BENAVIDES v. THE STATE

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Docket Number

No. 55.

Attorney(S)

Coopwood Coopwood, for appellant, filed an elaborate brief in the case, and, among other propositions, insisted, "that the court erred in its action and ruling, and in recalling the jury after they had retired to consider their verdict, and in giving to them, of its own motion, its additional charge on circumstantial evidence." Goss v. The State, 40 Tex. 521; Taylor v. The State, 42 Tex. 504; Newman v. The State, 43 Tex. 525; Post v. The State, 10 Texas Ct. App. 601[ 10 Tex. Crim. 601]; Wharton v. The State, 45 Tex. 2 [ 45 Tex. 2]; Myers v. The State, 8 Texas Ct. App. 328[ 8 Tex. Crim. 328]; Hannahan v. The State, 7 Texas Ct. App. 611[ 7 Tex. Crim. 611]; Code Crim. Proc., arts. 677, 696, 678, 679, 680, 684, 685 R.L. Henry, Assistant Attorney General, for the State.

Judges

DAVIDSON, JUDGE.

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Smart Summary

Factual and Procedural Background

This appeal arises from a conviction for horse theft in the District Court of Duval, Texas, where the defendant, Pedro Benavides, was sentenced to five years in the penitentiary. The defendant excepted to the jury charge after it was read by the trial court and requested additional instructions, which were refused. Subsequently, the court, on its own motion and over the defendant's objection, recalled the jury after they had retired to consider their verdict and gave an additional instruction on circumstantial evidence. The appeal centers on whether the court had authority to recall the jury and give further instructions in this manner.

Legal Issues Presented

Whether the trial court has the authority to recall the jury after they have retired and give additional instructions on its own motion without a request from the jury or parties.
Whether an exception to the jury charge must be taken prior to the return of the verdict and specify the alleged error with particularity to be considered on appeal.
Whether the court's additional instruction on circumstantial evidence was proper and cured any alleged error in the original charge.

Arguments of the Parties

Appellant's Arguments

The court erred by recalling the jury after they had retired to consider their verdict and giving an additional instruction on circumstantial evidence without a request from the jury or parties.
The additional charge was incorrect as it did not properly state the law on circumstantial evidence.
The court's action violated the former statutory prohibition against judges giving further charges after the jury's retirement unless requested.

State's Arguments

This information was not available in the provided opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Goss v. The State, 40 Tex. 521	Former statutory rule prohibiting judges from giving further charges after jury retirement unless requested.	Recognized as no longer authoritative due to statutory revision in 1879 removing the prohibition.
Taylor v. The State, 42 Tex. 504	Same as Goss v. The State.	Held to be obsolete under current law.
Newman v. The State, 43 Tex. 525	Referenced by appellant to support limitation on court's authority to recall jury.	Not discussed in detail but cited among obsolete precedents.
Williams v. The State, 22 Tex. Crim. 497	Requirement that exceptions to jury charge specify errors with particularity.	Applied to affirm that exceptions must be timely and specific to be considered.
McCall v. The State, 14 Tex. Crim. 353	Exception to charge must be taken prior to verdict return.	Applied to support procedural requirements for preserving error.
Thompson, 2 Trials, secs. 2353, 2363	Judicial authority to recall jury and give further instructions to correct errors.	Quoted to support court's power to recall jury and instruct when necessary.
Code of Criminal Procedure, arts. 677, 686	Requirement to give jury charge and procedure for exceptions.	Applied to affirm the court's duty and the procedural framework for exceptions.
Various other Texas cases cited (e.g., Smith v. The State, Hennessy v. The State)	Supporting the necessity for exceptions to be particular and timely.	Reinforced procedural standards for appellate review.
Numerous out-of-state cases (e.g., Nicholson v. The State, 38 Md. 153; The State v. Pitts, 11 Iowa 343)	Judicial power to recall jury and give additional instructions.	Used to illustrate general legal principles supporting court's authority.

Court's Reasoning and Analysis

The court began by acknowledging the appellant's objection to the trial court's recall of the jury and the giving of an additional instruction on circumstantial evidence after the jury had retired. The appellant relied on a former statutory provision, Paschal's Digest article 1464, which prohibited judges from giving further instructions after jury retirement unless requested by the jury or parties. However, the court noted that this prohibition was removed in the Revised Statutes of 1879, effectively abrogating the former limitation.

The court emphasized that the current law permits a judge to recall the jury and give additional instructions sua sponte, provided the defendant is present or waives the right to be present. This authority is consistent with the court's duty to ensure the jury is properly instructed on the law.

Regarding the exceptions to the jury charge, the court explained that such exceptions must be taken before the verdict and must specify the alleged errors with particularity. The court reasoned that it would be illogical to forbid the court from correcting errors in the charge once pointed out, as this would leave errors unremedied and allow parties to complain about errors that were effectively cured.

The court further found that the additional instruction given was proper and cured any defect in the original charge. It rejected the appellant's contention that the instruction was incorrect, holding that the charge sufficiently presented the law applicable to the facts.

In sum, the court concluded that the trial court acted within its authority and did not err in recalling the jury and giving additional instructions on circumstantial evidence.

Holding and Implications

The Court of Criminal Appeals of Texas AFFIRMED the conviction for horse theft.

The court held that under the Revised Statutes of 1879, a trial judge has the authority to recall a jury after retirement and give additional instructions on the court’s own motion, provided the defendant is present or waives that right. The court also held that exceptions to the jury charge must be timely and specific, and that the trial court may cure errors in the charge by giving proper additional instructions. This decision directly upheld the trial court’s procedural actions and did not establish a new legal precedent beyond affirming the abrogation of the prior statutory prohibition and clarifying the court’s remedial authority.

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PEDRO BENAVIDES v. THE STATE.

1. Practice — Recalling Jury and Giving Additional Instructions Ex Mero Motu by the Court. — Under the law as it formerly existed, after the retirement of the jury the trial judge was inhibited in any case from "making any further charge, unless on application of the jury, or a party or his counsel." Pasch. Dig., art. 1464. This rule, however, was changed on the adoption of the Revised Statutes of 1879, the inhibition having been omitted in the revision.

2. Same — Bill of Exceptions to Charge. — Under the practice as it now obtains in this State, it is required that an exception to the charge to the jury must be taken prior to the return of the verdict, and that such exception must point out with particularity the supposed error. Held, that where such bill of exception has been taken, a party has no right to be heard to complain if the error which he thus points out is cured by proper instructions by the court, and by this means his legal rights are secured to him.

3. Same. — The judge may, of his own motion, recall the jury and give them further instructions, whenever he considers it necessary to do so; provided always, however, that the defendant is present when such additional instructions are given, or has waived his right to be present.

4. Same. — The authority of the court to give additional instructions of its own motion is not abridged by the statute which authorizes the jury to ask further instructions of the court touching any matter of law, as provided in article 1321 of the Revised Statutes.

DAVIDSON, JUDGE.

This appeal is prosecuted from a conviction of horse theft.

Counsel for appellant prepared and requested the court to give the jury several instructions, all of which were refused except one, because substantially they had already been given in the charge of the court. Upon an inspection of the record, we are of opinion that the court was correct. Repetition of charges is not necessary. Willson's Crim. Stats., sec. 2354.

During their retirement, and prior to their verdict, the court, of its own motion, had the jury recalled into open court, and gave them an instruction with reference to the law of circumstantial evidence. This action of the court was excepted to, because the court is invested with no authority, of its own motion, to recall the jury after their retirement, and give additional charges; and the charge as given was also excepted to, because it did not state correctly the law on the subject. The charge as given is not subject to the criticism sought to be urged against it. It is contended by appellant that the court had no authority to recall the jury, of its own motion, after their retirement, and give the additional instruction. In support of this proposition, we are cited to the latter clause of article 1464 of Paschal's Digest, which provides that, "all charges or instructions, whether given by the judge of his own accord, or upon request of counsel or parties, may be carried from the bar by the jury in their retirement, and no judge shall in any case make any further charge, unless on the application of the jury or a party or his counsel." This article applies as well to criminal as civil causes. Goss v. The State, 40 Tex. 520; Taylor v. The State, 42 Tex. 504 [ 42 Tex. 504]; Garza v. The State, 3 Texas Ct. App. 286[ 3 Tex. Crim. 286].

The construction placed on that portion of the quoted statute which provided, that "no judge shall in any case make any further charge, unless on the application of the jury or a party or his counsel," was to the effect, that it was an express inhibition upon the authority of the court, of its own motion, in any case, to give additional instructions to the jury after their retirement. Same authorities. This limitation, however, upon the power of the court was omitted by the Legislature in revising the codes in 1879, and was therefore abrogated, and since the adoption of the codes has ceased to be the law in this State. Rev. Stats., arts. 1316, 1317, 1319, 1321. The decisions cited by appellant are not in point, and are no longer authority in this State, because rendered under the repealed act.

In felony cases the court is required to deliver the jury a written charge, in which the law applicable to the facts shall be distinctly set forth. The judge is prohibited from expressing an opinion as to the weight of the evidence, as well as from summing up the testimony; and he is required to give such charge whether asked or not. Code Crim. Proc., art. 677. When the charge has been given, the defendant may reserve his bill of exceptions thereto, in order that the same may be revised upon appeal. Code Crim. Proc., art. 686. This bill, in order to entitle it to consideration on appeal, must point out the error complained of with particularity. It is not sufficient that the charge is assailed by it in a general way or in general terms. Williams v. The State, 22 Texas Ct. App. 497[ 22 Tex. Crim. 497]; Smith v. The State, 22 Texas Ct. App. 316[ 22 Tex. Crim. 316]; Hennessy v. The State, 23 Texas Ct. App. 340[ 23 Tex. Crim. 340]; Peace v. The State, 27 Texas Ct. App. 83[ 27 Tex. Crim. 83]; Quintana v. The State, 29 Texas Ct. App. 401[ 29 Tex. Crim. 401]. It is also necessary that such exception must be taken prior to the return of the verdict of the jury. McCall v. The State, 14 Texas Ct. App. 353[ 14 Tex. Crim. 353]; Phillips v. The State, 19 Texas Ct. App. 158[ 19 Tex. Crim. 158]; Bogan v. The State, 30 Texas Ct. App. 466[ 30 Tex. Crim. 466]. If the court could not recall and properly instruct the jury when his attention was called to the defects pointed out by the exception, we would have the strange condition of a fatal error being pointed out by the exception, and yet the court legally helpless to cure the evil or remedy the wrong; and we would be confronted with the stranger proposition still, that a party, after excepting to an erroneous instruction, would be heard to successfully complain that the error of which he complained was cured by proper instructions, and by this means his legal rights secured to him. We entertain no doubt as to the correctness of the action of the court in this matter.

When an omission or error has been discovered in the charge, whether by the court or counsel, it is the right, and may become the duty, of the court to rectify the error by a proper charge, and to this end the jury may be recalled into open court and properly instructed, provided the defendant be present. Mr. Thompson, in his valuable work on Trials, says: "We have seen that it is the right, and sometimes the duty, of the judge to instruct the jury on questions of law, although not requested to do so, except where the practice is not enjoined by statute. We have also seen that the judge may rightfully modify or revoke instructions which he has given to the jury, which, on further reflection, he concludes to be erroneous. It necessarily results from this that the judge may, of his own motion, recall the jury, and give them further instructions, whenever he considers it necessary to do so." 2 Thomp. Trials, secs. 2363, 2353.

The limitation upon this privilege or power of the court in this State is found in the right of the defendant to be present when such action on the part of the court is had. This right the defendant can waive. Subject to such limitation, the jury may be recalled by the court, of its own motion, and such legal and necessary additional instructions may be given them as "the law of the case" makes necessary, or the testimony may require. Sack. Instruct. Juries, sec. 31; Thomp. Char. Juries, 131, 132; 11 Am. and Eng. Encyc. Law, 256, 257, and notes; Nicholson v. The State, 38 Md. 153; Jones v. Van Patten, 3 Ind. 107; Hall v. The State, 8 Ind. 439, 444; The State v. Pitts, 11 Iowa 343; Lee v. Quirk, 20 Ill. 392; Davis v. Fish, 2 G. Greene, 447; O'Connor v. Guthrie, 11 Iowa 80; Campbell v. Beckett, 8 Ohio St. 210; Hoberg v. The State, 3 Minn. 262 (Gil., 181); Breedlove v. Bundy, 96 Ind. 319; The People v. Perry, 65 Cal. 568; Alexander v. Gardiner, 14 R.I. 15; Booker v. The State, 76 Ala. 22, 24. Nor is this privilege and authority in the court abridged by the statute which authorizes the jury to ask further instructions of the court touching any matter of law. The court did not err in this matter. The charge of the court sufficiently presents the law applicable to the facts adduced. Having found no reversible error in the record, the judgment is affirmed.

Affirmed.

Judges all present and concurring.