text:
    REEVES et al. v. STATE.
    (No. 11436.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    1. Appeal and error <§=>439 — Notice of appeal and filing supersedeas bond does not deprive district court of jurisdiction to vacate judgment at same term.
    ■ District court may vacate and set aside final judgment during term at which it is rendered, after notice of appeal and filing of supersedeas bond.
    2. Judgment <@=>342(1) — District court loses -control of judgment after term ends, in absence of statute or facts bringing into existence equity jurisdiction.
    District court loses control of its judgments and decrees after term ends, unless expressly authorized by statute or under facts bringing into existence its equity jurisdiction.
    3. Judgment <@=>341 — District court has full power over its judgments during term at which they are made.
    District court has full power over its judgments and orders during term at which they are made.
    4. Bail <@=>94 — Court of Criminal Appeals held without appellate jurisdiction, where district court, during term at which judgment was rendered, vacated judgment (Code Cr. Proc. 1925, arts 847, 848).
    Where district court vacated judgment during same term at which it was rendered, after notice of appeal had been given and supersedeas bond filed granting same relief that could have been procured by, appeal to Court of Criminal Appeals, under Code Cr. Proc. 1925, arts. 847, 848, AeZfS that Court of Criminal Appeals was without jurisdiction to entertain appeal.
    Commissioners’ Decision.
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    R. M. Reeves was charged by indictment with a felony, and he filed an appearance bond with Fred W. Cathey and Walter Barnes as sureties, and, having failed to appear, the court entered judgment on the bond, and accused and his sureties appeal.
    Dismissed.
    See, also, 4 S.W.(2d) 50.
    J. ,D. Kugle, W. B. Harrell, and Barry Miller, all of Dallas, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Appellant R. M. Reeves was charged by indictment with a felony. On the 6th day of June, 1927, he made and filed in .court an appearance bond in the sum of 82,000, with appellants Fred W. Cathey and Walter Barnes as sureties. On the 22d day of June, 1927, the case against said Reeves was called for trial and, he having failed to appear, the court entered a judgment nisi on said date against him and his sureties on said appearance bond in the sum of $1,000. At the next succeeding term of court, on the 20th day of July, 1927, the court entered an order making the nisi judgment final, which judgment was for the sum of $2,000. On the 22d day of July, 1927, the sureties on the said appearance bond filed exceptions to the said judgment and gave notice of appeal to this court, and on the 28th day of July, 1927, filed their supersedeas appeal bond. On the 25th day of July, 1927, the court directed the clerk to change the nisi judgment so as to make same read $2,000, instead of reading as it then did, $1,000. On the 17th day of September, 1927, an order was entered setting aside both the nisi judgment entered at the June term of court and also the final judgment rendered thereon July 20, 1927. Both the final judgment and the order vacating same were made at the same term of court.

Many questions are presented on this appeal, but we deem it necessary to consider only the question of the jurisdiction of this court to entertain the appeal under the facts above set forth. The legal question presented is whether or not the district court may vacate and set aside a final judgment during the term at which it is rendered but after notice of appeal and the filing of a supersedeas bond. In other words, does the giving of notice of appeal and the filing of a supersedeas appeal bond transfer the jurisdiction to this court so as to deprive the district court of jurisdiction to enter any order with respect to judgments entered at the same, term of court? That a district court loses control of its judgments and decrees after the term ends is the statement of a rule, we think, that is universally recognized, unless expressly authorized by statute or under facts bringing into existence its equity jurisdiction. That a court has full power, however, over its orders or judgments during the term in which they are made, was the rule at common law, and is the rule prevailing in practically all jurisdictions. 34 C. J. p. 207.

Addressing himself to the question now under discussion, Judge Davidson, in the ease of Bankston v. State, 80 Tex. Cr. R. 629, 192 S.W. 1064, uses the following language:

“That he had the right to entertain jurisdiction during the term of court is not debatable. Dnder the general power confided to the district court, if the judge entertains jurisdiction after notice of appeal, and decides adversely to his former rulings, the writer is of the opinion that, whether the notice of appeal has been specifically. set aside or not, the action of the trial court in reassuming jurisdiction is a setting aside of the notice of appeal. * * * If the court has the control of its. judgments during the term and subsequently sets aside a former ruling or decree, and grants the new trial, there is nothing from which to appeal.”

The Bankston Case cites the case of Bundick v. State, 59 Tex. Cr. R. 9, 127 S. W. 543, in which we find the following language:

“We therefore hold that, though the motion for new trial had been overruled and notice of appeal given, that the case could not be considered as pending in the Court of Criminal Appeals as long as the term was in session, and that the court had jurisdiction over its proceedings until the expiration of the term, with a qualification, however, that, if the transcript had been taken out during the term and filed in this court, then the court below could not take any action in the matter so as to affect the appeal.”

No transcript had been filed in this case when the order was entered vacating the final judgment of forfeiture.

As further supporting these views, see the case of Hanks v. State, 99 Tex. Cr. R. 228, 269 S. W. 106; Bottom v. State, 105 Tex. Cr. R. 77, 286 S. W. 1091.

The rule seems to be the same in civil cases, even though notice of appeal had been given and supersedeas appeal bond filed. Blum v. Wettermark, 58 Tex. 125; Garza v. Baker, 58 Tex. 483; H. B. & T. Ry. Co. v. Hornberger (Tex. Civ. App.) 141 S. W. 311.

The appellants got by the order of the court the same precise results which they could have gotten by an appeal to this court. Under "the terms of article 847 and article 848, C. C. P. 1925, this court could only have' reversed and remanded the case for another trial. The Legislature has not seen fit to clothe this court with the authority to render here the judgment which should have been' rendered in the lower court. We do not agree with appellants’ view that the effect of the order of the court vacating its former judgment was to grant to the state a new trial, which is inhibited by article 752, C. C. P., and which is held to apply to bond forfeitures. Robertson et al. v. State, 14 Tex. App. 211.

While in the criminal cases cited by us supra the judgments were vacated at the instance of defendants, the same might be said to be true in this case, since the court did not enter any order vacating its former judgment until after appellants had filed exceptions to the judgment and given notice of appeal. We know of no reason why the trial court should not give to appellant, during the term at which such was rendered, the same relief from an erroneous judgment which he was then seeking at the hands of this court.

Believing, therefore, that this court is without jurisdiction to entertain appellants’ appeal, the same is ordered dismissed.

PER OURIAM. The foregoing opinion of the Commission of Appeals has beén examined by the judges of the Court of Criminal Appeals and approved by the court.
      ®=For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MARTIN, J.

license: Public Domain

text:
    REEVES et al. v. STATE.
    (No. 11679.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    1. Bail <§=>77(2) — 'When valid nisi judgment declaring forfeiture of appearance bond exists, state may not enter second nisi judgment.
    As long as valid subsisting nisi judgment is in existence declaring forfeiture of appearance bond, state is without authority to take second forfeiture and enter second nisi judgment.
    2. Bail <§=>77(2) — Where valid nisi judgment was entered at June term, its vacation and entry of second nisi judgment at subsequent term was unauthorized (Code Cr. Proc. 1925, art. 435).
    Where valid nisi judgment declaring forfeiture of appearance bond was taken by state at June term, but same was mistakenly and erroneously entered by clerk in minutes, who made same read $1,000 instead of $2,000, and court at subsequent term summarily vacated judgment and entered another, held that second judgment was void under Code Cr. Proc. 1925, art. 435, providing judgment declaring forfeiture shall not be set aside because of any defect of form, but such defect may at any time be amended at direction of court, in view of article 436.
    3. Bail <§=>93 — Final judgment based upon nisi judgment, invalid because of existence of valid nisi judgment rendered at prior term, held void (Code Cr. Proc. 1925, art. 435).
    Where valid nisi judgment declaring forfeiture of appearance bond was in existence, and at subsequent term second unauthorized nisi judgment was entered upon which final judgment was entered, held that such final judgment, being based upon void nisi judgment, was wholly invalid and of no effect, by virtue of Code Cr. Proc. 1925, art. 435.
    4. Bail <§=>77(2) — Where clerk makes mistake in entering nisi judgment forfeiting appearance bond, and state wishes to correct same at subsequent term, proper procedure is to amend (Code Cr. Proc. 1925, art. 43.5).
    Where clerk makes mistake in entering nisi judgment declaring forfeiture of appearance bond, and state desires to correct same at subsequent term, proper procedure is to amend under Code Cr. Proc. 1925, art. 435, after notice to all parties.
    Commissioners’ Decision.
    Appeal from .Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.

      R. M. Reeves was indicted for a felony, and lie gave an appearance bond with Fred W. Cathey and Walter Barnes as sureties. From final judgment of forfeiture, accused and his sureties appeal.
    Reversed and remanded.
    J. D. Kugle, W. B. Harrell and Barry Miller, all of Dallas, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

The indictment, appearance bond, and parties are all identical with those in cause No. 11436, 4 S.Wi.(2d) 49, opinion delivered on this day, to which reference is here made for a more complete statement of the facts.

A brief restatement of the main facts, with some additional facts, is perhaps necessary. On the 22d day of June, 1927, a judgment nisi was entered against appellants for the sum of $1,000 upon forfeiture of an appearance bond which was written for $2,000. At the next succeeding term of the court, viz. the July term, a final judgment for $2,000! was entered, without any correction or amendment of the nisi judgment. The sureties filed exceptions to such judgment and gave notice of appeal and filed their supersedeas appeal bond. Thereafter an prder was entered as of July 25, 1927, reciting:

“Whereas the amount of the bond filed in this cause was $2,000.00 and whereas the clerk in entering the judgment nisi erroneously placed the amount at $1,000.00, when in' truth and in fact-the judgment nisi was for the amount of the bond, as shown on the docket entry at the time of the rendition of said judgment, which said amount was $2,000.00, and it clearly appearing to the court that the word ‘$1,000.00.’ in said judgment was a clerical error and that the real judgment was for the sum of $2,000.00, it is therefore ordered, adjudged, and decreed by the court that the district clerk correct said judgment nisi so as to conform to the actual judgment of the court,” etc.

This last order was entered without any notice to the sureties. Thereafter, on the 17th day of September, 1927, the court of his own motion summarily entered an order vacating both the nisi judgment entered at the June term of the court and the final judgment rendered thereon July 20, 1927. A new forfeiture was then taken of the bond, scire facias, issued, and a second nisi judgment entered, on the 17th day of September, 1927, and was made final on November 5, 1927, against appellant’s sureties, from which judgment this appeal is prosecuted.

The decision of this case rests upon the answer to the question of whether or not the trial court was vested with the power and authority to vacate its nisi judgment entered at the June term, 1927, of the district court by an order entered at the succeeding term of the said court under the facts and circumstances above set forth.

We held, in cause No. 11436, this day decided and already referred to, that the court had jurisdiction and authority over its orders, judgments, and decrees during the term at which same were rendered, but on this appeal,'there already having been made and entered a nisi judgment at the preceding term of the court, appellants claim that the district court was without authority of law at the succeeding term of the court to vacate such nisi judgment, and that its second forfeiture and second entry of a nisi judgment was illegal and void because there already existed a valid nisi judgment made at a preceding term of the court. That as long as a valid and subsisting nisi judgment is in existence the state is without authority to take a second forfeiture and enter a second nisi judgment is well settled. Burris et al. v. State, 34 Tex. Cr. R. 551, 31 S. W. 395; Edwards v. State, 100 Tex. Cr. R. 582, 272 S. W. 175. The record aflirmatively discloses that a valid and correct judgment was in fact taken by the state at the June term, but that same was mistakenly and erroneously entered by the clerk in the minutes, who made same read $1,'000, instead of $2,000. If the nisi judgment as exhibited in the minute's at the June term of the court was a clerical mistake and was defective in form only as distinguished from a void judgment,' we think under the plain terms of the statute that the court lacked the power and authority to'vacate same, though he has express authority to amend and correct same upon proper notice. The recitals of the order of the court quoted above amending this nisi judgment affirmatively show that it was not a void judgment and that in fact a valid judgment was taken, made defective by the carelessness of the clerk in entering the same. There has been laid upon the trial,courts by the terms of article 435, O. O. P. 1925, an express inhibition against vacating such a judgment. This article reads in part as follows:

“The judgment declaring the forfeiture * * * shall not be set aside beeausp of any defect of form; but such defect of form may, at any time, be amended under the direction of the court.”

This article has been set into chapter 4, tit. 7, O. O. P. 1925, dealing with bond forfeitures, and made to apply particularly to judgments of this character. This has some significance; and may have been because the Legislature regarded them as of that interlocutory character which' it seems might be vacated after the end of the term under the rule at common law, and decided upon the enactment of a statutory rule prohibiting such action. Reasons might be given why a valid forfeiture of a bond, penal in its nature, ought not to be vacated at the pleasure of the court because of the possible embarrassment it might occasion the sureties. Such bonds are to be strictly construed.

Article 436, O. 0. P. 1925, lays down the following rule:

‘•The following causes, and no other, will exonerate the defendant and his sureties from liability upon the forfeiture taken.”

It then specifically points out the only defenses which will authorize the court to declare invalid and vacate such nisi judgment. It seems strange that the Legislature should see fit to enact article 435, applying particularly to judgments of the character under discussion, if its terms were not meant to be mandatory. In our opinion such was the intention of the Legislature. It therefore follows that the order of the court, summarily vacating the nisi judgment made at a previous term of the court,- was void. As before stated, as long as a valid nisi judgment was in existence, a second one was unauthorized, and the final judgment from which this appeal was taken, being based upon such a nisi judgment, was wholly invalid and of no effect. The proper procedure for the state to have taken was to amend and correct the nisi judgment taken at the June term, 1927, after notice to all parties. Gause v. State, 60 Tex. Cr. R. 221, 131 S. W. 605. Such a procedure may still be followed, in our opinion, by the state.

Because the court was without authority to enter the final judgment for the reasons above pointed out, the judgment of the trial court is reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals-has been examined by the judges of the Court of .Criminal Appeals and approved by the court.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexed


author: CHRISTIAN, J.

text:
    RODRIGUEZ v. STATE.
    (No. 11292.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    I. Homicide <®=>286(l) — Defendant’s statements that he shot downward without intent to kill raised defense to charges of murder, manslaughter, and negligent homicide which should have been submitted to jury (Pen. Code 1925, art. 1232).
    In prosecution for murder, defendant’s statement that he did not fire in direction of deceased, but fired downward with no intention of killing any member of deceased’s party, but with sole purpose of frightening deceased and his companions, raised a defense which, if believed by jury, would have entitled defendant to an acquittal of murder, manslaughter, or negligent homicide; there being no apparent danger of killing deceased or his companions in firing shot, as required by Pen. Code 1925, art. 1232, for negligent homicide, and' such defense should have been submitted to jury.
    2. Criminal law <⅜=?772(6) — Court must submit defense raised by evidence in affirmative way.
    Where evidence raises defensive theory in an affirmative way, it is incumbent on court to submit it.
    Commissioners’ Decision.
    Appeal from District Court, Bee County; T. M. Cox, Judge.
    Secondino Rodriguez was convicted of murder, and he appeals.
    Reversed and remanded.
    I-I. S. Bonham, of Beeville, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment confinement in the penitentiary for 25 years.

The deceased, Jim Hyman, his brother, John Hyman, and Rufus O’Brien were hunting .at night with dogs. Deceased was carrying a lantern, and John Hyman was leading the dogs with a chain. The parties had crossed through a field into the public road. Before reaching the road they saw two cars coming. As they crawled through the fence the cars came by. The dogs pulled to one side, and John Hyman jerked them back, saying, “Come in here, you s-s of b-s! Them cars will run over you.” The two cars went around a curve and stopped. Five Mexicans got out of the cars, among them being appellant, and came -back to the point where deceased and his companions were. One of the Mexicans asked deceased what he had said to him, and deceased replied, “I said nothing to you.” The Mexican who made the statement to deceased had a knife in his hand. John Hyman picked up a rock and told the Mexican not to strike deceased with the knife. Thereupon appellant drew out a six-shooter and threw it- in the face of John Hyman, and said: “You s- of a b-, run!” Deceased and his companions ran and crawled through the fence into the field. After getting into the field, deceased said to the Mexicans: “You s-s o-f b-s, go on and leave us alone! We’re on our own side of the fence and not bothering you.” The five Mexicans, including appellant, thereupon started back to their cars. Appellant, after going a short distance, stopped, turned, and shot deceased. Deceased was wounded just above the hip bone on the left side, the bullet penetrating the bladder. 1-Ie died from the wound. The fbregoing facts were testified to by state’s witnesses. ■ ■

Appellant testified that at the time he stopped his ear he understood deceased and Ms companions to tell Mm to stop; that he heard some cursing in the direction of deceased and his companions which caused him to become nervous;, that he saw one of the white boys with upraised hand making a motion as if to hit his (appellant’s) brother; that he (appellant) pointed a gun at him and said, “Run, you s-of a b-”; that when the white boys got into the field they began cursing; that he shot down toward the ground in an endeavor to scare them; that he had no intention of shooting or hitting either of them; that at the time he fired the shot he was 60 or 65 feet from deceased and his companions and couldn’t see them very well; that he had understood the white boys to say after they got in the field, “Now we are on our own side of the fence and you s-s of b-s go on and let us alone”; that he was a little bit frightened before he fired the shot; that he did not know whether the boys had a gun with them and did not know but what they would shoot at him. In referring to the fatal shot, appellant said: “Then I turned around and shot, but I shot down, not towards the boys.”

The court submitted instructions covering murder, manslaughter, self-defense, and negligent homicide of the second degree. Appellant timely objected and excepted to the court’s charge on the ground that it failed to submit to the jury one of his affirmative defenses, it being his contention that the court should have instructed the jury to acquit him if they had a reasonable doubt that he fired the shot downward and not toward deceased and his companions and had no intention of killing any member’of the party. It is noted that appellant contended that he did not fire in the direction of deceased and his companions, but fired downward with no intention of killing any member of the party, but with the sole purpose of frightening deceased and Ms companions. If such facts had been believed by the jury, appellant would have been entitled to' an acquittal of the charges of murder and manslaughter. To sustain a conviction of negligent homicide, an apparent danger of causing the death of deceased or some other person must appear. Article 1232, P. 0. 1925; Haynes v. State (Tex. Cr. App.) 224 S. W. 1100; Talbot v. State, 58 Tex. Cr. R„ 324,125 S. W. 906; Howard v. State, 25 Tex. App. 686, 8 S. W. 929. Appellant’s testimony, in our opinion, if believed by the jury, would have warranted the conclusion that in firing the shot there was no apparent danger of killing deceased or his companions. If he did not fire in their direction and the bullet was deflected from its course by some object, it would seem that such facts would give support to the theory that the danger of killing was not apparent. Such theory might further find support in the fact that the wound was somewhat rough at the point of entrance. As we view the evidence, appellant’s statement to the effect that he did not shoot toward the parties, but downward with no intention of killing them, raised a defense to the charges of murder, manslaughter, and negligent homicide. Where the evidence raises the defensive theory in an affirmative way it is incumbent upon the court to submit it. Dodson v. State (Tex. Cr. App.) 300 S. W. 934; Escobedo v. State, 88 Tex. Cr. R. 277, 225 S. W. 377.

The other questions presented are not discussed, as they are not likely to occur on another trial of the ease.

For the error discussed, the judgment is reversed and the cause remanded.

PER OUB.IAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.
      ®n>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HAWKINS, J.'

text:
    PAYNE v. STATE.
    (No. 11568.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    Criminal law <9=576(8)— Statute authorizing discharge for failure to return indictment at next term after confinement in jail held inapplicable after indictment at subsequent term (Code Cr. Proc. 1925, art. 576).
    Code Cr. Proc. 1925, art. 576, providing that defendant shall be dismissed where detained in custody to answer for'criminal accusation, and indictment is not presented at next term of court, held inapplicable, where he did not seek discharge until indictment was returned by grand jury át subsequent term, though it would have been controlling if he had sought such discharge on adjournment of first succeeding term.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    J. D. (Shorty) Payne was convicted of rape of a female. under the age of consent, and he appeals.
    Affirmed.
    J. W. Culwell, of Amarillo, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.'

Conviction is for rape of a female under the age of consent, punishment being 25 years in the penitentiary.

Prosecutrix was not quite 15 years of age at the time the offense was committed. No good purpose can be accomplished by setting out the evidence in detail. It is sufficient to say that it amply supports the verdict.

Appellant was arrested on the 4th day ot January upon a warrant from the justice of the peace acting as magistrate. Examining trial was waived, and in default of bail appellant was confined in jail. The next term, of the district court convened on the 24th day of January. That term of court adjourned on the 2d day of April without indictment háving been returned against appellant, and no order of any kind was made relative to his case. Another term of court convened on the 24th day of April and the grand jury for that term returned the indictment upon which appellant was tried. Upon call of the case appellant filed a motion to dismiss the prosecution, invoking the application of article 576, O. O. P. 1925, which reads as follows:

“When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant at the next term of the court which is held after his commitment or admission to bail.”

If appellant had sought discharge from custody upon adjournment of the first succeeding term of the district court after having been remanded by the magistrate, the provisions of article 576 would have been controlling, but it has no application after indictment is returned although by a grand jury at a subsequent term of court.

No other question is presented for review.

The judgment is affirmed.
      other cases see same tonic and KEY-NTJ [BER in all Key-Numbered Digests and Indexes


author: HAWKINS, J. LATTIMORE, J.

text:
    MCLAUGHLIN v. STATE.
    (No. 11286.)
    Court of Criminal Appeals of Texas.
    Feb. 15, 1928.
    Rehearing Denied April 4, 1928.
    1. Criminal law <§==>394 — Eviáence obtained by search under search warrant, predicated on affidavit based solely on belief of affiants, is inadmissible.
    Where affidavit upon which search under warrant was predicated was based solely upon the belief of affiants, there being no statement of facts or information upon which such belief was founded, objection to evidence obtained as result of search should have been sustained.
    2, Intoxicating liquors <§=>233(1) — In liquor prosecution, testimony to cars going to defendant’s house at night and people leaving with sacks was admissible, regardless of search warrant.
    Testimony of officers, who had watched defendant’s house for several nights, that they had seen a number of ears going to house at all times of night and observed parties coming from house to car with something in sacks was admissible, regardless of a search warrant, as circumstances indicating that defendant had liquor for sale.
    3.Criminal law <®=>l 169(3) — Erroneous admission of testimony obtained under illegal search 'held harmless, where testimony was admitted as true by defendant as witness.
    Erroneous admission of testimony of officers as to what they found in search of defendant’s house under an invalid search warrant is not ground for reversal, where defendant admitted on witness stand having in his house everything officers testified they found.
    Appeal from District Court, Mitchell County ; Eritz R. Smith, Judge.
    P. H. McLaughlin was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    V.- Earl Earp, of Sweetwater, and De Witt Bowmer, of Temple, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale. The punishment is two years in the penitentiary.

The search of appellant’s house was made under a warrant predicated upon an affidavit based solely upon the “belief” of af-fiants; there being no statement in the affidavit of the facts or information upon which such belief was founded. Such being the case, objection should have been sustained when the state offered to prove the result of the search. Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095; Sutton v. State (Tex. Cr. App.) 300 S. W. 639, in which are collated many cases. However, appellant seems to have lost the benefit of his bills by going on the witness stand himself and testifying to every criminative fact which could have been properly excluded as coming from the officers. Some of their testimony was admissible independent of the "search warrant. They had watched appellant’s house for several nights, had seen numbers of cars going to the house at all times of night,. and observed parties-coming from the house to the cars with something in sacks. Regardless of a warrant, this-testimony was admissible as circumstances indicating that appellant had the liquor for-sale. Appellant admitted in his testimony that he had on hand 420 bottles of beer, a 50-gallon barrel in which to make it, and some-200 empty bottles. His only defense was that he was making and had the beer to be used by himself and wife for medicine. This issue was submitted to the jury, who refused to accept appellant’s explanation. Having-taken the witness stand himself and admitted having in his house practically everything of a criminative character, the officers claimed to have found appellant is in no position to-ask for a reversal of the judgment. Parker v. State, 91 Tex. Cr. R. 68, 238 S. W. 943; Scharff v. State, 99 Tex. Cr. R. 605, 271 S. W. 83; Gonzales v. State (Tex. Cr. App.) 299 S. W. 901. We quote from Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169:

“It is well settled in this state that the erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony not objected to. See Rogers v. State, 26 Tex. App. 404 [9 S. W. 762]; Walker v. State, 17 Tex. App. 16; Johnson v. State [Tex. Cr. App.] 26 S. W. 504; Stephens v. State [Tex. Cr. App.] 26 S. W. 728; Logan v. State, 17 Tex. App. 50; West v. State, 2 Tex. App. 460; and Carlisle v. State, 37 Tex. Cr. R. 108 [38 S. W. 991].”

' Later eases following Wagner are Gurski v. State; 93 Tex. Cr. R. 612, 248 S. W. 353: Osborne v. State, 106 Tex. Cr. R. 310, 292 S. W. 240.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant insists that, if his objection was good when made to the testimony of officers as to what they found in his place by a search under a defective warrant, then we erred in holding that the error of such admission was rendered harmless by his thereafter taking the witness stand and affirming as true that the officers found what they said they did on his premises. He cites a number of authorities, all of which we have carefully examined. Dawson v. State, 38 Tex. Cr. R. 14, 40 S. W. 731, Red v. State, 39 Tex. Cr. R. 421, 46 S. W. 408, and Attaway v. State, 41 Tex. Cr. R. 397, 55 S. W. 45, go no further than to hold that the error of the admission of illegal testimony over objection is not rendered harmless because the accused resorted to rebutting evidence to meet, destroy, or explain the effect of the illegal testimony theretofore admitted. We do not regard this as contrary to what we have held in the instant case. Wade v. State, 48 Tex. Cr. R. 512, 90 S. W. 503, merely holds that an accused who objects to illegal testimony does not forfeit his objection by cross-examining the witness from whom the illegal testimony was elicited. We are unable to hnd any thing in Turman v. State, 50 Tex. Cr. R. 7, 95 S. W. 533, or Clements v. State, 61 Tex. Cr. R. 161, 134 S. W. 728, which has application here at all. Zimmer v. State, 64 Tex. Cr. R. 114, 141 S. W. 781, holds that one who fails to object to illegal testimony given by a witness is not thereby estopped to thereafter object when the same or similar facts are offered from another witness. This has no application. In Moore v. State, 66 Tex. Cr. R. 169, 146 S. W. 184, and Brown v. State, 67 Tex. Cr. R. 543, 150 S. W. 438, are expressions which seem to support appellant’s contention. These cases were apparently decided without presentation of the point here under discussion — in fact the principle of law seemingly had in mind and referred to in the Moore Case is the same as that involved in the Dawson, Red, and Attaway Cases, supra. Moore was on trial for burning Pharr’s house to enable Pharr to collect insurance thereon. The state put on Watts, who was permitted, over objection, to testify that Pharr’s house was insured, and that the policies were at the home office. The bill complaining of the introduction of this secondary evidence was qualified by a statement that the defense put Pharr on the stand, and he testified in chief to the amount of the insurance on said house, the amount of each policy, the date of same, and the value of the property insured. Stating in the opinion that the admission of Watts’ testimony was erroneous, and that the error was not cured by the testimony of Pharr, this court, citing no authorities, says that no rule seems better established than the one that, when testimony has been erroneously admitted, and the defendant is thereby called on to meet such testimony, the fact that he does introduce testimony to meet it does not cure the error. The Brown Case, 67 Tex. Cr. R. 543, 150 S. W. 437, written by the same judge who wrote in the Moore Case, supra, is on facts much like the Moore Case just discussed, save that, in it, it appears that the accused took the stand and testified to the fact of insurance on the burned house, the amount of the policies, etc. The opinion in the Brown Case cites only the Moore Case, supra, as authority, and relies for its soundness on the same principle of law referred to in the Moore Case, viz. that, when evidence is erroneously admitted, the accused has the right to meet it and rebut it with other testimony. We are constrained to conclude that the attention of the great jurist who wrote for this court in both the Moore and Brown Cases, supra, was focused on the proposition, correct in principle, but not in its application to the facts in those two cases, which had been theretofore announced in other cases on facts suitable^ viz. that one against whom testimony 'has been wrongfully admitted has the right to meet it and rebut it and overcome it. None of those cases, and in fact no others known to us, hold that the accused can admit the truth of the very testimony to which he is objecting and thereafter claim injury or hurt of a reversible character arising by virtue of the admission -of the testimony originally objected to. The very fact that the judge who wrote in the Moore' and Brown Cases, supra, was a member of this court when many opinions in consonance with our holding here were written, and some of which were written by hiin, further leads us to conclude that he did not intend his holding in .those cases to be taken in the manner in which it is here insisted upon by appellant. The rule announced in this case seems to have been uniformly adhered to from the beginning. In West v. State, 2 Tex. App. 460, this court said:

“We can see no injury that was done by the admission of this evidence. The same facts had already been testified to by two witnesses, and allowed to go to the jury without objection.” •

So also, in Walker v. State, 17 Tex. App. 16. In Johnson v. State (Tex. Cr. App.) 26 S. W. 504, it is said:

“Whether the court erred, or not, in admitting the statement of * * * Johnson, is immaterial in the consideration of this case, because the appellant himself took the stand in his own behalf, and testified substantially to the same facts.”

The opinion preceding this one in the book was written by the writer of the opinions in the Moore and Brown Oases, supra. In Stephens v. State (Tex. Cr. App.) 26 S. W. 728, the writer of the opinions in the Brown and Moore Oases, writing for this court, said:

“This evidence was properly admitted. But, if not, the appellant took the stand, and on his direct examination testified to the same evidence, and reiterated it on cross-examination.”

In Rogers v. State, 26 Tex. App. 404, 9 S. W. 762, it is said:

“The objections to this testimony were that the ownership of Mary Gandy must be proved by deed or other written evidence of title, and that Skipper’s testimony as 'to her ownership was merely hearsay. It is a sufficient answer to this supposed error to say that the ownership of Mary Gandy of the house in question is sufficiently established by other testimony adduced on the trial without objection on the part of the defendant.”

Numerous opinions of this court from the date of .the above down to the present might be cited, all holding in line with what we have here said. If anything in the opinions in the Moore and Brown Cases, supra, is contrary to the opinion here expressed, same will be overruled.

The motion for rehearing is overruled.
      €=For other cases see same topic and KBT-NUMBEB in all Key-Numbered Digests and Indexes


author: MORROW, P. J.. LATTIMORE, J.

text:
    RIDDLE v. STATE.
    (No. 11362.) .
    Court of Criminal Appeals of Texas.
    Feb. 1, 1928.
    Rehearing Denied March 28, 1928.
    I.Intoxicating liquors @=229 — Where defendant had knowledge of unlawful act, ownership of automobile is inconsequential in determining guilt of transporting liquor.
    In prosecution for transporting intoxicating liquor, ownership of automobile in which liquor was transported is inconsequential, where defendant’s knowledge of unlawful act was evident.
    2. Intoxicating liquors 138 — Defendant may be convicted of transporting liquor, where journey was interrupted by officers’ pursuit or ended or begun at point where arrest was made (Pen. Code 1925, art. 666).
    Defendant may be guilty of transporting intoxicating liquor under Pen. Code 1925, art. 666, where journey was interrupted by pursuit by officers or ended or begun at point where arrest was made, since in each case legal effect was the same.
    3. Criminal law @=814(17) — No charge on circumstantial evidence is necessary unless evidence is wholly circumstantial.
    Unless evidence in prosecution for transporting liquor is wholly circumstantial, no charge on law of circumstantial evidence is necessary.
    4. Criminal law @=665(4) — Permitting officer to testify while witnesses were under rule held not abuse of discretion (Code Cr. Proc. 1925, art. 644).
    Court held not to have abused discretion in permitting officer to give testimony while witnesses were under the rule under Code Or. Proc. 1925, art. 644.
    5. Intoxicating liquors @=229 — In liquor prosecution testimony witness, saw defendant where automobiles were parked and found where fruit jars had been left held competent on intent and refusal to eliminate by instruction not error.
    In prosecution for transporting liquor, refusal to instruct jury to disregard testimony that witness had seen defendant where automobiles were parked and had examined ground and' found where fruit jars had been left held not error, since such testimony was circum-: stance showing defendant’s intent and course of conduct with reference to transaction in question, and court did not err in refusing to single out such fact and instruct jury to disregard it.
    6. Criminal law <§=814(6) — Where evidence presented no affirmative issue touching defendant’s knowledge of unlawful act, refusal of charge on subject of want of knowledge was not prejudicial error.
    Where in prosecution for transporting intoxicating liquor there was no affirmative issue presented by evidence touching defendant’s knowledge of unlawful act in question, refusal to give special charge on subject of want of such knowledge was not prejudicial error.
    On Motion for Rehearing. ‘
    7. Criminal law <§=814(17) — Instruction on circumstantial evidence held properly refused under evidence in prosecution for transporting liquor.
    Refusal of charge on circumstantial evidence held not error in prosecution for transporting liquor, in which it was shown that when car in which defendant was riding was intercepted by officers, defendant took fruit jar of whisky from car and broke it.
    8. Intoxicating liquors @=236(20) — Evidence held sufficient to support conviction for transporting liquor.
    In prosecution for transporting intoxicating liquor, evidence that when officers overtook ear in which defendant was riding defendant took jar of whisky from car and broke it lietA sufficient to support conviction.
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    Joe Riddle was convicted of transporting liquor, and lie appeals.
    Affirmed.
    Sturgeon & Sturgeon, of Paris, for appellant. v
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J..

The conviction is for unlawfully transporting intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

Some days before the arrest, appellant was observed by the witness, Mrs. Grishom, near her house and seen carrying fruit jars from one automobile and placing them in another. She testified that she telephoned to Officer Gann, but did not disclose the purport of the message or its date. On the day of the transaction on-^hich this prosecution rests, Officers Gann and Robison stationed themselves in an automobile near the Grishom home, and while there, observed an automobile approaching. It was turned aside into another road and followed by the officers mentioned. The car mentioned was stopped by the persons occupying it, and two of them, appellant and Ray, got. out of the ear and stood upon the ground. Keith remained in the car until the officers reached it. When the officers came to a point a few feet from the car, appellant reached it, seized a jar, and broke it. on the door of the car. There was liquid in the jar which-, according to Gann and Robison, had the odor and taste of whisky. Ray claimed to own the car.

The direct evidence unequivocally connects the appellant with the possession of the whisky and an effort to destroy the evidence against him and his companions. By direct evidence he is connected with the automobile from which the whisky was taken. Manifestly, the whisky was either transported in the automobile in which he was riding or it was placed in the car at the point where the car was stopped for the purpose of carrying it away. Appellant’s knowldege of the unlawful act being evident, the ownership of the car was inconsequential. See Riojas v. State, 102 Tex. Cr. R. 258, 277 S. W. 640. If the journey was interrupted by the pursuit by the officers or ended or begun at the point where the arrest was made, the legal effect was the same. Article 666, P. O. 1925; Lamb v. State, 95 Tex. Cr. R. 457, 255 S. W. 424; Wade v. State, 103 Tex. Cr. R. 628, 281 S. W. 1049. Unless the evidence was wholly circumstantial, no charge on the law of' circumstantial evidence was necessary. In refusing such a charge, no error was, in our judgment, committed.

The complaint that while the witnesses were under the rule the court permitted an officer to give testimony reveals no abuse of the court’s discretion. Article 644, O. O. P. 1925; Vernon's' Ann. Tex. Grim. Stat. 1925 (Code Or. Proc.) vol. 2, pp. 82, 83; Dobbs v. State, 94 Tex. Cr. R. 398, 251 S. W. 1057.

, The complaint of the testimony of the witness Mrs. Grishom to the effect that a day or two before the present transaction, she had seen the appellant near her house transferring a fruit jar from one car to another seems to relate to its weight rather than its admissibility.

There was a request to instruct the jury that they, must disregard the testimony of Mrs. Sam Grishom to the effect that she had seen the appellant near her home on several occasions where different automobiles had been parked; that she had examined the ground and found where fruit jars had been left. This testimony was a circumstance tending to show the intent of the appellant and his course of conduct with reference to the particular transaction in question, and the court was not in error in refusing to single out that fact and instruct the jury to disregard it. There being no affirmative issue presented by the evidence touching his knowledge of the unlawful act in question, the refusal of the court to give a special charge upon the subject of his want of knowledge was not prejudicial error.

The evidence is deemed sufficient to support the verdict, and an affirmance is ordered.

On Motion for Rehearing.

LATTIMORE, J.

We have reviewed the record in1 the light of appellant’s contentions in his motion. Appellant introduced no testimony. Mr. Gann and Mr. Robison swear positively that they saw appellant and two others drive in a car to a certain point, at which point they ' were intercepted. They did not see the officer until he was close to them. Immediately upon seeing him, appellant, in the language of Robison, “reached over in the car and grabbed up a fruit jar of whisky” and broke it on the side of the car. This testimony fixes beyond the possibility of dispute the transportation of the whisky, appellant’s knowledge of the fact that it was in the car, and the. fact that appellant was himself an occupant of said car. This seems to put the question of his guilt beyond the pale of circumstantial evidence. The conviction was for transporting. Both state witnesses testified that when the jar was broken they smelled whisky, ■ and Mr. Gann got some of it up from the running board of the car and tasted it and said it was whisky.

We are unable to agree with appellant’s contention that we erred in our former opinion holding the case not one on circumstantial evidence. We are of opinion the facts are amply sufficient to show the guilt of the accused.

The motion for rehearing will be overruled.
      <@=pFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HAWKINS, J. MORROW, P. J.

text:
    TURNER v. STATE.
    (No. 11275.)
    Court of Criminal Appeals of Texas.
    Feb. 8, 1928.
    Rehearing Denied April 4, 1928.
    1. Criminal law ¡@=>741(1) — Where evidence other than confession showed burglary, defendant held not entitled to directed verdict for lack of corroboration of confession.
    In prosecution for burglary where evidence other than confession showed burglary was committed, by some one, defendant was not entitled to directed acquittal for lack of corroboration of confession.
    2. Criminal law ¡@=>535(2) — Where other evidence shows crime, confession is sufficient to show connection of party making it with crime.
    Where other evidence shows some one committed crime, confession is sufficient to show connection of party making it with crime.
    3. Criminal law ¡@=>1090(7) — Without bill of exceptions, refusal of continuance is not reviewable on appeal from conviction.
    Without bill of exceptions, refusal of motion for continuance or postponement is not reviewable on appeal from conviction.
    4. Criminal law ¡@=>534(2) — Evidence that shoes were found near place where defendant accused of burglary confessed she threw them held to make confession admissible (Code Cr. Proe. 1925, art. 727).
    In prosecution for burglary, evidence that shoes were found by third person near place where defendant confessed. she threw them made such confession admissible under Code Cr. Proe. 1925, art. 727, especially in view of fact that defendant’s written confession properly in evidence, contained statement about throwing property from car at place in question.
    5. Criminal law ¡¾=>534(2) — To render confession admissible, fruits of crime need not be found in precise place stated by accused, if traced directly therefrom to locality where found under proper circumstances (Code Cr. Proe. 1925, art. 727).
    To make confession admissible under Code Cr. Proe. 1925, art. 727, it is not necessary that fruits of crime be found in exact place stated by accused, if they were traced therefrom to locality where found, showing that they had been moved from where left by accused.
    6. Criminal law ¡@=>1169(12) — In prosecution for burglary, admitting statement in written confession that defendant left certain place in car which had been stolen held not reversible error in view of evidence.
    In prosecution for burglary, where evidence showed that on trip in which burglary took place, defendant and those who accompanied her had abandoned three automobiles at different points and secured others, admitting in written confession statement that defendant left certain town in stolen automobile was not reversible error.
    7. Criminal law <@=>982 — Where defendant, prosecuted for burglary, applied for suspended sentence, admitting evidence of her general bad reputation held proper.
    , In prosecution for burglary in which defendant filed application for suspended sentence, admitting evidence that her general 'reputation as peaceable, law-abiding citizen was bad was proper.
    8. Criminal law ¡@=>982 — Where suspended sentence was asked, state cross-examining witness testifying to defendant’s good reputation could ask if he had not heard of acts by defendant showing bad character.
    In prosecution for burglary in which defendant asked for suspended sentence, state in cross-examining witness testifying to her good reputation could properly ask witness if he had not heard of acts by defendant inconsistent with character witness was called to prove.
    9. Criminal law ¡@=>730(13) — Op application for suspended sentence, state’s cross-examining defendant’s character witness as to knowledge or information that defendant was charged with certain offenses held not reversible error in view of admonition.
    In prosecution for burglary in which defendant asked suspended sentence, state’s asking, on cross-examination of defendant’s character witness, whether he did not know as fact or rumor that defendant had been charged with vagrancy and breaking quarantine from syphilitic hospital, to which court sustained objection, held not to call for reversal in view of direction to jury to disregard question.
    10. Criminal law ¡@=>730(12) — District attorney’s argument that jury should not turn defendant, menace to health of society, loose, held not reversible error in view of admonition.
    In prosecution for burglary in which defendant asked suspended sentence, district attorney’s argument that jury should not turn defendant loose as she was menace to health of society, in view of prompt objection and court’s instructing jury to not consider such statement, held not to call for reversal of conviction.
    Appeal from District Court, Williamson County; Cooper Sansom, Judge.
    Jewell Turner was convicted of burglary, and she appeals.
    Affirmed.
    W. H. Nunn, of Georgetown, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for burglary, punishment being four years in the penitentiary.

This is a companion case to Turner v. State (No. 11279) 1 S.W.(2d) 642, and Hamilton v. State (No. 11296) 1 S.W.(2d) 887, recently decided. The facts testified to by the accomplice witness are fully set out in the opinion in those cases. Practically the same facts appear in the present record but come through appellant’s written confession which was taken under the formalities required by law. The confession shows appellant’s guilt as a principal in the burglary.

There is no merit in appellant’s contention that an acquittal should have been directed because there was no corroboration of the confession. That a burglary was committed by some one is shown by other evidence than the confession. It has been the uniform holding that in such case the confession is sufficient to show connection of the party making the confession with the crime. Silva v. State, 102 Tex. Cr. R. 415, 27 S. W. 216; Aven v. State, 95 Tex. Cr. R. 160, 253 S. W. 521; Willard v. State, 27 Tex. App. 391, 11 S. W. 453, 11 Am. St. Rep. 197; Lyles v. State, 91 Tex. Cr. R. 127, 237 S. W. 558; Sullivan v. State, 40 Tex. Cr. R. 633, 51 S. W. 375; Gandy v. State, 99 Tex. Cr. R. 643, 271 S. W. 97. See Branch’s Ann. Tex. P. C. § 1890, for collation of further authorities.

A motion for continuance or postponement was made, but no bill of exception is found bringing forward complaint based upon the action of the court in overruling it. Without such bill we are precluded from reviewing the question. Martin v. State, 92 Tex. Cr. R. 124, 242 S. W. 234; Miller v. State, 93 Tex. Cr. R. 163, 246 S. W. 87. S'ee Branch’s Ann. Tex. P. C. § 304.

Mr. Bigham, the sheriff of Bell county, was permitted to testify over objection that appellant while under arrest told him where some of the property taken from the burglarized store had been thrown out of an automobile in a certain lane near Waco, and that appellant went with witness and pointed out the place. No property was found in the lane, but when found by the officer it was in possession of a Mr. Priekette. The objections urged were that the property was not found where appellant said it had been . thrown out of the car, and was not found as a result of such information, but had already been discovered before appellant made the statement, and therefore did not come within article 727, C. O. P., which-permits a confession to be used although made while accused is under arrest if in connection with the confession accused makes statements of facts or circumstances that are found to be true, which conduce to establish guilt; for example, such as the finding of stolen property. It appears from the record that the witness Priekette found eight new shoes at or near the place in the lane which appellant pointed out to the officer. Priekette had taken them to his house. As to the actual recovery of the shoes the sheriff testified:

“I know Mr. Priekette and had a conversation with him while this defendant was pres- ' ent, and recovered the goods from Mr. Prick-ette. * * * I found Mr. Priekette in proximity to the place or road where Jewell said she threw out the goods, and she showed me the place where she said they threw the goods out of the car.”

The facts seem to bring this transaction within the rule announced in Daggett v. State, 39 Tex. Cr. R. 5, 44 S. W. 148, 842. It is not necessary that the fruits of the crime be found in precise place stated by accused, provided they were traced directly from that place to the locality where found under circumstances showing that they had been moved from where they had been left by accused. Upon the same point, see Zumwalt v. State, 5 Tex. App. 521; Ortiz v. State, 68 Tex. Cr. Rep. 524, 151 S. W. 1056; Allison v. State, 14 Tex. Cr. App. 127. Even if the propriety of admitting the evidence complained of. was doubtful, it would not under the facts of this case present a serious question. In appellant’s written confession which was properly in evidence appears the same statement about throwing the property from the car into the lane.

The written confession of appellant begins with the statement that she and her companions (naming them) left Waco in a car ‘‘which had been stolen.” Appellant objected to that portion of the statement which is italicised on the ground that the theft of the car in question was a different offense than the one on trial, that the car had been stolen before they left on the trip during which the burglary occurred, and that no connection was shown between the theft of the car and the burglary. If appellant was in any way connected with the theft of the car in which the parties started on their journey it is not shown. The statement complained of only goes to the. extent of showing that she had knowledge of the theft. We think it unnecessary to discuss the bill at length. The confession further shows that appellant and her companions went to S'an Antonio; that it was upon 'the return trip the burglary in Williamson county occurred; that on account of various mishaps on the road the parties had abandoned at different points three cars and secured others, the inference being plain that all three had been stolen by some of appellant’s companions with her knowledge. This being true, we regard it of slight importance that the jury was informed that appellant knew the car in which they left Waco had also been stolen.

The court properly admitted evidence that appellant’s general reputation as a peaceable, law-abiding citizen was bad. She placed her reputation in issue by filing an application for suspended sentence. Overby v. State, 92 Tex. Cr. R. 172, 242 S. W. 213; .Shirley v. State, 93 Tex. Cr. R. 537, 248 S. W. 692, and authorities therein collated.

A witness placed on the stand by appellant testified to her good reputation. On cross-examination the state under such circumstances could properly ask the witness if he had not heard of acts on appellant’s part inconsistent with the character he was called to prove. Underhill, Cr. Ev. (3d Ed.) § 82; Johnson v. State, 91 Tex. Cr. R. 582, 241 S. W. 484.

On cross-examination of appellant’s character witness , the state propounded the following question:

“Don’t you know it is a fact, or that it is a rumor in Waco, that she (referring to appellant) was charged on the 1st day of October, 1925, with an offense involving moral turpitude, to wit, vagrancy, on the 5th day of October, 1925, with breaking quarantine from a syphilitic hospital, and on the 26th day of January, 1926. * * * ”

Objection apparently prevented the completion of the question, and the court deeming it improper sustained the objection and directed the jury to disregard it. During argument the district attorney used this language, “Would you turn her loose — a menace to the health of society?” No information is furnished by the bill as to the setting of the language complained of, but it does appear that promptly upon objection being interposed the court instructed the jury to disre: gard and not consider the statement. The incidents complained of do not appear to have been so obviously harmful that the prompt action of the court did not cure any error which may have occurred.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

In an oral argument and written motion citing many statutes and decisions, counsel for the appellant earnestly insists that the action of the court in overruling his application for a continuance should be considered, notwithstanding there appears in the record no bill of exceptions reserved to the action of the court in refusing to grant the motion. He cites articles 667 and 841, O. C. P., 1925; articles 2237, 227S, and 2281, R. S. 1925; also Holmes v. Coalson (Tex. Civ. App.) 178 S. W. 628; Steel v. State, 55 Tex. Cr. R. 551, 117 S. W. 850.

The proposition that the appellate court cannot review the action of the trial court in overruling an application for a continuance in the absence of a bill of exceptions has not only been repeatedly announced by this court and the Supreme Court of this state, but the decisions rest upon what has heretofore been and is now considered very sound reason. Prom the opinion of Judge White in the case of Nelson v. State, 1 Tex. App. 41, we quote:

“The former decisions of our courts, from the earliest days down to the present, make the saving of a bill of exceptions a prerequisite and sine qua non to revisory action by the appellate court. Nor is the failure to do so remedied (as in this case) by incorporating the action of the lower court in the judgment rendered. Among the many authorities, the following are cited, viz.: Campion v. Angier, 16 Tex. 93; Parker v. McKelvain, 17 Tex. 159; Cotton v. State, 32 Tex. 640; Bowman v. State, 40 Tex. 8; Jones v. State, 40 Tex. 188; Townsend v. State, 41 Tex. 134; Anderson v. State, 42 Tex. 390; and State v. Williamson, 43 Tex. 500.”

Prom the opinion of Judge Wheeler in the first ease cited above by Judge White (Camp-ion v. Angier), the following quotation is taken:

“The correct' practice, doubtless is, in no case to revise the judgment of the court, refusing a continuance, unless the party seeking a reversal on that ground, has reserved the point by á bill of exceptions. It not unfrequently happens that we would be at a loss to discover upon what ground a continuance has been refused, were it not for reasons contained in the bill of exceptions. When called upon to sign a bill of exceptions, the court may state very satisfactory reasons, apparent to the court there, which would not otherwise be made to appear to this court; as, that the evidence sought was, in fact, within the reach of the party (Hall v, York [16 Tex. 18] supra), or there was evidence before the court that the afEdavit was not, 'in fact, true.”

These announcements have been followed in almost innumerable instances, and so far as we are aware, there has been no departure or deviation. See Branch’s Ann. Tex. P. 0. § 304; Vernon’s Tex. Grim. Stat. 1916, vol. 2, p. 527, note 2, and page 529, note 5. The overruling of an application for a continuance may be justified upon many grounds which are not apparent upon the motion. An attempt to enumerate all of them would be futile, because they are as variant as the facts developed upon the trial. Illustrations may be given as follows: The witness named in the application for a continuance may have appeared during the trial. Whether used as a witness or not, any error in overruling the bill would be cured, but the court, on appeal, would not know it unless a bill of exceptions was taken upon which the trial court might state, by way of explanation or otherwise, the facts which justified or rendered harmless his action. So, the same would be true if in the development of the case the absent testimony was rendered immaterial, cumulative, or false. These matters and countless' others would only appear through a bill of exceptions. It would seem unnecessary, however, in a practice well established and to which adherence has been so constant and so long, to argue its soundness. It may be added, however, that the purported absent, testimony, as set out in the motion for a continuance, was not, in our opinion, relevant or material.

The motion is overruled.
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HAWKINS, J.

text:
    McKINNEY v. STATE.
    (No. 11411.)
    Court of Criminal Appeals of Texas.
    March 7, 1928.
    Criminal law <©=>!099(6)— Unexplained failure to file statement of facts within 90 days granted held to prevent consideration of statement on appeal.
    Statement of facts, not filed within 90-day period granted for filing, could not be considered on appeal, where no excuse for delay was shown.
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.
    John McKinney was convicted of murder, and be appeals.
    Affirmed.
    Harvey P. Sbead, of Port Worth, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for murder; punishment being assessed at 99 years in the penitentiary. No bills of exception complaining of any proceedings during the trial are found in the record.

The motion for new trial was overruled on the 28th day of June, and 90 days granted for filing statement of facts and bills of exception. The 90 days expired on the 26th day of September. The statement of facts was filed in the lower court on the 18th day of October. No excuse for the delay is shown. Under such circumstances, the statement of facts cannot be considered.

In the condition we find the record, nothing is presented for review, and the judgment must be affirmed, and it is so ordered.


text:
    ELLIOTT v. STATE.
    (No. 11219.)
    Court of Criminal Appeals of Texas.
    March 14, 1928.
    Burglary @=46(I) — Accused who was present near scene of burglary held entitled to affirmative charge that presence was insufficient to sustain conviction.
    In prosecution for burglary, where accused at time of apprehension was present near place at which another was handling quantity of paint, some of which was identified as having come from burglarized premises, but accused did not handle paint, and there was no testimony that he broke into house or was actually present when same was burglarized, held, that accused was entitled to affirmative charge that his mere presence at time and place of commission of offense was insufficient to sustain conviction.
    Commissioners’ Decision.
    Appeal from District Court, -Tom Green County; J. E. Sutton, Judge.
    Mack Elliott was convicted of burglary, and be appeals.
    Reversed.
    Stinson, Hair & Brooks, of Abilene, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, burglary; penalty, two years in the penitentiary.

A building was burglarized and a quantity of paint taken. Appellant! and • one Tom Seale were apprehended in the vicinity of the building and in close proximity to a quantity of paint, some of which was identified as having come from the burglarized premises. At the time of such apprehension Tom Seale was handling this paint. His car stood nearby. Appellant did not handle the paint, and there was no direct testimony that he broke into the house or was actually present when same was burglarized. The state depended mainly upon the circumstance immediately above related.

Appellant’s testimony, which was corroborated in part by two other witnesses, was to the effect that he had gone with Tom Seale, to the point where he and Seale were apprehended, for the purpose of taking a drink with Seale; that he knew nothing of the burglary nor of the presence of the paint in his vicinity; that he never claimed same nor was same ever in his possession or handled by him. Under these circumstances, the appellant claimed that he was entitled to an affirmative charge that his mere presence at the time and place of the commission of the offense would be insufficient to sustain a conviction.

The court charged on principals only. The converse of the law of principals was not charged, nor did the court anywhere instruct the jury that the mere presence of the appellant at the time and place of the burglary would not justify his conviction unless the evidence shows that he did some act aiding, abetting, assisting, or encouraging the person who did commit it.

Under a state of facts very similar to the instant case, such a charge was held to be necessary. Jackson v. State, 20 Tex. App. 190. Firom this authority we quote:

“Although a man may be present whilst a felony is committed, if he take no part in it and do not act in concert with those who committed it, he will not be a principal merely because he did not endeavor to prevent the felony or apprehend the felon. Whether he was aware of the intention of his companion and participated in it is the fact to be proved in order to implicate him in the criminality of the act.”

And further:

“From the proposition that mere presence at the commission of a crime does not render a person guilty it results that if two or more are lawfully together, and one does a criminal thing without the concurrence of the' others, they are not thereby involved in guilt.”

This authority was followed recently by Justice Lattimore in the case of Wise v. State, 104 Tex. Cr. R. 327, 283 S. W. 792. See, also, Nowlin v. State, 60 Tex. Cr. R. 356, 132 S. W. 800; Davis v. State, 66 Tex. Cr. R. 659, 148 S. W. 303.

This was the only defense relied on by appellant, and the court’s failure to include an affirmative presentation of it in his instructions constitutes error which demands a reversal of this case, and it is so ordered.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.
      @=>For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


text:
    NICHOLS v. STATE.
    (No. 11349.)
    Court of Criminal Appeals of Texas.
    March 7, 1928.
    Criminal law <§=>394 — Evidence obtained by search of defendant’s residence under warrant issued on complaint without averments of facts showing probable cause held inadmissible.
    In prosecution for possessing liquor for sale, evidence obtained by search of defendant’s residence under warrant issued on complaint containing no averment of any fact shojving probable cause held inadmissible.
    Commissioners’ Decision.
    Appeal from District Court, Hardin County ; Geo. C. O’Brien, Judge.
    Henry Nichols was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Reversed and remanded..
    Coe & Briggs, of Kountze, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, the possession of intoxicating liquor for the purpose of sale; penalty, one year in the penitentiary.

Evidence was introduced over proper and timely objection that whisky was found in appellant’s residence. The officer who gave this testimony was operating under an invalid search warrant issued upon a complaint containing no averment of any fact Showing probable cause, all of which appears by proper bill of exception. This case is ruled by that of Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095, which has been uniformly followed by this court since its rendition.

The judgment is reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: MORROW, P. J.

text:
    BENNETT v. STATE.
    (No. 11375.)
    Court of Criminal Appeals of Texas.
    March 7, 1928.
    1. Husband and wife <§=>304 — Even if wife’s dissatisfaction with husband’s provision for family warranted separation, failure better to provide would not necessarily be criminal' (Pen. Codte 1925, art. 602).
    Even if wife’s dissatisfaction with manner in which husband was providing for family was just and warranted separation, failure to provide better would not necessarily constitute criminal offense, under Pen. Code 1925, art. 602.
    2. Husband and wife <§=>302 — Statute denounces “willfully” failing to provide for wife or minor children, not absence of ability to provide (Pen. Code 1925, art. 602).
    Pen. Code 1925, art. 602, does not denounce husband and father’s absence of ability to maintain wife or minor children, but “willfully” failing to maintain them, which means with evil intent, with legal malice, or without reasonable ground for believing act in question to be lawful.
    [Ed. Note. — For other definitions, see "Words and Phrases, First and Second Series, Willful— Willfully.] '
    3⅛ Husband and wife <§=>313 — Burden is on state to show husband and father’s failure to provide for wife and children is willful (Pen. Code 1925, art. 602).
    In prosecution under Pen. Code 1925, art. 602, for failure by husband and father to provide for wife or minor children, state has burden to prove that such neglect was willful. •
    4. Husband and wife <§=>313 — Evidence showing only lack of ability to provide for wife and minor children does not justify conviction for willful failure to provide (Pen. Code 1925, art. 602).
    State’s evidence showing only lack of ability of husband and father to provide for wife and minor children does not justify conviction, under Pen. Code 1925, art. 602, denouncing willful failure to provide.
    5. Husband and wife <§=>313 — Evidence of willful failure to provide held insufficient to support conviction for wife and child desertion (Pen. Code 1925, art. 602).
    Evidence of willful failuré of husband and father to provide held insufficient to sustain conviction for wife and child desertion, under Pen. Code 1925, art. 602.
    Appeal from County Court at Law, Harris County; Ben F. Wilson, Judge.

      Frank Bennett was convicted of wife and child desertion, and he appeals.
    Reversed.
    A. Ij. Shaw, of Beaumont, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Wife and child desertion is the offense; punishment fixed at a fine of $100 and confinement in the county jail for a period of 30 days.

The offense is.thus defined:'

“Any husband who shall willfully desert, neglect or refuse to provide for the support and maintenance of his wife who may be in destitute or necessitous circumstances, or any parent who shall willfully desert, neglect or refuse to provide for the support and maintenance of his or her child or children under sixteen years in destitute or necessitous circumstances, shall be fined not less than twenty-five nor more than five hundred dollars or be imprisoned in jail not more than one year, or both.” Article 602, P. O. 1925.

The evidence in the case consists of the testimony of Anna Bennett, wife of the appellant. She testified that the marriage took place in 1920; that there were two children; and that the birth of another was expected. In February, 1927, the prosecutrix, because of sickness, went to a hospital, and upon leaving there, went to the home of her mother. Prior to that time she and the appellant had lived together in the city of Houston, and he lived there at the time of her leaving. It is apparent from the testimony that the cause of her leaving her husband was his failure to earn sufficient money to maintain the family in the manner desired. He was a carpenter and when engaged, which was only part of the time, his earnings amounted to $85 per month. From her testimony we quote:

“I left and went to my mother’s because I was not able to work, and did no! have anybody to work, and he did not make .money enough to get somebody to do the work for me.”

She said that there was food provided, but not of the kind suitable for her condition; that he did not give her clothes because he did not have any money; that the children were clothed, but received their clothing from his mother; that the appellant had credit with the grocer, but did not pay promptly. She also said:

“When I went to my mother’s, I took the children with me. He took us there. He wanted me to stay at home. He said he would get a nurse to take care of me, but he did not have ‘ the money. I knew he did not have the money. I said: ‘Mamma, can take care of me, and it won’t cost us anything, and I want to go there because I know she knows what to do.’ ”

Soon after the marriage they purchased on credit a lot and built a small home on it. They bought household goods on the installment plan, but the payments were not kept up, and the furniture had to go back. When she asked him for money for the children, he said he had none, but later gave her $24.

We learn from her testimony that after she had remained in her mother’s home for a time, they divided their property and lived apart; that on the 14th day of March, 1927, she instituted suit for divorce. The indictment was returned the following day.

The court submitted to the jury the several charges embraced in the indictment; that is, the willful neglect of the wife and each of the children, and the verdict was responsive to that charge. It would seem from the evidence that there is little justification for the claim that the appellant’s acts towards his wife were criminal. From her testimony, the separation was due to her dissatisfaction with the manner .in which her husband was able to maintain her. Her dissatisfaction may have been just and warranted separation, but it would not follow that his failure to better provide for his family was criminal. It is the willful neglect that is denounced by the law. “Willfully” means with evil intent, with legal malice,' or without reasonable ground for believing the act to be lawful. Branch’s Ann. Tex. P. O. ■§ 2205; Thomas v. State, 14 Tex. App. 204; Henderson v. State, 53 Tex. Cr. R. 533, 111 S. W. 736. It is not the absence of ability to maintain those dependent upon him, but the neglect must be willful and without justification, which the law denounces. See Smith v. State, 97 Tex. Cr. R. 565, 263 S. W. 913; Morgan v. State (Tex. Cr. App.) 300 S. W. 49; Prock v. State, 92 Tex. Cr. R. 494, 244 S. W. 609. The burden is upon the state to show the neglect to be willful. Elms v. State, 99 Tex. Cr. R. 500, 270 S. W. 856. If it goes no further than to show, a lack of ability, the burden is not discharged. See Elms v. State, supra; In the present instance, it seems manifest that there is such dearth of evidence tending to show that the appellant was willfully neglectful that the verdict of conviction should not be permitted to stand. The reversal of the judgment is therefore ordered.
      <§=Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DATTIMORE, J.

text:
    RODRIGUEZ v. STATE.
    (No. 11409.)
    Court of Criminal Appeals of Texas.
    March 7, 1928.
    Rape <§=364 — Death penalty held properly imposed for rape for which defendant pleaded guilty.
    In prosecution for rape, wherein defendant pleaded guilty, evidence, held sufficient to sustain conviction fixing death sentence therefor.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Clemente Rodriguez was convicted of rape, and he appeals.
    Affirmed.
    Matthew Paxton and J. P. Sherwood, both of San Antonio, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   DATTIMORE, J.

Conviction for rape; punishment, death.

There are no bills of exception in this record. The statement of facts consists of the short testimony of two eyewitnesses to this transaction, two witnesses to defendant’s reputation, and one witness to his sanity. The appellant pleaded guilty. The facts are revolting. A 19 year old girl testified that she was riding in a car with her flaneé at night; that appellant and another Mexican stepped on the running boards of the car and by means of the exhibition of a pistol took charge of the car and its occupants. They drove the car a long distance in the country, and there each of said men had repeated acts of Intercourse with the young woman, over her protest. They also robbed her of her money and rings. Her identification, and that of the young man who was with her, and whom she has since married, of the appellant, was .positive. We have carefully considered the facts and are unable to say the jury were not justified in inflicting the extreme penalty of the law.

No error appearing, the judgment will be affirmed.


author: LATTIMORE, J.

text:
    DIXON v. STATE.
    (No. 11257.)
    Court of Criminal Appeals of Texas.
    Feb. 8, 1928.
    Rehearing Denied March 21, 1928.
    I.Criminal law <§=>'598(2) — Refusal of continuance in liquor prosecution because of absence of accused’s wife and another witness held justified, no diligence being shown in procuring either.
    In prosecution for possession of intoxicating liquor for purpose of sale, refusal to grant continuance because of absence of wife of accused ' and another witness held justified, no diligence being shown in securing either of witnesses.
    2. Witnesses <§=3337(5)— Questioning accused testifying in liquor prosecution as to previous indictments for felony held pertinent, answer tending to affect credibility.
    In prosecution for possession of intoxicating ' liquor for purpose of sale, where accused while witness in own behalf was asked how many times he had been indicted for felony within eighteen months next preceding, held, that question was pertinent, since answer that he had been indicted any number of times would have tended to affect his credibility as witness.
    3. Criminal law <§=31091 (4) — Bill setting out objections to testimony, but not verifying truth nor showing that they were well taken, held insufficient.
    On appeal from conviction for possession of intoxicating liquor for purpose of sale bill setting out accused’s objections to testimony as to what officers who searched his premises found held insufficient, there being nothing in bill verifying as true objections to testimony, and no facts stated from which court might infer that objections were well taken.
    4. Criminal law <§=3490'(9), 419¡, 420(12) — Testimony of chemist to analysis of beer held not hearsay or secondary where he wrote result on paper and left it.
    In prosecution for possession of intoxicating, liquor for purpose of sale, admission of testimony of chemist who had analyzed two bottles of beer taken from accused’s place, objected to on ground that witness had stated that he wrote out result of analysis and left it elsewhere, rendering testimony hearsay or secondary, held proper; testimony not being to contents of written document, but to result of chemical analysis óf liquor.
    5. Criminal law <S=> 1092(II) — Appellate court v/ill not consider objection was taken to court’s qualification of bill's of exception, in absence of certificate of court below to that fact.
    Where qualifications of bills of exception by court were followed by notation over signature of accused’s attorney that qualifications were excepted to, but in none of instances was there any certificate of court below to fact that such exceptions were made, held, that, since there was no certificate of court. that qualifications were excepted to, appellate court would not consider such fact as true.
    • Appeal from District Court, Angelina County; O. A. Hodges, Judge.
    J. J. Dixon was convicted of possessing intoxicating liquor for purpose of sale, and he appeals.
    Affirmed.
    J. J. Collins and R. C. Musslewhite, both of Lufkin, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

Appellant ran a barbecue stand ón a public highway. Search of this place disclosed the presence of 158 bottles of beer, some of which was submitted to a chemist for analysis who testified fully to the alcoholic content of same. In an old chicken house about 50 yards from appellant’s place 9 gallons of whisky were also discovered. Chickens were roosting in this house, and appellant admitted that they might be his. A small privy or toilet was located close to the chicken .house. Appellant’s wife was seen in and around the privy near the chicken house. Appellant admitted the privy was his, and a path or trail and tracks led from appellant’s place to the chicken house where the whisky was stored.

Appellant sought a continuance because of the absence of his wife and one Purvis. Finding nothing in the record disclosing whether said continuance sought was the first or a subsequent one, we assume it to be the latter. No sort of diligence is shown as to either of said witnesses. . Purvis was a state witness, and it is stated in the application that a subpoena had been issued for biim in November, 1926, and that appellant believed said subpoena had been served upon witness. Copies of no process were attached to t-he application. The case was tried in April, 1927. The issuance of no subsequent process for said witness was shown. As to appellant’s wife, it was admitted in the application that she had not been served with any process, appellant stating that he had expected her to be present and testify, but that she was ill. It was stated that she was in an adjoining county to that in which the trial was had. No certificate of any physician supporting the fact of illness on the part of the wife was attached to the motion for continuance. Appellant testified in the ease and made no statement in his testimony showing that his wife was ill. No affidavit of the witness was appended to the motion for new trial, nor was there any further effort made to satisfy the court below that said witness was in truth and in fact in such condition as that she could not be present at the trial, nor that her testimony as stated in the application for continuance was true. We think the court entirely justified in overruling the motion for continuance and the motion for new trial based in part upon the refusal of the continuance.

Bill of exceptions No. 2 sets out that the state offered in evidence 2 of the bottles of beer, the contents of which had been examined and testified to by the chemist. Upon objection by appellant, the court declined to admit the 2 bottles of liquor in evidence. Thereafter appellant withdrew his objection, but the state declined to reoffer the bottles. Thereupon appellant offered same, and, the state objecting, the court declined to permit said bottles in evidence. We find nothing in the bill of exceptions supporting any proposition of injury on the part of appellant, or-setting forth any sufficient reason why the bottles should have been admitted as defensive testimony.

Bill of exceptions No. 3 sets out that objection was made to a question to appellant while a witness in his own behalf asking how many times he had been indicted for a ‘felony within 18 months next preceding. We think the question pertinent. An answer that he had been indicted any number of times for a felony within the time mentioned, would have tended to affect his credibility as a witness. The admission of five felony indictments pending against appellant was not a proper subject for the objection appearing in bill of exceptions No. 4.

Bill No. 5 sets out appellant’s objection to testimony as to what was found by the officers who searched appellant’s premises on the occasion in question. The objections made are fully set out in the bill, but nothing therein verifies as true such objections, and no facts are stated from which this court may infer that the objections were well taken. The authorities are numerous and uniform holding such bill to be insufficient.

Another complaint is made of the admission of the testimony of the chemist who analyzed .the 2 bottles of beer taken from appellant’s place. Based on the fact that said witness stated that he wrote out the result of his analysis and had left it at some place in Fort Worth, his statement as to the alcoholic content of the liquor ascertained by his examination thereof was objected to as hearsay and secondary. The objection was without merit. The witness was not called on to testify to the contents of any absent written document, but on- the contrary was asked to state what result he obtained from a chemical analysis of the liquor in question. The fact that he made out a written report of his findings and that same was at some place other than that of the trial did not make his testimony subject to objection.

We find one or two of the bills are qualified by the statement of the trial court that he does not certify to the correctness of the facts stated save as same are shown to be true by the record. The particular bills so qualified in this individual case were not of such character as to give the court any great amount of trouble, but.it is suggested that qualifications of this kind should be avoided, as in many cases the court might be compelled to review the entire statement of facts as well as the rest of the record in an effort to ascertain whether .the facts stated in the bill of exceptions are sustained by the record. We also observe that the qualifications of the court to some of the bills are followed by a notation over the signature of appellant’s attorney that the qualifications are excepted to. In none of these bills is there any certificate of the court below to the fact that such exceptions were made. Unless there is a certificate of the court that the qualifications, were excepted to, this court will not consider such fact as true.

Finding no error in the record, the judgment will be affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GILES v. STATE.
    (No. 11206.)
    Court of Criminal Appeals of Texas.
    March 7, 1928.
    1. Criminal law @=>422(2) — Admission of district attorney’s testimony that one indicted for complicity with defendant had been acquitted, but was reindicted, held error.
    In prosecution for theft, admission of testimony of district attorney that man indicted for complicity in theft with defendant had been acquitted under instructions from court, but that he had been reindicted, held error; the testimony being irrelevant.
    2. Criminal law @=31092(1I) — 'Trial court may not qualify bill of exceptions by matters not transpiring during trial or immediately connected therewith.
    Trial court has no- right to qualify bill of exceptions by statement of matters known personally to the judge which did not transpire during the trial or were in no manner immediately connected therewith.
    3. Criminal law. @=>1092(11) — 'Trial court should refuse to approve bills of exception not properly reflecting record, but qualification over objection and exception cannot be considered.
    Where hills of exception are presented which do not properly present the record, trial court should refuse to approve them, but court’s qualification of such bill over proper objection and exception cannot be considered.
    4. Criminal law @=>649(3) — Where defendant’s counsel1, delayed by trial elsewhere*, wired and phoned asking half day’s postponement, and arrived at time stated, judge’s refusal of postponement was error.
    Where defendant’s counsel was trying case in another county, and, on finding he could not conclude his trial, wired and phoned asking postponement of case from 9 a. m. to 1:30 of the same day, and was present at time specified, refusal of court to grant the postponement requested was error.
    Appeal from District Court, Stephens County ; C. O. Hamlin, Judge.
    L. R. Giles was convicted for theft, and he appeals.
    Reversed and remanded.
    T. B. Ridgell, of Breckenridge, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for felony theft; punishment, six years in the penitentiary.

Since the disposition of this case is in nowise affected by the facts related by the witnesses, a discussion of same will not be indulged. There are a number of bills of exception taken to the argument. The qualifications appended to these bills were excepted to by appellant and for this reason cannot be considered, but we do not believe the bills of exception present any error, considered without the qualifications.

One bill of exceptions complains of the introduction of testimony by the district attorney. Aside from the explanation of the antecedent facts appearing in the qualifies: tion to the bill, the relevance of the testimony does not appear. We cannot hold this testimony harmless to the accused. The district attorney testified that a man indicted for complicity in this theft with appellant had been acquitted under instructions from the court, but that he had been’ reindicted.

There are three bills of exception complaining substantially of the proposition that appellant was deprived of the presence and representation by his counsel who had gone to another city to try a case and was unable to get back. Each of these bills have appended to them lengthy qualifications consisting largely of statements of facts relative to conversations between the court and appellant’s counsel, and agreements and understandings had between them under which appellant’s counsel went away from Stephens county to Rockwall county to try a case there at the time the instant ease was set. The qualifications of the court are excepted to and such exceptions appear in a separate bill duly drawn, and approved by the court. We are compelled to give effect to the exceptions. The trial court has no right to qualify a bill of exceptions by a statement of matters known personally to the judge which ‘did not transpire during the trial, or were not in some manner immediately connected therewith. Forrester v. State, 95 Tex. Cr. R. 62, 252 S. W. 785. The trial court has no right to qualify a bill of exceptions over the objections of the appellant, but in such case should follow the course prescribed by statute. Moore v. State, 87 Tex. Cr. R. 569, 226 S.W. 415. It is the duty of the court, if bills of exception are presented which do not properly reflect the record, to refuse to approve them. The qualification of such bill over proper objection and exception cannot be considered. Holder v. State, 96 Tex. Cr. R. 556, 258 S. W. 1070; Plunk v. State, 98 Tex. Cr. R. 140, 265 S. W. 158; Smith v. State, 100 Tex. Cr. R. 234, 272 S. W. 793; Rochelle v. State, 107 Tex. Cr. R. 79, 294 S. W. 860. When we consider said bills of exception apart from the qualification attached thereto by the trial court, we are not able to hold, in the face of the statements made therein, that appellant was not injured by the refusal of the court to postpone the ease or to wait until appellant’s counsel returned. It is made to appear that, when counsel for appellant discovered that he could not conclude his trial in Rockwall county in time to reach Breekenridge by 9 o’clock on Tuesday morning, he wired and phoned from Rockwall and from Fort Worth asking that the case be postponed until 1:30 on that day, at which time he could be present. It is shown that he reached Breekenridge and was present by that time. We are of opinion that, accepting the facts as stated in said bill of exceptions as true, the court should have granted the postponement.

The judgment is reversed and the cause remanded.
      @=»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes