White v. State , 78 Tex. Crim. 216 ( 1915 )

Appellant was convicted of the theft of cattle and his punishment assessed at the lowest prescribed by law. The evidence was amply sufficient to sustain the conviction.

Appellant has a bill of exception, which, after stating the style and number of the cause and the court, states that on the trial, "after the indictment had been read to the jury, the defendant had plead ``not guilty' the testimony on the part of the State had been introduced and the State had rested its case; the defendant's counsel arose for the purpose of stating to the jury the nature of the defenses relied upon by the defendant and what were the facts expected to be proved in their support, whereupon the court of its own motion refused to permit counsel for defendant to make such statement and defendant's counsel was refused the privilege by the court of making the statement of the nature of the defense relied upon by the defendant and the facts expected to be proved in their support. To which ruling of the court the defendant then and there excepted and files this his bill of exceptions and prays that the same be allowed."

It will be seen by this bill that the appellant in no way states what he would have told the jury either as to his defense or the facts expected to be proved by him. In fact, the bill shows no sort of injury to him. Article 717, C.C.P., prescribes that, after the jury is empaneled, the cause shall proceed to trial in the following order: "3. The district attorney or the counsel prosecuting in his absence shall state to the jury the nature of the accusation and facts which are expected to be proved by the State in support thereof. 4. Testimony on the part of the State shall then be introduced. 5. The nature of the defenses relied upon shall be stated by counsel for the defendant and what are the facts expected to be proved in their support." We think this statute directory only and not mandatory. Holsey v. State, 24 Texas Crim. App., 35; Murray v. State, 21 Texas Crim. App., 466; Jackson v. State, 30 Texas Crim. App., 664; Hudson v. State, 28 Texas Crim. App., 323; Habel v. State, 28 Texas Crim. App., 588; Roberts v. State, 30 Texas Crim. App., 291. Notwithstanding said statute is directory and not mandatory, yet, if the bill in this case had shown any injury to appellant, we would reverse this case, for, under said statute, he had a right to state the defense he relied upon and what facts he expected to prove in support thereof, and the court should have permitted him to have made the statement in accordance with the statute, but as no sort of injury is pointed out by the bill and as we can not see from the whole record any injury occurred to him, no reversible error is shown. Our holding on this point is not in conflict with House v. State, 75 Tex.Crim. Rep., 171 S.W. Rep., 206, nor Owen v. State, 52 Tex.Crim. Rep., 105 S.W. Rep., 513.

We think appellant's complaint of the charge that Ben S. Davidson was not under the statute the owner of the stolen cattle and that, therefore, the court should direct a verdict for the defendant is untenable and his bill on this subject shows no error. (Art. 457, C.C.P., and authorities thereunder cited.)

The judgment is affirmed.

Affirmed.