Walker v. State , 32 Tex. Crim. 175 ( 1893 )

SIMKINS, Judge.

Appellant was convicted of the theft of a steer, and his punishment assessed at two years in the penitentiary, from which he appeals. It is only necessary to consider two questions:

1. Appellant asked for a continuance—apparently the first application —to procure the testimony of Bishop, Slawson, and Young, whose testimony seems to be very material. The defense in this case was a taking under claim of right. The sole inculpatory fact was the brands on the steer alleged to have been stolen. It was shown by Aikin, the purchaser, that he had shipped the animal to St. Louis, and that it was branded on the right side AL, connected, and on the left side with a brand called the “TY” or “ Crowfoot Bar” brand. The State proved by witnesses, who did not see the animal sold to Aikin, that this animal was branded AL, connected, while a sucking calf, in the spring of 1886, and, with others in the same brand, was sold to Johnson in 1888, and all rebranded with the crowfoot bar. Some got away, but were all found, except this one, which was never found, unless it was seen by State’s witness near Belton in 1889. The animal was sold in the summer of 1890 to Aikin by appellant. In defense, appellant proved, that he, with another, saw and claimed the steer in the summer of 1890; that he hired one Caldwell to assist him, being notified by one Young, who lived three miles west of Belton, that the steer was worrying him, and went and roped it; that they drove it along the public road to the city of Belton, and there, finding it heated, they tied it to a tree in the street near the public square from 10 o’clock in the morning to á in the afternoon, and then drove it through the streets of the city, and along the public road, to his pasture. Appellant further proved by the State’s witness Armstrong, who was called to impeach appellant, that in 1885 and 1886 he (appellant) was an extensive cattle dealer, and purchased a number of cattle around Holland; that one Linderman, in that neighborhood, gave the AL, connected, brand. Appellant further stated on the stand that he purchased these cattle for one Higgins, and at his request put, as a road brand, on them, the crowfoot brand; that when he went to deliver them, Higgins received enough to repay him for money he had advanced to appellant, but would not pay any more, and appellant had 70 head thrown on his hands; that he drove them to his home, and, to distinguish them from those sold Higgins, placed the bar on them; that the said R. A. Bishop, acting as agent for Higgins in the sale, and Jack Lawson, knew that he handled and owned some of the crowfoot bar brand cattle. We think the continuance ought to have been granted.

2. But if there was no error in overruling the motion for a continuance, the limitation upon the argument- in this case must reverse it. The bill of exceptions shows that the court limited the time of argument to forty-five minutes. This was a contested case. Twelve witnesses testified in the case, and the defendant also testified at length. It was a case, largely, of circumstantial evidence. The issues were the identity of the animal, and the question of good faith. So strongly contested were these issues as to suggest the necessity of a civil tribunal to settle at least the question of property. Yet the court limited the argument, and called time on counsel for the defense at its expiration. Under the constitutional guarantees in this State, it is the undoubted right of every person tried upon a criminal charge to be heard by court and jury, upon the whole case, through the lips of counsel. Sec. 10, Bill of Bights; Code Crim. Proc.,art. 4. This may be said to be the most valuable right of a defendant. Nor is the presence and argument of his counsel beneficial to the defendant only, but also to the court, in the furtherance of justice and the vindication of law. There is no judge, however able and learned, and no jury, however intelligent, but may be benefited, and receive valuable assistance in reaching a correct conclusion, from the argument of counsel.

Especially is this true in cases like the one at bar, where there are contested issues, and when contradictory and voluminous evidence requires patient and careful consideration on the part of the jury, and challenges the skill and ability of counsel to sift the false from the true, and show suspicious facts to be consistent with innocence. The accused has an undoubted right to any advantage from this source. Yet this right may be-utterly destroyed if the court can arbitrarily limit argument, because in his-opinion the evidence is so clear that argument can not vary it. Tooke’s case, 23 Texas Cr. App., 12. Indeed, the very limitation fixed by the court may be a strong intimation to the jury of the court’s opinion of the evidence, and it may not require much shrewdness on their part to. perceive it is against the defendant. Thus may be indirectly violated one of the express provisions of the code. Code Crim. Proc., art. 677. The District Court has the right to limit argument. This necessarily results from a due regard to the dispatch of business and the rights of others demanding a hearing. But while time is precious to the court, it is. infinitely more so to him for whom counsel is pleading, and whose life, liberty, and happiness is resting in the balances of Justice. We are satisfied the able judge presiding in this cause intended no deprivation of a single right of appellant, yet we believe the time allowed defendant’s counsel in this case was not sufficient in which to present his defense, and the judgment is reversed and the cause remanded.

Reversed and remanded.

Hurt, P. J., concurs. Davidson, J., absent.