Joy v. State

Appellant was convicted of fence-cutting, and his punishment assessed at confinement in the penitentiary for one year, and he appeals.

Appellant complains of the action of the court in permitting parol proof of the ownership of the fence in question. He claims in this connection that the fence is a part of the realty, and that title to realty can only be proven by record testimony. Fence-cutting is in the nature of a trespass, and in a civil action parol proof can be made in regard to the possessory ownership of the land on which the alleged trespass is claimed to have been committed. We see no reason why, in a criminal prosecution for cutting a fence, the possessory ownership can not be proven by parol. We are referred by the Assistant Attorney-General to our statute with reference to unlawfully cutting timber on the land of another, and the decisions thereunder. This, however, is controlled by statute. See article 828, Penal Code. The rule laid down, however, in said cases, is applicable to a case of this character. Belverman v. State,16 Tex. 131; Phillips v. State, 17 Texas Crim. App., 174; White v. State, 27 Texas Crim. App., 638; Hester v. State (Austin term, 1899), 51 S.W. Rep., 932.

The court gave the jury the following instruction on principals: "All persons are principals who are guilty of acting together in the commission of an offense. When an offense has been actually committed by one or more persons, the true criterion to determine who are principals is: Did the parties act together in the commission of the offense? Was the act done in pursuance of a common intent, and in pursuance of a previously formed design, in which the minds of all united and concurred? If so, then the law is that all are alike guilty, provided the offense was actually committed during the existence and in the execution of the common design and intent of all, whether in point of fact all were actually bodily present on the ground when the offense was actually committed or not." And also the following charge on alibi: "If, from the evidence in this case, you have a reasonable doubt as to whether the defendant was present at the time of the commission of the offense alleged in the indictment, or participated in the commission of the offense as a ``principal,' as that term is herein defined to you, you will acquit him." Appellant excepted to these charges, and asked a special charge on the subject of alibi, which was refused. There was some proof in the case tending to show that the parties before cutting the fence had planned to cut it, and the State's proof showed that appellant was present at the cutting. Appellant, however, offered proof of an alibi. In this connection it is further shown that after the jury were out some time deliberating they returned into court, and made the following inquiry of the judge: "If the defendant was not present at the time and place of the cutting of the fence charged in the indictment to have been cut, could he be a principal in the commission of the offense?" and the court verbally called the attention of the jury to that part of his charge on principals. They retired again, and, after being out a short time, the court then brought them back into court, and marked out and called to their attention that particular portion of the charge defining principals. The jury then retired, and subsequently, within an hour, returned into court a verdict against appellant. The court's charge was erroneous, and evidently was calculated to injure appellant. Dawson v. State,38 Tex. Crim. 50; Yates v. State (Texas Crim. App.), 42 S.W. Rep., 296; Bell v. State, 39 Tex.Crim. Rep.; Wright v. State, 40 Tex.Crim. Rep.; Sessions v. State, 37 Tex. Crim. 58.

The charges of the court on principals and alibi were directly in conflict, and the jury must have been confused in the first instance by the two contradictory charges. When they returned into court, from the instruction then given them, they must have believed that the charge on principals was superior to the charge on alibi.

During the trial of the case, the State put Jim Davis on the stand, and he testified to certain criminating statements made by defendant, to the effect that defendant told him that he and others cut the fence. On cross-examination the said witness was asked if he did not, at a certain time and place, tell Jim Taylor that Jeff Hardin and Bob Davis, two State's witnesses, had told him (witness) that he had to swear against the fence-cutters, to which witness replied, "No." Defendant then introduced Jim Taylor, who testified that the witness Davis did tell him, at the time and place mentioned, that Jeff Hardin and Bob Davis had told him that he had to swear against said parties. Thereupon the district attorney, on cross-examination, asked said witness Jim Taylor if defendant, Tobe Joy, did not twice try to induce him (Taylor) to assist in cutting said fence. The witness answered, "No." Thereupon the district attorney asked said witness if he (witness) did not tell Jeff Hardin on two different occasions that defendant had tried to induce him (witness) to assist in cutting said fence, to which witness answered, "No." Thereupon the district attorney placed said Hardin upon the witness stand, and asked him if witness Taylor did not tell him (Hardin) on two occasions mentioned that defendant, Tobe Joy, had tried to induce him (Taylor) to assist to cut the fence in controversy; to which said Hardin answered that said Taylor did tell him on the occasion mentioned that defendant had tried to induce him (Taylor) to assist in cutting said fence, — said testimony being offered for the purpose of affecting the credibility of the witness Taylor. Appellant excepted to the action of the court in neglecting and failing to charge the jury as to the purpose for which said testimony was admitted, and to limit same in his charge. Unquestionably said evidence could only have been admitted to affect the credibility of the witness Taylor. It was not original testimony against defendant, but was of a character to be used by the jury against him. In our opinion, the court should have limited this testimony in its charge to the purpose of impeachment. The judgment is reversed, and the cause remanded.

Reversed and remanded.