Stewart Campbell v. The State, 42 Tex. 591

Moore, J. The court erred in permitting Clark, the witness for the State, to be recalled and examined in the manner shown by the bill of exceptions, after the case had been submitted to the jury. The circumstances under which a witness who has testified may be recalled, and the extent and character of his re-examination are clearly and plainly laid down in

Article 615, Code of Criminal Procedure, which i;eads as follows, to wit: “ If the jury disagree as to the statement of any particular “ witness, they may, upon applying to the court, have such wit- “ ness brought upon the stand, and he shall be directed by the “ judge to detail his testimony in respect to the particular “ points of disagreement, and no other, and he shall be further “ instructed to. make his statement in the language used upon “ his examination as nearly asffie can.” It seems quite probable from the contents of the bill of exceptions, that the attention of the court was not directly called to this

article of the Code, when the jury applied to have the witness re-examined. Obviously it was not observed either in letter or spirit. What are its provisions ? First. It seems the jury should indicate to the court the statement of the witness about which they disagree. Second. The witness shall be brought upon the stand, and directed to detail his testimony in respect to this particular point and no other. Third. The court shall further instruct him to make his statements in the language used upon his original examination as nearly as he can. How let us note what occurred in the court- below.

The jury came into court and requested permission to re-examine the witness, but do not appear to have indicated any particular statement of the witness about which they disagreed.

And although" the court says: “he admonished the jury that the “witness could only be interrogated in reference to testimony “ which he had previously given, and about which some of them 11 were not satisfied ¡ and when the interrogations were pro- “ pounded tSj'and ahswered by the witness, the court, as well “ as the witness, considered his answers as an effort to reiter- “ ate what he previously attempted to convey to the minds of “ the jurors.” The information given the jury did not serve the purpose, and cannot be regarded as a substitute for the admonition to the witness.

The jury were permitted to take upon themselves the office of examiners, and to make such inquiries as they desired, and that too of a most direct and leading charaeter. The questions propounded to the witness had reference, no doubt, to matters about which he had testified, but certainly they were not of a character calculated to elicit a reiteration by the witness of his former statements, as nearly in the lan- ' guage in which it was made as he could give it. It may be insisted with much force that this

article of the Code of Procedure is merely directory, and that the failure of the court to observe it is not a sufficient ground for the reversal of the judgment. We certainly are not prepared to hold that every departure from the strict letter of this

article will require a reversal of the judgment. On the other hand, we are as unwilling to say that in no case will the failure of the court below to obey the behest of a directory statute warrant a reversal. Whenever there is reason to apprehend that injury may have resulted to the defendant, especially in a case of felony, from the failure to observe directions given the court by the Legislature, we "think, unquestionably, the judgment should be reversed.

In this case there was a very palpable failure to conform to the directions of the code. • The witness was re-examined, not with the view of his reiterating a previous statement, but, it would seem, in order to permit him to testify to what he had previously attempted to convey to the minds of the jury.

Though it may be true, that there is no great difference between the direct responses made to the questions propounded to the witness on his re-examination, and the inferences which may be drawn from his original evidence, if that was as given in the statement of facts; yet it appears to have had a most marked effect upon the jury; which,- we think, in part at least, may have resulted from the improper manner in which the witness was examined. While we cannot agree with the argument of counsel for appellant, that

Article 2410 a cannot be applied to the theft of cattle from “their accustomed range,” but must be referred to theft of stock from other places, such as fields, pens, barns, stables, etc., and in all cases of theft of cattle from “ its ac- “ custom ed range,” the prosecution must be based on

Article 2410 5; nevertheless we deem it quite clear that when the facts relied upon as proof of the theft are referable to this last article, it, and in most cases the next succeeding

article also, should be given in charge to the jury. The judgment is reversed and remanded. Reversed and remanded.