for the prosecution. When enumerating the matters and things to which the jury might look in passing upon the credibility of the witnesses, and the weight to be given to their evidence, this fact (impeachment) was omitted. In this, under the peculiar facts of this case, we think there was error of a character well calculated to prejudice the rights of the defendant, and is therefore reversible error, although not excepted to at the trial.

Opinion delivered June 23, 1888.

Reversed and remanded.