author: GREENHILL, Justice.

text:
    Edna Mae BLAYLOCK et al., Petitioners, v. Clara RISER et al., Respondents.
    No. A-8614.
    Supreme Court of Texas.
    Feb. 21, 1962.

      Odeneal & Odeneal, Dallas, for petitioners.
    Clifford S. Dillard, Dallas, for respondents.
   GREENHILL, Justice.

In a former suit, a piece of property was condemned in the county court of Dallas County for a public improvement. While that court had the power to allocate the moneys paid for the property, it had no power to determine who owned the land. It is here claimed that the judgment of the county court, in the condemnation proceeding, is void because that court did adjudicate the title to the property. The trial court entered summary judgment upholding the former decree of the county court. That judgment was affirmed by the Dallas Court of Civil Appeals. 348 S.W.2d 217.

Fred and Willie Mae Riser, who were husband and wife, purchased the property in question on June 13, 1923. The price was $1,000. A cash payment of $10 was made. It is presumed that the purchase was made for the community estate of Fred and Willie Mae and that the down payment was made with community funds. Fred and Willie Mae had two daughters, Edna Mae Blaylock and Almeda Anderson. The daughters brought this present suit as heirs of their mother and father.

A few days after the property was purchased, the mother, Willie Mae Riser, died. The father, Fred, continued to make payments on the property. He made payments totalling $240 before he remarried.

On October 26, 1927, Fred married Clara. From their community funds, Fred and Clara thereafter paid $750, the balance owed on the property.

Fred and Clara had one child, a daughter named Shirley Jean. Fred died intestate in April of 1954. At that time, Clara, his surviving wife, and Shirley Jean were living on the property and claiming it to be homestead.

The property was condemned in 1957. It had been purchased for $1,000 in the manner set out above; and the amount allocated for it in the condemnation was $8,550. There was no dispute over the power to condemn the property or the amount paid for it. The dispute arose over the division of the proceeds. That, in turn, evoked a dispute as to who owned the property. On one side were Edna Mae Blaylock and Almeda Anderson, the daughters of Fred Riser and his first wife, Willie Mae. On the other side were the second wife, Clara, and the child of the second marriage, Shirley Jean Riser, a minor.

In the condemnation proceedings in 1957, the daughters of the first marriage (Edna Mae Blaylock and Almeda Anderson) contended that the title to the property vested in their parents, Willie Mae and Fred Riser, at the time it was purchased; that it was the community property of that marriage; and that those making payments thereafter had equitable rights for reimbursement for the payments made. In the alternative, the daughters of the first marriage prayed for an award of one-half of the proceeds which were in the registry of the court.

The surviving widow, Clara, and the daughter of the second marriage, Shirley Jean, on the other hand, contended that only $10 of the $1,000 purchase price had been paid from the community of the first marriage. That is 1%. They argued that the interest of the first wife, Willie Mae, was ½ of 1%, or $5.00. That being true, it was their contention that this was all that her daughters should receive. They wanted the balance invested in a new homestead for the widow, Clara, and for Shirley Jean.

The county court, in the first proceeding in September of 1957 found that 1% [$10] of the purchase price had been paid by the community of the first marriage; that 24% [$240] had been paid from the separate property of Fred Riser after Willie Mae’s death; and that during the marriage of Fred and Clara (the second wife), “$750 was paid on the condemned premises, or 75% of the total purchase price, and which the Court now finds to be the community estate of Fred Riser and Clara Riser.” (Emphasis ours.)

The court gave the daughters of the former marriage ½ of 1% of $8,550, or $42.75. The court found that Clara, the second wife, was entitled to 37½% "which is her separate property and she has a homestead interest in all of said proceeds” except the $42.75 set aside to the daughters by the former marriage. (Emphasis ours.)

The county court entered two orders at later dates setting aside all of the proceeds except the $42.75 as homestead and affirming the purchase of another homestead for Clara and Shirley Jean.

Counsel for the daughters by the former marriage filed a motion for new trial. Error was claimed in failing to award them one-half of the entire proceeds (instead of ½ of 1%), because the land was community property of their mother and father, and under the laws of descent and distribution the title to one-half of it therefore vested in them upon their mother’s death. In another pleading, the daughters asked the court to fix with certainty their interests in the homestead purchased for the surviving widow.

These daughters attempted to' appeal from the judgment of the county court. But their appeal was not filed in time and was dismissed by the Court of Civil Appeals. The order is set out in 348 S.W.2d at 218.

Thereafter the daughters brought this suit to set aside the previous order of the county court on the ground that the county court had adjudicated the title to the land; that this was beyond the power of the county court; that the funds were allocated in accordance with what the court determined the title to be; and that the judgment was therefore void. The surviving widow and her child answered with a general denial and a plea that the former judgment was res adjudicata. They filed a motion for summary judgment on that ground. And, as stated, the motion was sustained. We granted writ of error on the point that it was error for the trial court to have entered the summary judgment.

Sections 8 and 16 of Article 5 of the Texas Constitution Vernon’s Ann.St., make it plain that county courts are without power to try title to land and that this subject matter is exclusively within the jurisdiction of the district court. Hein v. De Busk, 277 S.W. 1053 (Tex.Com.App.1925); Thompson v. Janes, 151 Tex. 495, 251 S.W.2d 953 (1952).

When counsel for the defendants in this case, the surviving widow and her daughter, moved for summary judgment, it was their burden to prove, as a matter of law, that the former judgment was not void; that it did not adjudicate title to real property; and that it was therefore res adjudicata of this issue in this case. Rule 166-A, Texas Rules of Civil Procedure; Tigner v. First National Bank of Angleton, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

The pleadings in the condemnation suit indicated that it was an adversary proceeding. One side claimed that the title was in the community of the first marriage and that the daughters of the first marriage were therefore entitled to at least a half of the proceeds. The other side claimed the property to be the community property of the second marriage and that the children of the first marriage had an interest of only Y2 of 1%. The court adopted the latter view in its judgment. Where an issue of title is raised in a condemnation proceeding, the county court is without jurisdiction to try such a dispute. Thompson v. Janes, cited just above. And see the reasoning of the courts in the recent Texas Court of Civil Appeals opinion in Casey v. State, 331 S.W.2d 950 (1959, no writ), and Gandy v. State, 319 S.W.2d 375 (1958, no writ).

When counsel for the surviving widow moved for summary judgment in this case, the matters before the trial court were the pleadings in this case (wherein the plaintiffs asserted that the county court in the first trial did adjudicate title), a transcript containing a part of the pleadings and orders in the condemnation case, and the judgment in the condemnation case. Under that state of the record, the movant for the summary judgment did not establish as a matter of law that the county court in the condemnation case did not adjudicate title to land. The burden was on the movant to establish this to sustain his motion. We therefore hold that the trial court erred in granting this motion for summary judgment.

As previously stated, there is no dispute here as to the power of the City of Dallas to condemn the property or the amount paid by it for the property. The City is not a party to these proceedings, and its interests will not be affected. Its interests are clearly severable. Compare Hunt v. Ramsey, Tex., 345 S.W.2d 260 (1961). A judgment may be void as to a severable portion over which the court has no jurisdiction and valid as to the portion remaining over which it does have jurisdiction. Cooksey v. Jordan, 104 Tex. 618, 143 S.W. 141 (1912); Kubena v. Hatch, 144 Tex. 627, 193 S.W.2d 175 (1946); 30 American Jurisprudence 173, Judgments, § 20; 1 Freeman, Judgments (5th ed.), p. 648 ; 25 Tex.Jur. 695, Judgments, § 255.

The judgments of the courts below are reversed and the cause is remanded to the district court for further proceedings in accordance with this opinion.

      . It appears from the opinion of the Court of Civil Appeals in this case that the pleadings in the former trial were furnished to the trial court by agreement. 848 S.W.2d at 219. From the brief of Clara Riser et al. in the Court of Civil Appeals in this case it is stated:
      “The lower court, by agreement, was also furnished the record in Cause No. 15,467 [the former case] which it considered. Appellants refer this court to the record in the earlier cause. Appellees join in such reference.” Thus counsel for all parties treated the former pleadings as being before the courts in this case. Exercising our power under Rule 379, Texas Rules of Civil Procedure, we direeted the clerk of the court below, the Court of Civil Appeals, to send these papers to us. He did so.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Carrie TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 34115.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1962.

      Ivan Irwin, Sr., Dallas, for appellant.
    Henry Wade, Dist. Atty., John Rogers, Robert Maloney, O. H. Harris and Phil Burleson, Asst. Dist. Attys., Dallas, Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for keeping a disorderly house; the punishment, 20 days in jail and a fine of $200.

. The State’s evidence shows that appellant was manager of an apartment and rooming house in the City of Dallas. On the date alleged in the information, Detectives Johnston and Gee of the Dallas Police Department, Special Service Bureau, went to the address around 4 P. M. When they arrived, Officer Johnston went inside the house and Officer Gee remained outside.

Officer Johnston testified that after he entered the house, he was met in the hall by the appellant; that he asked appellant if a girl by the name of Frances Cummings Bankhead was there, to which appellant replied that she was and that she would go get her; that appellant then opened a door and said: “That will be one dollar, and will you wait in this room here ?”; that he told appellant he would have to cash a check and he then went- outside and talked to Officer Gee; that he came back in the house and when he returned he saw a man and a woman known by the name of Delores Bobbett talking to appellant; that he heard appellant say: “That will be one dollar for the room,”; the couple then went into the room which had been assigned to him; that appellant then told him: “You wait here, and I’ll get Frances for you and you can use her room.”; that appellant then returned with Frances Bankhead, who said, “Well, let’s go back to my room,” and as they started to the room, appellant said: “Just a minute, that will be one dollar.”; that he then paid appellant a dollar and went to a room with Frances Bankhead, where she offered to fill a date of prostitution with him for $5.00. Officer Johnston testified that he then placed her under arrest and then proceeded to arrest appellant.

He further testified that after arresting appellant, he saw Delores Bobbett and her male companion in the room which had been assigned to them and at such time, the man had on his pants, but no shoes or shirt and Delores had on only her lower underclothing.

It was shown that the two women, Frances Cummings Bankhead and Delores Bob-bett, had the general reputation for being common prostitutes and that the house in question had the general reputation for being a house of prostitution and assignation.

It was further shown that other women had been arrested at the house for being common prostitutes and that appellant had been advised by the officers. Appellant had stated to the officers that she was manager of the house; that she would rent a room to anyone for a dollar and that she knew: “ * * * that girls came to her house and rented rooms with their dates * *

Appellant did not testify or offer any evidence in her behalf.

Appellant insists that the evidence is insufficient to sustain the conviction because it does not show that the house in question was one of prostitution. Appellant relies upon the rule stated in Gibson v. State, 144 Tex.Cr.R. 263, 162 S.W.2d 703 and in other cases decided by this Court that mere proof that a place bears the general reputation of being a house of prostitution is not, of and within itself, sufficient to show that it is a bawdy house. While such is the rule in this State, the State’s evidence in the instant case goes further than mere proof that the house in question bore the general reputation of being an assignation or disorderly house. The State’s evidence also shows that girls were having prostitution dates for hire in the house with appellant’s consent and acquiescence and is sufficient to sustain the conviction. See Green v. State, Tex.Cr.App., 320 S.W.2d 818.

Complaint is made by appellant to the court’s charge because it did not instruct the jury on the law of circumstantial evidence. A charge on circumstantial evidence is not required where the testimony directly connects the accused with the offense. 20 Tex.Jur.2d, par. 33, pp. 280-284. The testimony of the officers in the instant case is sufficient to directly connect appellant with the offense.

Complaint is made to the court’s refusal of certain charges requested by appellant.

Appellant’s requested charge No. 1 would have instructed the jury that they could not convict appellant unless they found from the evidence that on the date in question appellant knew that women in the house were prostitutes and plying their trade at such location. The question of lack of knowledge was not raised by the evidence as an affirmative defense and the court did not err in refusing to give the instruction. Bond v. State, Tex.Cr.App., 345 S.W.2d 520.

Requested charge No. 3 would have instructed the jury that proof that a house bears the general reputation of a house of prostitution or general reputation of an inmate thereof as a common prostitute is not sufficient in itself to establish such as a fact. Requested charge No. 4 would have instructed the jury to acquit appellant unless they found that on the date in question an occupant of the house did engage in acts of illegal sexual intercourse.

These two requested charges were evi-dentiary in nature and upon the weight of the evidence. In refusing to give such charges the court did not err. Phillips v. State, Tex.Cr.App., 216 S.W.2d 213.

The judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Charles Robert CHAPMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 34300.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1962.
    Charles Robert Chapman, pro se.
    W. G. Walley, Jr., Acting Crim. Dist. Atty., W. T. Wood, Jr., Asst. Crim. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is unlawfully attempting to pass as true a forged instrument in writing; the punishment, 5 years.

Appellant pleaded guilty before the court, a jury being waived in the manner authorized by statute.

The evidence shows that appellant went to Gordon Jewelry Company in Beaumont and presented to Harold R. Lang, an employee, the check which was offered in evidence in payment for a watch he selected. He departed without the watch, the change or the check, after he was asked if he had other identification, and replied “Yes, I do, but I have to go to the car and get it.”

The check was in the sum of $174.35 and upon its face purported to be drawn by E. E. Biscamp and Company, by E. E. Biscamp, payable to Charles Johnston.

E. E. Biscamp testified that the signature on the check was not his and that he did not give appellant permission to sign his name.

The evidence is deemed sufficient to sustain the conviction upon appellant’s plea of guilty.

Appellant has filed a brief. It is evident that it was prepared without benefit of counsel familiar with the rules of procedure.

Appellant’s complaint relating to the entry of his notice of appeal was answered favorably to him by our order directing that such notice be entered.

In his brief appellant contends, with no evidence or record to support such contentions, that his plea of guilty was entered under duress; that the sentence was vague and uncertain and was invalid and that the trial records have been altered to his detriment.

There is nothing in the record to support appellant’s contentions. On the contrary, affidavits of the trial judge and of appellant’s trial counsel refute such claims.

The evidence is sufficient to sustain the conviction and no reversible error appears.

The judgment is affirmed.


author: WOODLEY, Presiding Justice.

text:
    Ex parte Guadalupe GUAJARDO, Jr.
    No. 34150.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1962.
    Bonilla, Thomas & De Ases by Harold A. Thomas, Corpus Christi, for appellant.
    Sam H. Burris, Dist. Atty., by J. L. ■Campos, Asst. Dist. Atty., Alice, and Leon B. Douglas, State’s Atty., Austin, for the ’State.
   WOODLEY, Presiding Justice.

This is an appeal from an order entered .-after hearing in a habeas corpus proceeding denying bail in a murder case. '

Appellant was charged by indictment with the murder with malice aforethought of Pedro Sandejo by shooting him with a gun.

The evidence shows that appellant was taken into custody after breaking and entering a house without the consent of the owner for the purpose of taking a rifle or ammunition for a .22 caliber pistol; that he shot and killed the Constable, Pedro Sandejo, and escaped from arrest.

In cases of this character we refrain from stating the facts at length or expressing conclusions which might be considered by the trial court as a prejudgment of the issues raised or the sufficiency of the evidence.

After a careful consideration of the evidence and the briefs presented, we are unable to agree that the trial judge was in error in denying bail.

The judgment is affirmed.


author: DICE, Commissioner. WOODLEY, Presiding Judge

text:
    Nerone Henry FREEMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 34169.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1962.

      John Cutler, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Donald M. Keith, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, 180 days in jail and a fine of $100.

The evidence was undisputed that on the morning in question, shortly before 7 A.M., .the appellant, while driving his automobile upon a public street in the City of Houston, drove into the rear of an automobile which was stopped for a traffic light.

The issue of intoxication was sharply contested.

The State’s witness, Thelma Lucille Bundy, who was the driver and occupant of the automobile with which appellant collided, testified that she observed the appellant after the collision and expressed the opinion that he was intoxicated.

Officer J. C. Evans, who went to the scene, investigated the accident and placed appellant under arrest, testified that in his opinion appellant was intoxicated.

Testifying as a witness in his own behalf, appellant admitted driving his automobile on the occasion in question and admitted having consumed one beer a short time prior to the collision, but denied that he was intoxicated.

On his cross-examination by State’s counsel, appellant denied that he told Officer Evans he had been up all night with his girl companion drinking Ezra Brooks whisky.

Thereafter, Officer Evans was recalled by the State in rebuttal and, over appellant’s objection, was permitted to testify that appellant told him at the scene of the collision he had been with the girl all evening and that he had two or three drinks of Ezra Brooks bourbon whisky the night before he was arrested.

Appellant objected to this testimony on the ground that at the time he made such statement to the officer he was under arrest ; that the statement was not reduced to writing after proper warning and that it was improper impeachment.

It is the rule in this State that a confession or statement of facts amounting thereto, made by an accused, while in custody or confinement, which would not be admissible as original evidence, may not be used for impeachment. 45 Tex.Jur., par. 322, p. 243; Lightfoot v. State, 117 Tex.Cr.R. 515, 35 S.W.2d 163; Click v. State, 118 Tex.Cr.R. 404, 39 S.W.2d 39; Lera v. State, 138 Tex.Cr.R. 127, 134 S.W.2d 248; Ely v. State, 139 Tex.Cr.R. 520, 141 S.W.2d 626 and Pierson v. State, 145 Tex.Cr.R. 388, 168 S.W.2d 256.

Appellant’s oral statement to the officer was in the nature of a confession and was clearly shown to have been made while he was under arrest. The statement was not made in compliance with the confession statute, Art. 727, Vernon’s Ann.C.C.P., and was inadmissible as original evidence. Its admission in evidence for the purpose of impeachment, was error and prejudicial to appellant.

We are unable to agree with the State that no reversible error is presented because at the time appellant objected to the testimony it was not shown that he was under arrest when the statement was made and when it was later shown that he was under arrest, appellant did not move the court to withdraw the testimony. An examination of the record reflects that when appellant objected to the testimony the evidence did show that he was under arrest when such statement was made.

Nor do we agree that no error is ■shown because the record fails to reflect that the statement was not res gestae. The record shows that it was some fifteen minutes after the.accident before Officer Evans arrived at the scene. Appellant was thereafter in custody of the officer for an hour at the scene of the collision. It was during this time that appellant, in conversation with the officer, made the incriminating statement to him. Under the record, the statement was not res gestae.

For the error pointed out, the judgment is reversed and the cause remanded.

Opinion approved by the Court.

WOODLEY, Presiding Judge

(dissenting).

The fact that appellant was under arrest when he made an oral statement at the scene of the accident would not alone render such statement inadmissible.

In the absence of a showing in the bill that the statement was not admissible as res gestae, reversible error is not shown. Garland v. State, 157 Tex.Cr.R. 4, 246 S.W.2d 204. Reference is also made to the writer’s dissent in Lindsey v. State, 353 S.W.2d 444, No. 34,019, and Bates v. State, 167 Tex.Cr.R. 414, 321 S.W.2d 76, there cited.


author: McDonald, judge.

text:
    Salvador Morales TINAJERO, Appellant, v. The STATE of Texas, Appellee.
    No. 34314.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1962.

      L. G. Mathews, Brownsville, for appellant.
    F. T. Graham, Crim. Dist. Atty. (County Atty.), Brownsville, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted for the offense of failure to stop and render aid.

In view of our disposition of the cause, the facts need not be set forth.

An examination of the record reflects the absence of a judgment, as required by Art. 766, Vernon’s Annotated Code of Criminal Procedure; a notice of appeal, Gentry v. State, Tex.Cr.App., 273 S.W.2d 419, Anderson v. State, 165 Tex.Cr.R. 643, 310 S.W.2d 83 and neither a recognizance nor an appeal bond, Alexander v. State, Tex.Cr.App., 272 S.W.2d 100, Griffin v. State, 160 Tex.Cr.R. 478, 272 S.W.2d 526.

For the reasons stated, the appeal is dismissed.


author: McDonald, judge. WOODLEY, Presiding Judge MORRISON, Judge. McDONALD, Judge WOODLEY, Presiding Judge Judge MORRISON

text:
    J. W. (Dub) ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 33846.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    Rehearing Denied Jan. 24, 1962.
    James F. Fanning, Comanche, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted in the District Court of Comanche County for robbery by assault. His punishment was assessed at confinement in the penitentiary for eighteen years. This is a companion case to Adams v. State, Tex.Cr.App., 354 S.W.2d 147, this day reversed because the evidence was insufficient to sustain the conviction for the offense of robbery by assault, and also on account of jury misconduct.

The state’s evidence reflects that two elderly sisters, Lona and Hester Anderson, had in excess of $15,000 taken from them on the night in question, most of which money was recovered. The facts briefly summarized show that the two sisters resided alone out from the city of Comanche; that they heard some men talking outside the house; that one of the men asked where Shoemaker lived; that they (the sisters) tried to go to Mr. Goosby’s house; that the men just “herded” them around; that Lona Anderson was carrying a lard bucket with all the money they had in it; that a man would not let them go where they wanted to go.

The following is taken from the testimony of the state’s witness, Lona Anderson, who was named in the indictment as being the person robbed:

“Q Were you in fear of your life, Miss Lona? Were you? A I think so.
“Q Did he take the bucket away from you ? A He just taken it out of my arms.
“Q Just pulled it out of your arms— A And went off and never said a word.
“Q You didn’t give it to him, he took it from you? A Yes, sir.
“Q Did he make any threatening gestures at you, like he was going to hit you or anything? A No, sir.
“Q You didn’t give up the bucket because you were afraid, Miss Lona, he just took the bucket out of your hands without saying a word, and without touching you ? A That’s what he done.
“Q Pulled it away from your arm? Were you afraid of your life out there when this happened? A I was scared so bad, I couldn’t think.”

The testimony adduced from the state’s witness Hester Anderson reflects:

“Q All right. Did any of these men ever come over to you? A That one did that night and come around and asked me — he didn’t ever speak to me and I asked him what he was doing there, just like I could have bit his head off, and he wouldn’t answer me and Lona said ‘Shoot him, Hester,’ and I reckon he though I had a gun, he showed me his gun, he put it in his hand and laid it by his belt up here and showed it to me.
“Q All right. Now, did this man let you all walk wherever you wanted to walk out there? A No, sir. When I’d start, he’d go around me and stop me.
“Q Just kinda herded you around, huh?
“Q What did he finally do, then? A He turned around and grabbed the bucket away from Lona, and sort of shook her as she passed * *

This same witness further testified:

“Q Was it dark that night? A Certainly was. I couldn’t tell, if I’d of knowed ’em, who it was hardly. It was so dark.”

In viewing the evidence as a whole, we find, again reviewing the testimony of the state’s witness Lona Anderson, that she said:

“We started and they was one met us around there, just herded us around.”

This witness, the one who was alleged to have been robbed, never at anytime testified that she even saw the pistol that her sister testified to seeing. She testified:

“Hester said he pulled out a pistol in his arm, I didn’t notice it, I was so—
“Q Did he scare you, Miss Lona? A You ought to ask me how bad.
“Q He did scare you? A Yes, sir, and if I’d had a gun in my hand I’d have shot him.”

As previously stated, this same witness only stated, “I think so,” when asked if she were in fear of her life.

The witness Hester Anderson further testified on cross-examination that the pistol was not pointed at her; that she did not know whom she was talking about when she said “he.” She further testified that nobody touched either her or her sister. On re-direct she was asked:

“Q Miss Hester you testified awhile [sic] they pushed Lona, isn’t that right ? A Well, they jerked that plum hard. She was holding it tight. She was scared until she didn’t have no mind, and I was too, but I could hold up to talk a little, and they sorta jerked her, she was holding it so tight. * * *
“Q Were you scared? A Certainly was.”

The indictment charged and the appellant was convicted of robbing Lona Anderson by an assault and by .violence and putting her in fear of life and bodily injury.

Having carefully reviewed the evidence, we have concluded that the offense shown by the record is theft from the person and not robbery.

The judgment is reversed and the cause remanded.

WOODLEY, Presiding Judge

(dissenting).

I respectfully dissent for the reasons stated in my dissent in Adams v. State, Tex.Cr.App., 354 S.W.2d 147, this day decided.

ON STATE’S MOTION FOR REHEARING

MORRISON, Judge.

Reconsideration of a companion case (Lee Adams v. State, Tex.Cr.App., 354 S.W.2d 147) has brought the writer to the conclusion that the offense here shown is also robbery. Lona testified that “Hester said he had a pistol.” Viewed in the light most favorable to the State, such statement was made at the time of the commission of the offense. This, coupled with the acts of appellant and his companions in “herding” the women so as to prevent their flight from the scene, constituted such threatened violence as would support a conviction for robbery.

In our original opinion, we did not deem it necessary to discuss appellant’s bill of exception No. 1. Such now becomes obligatory, and, as I view it, reversible error is reflected thereby. Therein it is shown that, while the jury were deliberating, the foreman came to the door and had a private conversation with the judge outside the hearing of appellant or his counsel. At the conclusion of this conversation, the judge then approached appellant and his counsel and informed them that the foreman had asked if the defendant would be given credit for his jail time and that he had assured him such credit would be granted if defendant accepted such sentence as the jury assessed.

This is not a case involving written instructions as required by the statutes and where the judge’s . answer is definitely known. The court here clearly violated the terms of Articles 676, 677 and 679, Vernon’s Ann.C.C.P., and orally instructed the jury what he would do in order to ameliorate any punishment they might assess if they found the accused guilty. In other words, he told them that Article 768, V.A.C.C.P., gave him the power to allow such credit and that he would exercise such authority favorably to the accused. To uphold the action of the court in this case would be in violation of the rule announced in White v. State, 149 Tex.Cr.App. 419, 195 S.W.2d 141, and tantamount to saying that he might privately tell the jury that he would parole the accused if they found him guilty.

' My brother McDONALD is convinced of. the soundness of the original opinion which he prepared for the Court, and, for that reason, concludes that the case must be reversed.

Accordingly, since two judges of this Court conclude that this case should be reversed, the State’s motion for rehearing is overruled.

McDONALD, Judge

(concurring).

I do not agree to the disposition of this case on the State’s motion for rehearing. I think the case was correctly disposed of in the original opinion.

It is my thought that appellant’s bill of exception No. 1 reflects no harmful error. In writing on this case originally, while I did not state it in the opinion, I felt and still feel that appellant’s complaint as to the court’s communication with the jury foreman reflects harmless error and comes squarely within the rule announced by Judge Graves in Choiniere v. State, 150 Tex.Cr.R. 582, 204 S.W.2d 840.

I would deny the State’s motion without written opinion.

WOODLEY, Presiding Judge

(dissenting) .

The majority concur in the reversal of the conviction and overrule the state’s motion for rehearing, Judge McDONALD holding that the offense shown by the record is theft from the person and not robbery. Neither Judge MORRISON nor the writer agrees.

Judge MORRISON

concurs in the reversal upon his conclusion that appellant’s Bill of Excepten No. 1 requires reversal.

It is the view of the writer that Bill of Exception No. 1 as qualified by the trial judge does not show reversible error. Judge McDONALD agrees with this view.

Bill of Exception Na 1 was qualified by the trial judge to show that the communication with the jury foreman was with full knowledge and acquiescence of appellant and his counsel in open court, appellant and his counsel being present, and that no objection was made or exception taken prior to the motion for new trial.

The bill of exception does not affirmatively reflect that the jury had not agreed upon the punishment to be assessed and no evidence relating to the incident was presented at the hearing on appellant’s motion for new trial.

I would grant the state’s motion.


author: McDonald, judge. WOODLEY, Presiding Judge MORRISON, Judge. McDONALD, Judge

text:
    Curtis Lee ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 33771.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    Rehearing Denied Jan. 24, 1962.

      James F. Fanning, Comanche, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is robbery by assault; the punishment, twenty years’ confinement in the penitentiary.

The facts in this case were largely adduced from appellant’s confession, which was introduced in evidence.

The confession reflects that appellant was thirty-three years of age and lived in Comanche, Texas; that he and his brother, J. W. Adams, and Billy Joe McDonald were together on the night in question, drinking beer; that while they were riding around Billy Joe McDonald said he knew of two old women who lived out on Lake Eanes Road who had a lot of money and suggested that they go out there. The confession further reflects that upon arriving they all three got out of the car and Billy Joe McDonald went to the front of the house, and appellant and his brother went to the rear. Billy Joe “hollered ‘Hello,’ ” and, to quote further, “in a little bit he came around to the side of the house and asked the women where Dale Shoemaker lived.” In about five or ten minutes the two women came out the back door where appellant and his brother were standing. The women asked the brother: “Who are you ?” He did not say anything. They then asked, “What do you want?” Again there was no reply. The confession further reflects, as follows: “Then my brother, J. W. Adams, grabbed the bucket that one of the women had under her arm. Then we all took off and ran back to Billy Joe McDonald’s car.” They then drove on back to town and out on the Fort Worth highway, where they stopped and split the money from the bucket in three ways. Appellant stated that he got about $8,000 for his part.

The evidence in the case reflects that the lard bucket contained in excess of $15,000 in money.

The testimony of the state’s witness, Miss Lona Anderson, reflects that she and her sister, Miss Hester Anderson, lived near Comanche, Texas, alone; that on the night of the offense she had taken an aspirin and gone to bed, when her sister Hester woke her and said there was “a bunch of men out there at the back of the house”; that they got up and saw an old car parked out there and Hester said, “Let’s get out and go to Mr. BurtoMi,” Mr. Burton being a neighbor living just a little distance away. The women then got dressed and went out the door to go to the neighbor’s. Quoting further from the testimony: “ * * * this boy come around the house and headed us off and Hes says ‘What are you doing?’ and he wouldn’t say a word and he just come around me and grabbed the money and went on off with it.” The witness testified that she and her sister had their money in the bucket on the night of January 15, in some little envelopes;' that they kept the bucket at the head of the bed so that if the house caught fire they could take care of it.

Quoting from the testimony of the witness adduced by the district attorney on direct examination:

“Q All right. When you went outside, did you see anybody then? A No, sir.
“Q Did anybody — A They was gone.
“Q No, ma’m. When you got outside the house. A There was an old boy come around and met us.
“Q All right. This old boy came around and met you, when you got outside the house? A Yes, sir.
“Q What did he do'then ? A Well, he just walked around and headed us off, and Hester asked him — I said ‘Shoot him, Hester.’
“Q You told Hester to shoot him? A Yes, sir.
“Q What did he do when you told Hester to shoot him? A Why, he taken the bucket and went on.
“Q All right, where was the bucket ? A In my arms.
“Q All right. How did he get the bucket away from you? A He just taken hold of it and pulled it out of my arms.
“Q Took hold of it and pulled it out of your arms? A Yes, sir.”

The cross-examination of the witness by appellant’s counsel reflects the following:

“Q Miss Lona * * *. I’m the attorney representing this defendant. You have testified as to the bucket here. Now you have told the District Attorney that whoever took it just grabbed it out of your arms? A Yes, sir.
“Q Did you have it under your arms? A Just under my arm.
“Q What did he say to you, Miss Lona? A He didn’t say a word.
“Q Did he hit you? A No, sir.
“Q Didn’t threaten you or say anything to you? A No, sir. Didn’t say a word. Just taken our money and went on with it.
“Q Are you able to identify the person who took the money, Miss Lona?
A Well, I have done it. He was a little old brown sun-burned boy with curly hair.
“Q Did it occur to you, could you testify whether he was a wegro or white man? A Well, Hester thought he was a negro.
“Q Do you suppose it might have been ? A I don’t know.”

The state’s testimony adduced from the witness Hester Anderson reflects as follows:

“Q What waked you, Miss Hester? A A big bunch of men, sounded like about a half dozen or two out the front talking, and it made us awful nervous and I says wake up Lona, there’s something sure enough around. She always called me to hunt the boogers * *

The witness then related:

“Somebody come up to the window. We couldn’t see how many it was, or whether there was more than one. There was one talked to us * * *. He asked if the Anderson sisters didn’t live there and I told him yes, and so he asked then where Mr. Shoemaker lived and I told him I didn’t know Mr. Shoemaker and Lona said he lived down about the store, so everything got quiet and we got dressed and got on the back porch to see * *

The witness then related that Lona was carrying the bucket; that they started up to Mr. Burton’s and “somebody stepped in front and wouldn’t let us go any further * * *. They would run around us and cut us off * * * and Lona said ‘Shoot ’em,’ and he just showed me a little bright thing like a pistol and put it up there to his belt. I don’t know whether it was a pistol or what it was. It looked like one.” When asked “Did it scare you?,” the witness’s answer was, “Sure did.” The witness then related that he "grabbed the bucket away from her and pulled out.” She was asked how many men she saw there that night, to which question she replied, “I couldn’t see any. It was too dark, but I could hear lots of men talking.” She was then asked, “Well, you saw the one, didn’t you?” She replied, “Yes, sir * * * it was a man, I couldn’t see, it was too dark through the window.” When asked the question, “Now the one that came up to you and herded you around there and grabbed that pail away from Lona, was that' a man ?,” the witness answered, “Yes, sir.” To the question, "You saw him, but you can’t describe him, is that right?,” the answer was, “Sure can’t.” To the question, “Was it dark out there?,” she replied, “It was dark and he was dark looking. I couldn’t tell his face from a white to a black one and so I was so scared, when they left, I went to squalling for Mr. Goosby, and him and Mrs. Goosby met us out there in the front of the house and I had lost Lona, and they hunted her up and drug her out.”

On cross-examination, when asked the question, “Did anybody threaten to harm you or Miss Lona if you didn’t give them your money?,” the witness replied, “Well, I don’t think they did. They didn’t have time. Now that was all that was passed. They didn’t stay very long and we was scared to death * * The witness was asked, “Was anything said to you at all at the time the money was taken ?” Her reply was, “No, sir.”

Upon being called as a witness by the appellant, on rebuttal, Hester Anderson testified as follows:

“Q Miss Hester, I would like to clarify your testimony this morning just a little bit * * *. I believe you testified that whoever took this bucket from your sister just pulled it out from her arms? A Yes, sir.
■ “Q And he did not say anything to her?, or.you? A Oh, he didn’t say anything to us only through the window, but that scared us bad enough.
“Q Was there anything that he said that caused your sister to give the bucket up ? A Well, she was just scared so bad, she give it up easy, for she knowed it was to do that or die one, she thought.
“Q Did he threaten to kill her? A No, sir. He didn’t say anything
“Q He didn’t make any assault on you, though ? A Oh, I guess not. He * * *

The state’s testimony adduced on rebuttal from this same witness reflects as follows:

“Q Miss Hester, did this man keep you all from going where you wanted to go? A Yes, sir. He just made a place around us and we was aiming to go out the back gate, we couldn’t get through the fence in Mr. Burton’s pasture.
“Q And he wouldn't let you go there ? A He wouldn’t let us go there
“Q Were you afraid for your money, too, Miss Hester ? A Oh, I knowed we had to die, if our money was gone, we wasn’t able to work, and whoever got it would enjoy it, and we got it by hard labor.
“Q Now, you say this object was pointed at you, like a gun ? A No, he just had it in his hand. I can’t realize what it was, but it looked like a pistol, I don’t know.
“Q Was it in his hand, it wasn’t pointing at you? A No, he just held it there that way.
“Q Nothing that he did then, Miss Hester, caused your sister to give that money up, except him just snatching it out of her hand? A No, sir.”

To constitute the offense of robbery by assault, the offender must fraudulently take from the person or possession of another property with intent to appropriate it to his own use, by one of three means: the making of an assault, the use of violence, or by putting in fear of life or bodily injury. Art. 1408, Vernon’s Ann.P.C.

“Actual or threatened violence to the person antecedent to the robbery must exist.” Van Arsdale v. State, 149 Tex.Cr.App. 639, 198 S.W.2d 270, 271, 272.

In viewing the statutory definition of “theft from the person” (Arts. 1437 and 1438, Vernon’s Ann.P.C.) we find, among other things, that

“The theft must be committed without the knowledge of the person from whom the property is taken, or so suddenly as not to allow time to make re- . sistance before the property is carried away.” (Italics added for emphasis by the court.)

The case of Polk v. State, 157 Tex.Cr.R. 75, 246 S.W.2d 879, was unusual in the sense that the appellant was tried and convicted upon a charge of theft from the person, but he contended that the trial court erred in that the testimony showed “an assault with intent to rob” rather than “theft from the person.” The facts showed that appellant stuck his right hand in the complaining witness’s pocket, at which time the witness grabbed appellant’s wrist and when appellant jerked his hand away the complainant was thrown to the floor. Appellant’s contention was overruled, this court holding that the offense shown was theft from the person and that the evidence did not warrant a charge upon robbery by assault. The court further held that the money was taken so suddenly as not to allow time to make resistance.

We think the case at bar may be distinguished from Horn v. State, 89 Tex.Cr.R. 220, 230 S.W. 693. In the Horn case the complaining witness testified that he was ordered out of the car. that both men had pistols in their coat pockets, that he saw the handles of the pistols, and that the men kept one hand on the pistols.

We further think that the case of Etzler v. State, 143 Tex.Cr.R. 327, 158 S.W.2d 495, may be distinguished from the case at bar. In that case the complaining witness testified that appellant had a pistol in his right hand and that the pistol was loaded and pointed at him. In Horn and Etzler the parties robbed handed over their property, evidently because they were in fear of life or bodily injury; here, the bucket was not handed over but snatched away from the complaining witness.

We agree that the holdings in Horn and Etzler, supra, are both correct and that the contention made by the appellant in those cases that the alleged assaulted party was not put in fear of life or bodily injury was untenable.

The indictment in this case set forth two counts, the first being robbery by assault and the second being theft from the person.

With the facts adduced by the state, we think the able and late lamented trial judge fell into error in not submitting the case on the second count of the indictment rather than on the first count, as he did.

We do not feel that the evidence in this case is sufficient to sustain the conviction for robbery by assault. We find none of the necessary elements present. While we think the judgment should be reversed on this ground, we make the further observation that the conduct of the jury in its deliberations and its consideration of new and additional evidence not introduced at the trial of the case is, within itself, sufficient to warrant a reversal of the case. While this will doubtless not occur on another trial of the case, we do want to point out that the jury improperly discussed whether or not the appellant had ever been in trouble before; that one juror said that appellant had never been in the penitentiary but had been in trouble with the “local laws” many times “by getting drunk and being put in jail over night.”

We think that consideration of other evidence by the jury, particularly in this case where appellant did not testify in his own behalf and did not put his character in issue, would, within itself, authorize a reversal, where the new evidence against the accused was detrimental to his case and probably did influence the jury adversely during deliberations. Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816.

From what has been said, the judgment is reversed and the cause is remanded.

WOODLEY, Presiding Judge

(dissenting).

As I understand the evidence, it is sufficient to sustain a conviction for robbery by putting in fear, such as we affirmed in Barber v. State, 158 Tex.Cr.R. 561, 258 S.W.2d 87.

In Horn v. State, 89 Tex.Cr.R. 220, 230 S.W. 693, 694, all elements of robbery save that of putting in fear of life or bodily injury were withdrawn by the court in his charge. Paraphrasing language used by Judge Hawkins, in the opinion affirming Horn’s conviction: Why did these elderly ladies give up their $15,000.00? Was it because they liked appellant and his companions and wanted to display their generosity? Or was it because of their appearance under the circumstances, and their conduct after they got on the scene?

Quoting from Judge Hawkins:

“Where the indictment alleges the robbery to have been effected by fear of life or bodily injury, the burden is of course on the state to prove it; but ‘fear’ in this connection does not mean a panic of fright to the extent of losing one’s senses or control. The party robbed may not be ‘scared’ to the extent that he is hysterical. If he feels that if he complies with the request of the robber to surrender his property, there is no danger imminent to> him, in a sense he might not be scared; yet, if under the circumstances and conditions surrounding the transaction he has a reasonable belief that he may suffer injury unless he does comply with the robber’s request, the ‘fear’ required by the law is present.”

On Motion for Rehearing.

MORRISON, Judge.

This is a companion case to Adams v. State, Tex.Cr.App., 354 S.W.2d 144, this day decided.

We have re-examined the evidence in the light of the authorities set forth in the State’s brief and have concluded that the acts of appellant and his companions in intercepting the women, running around and cutting them off when they attempted to flee, plus the act of exhibiting a pistol so that it would be visible to one of the women, was sufficient evidence of threatened violence to satisfy the rule set forth in Van Arsdale v. State, supra. Bryant v. State, 129 Tex.Cr.R. 438, 87 S.W.2d 722, is especially persuasive.

We remain convinced, however, that the case must be reversed because of jury misconduct. It was shown, and not disputed at the hearing on the motion for new trial, that when the question of the penalty came up for discussion the foreman suggested that they start with a term of 20 years and, after discussing the matter from there, one member of the jury said that, if appellant had not been such a bad character and had not been in trouble with the law before, the jury “could afford” to give him a lighter sentence but that, since such were the “facts,” a heavy sentence was called for. Another juror stated, “Either the defendant Curtis Lee Adams, or his brother who is under indictment for the same offense charged against Curtis Lee Adams, has already served some time in the penitentiary for another offense.” Still another juror stated that appellant had not been to the penitentiary but had been in trouble with the local laws a lot of times.

Since this testimony as to what occurred in the jury room was not controverted, no issue of fact was raised for the trial court’s determination and it became the duty of the trial court to grant appellant’s motion for new trial. Rogers v. State, 158 Tex.Cr.R. 8, 252 S.W.2d 465.

For the reasons set forth, the State’s motion for rehearing is overruled.

McDONALD, Judge

(concurring in part and dissenting in part).

I feel that this case was correctly disposed of in the original opinion. As I pointed out therein, the State failed to meet the burden of establishing, beyond a reasonable doubt, the requisites of “robbery by assault.” I cannot see how the complaining witness could have “FEAR" engendered in her by something she did not see. It was not she, but her sister, who testified that she saw a pistol. Her sister wasn’t carrying the lard bucket with the money in it.

As I pointed out in the original opinion, the facts surrounding jury misconduct would alone warrant a reversal of this case.

Since I feel very keenly that a correct disposition was made of this case in the original opinion, I would overrule the State’s motion for rehearing without written opinion. I am certainly not dissenting to the disposition of this case, so far as a reversal is concerned. While I concur in the reversal on account of jury misconduct, I dissent so far as the majority opinion finds the evidence sufficient to sustain threatened violence to satisfy the rule set forth in Van Arsdale v. State, supra. I cannot see in this case any actual or threatened violence to the person antecedent to the loss of the money. The complaining witness said, “He taken the bucket and went on.” She said again: “He just taken hold of it and pulled it out of my arms.” To me, this set of facts does not fit the passive resistance shown in Bryant, cited in the majority opinion on this motion. Bryant said he was afraid and allowed his slot machine to be taken. As I view it, this case is just the same as a “purse-snatching case.”


author: MORRISON, Judge.

text:
    Lillian R. HOLDER, Appellant, v. The STATE of Texas, Appellee.
    No. 34037.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1962.

      C. C. Divine, Houston, Brooks Holman, (on appeal only) Austin, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $150.00.

A supplemental transcript showing that recognizance was in fact entered after notice of appeal was given has been filed, and our prior opinion dismissing this appeal is withdrawn.

The case was tried before the court without the intervention of a jury.

Appellant’s sole contention on appeal is that the evidence is insufficient to support the conviction in that it does not establish that the accident occurred in Harris County, Texas, and does not establish that appellant was the driver of the automobile.

George Clemons testified that he lived at 3437 Simmons Street in Houston, Harris County, Texas; that on the night in question he heard a car hit a bridge approximately 175 feet from his house; that when he got to the scene of the accident three or four minutes after it occurred appellant was seated inside the automobile on the driver’s side, and no one else was in the automobile; that he asked appellant if she was hurt, and she said she wanted to call her son; that appellant got out of the automobile and went to find a phone and he went back home; that he was in appellant’s company only two or three minutes and was unable to express an opinion as to her intoxication or sobriety.

E. C. Rogers, an accident investigator for the Houston police department, testified that on the night in question he was called to the scene of the accident, which was in the 3400 block of Simmons Street, a public street and highway in Houston, Harris County, Texas, and that from the fresh tire marks leading to the rear wheels of appellant’s automobile it could be determined that the automobile was traveling east on Simmons Street before it collided with the concrete bridge. He further testified that appellant had a small scratch on her right hand and a laceration on her lip; that she was taken to a hospital, where a doctor examined her and placed small bandages over the two lacerations before releasing her; that at the scene of the accident appellant was very belligerent and cursing loudly; that she fought fifteen or twenty minutes before they could get her into the ambulance; that she was unsteady on her feet, had watery, bloodshot eyes, smelled strongly of intoxicants, and was in his opinion intoxicated.

R. A. Joslin, a wrecker driver, testified that he was called to the scene of the accident on the night in question, that he observed appellant staggering when she walked and saw two officers holding her up, that her manner of speech indicated she was intoxicated, and that in his opinion she was intoxicated.

Appellant did not testify and offered no evidence in her own behalf.

Appellant’s contention that the evidence is insufficient to establish that the accident occurred in Harris County, Texas, is overruled. Parker v. State, Tex.Cr.App., 332 S.W.2d 568.

We are also unable to agree that the evidence is insufficient to show that appellant was the driver of the automobile. In view of the fact that the evidence shows that appellant was seated behind the steering wheel of the automobile shortly after it collided with the bridge and no other occupants were shown to have been in the automobile, the evidence is sufficient to show that appellant was the driver thereof. Sandford v. State, Tex.Cr.App., 334 S.W.2d 184; Thomas v. State, 162 Tex.Cr.R. 268, 283 S.W.2d 933; and Patterson v. State, 159 Tex.Cr.R. 478, 265 S.W.2d 120.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment of the trial court is affirmed.


author: BELCHER, Commissioner.

text:
    Bill HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 34119.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1962.
    Enoch G. Fletcher, Grand Saline, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for robbery by assault; the punishment, 15 years.

While testifying for the state, Ardell Jobe identified the appellant and his companion, Arthur Samuel Brundrett, as the men who entered his store about 10:20 P.M., August 21, both with something painted on their faces and exhibiting pistols. After the appellant said: “This is a holdup. * * * Get in the back room there, you and your wife both, get in there before I kill you”, the Jobes lay down on the floor in the vault as ordered. The appellant and Brundrett took $8 in money from Jobe’s billfold and about $150 from the cash register and safe. During this time, Brundrett threatened to kill Jobe if he reached for a gun. Then Brundrett said: “Let’s go Bill” and told Jobe to give him five minutes to get away, and if he did not the man in the car would shoot him with a rifle. Jobe further testified that the appellant and Brundrett put him in fear of bodily injury and his life, and that he did not consent to their taking the money.

Officer Herndon testified that, about 12:05 A.M., August 22, he and Officer Mack observed an automobile without its lights on back of a closed service station; it was then driven out and along a public street with its lights still off. While in pursuit, the officers saw something thrown out of the car driven by appellant and in which Brundrett was riding. The officers discovered the thrown away items to be two pistols containing live shells.

Testifying in his own behalf, the appellant denied committing the offense charged. He admits being at the service station, as the officers testified, but says he was having trouble with his car and stopped there because it needed water, and that they intended to stop at another place when the officers stopped them. He denied that they threw the pistols out of his car or that he ever owned either of them.

In rebuttal, the state called Mrs. Jobe who was present when the robbery was committed. Her testimony corroborates that of her husband except as to identification. She says only that she had heard appellant’s voice since the robbery, and it sounded like the voice of the man who told her husband to get in the vault.

It is contended that the court erred in permitting the state to prove the use of firearms by the appellant during the robbery, on the ground that the state had dismissed that portion of the indictment.

The weapon used in the commission of a crime is admissible in evidence. The dismissal of the firearm allegation only affects the punishment that may be assessed. 23 Tex.Jur.2d 583, Sec. 392.

Appellant insists that the trial court erred in refusing to grant his motion for a severance.

The record shows that the appellant and Arthur Samuel Brundrett were separately indicted September 19, 1960, for committing the same act of robbery. The cases were set for trial October 10, 1960, but they were passed. On October 17, the appellant filed a motion for severance. Both cases were reset for trial on October 24. No action was taken on the severance motion as both cases were again passed on October 24. Both cases were again set for trial on March 27, 1961. At this time, Brundrett filed a motion for a severance. When the defendants could not agree on the order of trial, the court, after examining and considering the motions, ordered the case of appellant to be tried first.

No abuse of discretion is shown in the action of the trial court in ordering that appellant be first tried. 42 Tex.Jur. 36, Sec. 18; 2 Branch’s Ann.P.C.2d 60, Sec. 763; Pena v. State, 167 Tex.Cr.R. 406, 320 S.W.2d 355.

Appellant contends that his constitutional right against incriminating himself was violated by' forcing him to give evidence against himself, when the trial court, over his objection, permitted the witness Jobe to testify that he saw and identified the appellant in a “line up” the day after the robbery.

No statement made or act done by the appellant at that time was introduced in evidence.

The testimony complained of was not improper as forcing the appellant to give evidence against himself. Slone v. State, 121 Tex.Cr.R. 632, 50 S.W.2d 301.

Appellant contends that the trial court erred in admitting evidence of the search of his automobile and the results thereof on the ground that the search was illegal.

The testimony of Officer Herndon as to the manner in which appellant was operating his automobile on a public street in Dallas was sufficient to show a traffic violation. This violation authorized the arrest of the appellant and the search of his car was legal as it was incident to his arrest. No error is presented. Winfield v. State, 163 Tex.Cr.R. 445, 293 S.W.2d 765.

The evidence is sufficient to support the conviction, and no error appearing, the judgment is affirmed.

Opinion approved by the court.


author: BELCHER, Commissioner. WOODLEY, Presiding Judge.

text:
    Kenneth L. BERNARD, Appellant, v. The STATE of Texas, Appellee.
    No. 34065.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.
    Rehearing Denied Feb. 14, 1962.
    Coleman & Penman by Herbert J. Coleman, Ray Stevens, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Frank Puckett, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for unlawfully carrying a pistol; the punishment, a fine of $100.

The testimony of Officer Seale, of the City of Houston, shows that in response to a radio dispatch about 6:30 A.M., regarding a suspicious appearing parked automobile, he found the appellant seated in the automobile on a public street; and that the appellant told him that he was watching a nearby house in an effort to see a man from whom he had purchased a truck, and that “he was out there to get his truck one way or another”. The officer further testified that he found a loaded revolver-type pistol, with one spent shell, under the front seat and a shotgun in the back seat of the car in which the appellant was seated. He took possession of the pistol and identified it at the trial as the same one removed from appellant’s car. Officer Wright’s testimony substantially corroborates that of Officer Seale.

Testifying in his own behalf, the appellant admitted having the pistol and the shotgun in his car. He stated that he had just come from his place of business which he had been watching because it had been burglarized eleven times in the past four years, and that he intended to use the guns for protection if he caught a burglar in his place. On cross-examination, when appellant was asked if he had any other explanation for having the guns in his car, he replied: “I just happened to have the firearms, sir.”

The appellant strenuously insists that the search of his automobile by Officer Seale was illegal, and that proof of the result of the search was therefore not admissible in evidence.

Appellant’s failure to object at the time the pistol was introduced in evidence waived any complaint of the search. Williams v. State, 166 Tex.Cr.R. 617, 317 S.W.2d 537; Williams v. State, 168 Tex.Cr.R. 643, 331 S.W.2d 214.

The record contains no formal bills of exception or objection to the court’s charge.

The evidence is sufficient to sustain the conviction, and no reversible error appearing, the judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

Appellant complains of our holding that he waived any complaint as to the search by his failure to object at the time the pistol was introduced in evidence. He points to his objection as to what the officer found and the trial court’s agreement that he had “a running objection to the fruits of the search”, the defendant’s contention being that any search was unlawful.

Assuming that the objection was sufficient, the admission of the evidence showing that a pistol was found in the automobile is not ground for reversal, the record containing a stipulation that the pistol introduced in evidence was under the front seat and was loaded, and that it was removed from appellant’s car on the day in question; and appellant testified in regard to the two firearms he had in the car. Vogt v. State, 159 Tex.Cr.R. 211, 258 S.W.2d 795, cert. denied, 346 U.S. 901, 74 S.Ct. 221, 98 L.Ed. 401; Cortez v. State, 165 Tex.Cr.R. 320, 306 S.W.2d 713; Rodriguez v. State, Tex.Cr.App., 329 S.W.2d 282; Hudson v. State, Tex.Cr.App., 341 S.W.2d 448.

Appellant’s motion for rehearing is overruled.


text:
    Ada Marie WHITE, Appellant, v. The STATE of Texas, Appellee.
    No. 34240.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1962.

      Warren P. McKenney, Austin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is assault with intent to murder with malice; the punishment, 8 years.

The evidence shows that appellant shot the injured party who was her husband. Her defense, raised by her testimony, was self defense.

The court in his charge submitted such defense, but refused appellant’s request that the jury be instructed that in determining the existence of real or apparent danger it was the duty of the jury to “consider the words, acts and conduct, if any, of the injured party, at the time of and prior to the time of the assault and consider whatever threats, if any, the injured party may have made to the defendant ⅝ * ⅜ Ü

Exception to such refusal was reserved.

Appellant testified that the injured party had threatened to kill her and had, shortly before she went to the scene of the shooting with a pistol, put a gun in her stomach and told her not to be causing trouble or he would shoot her.

When asked why she took the gun with her to the scene of the shooting, she testified: “Other than being afraid of him I don’t know. Q. He had threatened you many times, had he not? A. He had. Q. And beaten you up many times, had he not? A. Yes, he had.”

She testified that when she walked up he had a gun in his left hand pocket, and he reached in and pulled it out “and he says T think I told you back up the highway not to start causing me no damn trouble’ and that when he pulled the gun out, I pulled the one I had out.” She testified that when she took the gun out of her purse she was afraid he was going to kill her; that a number of shots were fired and that she did not know who fired first.

On cross-examination she was asked and answered:

“Q. Well, you did take care of him on the night of November the 3rd, didn’t you, Mrs. White ?
“A. After he had threatened me, threatened me, threatened me.
“Q. So it was — threats that made you decide that you were going to kill him, is that right?
“A. No, I never had in my mind to kill anybody at any time. * * * I took the gun with me because I was scared of him. * * *
“Q. Nickel plated gun he had in his hand. Was he pointing it at you?
“A. He did point it at me.
“Q. At that time ?
“A. And he told me to get the hell away from there. He said T told you out the highway you weren’t going to cause me no trouble.’ ”

Nowhere in the court’s charge do we find any reference to threats, and the charge on the right to defend against apparent as well as real danger did not encompass the threats or the words, acts or conduct of the injured party. Such omissions constitute an undue restriction upon appellant’s defense and call for reversal.

Bratton v. State, 161 Tex.Cr.R. 623, 279 S.W.2d 865; Williams v. State, 87 Tex.Cr.R. 280, 221 S.W.2d 287; Henry v. State, 136 Tex.Cr.R. 22, 123 S.W.2d 347, sustain our holding.

See also Art. 1258, Vernon’s Ann.P.C. and cases cited under Note 19. Also Barkley v. State, 152 Tex.Cr.R. 376, 214 S.W.2d 287.

The judgment is reversed and the cause remanded.


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    Robert E. JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 34273.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1962.
    No attorney for appellant of record on appeal.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., James M. Shatto, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for loitering as denounced by a city ordinance; the punishment, a fine of $110.

Appellant was convicted in the Corporation Court of the City of Houston for violation of a city ordinance. The act charged as the basis of the offense of loitering for which he was convicted is not one defined by the Penal Code of the State, but is one allegedly made an offense solely by virtue of the city ordinance. The appellant appealed to the County Criminal Court at Law No. 1 of Harris County. Upon a plea of not guilty before the court without a jury, he was again found guilty and assessed a fine of $110.

The city ordinance under which this conviction rests was not introduced in evidence or made a part of the record. Several portions of the purported ordinance were introduced in evidence, but none of them contain any penalty provision.

In Texas, the state courts do not take judicial notice of the existence of city ordinances or their terms, and where they enter into a transaction and are relied on, proof of them is essential. 1 Branch’s Ann. P.C.2d 452, Sec. 449; Karchmer v. State, 61 Tex.Cr.R. 221, 134 S.W. 700; White v. State, 82 Tex.Cr.R. 274, 198 S.W. 964.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


text:
    Leroy ESTES, Appellant, v. The STATE of Texas, Appellee.
    No. 34339.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1962.
    No attorney for appellant of record on appeal.
    Henry Wade, Criminal Dist. Atty., George Milner, Jr., James H. Miller, Phil Burleson, Pat McDowell, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery by assault; the punishment, 20 years.

Jeff Davis, the injured party, testified that on the night in question as he approached his home he opened the front door and stepped inside and was assaulted by appellant, who hit him on the head with a brick and wrestled him to the floor; that appellant, with the aid of an accomplice, Williams, took his purse containing $80.00 from his pocket without his consent while he was struggling on the floor. Davis further testified that he got a good look at appellant and Williams as they ran from his house, and was later able to identify them and pick them out of a police lineup.

Appellant, testifying in his own behalf, claimed a defense of alibi, and called his girl friend in support of the defense.

The jury found against appellant’s defensive theory, and we find the evidence sufficient to support the conviction. No formal bills of exception appear in the record, and no brief has been filed in appellant’s behalf.

Finding no reversible error, the judgment is affirmed.


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    Herbert S. VEEVERS, Appellant, v. The STATE of Texas, Appellee.
    No. 33877.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1962.

      Jack W. Knight, Houston, W. E. Martin (on appeal only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Lee P. Ward, Jr., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is abortion; the punishment, three years’ confinement in the penitentiary.

The State’s testimony is undisputed and is reflected by various witnesses.

Jo Ann Williams, the complaining witness, was a 19-year old colored girl and a student at Jack Yates Senior High School. In July, 1960, having not menstruated since April, she went to see Dr. Phillips. Dr. Phillips said that he examined Jo Ann Williams at that time and that in his opinion she was pregnant. She testified that she made an appointment to see the appellant on the 3rd of August, 1960. At about 7:30 P.M. that evening, she went to the apartment of the appellant at 5002 Chenev-ert Street. She was accompanied by two girls, Martha Marie Rubin and Joyce Marie Woodard. They were admitted to the house by a man by the name of Inman who told them to have a seat and wait for the appellant. After about half an hour, the appellant arrived and took Jo Ann and her friends into another room and placed the complaining witness upon a bed. He had her remove her underwear, and Jo Ann observed him with a little white pan, and she saw and felt him using different tools. The tools were placed in her vagina. The witness observed a plastic bottle fastened onto a long metal object which was placed inside of her. The appellant then had her replace her underwear and gave her some pink and gray capsules and some white pills. She then paid appellant $75.00 for his services.

Jo Ann Williams further testified that prior to August 3, 1960, she had felt life in the baby she was carrying in her womb. She said that the last time she felt life of the baby was when she left the office of the appellant. She related that while the appellant was working with her she “felt the quivering for about twenty minutes and then in the last part of the twenty minutes, a sort of tight knot came in my stomach and after that I didn’t feel anything else.”

Jo Ann attended school the next day, finished her classes at about 12:00 o’clock and went straight home. She started to have pains, cramping and became sort of “dizzy-like.” The next day she was too ill to attend school and stayed home. That day she started having labor pains, and she testified that her “water broke” in a “gush.” At this time, she called her sister for assistance, and a short time thereafter a small baby was born. She was then placed in bed awaiting an ambulance, which was called and later arrived and took her to the hospital. At the Hermann Hospital where she was taken, she was treated by Dr. H. B. Woodward.

Dr. Leon Phillips testified that he was a licensed physician and surgeon in Houston, Harris County, Texas, and stated that he had examined the complaining witness and that in his professional opinion she was over two months pregnant at the time he examined her on July 8, 1960.

Dr. Homer B. Woodward, Jr., testified that he was a medical doctor and a resident in obstetrics and gynecology at Hermann Hospital, and that he examined the complaining witness, Jo Ann Williams, when she was admitted to the hospital. He testified that she came into the emergency room, having already passed the fetus, and that the afterbirth was still in her uterus. From his examination, he reached the conclusion that the fetus was about fourteen to sixteen weeks of age. He further testified that, based upon the examination and tests that were administered, it was obvious that the complaining witness had had a miscarriage and had an infected uterus. He further stated that the infection would be compatible with being caused by some foreign object being inserted into the uterus area. The doctor testified that he could not state exactly when the fetus expired. He further stated that he did not know of any reason why a catheter or a foreign body would be placed in the uterine cavity other than to produce an abortion.

Harold W. Rodgers, a police officer for the City of Houston, homicide division, in the company of policewoman Lanny Dixon went to Hermann Hospital on the 6th day of August, 1960, and as a result of their conversation with the complaining witness in this case went to 5002 Chenevert Street. They were admitted to the house upon the invitation of an attendant there, a Mr. In-man. Without objection, the officer testified that they searched the premises, where they found the instruments and utensils later introduced into evidence as State’s Exhibits Nos. 2, 2A, 2B, 2C, 2D and 2E. The appellant’s only objection to the introduction of these exhibits was that “there is no predicate laid to show that they have any relevancy or materiality or competence in connection with the alleged offense on August 3, 1960. Nothing at all to connect those up and no proper predicate laid.” The officer further testified that they found a large amount of medical instruments and material. The photographs taken by ' the officers were also introduced into evidence, without objection. Appellant was present and upon the premises at the time the search was made and was placed under arrest at that time.

Policewoman Lanny Dixon testified to the search of the premises where appellant lived, without objection, and corroborated the testimony of officer Harold W. Rodgers in almost every respect.

Gloria Coleman, a sister of the complaining witness, testified that she was living at the same address as the complaining witness and that during the period of time of July and August, I960, up until the time the complaining witness’s child was born, she appeared to be pregnant. On August 5, 1960, she was called into the bathroom by the complaining witness and stated that she noticed the fetus protruding from the complaining witness. She related that she then called an ambulance which removed her sister to Hermann Hospital.

Martha Marie Rubin testified that on the 3rd day of August, I960, she went to “Dr. Veevers’” home with the complaining witness and that they were accompanied by Joyce Marie Woodard, who is now residing in California. A short time after they were admitted to the house, the appellant arrived and took them into a bedroom. She said that he got some tools and a pan which were similar to those in State’s Exhibits Nos. 2, 2A, 2B, 2C, 2D and 2E and brought them into the bedroom. She said that Jo Ann lay across the bed and after Jo Ann had taken off her panties he took the catheter and appeared to be “pushing some kind of a liquid up inside of her.” She further testified that the appellant, after placing an instrument inside the complaining witness, appeared to be scraping around inside of her. After the appellant had performed his work, he asked for $75.00 in money and thereafter gave the complaining witness some small pills. This witness was at Jo Ann’s house on the 5th of August and was present at the time the embryonic sac burst. She saw the body of a child protruding from the body of the complaining witness prior to the time she was taken to the hospital.

Appellant did not testify, offered no other testimony in his behalf, and rested with the State.

There is a statement of facts with this record containing the jury argument of counsel, which will be more fully discussed hereafter.

There is also a statement of facts containing a transcript of the testimony on hearing the motion for new trial. The testimony, upon the hearing of motion for new trial, shows that appellant’s attorney requested the words “did then and there unlawfully, wilfully, and designedly” be inserted in the court’s charge and that upon his request these words were added to the charge given by the court prior to the court reading the charge to the jury.

There are no formal bills of exception in the record, and the record contains no objections to the court’s charge and no specially requested charges of the appellant, other than has already been mentioned in the preceding paragraph. The charge of the trial court adequately protected the rights of the appellant, and out of an abundance of caution included a charge on circumstantial evidence.

Appellant contends that the evidence is insufficient to sustain the allegation “there by the use of said means produce an abortion of the said woman and did then and there thereby destroy the life of the fetus in the womb of the said woman,” He further contends that no evidence was adduced showing that the life of the fetus in the womb was destroyed. It is his contention that in the case at bar, at most, the State made out a case of bringing on a premature birth. He relies upon Tonnahill v. State, 84 Tex.Cr.R. 517, 208 S.W. 516. We agree that Tonnahill is controlling for the facts as stated in that case. However, in the case at bar, the facts are different. We find the evidence sufficient, as adduced by the State from the complaining witness, Jo Ann Williams, as heretofore stated by us, to overcome appellant’s contention. The contention is overruled.

The evidence is amply sufficient to support the verdict of the jury. Parnell v. State, 166 Tex.Cr.R. 239, 312 S.W.2d 506, and Housman v. State, 155 Tex.Cr.R. 49, 230 S.W.2d 541.

Appellant first contends that the indictment in this case is fatally defective in that it does not allege that the appellant “unlawfully,” “wilfully,” and “designedly” performed the abortion in question, and therefore fails to meet the requirements of Article 1191, Vernon’s Ann.P.C.

In the case of Cortez v. State, 161 Tex.Cr.R. 77, 275 S.W.2d 123, this Court has indicated, speaking through Judge Morrison, that it is unnecessary that the allegations complained of need be made. The language used in that opinion is as follows:

“The indictment alleged that the appellant did ‘designedly thrust and force into the vagina * * *.’ Appellant contends that it is defective because it did not allege ‘unlawfully, willfully and designedly.’ We find further in the indictment the allegation that the appellant ‘did then and there by the use of said means unlawfully, willfully and designedly produce an abortion’ upon the prosecutrix. This, we think, is sufficient if in fact such allegations are necessary.”

Article 1191, V.A.P.C., under which the present prosecution was brought, reads as follows:

“If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By ‘abortion’ is meant that the life of the fetus or embryo shall be destroyed in the woman's womb or that a premature birth thereof be caused.”

Omitting the formal parts, the indictment alleges that the appellant

“On or about the 3rd day of August, A. D. 1960, in said county and state, did, with the consent of Jo Ann Williams, a pregnant woman, introduce and insert a catheter into the vagina and womb of said Jo Ann Williams, then and there calculated to produce an abortion, and did then and there by the use of said means produce an abortion of the said woman, and did then and there thereby destroy the life of the fetus in the womb of the said woman.”

The statute sets out two methods of accomplishing the offense of abortion: (1) If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine and thereby procure an abortion, or (2) If any person shall use towards her (a pregnant woman) any violence or means whatever externally or internally applied and thereby procure an abortion.

While the word “designedly” seems to apply only when the offense is committed by the administration of drugs or medicines, it would appear to be necessary to allege that it was done “knowingly” or "designedly” to support an indictment under this phase of the statute. Where the offense is charged by alleging other means, as in the present case, it is not necessary to allege that the act was done “designedly” or “knowingly” where, as here, the indictment alleged “calculated" to produce an abortion. The means alleged in the indictment was the insertion of a catheter into the vagina and womb “then and there calculated to produce an abortion.” We think “calculated” means planned or expected. “Designedly” as used in the statute, is of similar import. It is defined to mean intended or purposed. Either is sufficient to charge the criminal intent to produce an abortion. The indictment as drawn is sufficient.

It is unnecessary for the State to allege that the act was “unlawfully” done. The rule has been stated as follows:

“Nor need the State aver in expressed terms that the act charged was ‘unlawfully’ done where the facts alleged clearly show it to be unlawful.” 23 Tex.Jur. 632, 33, Indictment and Information, Section 32.

The rule is supported in Texas Jurisprudence with the citation of cases, including the following: Tucker v. State, 65 Tex.Cr.R. 627, 145 S.W. 611; Boyd v. State, 106 Tex.Cr.R. 492, 292 S.W. 1112; Morris v. State, 102 Tex.Cr.R. 578, 279 S.W. 273; Ross v. State, 102 Tex.Cr.R. 364, 277 S.W. 667, and many others.

In Ross v. State, supra, it was said:

“By a motion to quash appellant assailed the indictment, because it omitted to charge that appellant ‘unlawfully’ possessed the intoxicating liquor for the purpose of sale. We think the indictment not vulnerable to the attack. It charged the existence of facts which, if sustained, show a violation of the law. The failure to insert the word ‘unlawfully’ in the charging part of the indictment does not vitiate it.”

The Supreme Court of Missouri in the case of State v. Williams, 296 S.W. 155, held that:

“Appellant also contends that the information is defective because it does not charge that the act complained of was prohibited or unlawful. The Constitution (article 6, § 38) provides that an indictment snail conclude with the words ‘against the peace and dignity of the state.’ This information concludes with those words. It was not necessary for the information to say that the acts of the defendant were contrary to the statute, when the facts alleged of themselves showed that they were contrary to the statute.”

Appellant argues that it is necessary to allege that the abortion was unlawful, because under some circumstances an abortion may be legally performed. Article 1196, V.A.P.C., provides:

“Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.”

This is a separate statute, and it need not be negated in the allegations of the indictment. It would be an affirmative defense available in the proper case to an accused. Therefore, appellant’s argument is defeated.

These words were placed in the charge defining the offense, and appellant may not therefore complain of the court’s action in that regard.

Appellant in this case did not file a motion to quash the indictment for any reason. The words “designedly,” “wilfully,” and “unlawfully” are not essential in charging the offense in this case under Article 1191, V.A.P.C., and the indictment here is not fundamentally defective. No reversible error is shown.

Appellant’s contention is overruled.

Appellant next contends that the opening argument of the prosecutor presents reversible error.

In opening argument, the prosecutor argued as follows:

“It is a case in which a female, whether wed or unwed, consenting to the act of an abortion, and for the filthy, measly price of $75.00 in money, in effect, squelch out, kill and murder some unborn child * * *
“MR. KNIGHT: Just one minute, may it please the Court. We object to the use of the word ‘murder’ and we * * *-
“THE COURT: That is sustained; the jury won’t consider it for any purpose whatsoever.
“MR. KNIGHT: We move for a mistrial on the base of the inflammatory, prejudicial use of the word ‘murder’ in counsel’s argument.
“THE COURT: That is overruled, counsel.
“MR. KNIGHT: Note our exception, please.
“THE COURT: Yes, sir.”

In the case of Jarquin v. State, 155 Tex.Cr.R. 140, 232 S.W.2d 736, an abortion case, this Court held that where the district attorney, in referring to metallic instruments found at the scene of the offense as “death-dealing instruments,” was not reversible error where the court immediately instructed the jury to disregard such statement.

In the case of Garcia v. State, 162 Tex.Cr.R. 594, 288 S.W.2d 513, this Court held that where the prosecutor argued in the murder prosecution that the jury would be shocked if it had seen a man murdered in cold blood did not call for reversal of the conviction where the court sustained the objection to the use of the word “murder” and the motion for mistrial had been overruled.

The argument of the prosecutor in this case was merely that the life of the fetus had been destroyed. Under the indictment and all the proof offered, we think such argument may well have been a proper comment upon the evidence. It certainly does not appear that the argument of State’s counsel was so material in character that, considering the evidence and circumstances and the immediate instruction of the court to the jury to disregard such argument, the rights of the appellant were so injuriously affected and the argument was so harmful as to cause this Court to hold that it was reversible error. This Court has held on many occasions that where counsel makes remarks that were improper, and the court immediately instructs the jury to disregard such remarks, the error is usually cured and reversal seldom results. 1 Branch’s Ann.P. C. 403, Sec. 382.

Numerous informal bills of exception were reserved in the trial of the case. Those of similar nature will be grouped together and briefly discussed.

Dr. Phillips, a medical doctor, was asked to describe a catheter and asked whether or not such an instrument could be used in a manner calculated to cause an abortion. This was not error. See Housman v. State, 155 Tex.Cr.R. 49, 230 S.W.2d 541, 545.

Dr. Woodward, a medical doctor, was asked a number of hypothetical questions to which the objection was made that a proper predicate had not been laid, and that the doctor’s answer would be an invasion of the province of the jury. These objections were properly overruled. The predicate, if not fully laid at that time, was supplied by later testimony. The answer to such questions did not invade the province of the jury. Housman v. State, supra; Jarquin v. State, supra; and 2 McCormick & Ray, Texas Law of Evidence 219, Sec. 1395.

Several objections were made, apparently on the basis that they assumed facts not yet in issue. These facts were supplied by testimony later in the trial, if not in evidence at the time the objection was made, and therefore show no error.

Objections were made regarding the testimony concerning certain medicine and drugs given to the complaining witness. Appellant gave the complaining witness the drugs at the same time that he performed the operation with instruments and, as such, it was res gestae of the offense charged. It was also admissible to show the intent of appellant to perform the abortion. See Moore v. State, 37 Tex.Cr.R. 552, 40 S.W. 287.

Finding no reversible error, the judgment is affirmed.


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    John W. SULLIVAN, Appellant, v. The STATE of Texas, Appellee.
    No. 34196.
    Court of Criminal Appeals of Texas.

    Jan. 31, 1962.

      R. P. Langford, Francis S. Ainsa, El Paso, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The offense is shoplifting under Art. 1436e, Vernon’s Ann.P.C.; the punishment, 30 days in jail and a fine of $50.

The testimony of the state shows that the appellant took a tube of nasal spray, one can of black ■ pepper, and a turkey breast roll of the total value of $1.23, from the place it was displayed for sale in a retail Safeway Store; that appellant paid for some items, but not the above named items which he took out of the store without consent. Shortly after leaving the store, appellant was stopped by the manager and assistant manager and asked about the unpaid items. At first he denied taking them, but soon removed two of them from his pocket and the other fell while moving his arms. Then he offered to pay for them, which was refused, and the police were notified.

Testifying in his own behalf, the appellant admitted purchasing some merchandise in the store but denied taking or having the three items in question. He testified that the manager and assistant manager grabbed him before he left the store, accused him of taking the items, which he denied, and said that he first saw the items in the hands of the assistant manager. Later, he offered to pay for them because he did not want to lose his job.

Appellant contends that Art. 1436e, Vernon’s Ann.P.C., the shoplifting statute under which he was convicted, is unconstitutional.

It is insisted that the statute makes the offense charged, whether a misdemeanor or a felony, depend on the evidence instead of the pleadings because it does not require the state to plead the prior conviction or convictions for enhancement or to show a felony.

While it is true that the statute does not mention the state’s pleadings in providing for increased punishment or a felony, it is essential that such conviction be properly alleged if the state seeks to enhance the punishment or create an offense based on a prior conviction. 16 Tex. Jur.2d 636, Sec. 411. Art. I, Sec. 10, Texas Constitution, Vernon’s Ann.St., guarantees to every person the right to know the nature and cause of the accusation against him. Arts. 398 and 405 C.C.P.; McKenzie v. State, 159 Tex.Cr.R. 345, 263 S.W.2d 562.

The appellant also attacks the statute’s constitutionality because it deprives the Justice of thé Peace Courts of jurisdiction of offenses of theft under $5.

The legislature may make the .taking of any particular kind of property a felony or misdemeanor, regardless of its value, where the punishment is specially prescribed. Art. 1423, P.C. Justices of the Peace have jurisdiction where the fine may not exceed $200, but cannot assess any jail time as punishment. Art. I, Sec. 19, Texas Constitution, and Art. 60 C.C.P. Art. 1436e, P.C., the basis of the instant conviction, authorizes imprisonment in jail in assessing punishment. It is apparent that the legislature intended to enact a special statute defining the instant offense. It controls over the general statute. The contention is overruled.

He further insists that the statute is unconstitutional because its penalty provisions cannot be severed one from another.

The penalty provisions of the Act provide a certain punishment for the primary misdemeanor offense, an increased punishment where one prior conviction of the same offense is alleged, and upon the third conviction for the same offense punishment is authorized for a felony.

The statute is sufficiently definite and certain to apprise an accused of the punishment that may be assessed and applied, and does not offend the Constitution of Texas.

Error is urged on the ground that the prosecutor, in his argument to the jury, stated that the appellant stole the merchandise, and that he was a thief. The testimony of the state shows that the appellant fraudulently took the merchandise as alleged. It further shows that when he was approached immediately after leaving the store, he denied taking the merchandise, but when it was found on him he admitted getting it and offered to pay for it.

It is concluded from the evidence that the argument was a reasonable deduction therefrom and does not constitute reversible error. Dove v. State, 112 Tex.Cr.R. 231, 15 S.W.2d 1042; Rambo v. State, 131 Tex.Cr.R. 613, 101 S.W.2d 267.

Appellant contends that the trial court erred in sustaining the state’s objection to a question asked during his cross-examination of the manager of Safeway Stores. After the manager had testified that Safeway Stores was a corporation, the appellant next asked, “of what state is it incorporated?” The state’s objection to this question was sustained and appellant excepted. There is no showing in the record what the manager’s testimony would have been if the court had permitted him to answer the question. In the absence of such a showing, the contention cannot be appraised. 5 Tex.Jur.2d 354, Sec. 209; Richards v. State, 165 Tex.Cr.R. 176, 305 S.W.2d 375.

The evidence is sufficient to support the conviction, and no error appearing, the judgment is affirmed.

Opinion approved by the Court.


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    Raymond SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 34322.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1962.

      J. W. Reid, Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the possession of whiskey, vodka, gin and beer in a dry area for the purpose of sale; the punishment, a fine of $400.00.

In the statement of facts, it was stipulated that appellant had the care, custody, management and control of four or five ^ths bottles of assorted alcoholic spirits and three cases of 12-ounce bottles of beer in a dry area.

Bill of exception No. 1 complains of the refusal of the trial court to permit the introduction into evidence of a private club permit issued by the Administrator of the Texas Liquor Control Board on March 13, 1961. The permit offered in evidence was not a defense to the charge of possessing intoxicating liquor in a dry area for the purpose of sale. Trial of this cause was had August 22, 1961. House Bill 892, Acts of the 57th Legislature, Regular Session, Chapter 262, page 559 (Article 666-15(e), Vernon’s Annotated Penal Code), did not become effective until September 1, 1961, and we do not therefore pass upon the question of the admissibility of a permit issued pursuant to that statute.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.