Brown v. State

Hurt, J.

The appellant was convicted of the theft of a horse. Upon trial, the defendant excepted to the ruling of the court upon some question of evidence; what the question was the record fails to show. The defendant requested time to prepare his bill of exceptions. The court refused to grant the request, upon the ground that there were three attorneys representing the defense. Defendant excepted to this and reserved his bill of exceptions.

Article 686, Code of Criminal Procedure, provides that “On the trial of any criminal action the defendant by himself or counsel may tender his bill of exceptions to any decision, opinion, order, or charge of the court, or other proceeding in the casé, and the judge shall sign such bill of exception.” Under the rules prescribed in civil suits, in order that such decision, opinion, order or charge may be revised upon appeal, Article 358 of the Revised Statutes reads: “When in the progress of a cause either party is dissatisfied with any ruling, opinion or other action of the court, he may except thereto at the time the same is made or announced, and at his request time shall be given to embody such exception in a written bill.”

This seems to us very plain language, in regard to which there can be no mistake. Evidently the defendant had the right to prepare his bill at the time, nor is this right affected by the fact that he had more than one counsel.

The State relied upon recent possession and the attempt by defendant to mislead the owner of the horse as to its whereabouts, for a conviction.

In order to prove that defendant misled the owner, the State introduced Rufe Casey, who testified on that point as follows:

“ The next day after the horse was taken, I went out toward Jewett, Leon county, looking for him, when the defendant told me he had heard of such a horse in Round Rock, Williamson county. I answered, ‘that is too thin, Jess; my horse did not go in that direction.’ The defendant replied, ‘well, if you want to know the truth about the matter, I bought your horse in Waco, and have sold him again. I did not know at the time I bought him that he was your horse, else I would not have bought him.’ The defendant then said he did not want me to take the horse from the man to whom he had sold him; that the man was an innocent purchaser, and if I would let the matter drop he, defendant, would pay me for the horse. I made no promises, however, and the next week I went to Waco to,get my horse. I hunted for and found a Mr. R. B. Smith; after seeing him I hunted for and found Mr. A. Darwin, living near Waco, in whose possession I found my horse. I then proved ownership, and brought the horse home.”

On defendant’s motion for new trial the following affidavit of Rufe Casey is relied upon:

“This day came and personally appeared before me, the undersigned authority, Rufe Casey, who on oath says, ‘that in the case of the State of Texas v. Jesse Brown, on the trial of said cause, he testified that something was said about the horse being-heard from as going through Round Rock, but he did not intend to be understood as being positive that the defendant said the same or anything like it to witness; and further, witness says, that on mature reflection he is now of opinion that he heard his (witness’s) wife say something about that, and not defendant. Witness further says that a day or two after he first heard that the horse was stolen he went east to Jewett, in Leon county, to hunt the horse, and returned in a short while, and when he returned he was informed by his wife that Jess. Brown had been to see him, and had left him word that he had purchased and sold in Waco a horse suiting the description of the one he had lost, and if he had known that the horse was witness’s he would not have done so, but that if it was witness’s horse he would pay him for him; that he did not think he could find the horse, as he thought the purchaser had traded him to some one who had carried him to Round Rock. Affiant further states that at the time the horse was stolen that he was not the owner of the horse, but that he had traded him to one W. W. G-lover, and had received every dollar of the purchase price of the horse. Witness further states that on Tuesday morning, the sixteenth day of August, 1881, the day after the horse was said to be stolen, he was in Marlin with Ike Casey, and wrote some notices on postal cards, having received the postal cards from Ike Casey at the time. Witness further states that a bitter enmity existed and still exists between Ike Casey and defendant, and that he, witness, does not believe and has never believed that defendant is guilty of taking the horse as alleged; and feeling that the jury received a wrong impression from his evidence, that defendant was endeavoring to conceal from witness the whereabouts of his horse, and the true facts concerning his possession of the same, when such was not the case, witness makes this affidavit that justice may be done in the premises. Witness states that he does not know that defendant knew this horse had been traded by him (witness) to G-lover before he was stolen.”

Did the court err, in view of the facts stated in this affidavit, in overruling the motion for a new trial? We think so, under the peculiar facts of this case. We find no other errors in the record.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered October 21, 1882.