Kirk v. State

The appellant in this case was convicted of robbery, and given ten years in the penitentiary. The indictment is sufficient as to the coins described. The description of the property in this indictment is "certain silver coins, to-wit: three silver dollars in coin of the value of $3, one fifty-cent piece in coin of the value of 50 cents, one ten-cent piece in coin of the value of 10 cents, and one nickle coin of the value of 5 cents." It will be noticed that these are not designated as money or coin of the United States, but we will presume, and so hold, that an allegation after this form refers to money of the United States of America. Menear v. State, 30 Tex.Crim. App., 475; Nelson v. State, ante p. 205. To corroborate the prosecutor, who swears positively that appellant was the party who assaulted and robbed him, the State introduced evidence of horse tracks found near the place of robbery, and circumstances which tended strongly to show that they were made by the appellant's horse. The appellant objected to this evidence, on the ground that it was immaterial. In ruling upon the admissibility of this testimony, the learned judge below remarked, in the hearing of the jury, that he thought that evidence of that character was highly material. To these remarks, appellant, by counsel, objected, reserving his bill of exceptions. Article 677, Code Crim. Proc., provides that, in charging the jury, the court shall not express any opinion as to the weight of the evidence. Article 729 provides that, in ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of same, or its bearing in the case, but shall simply decide whether or not it be admissible; nor shall he at any stage of the proceedings previous to the return of the verdict make any remark calculated to convey to the jury his opinion of the case. Now, let us suppose that, in the charge of the court, he had instructed the jury, with reference to the horse tracks, that he believed this was highly important and material testimony; would he not have been charging the jury in regard to the weight of the testimony? Most evidently he would. It is the object of our code, gathered from every provision relating to that subject, to prohibit the judge from expressing any opinion as to the weight of the testimony or credibility of the witnesses. The court can neither do this in its charge nor in ruling upon the admissibility of testimony. See Wilson v. State, 17 Tex.Crim. App., 525; Crook v. State, 27 Tex.Crim. App., 198; Reason v. State (Tex.Crim. App.), 30 S.W. Rep., 780; Lawson v. State (decided at present term), 32 S.W. Rep., 895.

It was to the interest of the State, under the facts of this case, to prove that Wilkins suggested a search for the purse. The State attempted to prove this fact by one Smith, who swore, however, that he had suggested it. After laying the proper predicate, over the objections of the appellant, the State impeached this witness by proving that he had stated to others that Wilkins made the suggestion. If the witness, Smith, had simply stated that he knew nothing about that matter, as to who suggested it or not, or had stated nothing about the matter, then there was nothing upon which he could have been impeached. But he states that he made the suggestion. That proved that Wilkins did not; and such proof, under the facts of this case, was injurious to the State in regard to that particular matter. This being the case, the State had a right to impeach him in the manner in which it was done. The prosecutor, Collins, swore positively to the identity of appellant as being the robber. Appellant introduced evidence for the purpose of showing that he had made contradictory statements in regard to this fact, and also that he had instituted a civil suit against the appellant for damages growing out of the robbery. In either state of case the party introducing the witness had the right to support him by proof that he made, soon after the transaction, similar statements to those sworn to on the trial. This is not an open question in this State. It appears from the record that Collins, the prosecutor, was very deaf, but not dumb, and that it was exceedingly difficult for him to understand questions propounded to him. The practice pursued by the court was eminently proper under this state of the case. The questions were printed, and presented to the witness, and he understood them; but when they were reduced to writing he did not seem to comprehend them. This, however, may have been because of his very limited education, and the manner in which they were written, or possibly on account of the chirography of the writer. See Rice, Crim. Ev., p. 289, and authorities cited. We do not construe the remarks of the District Attorney as alluding to the fact that the appellant failed to testify in the case. The remarks in regard to the examination of the wife will not occur on another trial. This, however, was controlled by the instructions of the court. For the reasons above indicated, the judgment is reversed, and the cause remanded.

Reversed and Remanded.