The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1872-02-22
sUFRE11E CsURr DECISIONS.
No. 3ss.-Audrew Ellington v. The State.
Appeal from Fayette county.

Appeal from Fayette county.
This case was decided at the last term Of
this Court affirming the judgment Of the low
er Court. motion fol a rehearing was
sustained and the case is now again submit
ted upon additional brief.
In the several briefs filed before and since,
the granting Of a rehearing, the counsel claim
that the judgment in this case should be
reversed, because of the error Cf the Coart
in overruling the motion for new trial, for
the reason that the verdict and judgment
was contrary to the evidence sdduced on the
trial of the cause. And it is contended in
effect that this Court in criminal cases should
assume the function OF the petit jury, and
scan and weigh the evidence for aud against
the defendant, and from the necessarily i'm
perfect record of the evidence. determine
the question of fact whether the defendant
is guilty or not gully, and as rule to gov
ern tie action of this Court, it is said that
To warrant conviction the evidence must
exclude every other hypothesis, but that of
the guilt of the defendant" or in case Of con-
viction the judgment should be reversed, and
we are referred TO the cases of Orr vs.. the
State, "a Geo. 345, and Billiard vs.. the State,
80 Texas 367, as authority in establishing
the above rule In the first case cited, the
learned Court refers to rules established by
Starkey, Greenlesf, and others, for the gov
eminent of jUries and lower Courts, in trying
defendant charged with an offsnse; and
when applied to the proper Court we fully
recognize the wisdom and justice of the rule.
But when applied to an Appellate Court,
where but an imperfect statement of the
facts proven are incorporated in the tran
script, and where the Court has no opportu-
nifty of seeing the witnesses, or of hearing
them testify, and is therefore almost wholly
deprived of the privilege or power Of judging
of the intelligence and truthfulness, the BIZ
sses and prejudices, and consequently the
credibility of the witnesses, we fail to discoV-
eE the wisdom, justice or policy of such an
| application, and we doubt not the learned
authors referred to, would condemn the ex-
tension of such rule to an Appellate Court,
Rs it would in effect work the subVersion of
the right of trial by jury and ultimately
the administration OF justice. That the APP
pelate Courts have reviso:y iurisdic-
| ton over criminal matters, even in relation
to the facts of the case, cannot be denied I,
and therefore il appears from the record that
a judgment is without foundation in fact,
that judgment should be reversed. But when
| the facts OF a case have bsen submitted TO q
jury, and they have found an honest an din
| telligible verdict, that verdict should form
the basis of ttejudgment of the Court, unless
the same should appear to the Court trying
the case ID be contrary 10 law and the facts
proven. 1t is true that the lower Court has,
and ought to have great discretionary power
TO set aside a judgment whenever, in the
opinion of that Court, impartial justice has
not been done, But when that Court, in the
exercise ofits discretionary power, has re-
fused to disturb the verdict of the jury, and
the case has been brought to an Appellate
Court, we think it should then be made to
appear not only that the jury had erred in
its verdict, but also that the Court erred in
refusing a new trial. Article 305s, Pas
chats Digest provides: "The jury are the
exclusive judges of the facts in every crimi-
nal case" and in The case of Heber vs.. the
State, Texas 81, this Court in the con-
struction of the above statute, upon the re-
fusal of the lower Court to grant a new trial
says: at may well be doubted whether in
criminal cases, any other questions can be
reversed than those of law, contradistin-
guished from those of fact" and in the same
opinion the Court intimAtes most clearly,
that when there was conflicting testimony,
and new trial was refused, this Court
would not reverse the judgment, because the
same was against the weight of evidence.
In the case of Killingsworth vs. the State
in % Texas, 2G9, the Court says: whether
the defendant below was guilty or not, and
to what extent he was guilty, if at all, were
questions for the jury" and a similar rule
was followed in Couch VS.. the State, "a Tex,
557; Ross vs. the State, "a Tex, COL; and in
the case of Cox vs.. the State, 80 Tex, 6IO,
the Court has fully determined the question
under consideration, and says: "But it was
the province ef the jury alone to weigh the
testimony of witnesses, and believe the one
, and disbelieVe the others. Unlike the judge
who presides over trials, this Court does not
have, nor can it be put in possession of the
same facilities for judging Of the propriety OF
] granting new trials. The errors of juries
must be most palpable and apparent to JUS
tify this Court in awarding them, by a re-
versal of the judgment OF the Court below
| We think the rule there established a correct
one, and we are unwilling to attempt to
make one conflicting. The facts proven in
this case, appear to be somewhat conflicting
but we think all the material facts sworn to
by all the witnesses may be made sDbstan.
j TALLY to harmonic.
One witness proved that he saw defendant
riding the stolen gelding early in the morn
, ing after he was stolen, and another witness
proved, that on the day after the animal was
!, stolen defendant told him, that he, defendant
had traded the stolen animal to one Prince
/ for q pony.
On the other hand it was proven by sever.
al of defendants witnesses, that Prince had
the animal in bis possession soon after the
l theft, and that be rode the animal off into
, Eastern or Northern Texas. It was also
proven that Prince and defendant were or
the day after the theft riding 10 company
) and if all the testimony be true, they mus
, have alternated in riding the stolen animal
apparently knowing each others business anC
purposes, and swapping horses with each other
| And it was also proven, that on the night thu
4 animal was stolen, Prince came to defendant
house, after he had gone to bed, ostensibly
: to trade horses. All this and other corrobo-
l rating testimony was given on the trial with
? out impeachment, and under these facts
, there can be no doubt that the jury wert
authorized in finding the defendant guilty
/. The proof that Prince was riding the ANNA
4 soon after the theft, wGa no proof that defen
dant did not ride him, and the proof that de
} | PENDANT traded 10 Prince a black pony, wa
no proof that he did not also trade him thu
t stolen one, and it may not be impossible tina
: the jury attempted to reconcile the Who'll
testimony, On the hypothesis that both Primo
> and defendant stole the animal together, o
= rather that both concerted, consented, an
plotted together to commit the theft, an
then by agreement were to share the prof t:
Under this hypothesis, and this alone
e could all, or nearly all the testimony b
- made to harmonic, ami be in strict accord
ance with truth and the charge in the indict
Z ment. 1t is hardly necessary to say that
1t such were the facts of this case, taen boil
G Prince and the defendant were guilty, and i
II that cLse the verdict of the jury would be i
L
i was the opinion we arrived at, after carefr
r study of the records, at the last term Of thi
O Court; and a determination OF the case nov
with the authorities referred to by eounse
n have only confirmed our opinion.
.e The other questions raised by the assign
II ment are correctly disposed of in the form'
opinion in this case, and we need not motto
ETrEthnE nnW,
,dgment Of the District Court is