Cooksie v. State , 26 Tex. Ct. App. 72 ( 1888 )

Hurt, Judge.

This conviction is for embezzlement. It is very clearly shown that appellant was the agent of Csesar Moore, as alleged in the indictment; hence the charge of the court upomthis branch of the case was correct.

Rhoda McMurray was an important witness for the prosecution. Appellant asked witness if she was not the mistress of Csesar Moore. To this question the county attorney objected, which objection was sustained, and appellant excepted. The-bill of exceptions fails to show that appellant proposed or expected to prove the fact, or that such was the fact. The bill shows the purpose of the evidence, but it does not appear that appellant proposed or expected to prove the fact, only as such purpose may appear from the question itself. This is not sufficient, and hence we can not revise this matter. If properly presented, we would be inclined to hold that under the facts of this case the fact would he admissible.

The ruling and charge of the court with reference to the proof of the value of the property embezzled were correct, when considered with reference to the character of the goods (second hand clothing). This character of property (second hand clothing), in the nature of things, has no such market value as would or could reasonably represent its actual value; nor could the rule obtaining among dealers in second hand clothing, “to sell for fifty per cent less than original cost,” furnish anything like a just standard of value. (I. & G. N. Railway Co. v. Nicholson, 61 Texas, 550.)

Under the evidence the value of the property charged to have been embezzled was of the highest importance, there being a serious conflict as to its value. If its value was twenty dollars or over, it was a felony; if under twenty dollars, a misdemeanor.

In argument to the jury, counsel for the State asked the jury the following question: “Gentlemen of the jury, will you find the value of the property to be over twenty dollars, and send him to the penitentiary, where he ought to be, or under the value of twenty dollars, and put the county to the expense of keeping him in jail?”

If appellant embezzled property of the value of twenty dollars or over he ought to be in the penitentiary. If the property embezzled was not of the value of twenty dollars, he ought not to be in the penitentiary, the expense to Grayson county in keeping him in jail notwithstanding. And in passing upon the value of the property, if the jury had placed these expenses to their county in the scales against the defendant, a great wrong would have been perpetrated, not alone to the defendant, but to the majesty of the law as well.

Such character of argument (this is a misnomer) is wrong, and was evidently injurious to appellant. Counsel for appellant, to break its force, extract its sting, requested this charge: “If you find the defendant guilty, then in assessing the penalty or the degree of guilt, you are instructed to disregard entirely the consideration of the expense to the county by reason of the confinement of the defendant in the county jail.”

Opinion delivered June 29, 1888.

The remarks of counsel for tbe State rendered tbis or one of tbe same substance necessary, and it should bave been given; and its refusal under tbe facts of tbis case is reversible error.

Tbe judgment is reversed and tbe cause remanded.

Beversed and remanded.