Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 595
viii, 704 p. ; 22 cm.View a full description of this book.
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1875.] CAMPBELL V. THE STATE. 595
Opinion of the Court.
ter. 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 language
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
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28531/m1/603/: accessed April 24, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .