Citation Numbers: 3 Tex. Ct. App. 286
Judges: White
Filed Date: 7/1/1877
Status: Precedential
Modified Date: 9/3/2021
Two parties, one Juan Coy and Francisco Garza, this appellant, were jointly indicted for the murder of one Luciano Cantu. This appellant was alone placed upon trial, and was found guilty of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty years. Four bills of exception were saved; twelve grounds are set forth in the motion for, a netv trial, and nine errors are assigned. We
The first was with reference to the admission in evidence of the papers purporting to be the dying declarations of Luciano Cantu, the murdered man. We think the evidence came fully up to the rules prescribed by the statute. Pasc. Dig., art. 3125. See, also, Lister v. The State, 1 Texas Ct. App. 739.
The question presented in the second bill of exceptions Is one which has been settled by this court in the case of Treadway v. The State, 1 Texas Ct. App. 668. The recall of a witness for the purpose of laying a predicate to impeach him is a matter confided to the discretion of the judge presiding at the trial, and his action upon it will not be revised by this court when the record fails to show that his recall was necessary to a due administration of justice (Pose. Dig., art. 3046), or unless it be made to appear that the discretion has been abused to defeat the ends of justice. Kemp v. The State, 38 Texas, 111; Roach v. The State, 41 Texas, 262.
The fourth bill of exceptions, which we will next notice, was to the ruling of the court in requiring the defendant to pass upon each juror of the special venire separately, while the defendant claimed the right to have a list of the jury, prepared by the clerk and fqrnished to his counsel, from which he might first styilce the names of those whom he challenged. This identical objection was presented in the case of Taylor v. The State, decided at the present term, and the ruling of the court below was held to be correct. Ante, p. 169. It was further held in that case that the rules provided for the selection of juries, as prescribed in section 22, Acts of Fifteenth Legislature, page 82, applied to trials other than capital felonies ; and that section 23, with reference to special venires, not being in conflict with and .not having
But the most serious error complained of, and the one which will render a reversal of the judgment in this case necessary, is that presented by the third bill of exceptions. We will state the point by stating the facts connected with it, without transcribing the bill of exceptions. The original charge of the court to the jury submitted the law only as applicable to murder of the first degree. After having considered of their findings, the jury returned into court a verdict finding the defendant guilty of murder in the second degree, and assessing the punishment at imprisonment in the penitentiary for a period of twenty years. This verdict was informal, in that it did not expressly acquit the defendant of murder in the first degree. Before sending the jury back to correct this informality, and without the jury’s having requested any additional instructions, the court prepared and reduced to writing (which he read and gave to them) a charge upon the law and punishment of murder in the second degree, and then sent them back, under this second charge, to correct the informality of the verdict. Upon which second retirement the verdict in this case was found and returned, and judgment rendered thereon.
Our statute provides that an informal verdict may be corrected with consent of the jury, and, under direction of the court, be reduced to proper form. Pase. Dig., art. 3092. We know, however, of no authority of law which gave the court the right to give the jury a new charge, or an additional one, upon another phase of the law than that submitted in the original charge. The statute provides the only case in which a court can furnish additional instructions to a jury after their retirement. It reads: “ The jury, after having retired, may ask further instructions of the judge, touching
It is further provided, in the act concerning proceedings in the District Court, that “ all charges and instructions, whether given by the judge of his own accord, or upon the request of counsel or parties, may be carried from the bar by the jury, in their retirement, and no judge shall in any case make any further charge, unless on application of the jury, or a party or his counsel.” Pasc, Dig., art. 1464. In the case of Goss v. The State, 40 Texas, 520, it was held to be error for the district judge, in a felony case, after the jury had retired, to alter his charge without the consent of the defendant, and for such error alone the case was reversed. See, also, the case of Taylor v. The State, 42 Texas, 504.
For this error committed by the court in submitting a new charge to the jury after their retirement, and without being requested to do so, the judgment of the lower court must be reversed and the cause remanded.
Reversed and remanded.