text:
    DOMINGUEZ et al. v. BLAUGRUND et al.
    No. 2570.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 1, 1931.
    Harold Hankamer, of El Paso, for appellants.
    Jones, Goldstein, Ilardie & Grambling, of El Paso, for appellees.
   HIGGINS, J.

This is a personal injury suit against the appellees, doing business under the name of the American Furniture Company.

Mrs. Dominguez was struck by a truck owned by the appellee and driven by their employee, Gus Bailón. At the conclusion of the evidence, a peremptory charge in favor of the defendants was given based upon the view that the undisputed evidence disclosed that at the time of the injury Bailón was not acting within the scope of his employment, but was driving the car upon a mission of his own. The only question presented is whether this view of the trial court was correct.

Briefly stated, the evidence discloses the following facts without contradiction: The truck was owned by the appellees, and was one of a number operated by them in their delivery service. The trucks at night were stored in the Central Storage Garage in the western part of the city of El Paso on San Francisco street. It was the duty of the truck drivers to take the trucks to the garage mentioned as soon as the day’s deliveries were made. Ordinarily, the deliveries were completed by 6 or 7 o’clock. Jack Blair was the foreman of appellees’ warehouse. At about 7 o’clock on the night of the accident Blair, at his home, in the eastern part of the City, saw Bailón driving the truck; he hailed Bailón, and inquired what he was doing out at that time of the night. Bailón replied that he had taken Mr. Blair’s assistant, Fred Coleman, home. Blair told Bailón it was time for the car to be in, and directed him to turn it in at once. Instead of proceeding directly to the garage, Bailón drove the car to his home at 715 South Campbell street, in the south part of the city, where he ate supper and cleaned up. He then started to the garage, but, after going about a block, he met Luis Jarimillo and Joe Ligeras, who got in the truck with him. The three then went in the truck to a prize fight on South Ochoa street in the 900 block. They witnessed the prize fight from the truck. They stayed there until 9 o’clock, when the fight was over. Bailón testified: “Then we made a circle on 7th and came back; made a hairpin turn on 7th and Ochoa. We drove the truck east from where it was parked to 7th and Ochoa, then made a hairpin turn and came west on 7th. Then went south on Florence street, then went east on 8th street, then came north on Ochoa street, where the accident occurred in the middle of the block. We just drove around that block to see if we could see anybody we knew. The accident occurred about in the middle of the 900 block.”

His companions, Jarimillo and Ligeras, testified to the same effect. They all testified that, after having driven around the block, it was the intention to then proceed to the garage and store the car. In circling the block, they did not see anybody they knew, and at the time of the accident they had just turned in a northerly direction going in the direction of Overland street, about nine blocks distant. At Overland street they would have turned west to go to the garage.

It is the contention’ of the appellant that, since at the time of the accident Bailón was driving the same in the general direction of the garage, and intended taking it directly to the garage and storing it, as it was his duty to do, he was therefore at the time acting within the scope of his employment. This contention cannot be sustained.

As we view the evidence, it shows"that in going to his home, thence to the prize fight, and then driving around the block to see if they could see any one they knew, Bailón was not acting in the course of his employment, but was engaged in his own affairs. The idle circling of the block was certainly for his own purpose, and he had not completed the circle.

A very similar state of facts was presented in Hill v. Staats (Tex. Civ. App.) 187 S. W. 1039; Id. (Tex. Civ. App.) 189 S. W. 85; Fleischner v. Durgin, 207 Mass. 435, 93 N. E. 801, 33 L. R. A. (N. S.) 79, 20 Ann. Cas. 1291; Eakin’s Administrator v. Anderson, 169 Ky. 1, 183 S. W. 217, Ann. Cas. 1917D, 1003.

In each of these cases the same contention was made as is here urged by the appellant and rejected. We need not review these cases, for an examination of 'the opinions rendered therein will disclose that the facts are analogous to the undisputed evidence in this case, and it was held in each of the cases that the drivers of the cars were acting outside the scope of their employment, and their masters, who owned the ears driven by them, were not liable for injuries inflicted by them.

Binding no error in the action of the court in giving the instruction complained of, 'the judgment is affirmed.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    CROOM v. LITTLE.
    No. 2106.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 17, 1931.

      Hill & Harvey, of Houston, for appellant.
    Edward H. Bailey, of Houston, for appellee.
   WALKER, J.

This was an action for partition of certain real estate located in the city of Houston, Harris county, Tex., filed by appellee against appellant. A jury was duly impaneled to try the case, but upon conclusion of the evidence the court discharged the jury and entered judgment that the property in controversy was owned share and share alike by appellant, Cecelia Wyatt Croom, and appellee, R. N. Little, and entered judgment accordingly, partitioning the land between them. From that judgment the appeal was prosecuted to the Galveston Court of Civil Appeals, and later transferred to our docket by orders of the Supreme Court.

Citing article 2092, § 28, reading: “All motions and amended motions for new trials shall be presented within thirty days after the original motion or amended motion is filed and shall be determined within not exceeding forty-five days after the original or amended motion is filed, unless by written agreement of the parties filed in the case, the decision of the motion is postponed to a later date.” Ap-pellee moves to dismiss the appeal upon the following factsThe judgment was rendered in the trial court on the 24th of March, 1930. The appellant filed her motion for new trial on the 29th of March, 1930. The order overruling the motion for new trial was entered the 28th of June, 1930. The motion to dismiss is overruled. Under the statute cited by appellant, the law is not absolute that motions for new trial shall be determined within forty-five days, “after the original or amended motion is filed,” but may be postponed to a later date “by written agreement of the parties filed in the case.” Now, as the court did not dismiss the motion for new trial, but proceeded to adjudicate the same upon its merits, we must presume, in support of the judgment of the lower court, that jurisdictional facts existed supporting the judgment. If the jurisdictional facts did not exist, appellee should have made his record thereon either by motion to dismiss the motion for new trial or by a proper bill of exceptions.

The court erred in concluding that ap-pellee had established title in himself to a one-half interest in the land in controversy. He claimed under a deed to him from Versie Wyatt Mitchell, purporting to convey her right, title, and interest in and to the land claimed by appellee in his petition. He then offered in evidence a certified copy of the last will and testament of P. B. Wyatt, who by this will devised this property, share and share alike, to his two daughters, Cecelia Wyatt Croom, appellant, and Versie Wyatt White, identified in the record as Versie Wyatt Mitchell. (The will gave Mamie Hoskins the right to occupy the property as long as she remained unmarried. She was made a party to the suit, and a default judgment was entered against her adjudicating her rights, against which no appeal was prosecuted.) The copy of the will, authenticated by the following certificate, was offered by appellee and received by the court in evidence without objection by appellant.

“I, Albert Townsend, Clerk of the County Court of Harris County, Texas, do hereby certify that the above and foregoing is a true and correct copy of Will in the matter of the estate of P. B. Wyatt, deceased, as the same appears of record in the Minutes of said Court in Volume 64, page 521, and from the original will on file in my office, bearing file No. 12330.
“Given under my hand and seal of said court at office in Houston, Texas, this the 11th day of May, A. D., 1925. Albert Townsend, Clerk County Court, Harris County, Texas. [Seal] by J. D. Smallwood, Deputy.”

No judgment probating this will was offered in evidence by either party. We are of the opinion that without the support of the judgment regularly probating the will, it was insufficient to invest Yersie Wyatt White with title to any interest in the land. The rule is that a will is not admissible in evidence unless it has been probated as such. Ochoa v. Miller, 59'Tex. 461; Moursund v. Priess, 84 Tex. 554, 19 S. W. 775. Appellee concedes the soundness of this proposition, but seeks to avoid its effect upon the following grounds: First, he says the fact that the will was copied into the minutes of the probate court, as shown by the certificate attached to the certified copy thereof, necessarily imports that it had been duly probated. This contention is overruled. That the will was copied into the minutes of the probate court does not necessarily raise the issue that the judgment probating it was also entered in the minutes, or even that the trial court entered the judgment ordering it to probate. Second, because the will was not objected to by appellant when offered, appellee insists that appellant cannot now say that it did not vest title in Versie Wyatt White. A sufficient answer to this contention is to say that the will, as offered and received by the trial court, .was admissible in evidence, but, without, the support of the judgment of the probate court, was wholly without effect upon the issue of title. As said by Judge Fly in Skov v. Coffin (Tex. Civ. App.) 137 S. W. 450, 452: “The burden was upon appellee, as the plaintiff in the case, to establish his title, and it was not incumbent upon appellants to make objections that would cause appellee to supply the missing link.” There was no proof in the record vesting Versie Wyatt White with a one-half interest in the property merely as an heir at law of her deceased father.

The court did not err in refusing to award judgment against appellee for one-half the taxes. The proof was, without dispute, that appellant had had possession and occupancy of all of the property, to the forcible exclusion of appellee, for more than two years, and that he had been forced to file suit against her to secure an accounting for the rents.

For the reasons stated the judgment of the lower court is reversed, and the cause remanded for a new trial.

Reversed and remanded.


author: BARCUS, J.

text:
    WEBER v. MANN.
    No. 1104.
    Court of Civil Appeals of Texas. Waco.
    Oct. 1, 1931.
    J. N. Townsend and John W. Pope, both of Dallas, for appellant.
    Coker, Wilson, Rhea & Neel, of Dallas, for appellee.
   BARCUS, J.

Appellee and his wife owned and occupied a nice residence at the intersection of Avon-dale and Preston road in the business district of the city of Dallas. There are several different kinds of business' conducted near appellee’s home, and from the testimony it seems to be what might be termed a “community center.”

In 1929 appellant, over the objection of ap-pellee, erected a root beer stand on the lot directly across the street in front of appel-lee’s home. Appellee alleged that appellant maintained, on the 20x24 feet space of land in front of the beer stand, many lights, some large and glaring, which reflected into his home, and that appellant maintained at all hours of the day and night a radio and employed a number of girls to wait on the customers, who made so much noise that same became unbearable and that the automobiles going in and out for people to be served at the beer stand made a great deal of noise and gave out obnoxious odors, and that each of said matters was a nuisance. Appellee asked that appellant be permanently restrained from operating the root beer stand, and asked for damages which he and his wife claimed to have suffered by having their health impaired by reason of the depreciation in value and use of his home.

In addition to the lights maintained by appellant on the ground in front of the root beer stand, he constructed a gas Neon sign across the sidewalk on the city’s property in front of the stand, which gave a bright red light.

In answer to special issues, the jury found that there were obnoxious odors or gases emanating from the beer garden; that dust emanated therefrom, but that neither of same constituted a nuisance. The jury further found that the lights from the beer garden shined into appellee’s home; that the light from the Neon sign shined into his home, that appellant permitted his radio to be op>-erated in a loud and vociferous tone; and that each of said acts constituted a nuisance. The jury further found that appellee had not been materially injured in the use and enjoyment of his home, and that the health of appellee or his wife had not been materially impaired by appellant in the manner in which he had constructed and was operating his beer garden.

The trial court entered judgment perpetually enjoining appellant from using a radio and from using the gas Neon sign and from using the lights that he was then using in his beer garden, but permitted him to have lights in the beer garden provided he used colored or shaded globes of a lesser candle power than is produced by a 25-kilowatt globe and that would not reflect light into appellee’s home.

Appellant complains of the action of the trial court in submitting the issue to the jury as to whether the gas Neon sign was a nuisance. and entering a judgment prohibiting his using same, because said issue was not supported by the pleadings. We sustain this proposition. There is no suggestion in ap-pellee’s pleading that appellant was maintaining or had erected the gas Neon sign, or that same in any way constituted a nuisance. The only complaint appellee made relative to the lights was in subdivision (a), paragraph 1, of his petition, in which he alleged that appellant had maintained on the ground around the beer stand, being 20x24 feet in dimension, many lights, some of which were large and glaring. The gas Neon sign was admittedly not on appellant’s property, but had been. erected by him on the city’s property over the sidewalk.

Appellant further complains at the action of the trial court in absolutely prohibiting his operating a radio. We sustain this contention. Clearly, a radio is not a nuisance per se. The record shows that practically every residence and each of the other places of business surrounding appellant’s root beer stand is equipped with or has a radio. We do not hold that a radio cannot be so operated that it would not become a nuisance or that a court could not require a party to so operate his radio that it would not be a nuisance. The fact, however, that the radio was being operated as a nuisance, would not authorize the trial court to absolutely prohibit its use.

The trial court defined a “nuisance to mean “anything that works or causes material injury, damage, hurt, inconvenience or discomfort to one in the legitimate employment of his reasonable rights of person or property.” Under this definition, the jury found that the operation of the radio, the Neon sign, and the lighting system each constituted a nuisance, and then held, in answer to other issues, that appellee had not been materially injured. Appellant contends that said findings of the jury are in conflict. We sustain this contention. In answer to three of the issues, the jury in effect held that ap-pellee had been materially injured by reason of the nuisances maintained and operated by appellant and then in two other separate issues found that appellee was not materially injured.

Appellant further contends that that portion of the judgment of the trial court which defines the kind and candle power of electric lights he may use on the property in front of his root beer stand is confusing, contradictory, and wholly incapable of being understood. We sustain this contention. Said portion of the judgment permanently restrained , appellant from using the lights now installed, but permitted him to -install lights of a lesser candle power than is produced by a 25-kilowatt globe, provided the globes were colored or shaded so as not to reflect brightly in and upon appellee’s home. A 25-kilowatt globe is equal to 25,000 watts, and the evidence shows appellant had a hundred ■ or more lights over a space of ground 20x24 feet. If each light was a 25-kilowatt globe, it would make a most dazzling light. We do not know what was intended by the court. The matter was called to his attention in appellant’s motion for rehearing and the court refused to amend same. Counsel for appfellee suggests that the trial court evidently intended to mean a 25-watt globe rather than 25-kilowatt globes. There is nothing in the record to show the size of the lights now being used by appellant on said ground, or what candle power would be sufficient to light the ground or sufficiently dim to prevent same from shining on or into appellee’s home.

For the errors indicated, the judgment of the trial court is reversed, and the cause remanded.


text:
    SECURITY UNION INS. CO. v. REED et al.
    No. 2091.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 10, 1931.
    Hunt & Hunt and H. 6. Butts, all of Houston, for plaintiff in érror.
    E. B. Pickett, Jr., of Liberty, B. H. Powell, and J. A. Rauhut, both of Austin, for defendants in error.
   WALKER, J.

In the lower court appellees (defendants in error) recovered a- judgment under the provisions of the Workmen’s Compensation Act against appellant (plaintiff in error). On March 30, 1926, Jack Kelly died of injuries compensable under the Workmen’s Compensation Act, received while in the course of his employment with Peer Oil Corporation. Appellant was the insurer. Jack Kelly left surviving him a stepmother and the following brothers and sisters: Luther H. Kelly, W. C. Kelly, O. S. Kelly, Mrs. S. M. Knott, Mrs. J. P. Hamilton and Miss Fannie Kelly; half brothers and sisters: Mary Bell Kelly, Artie Lee Kelly, and Mike Kelly. The brothers and sisters, at the time of Jack Kelly’s death, were all adults except Fannie Kelly, age nineteen, Mary Bell Kelly, age fifteen, Artie Lee Kelly, age thirteen, and Mike Kelly, age eleven. Luther Kelly, on April 9, 1926, and the stepmother, filed claim for compensation for the death of Jack Kelly. The minor brothers and sisters, who are the appellees herein, filed no claim for compensation, nor did any one with any sort of authority to act for them present, file, or prosecute any claim for them or on their behalf to the Industrial Accident Board. But, pending an adjudication of the claims of the stepmother and Luther Kelly, the names of all of Jack Kelly’s brothers and sisters were furnished the board through an affidavit of Luther Kelly filed by him in support of his claim, and not as an amendment to his claim, making his brothers and sisters parties thereto. On July 2, 1926, the board made its final award in favor of the stepmother for all the compensation provided by law for the death of Jack Kelly, and decreed that his brothers and sisters, including the minor brothers and sisters, had no interest in the compensation. The insurer appealed from that award by giving the notice and filing suit in lower court, as required by law, but gave no notice to the minor brothers and sisters, and did not make them parties to the appeal; also it should be said that the minor brothers and sisters gave no notice to the insurer of their dissatisfaction with the award, and in no way prosecuted, or attempted to prosecute, an appeal from the award. Upon trial of that appeal in district court, the stepmother was allowed only 50 per cent, of the compensation. That judgment was affirmed by this court, 299 S. W. 286,- and by the Supreme Court, 6 S.W.(2d) 741, 742. In affirming our judgment, the Supreme Court said, quoting from fbe opinion of the Commission of Appeals: “That the casualty company is liable to beneficiaries (whoever they may be) in double the amount of recovery allowed is not (on the record) questionable.”

On the 7th of March, 1930, the minor brothers and sisters, as above named, filed with the Industrial Accident Board their claim for compensation for the death of their brother, Jack Kelly, asking for relief on two grounds: First, that the award as to them, of date July 2,1926, was void because they were not legally before the board, and, pleading good cause for the delay in presenting their claim, asked that it be considered and allowed; second, if the board had jurisdiction in the award of July 2,1926, that it he set aside on the ground of mistake. This application was regularly heard by the board and in all respects allowed. From that award appellant prosecuted its appeal to district court, where, upon trial of the appeal, appellee answered 'by cross-action, asserting the same grounds of recovery as advanced to the board. The trial in district court was to the court without a jury, with a judgment for appellees. No conclusions of law and fact were filed.

Opinion.

Appellant has prosecuted its appeal purely upon questions of law, that is, it makes no point against a finding of “good cause” or “mistake,” or that appellees were, as a matter of original jurisdiction, entitled to compensation for the death of their brother, Jack Kelly, if under the law, the. board and the court had jurisdiction to consider these issues. Appellant’s contention is to the effect that the award against the minors of July 2, 1926, was within the jurisdiction of the Industrial Accident Board, no appeal was perfected therefrom, the board had no jurisdiction to review an award except where compensation has been allowed, and, no appeal having been perfected from the award of July 2,1926, it was final and binding against the minor brothers and sisters, and therefore neither the board .nor the district court had jurisdiction to review it or set it aside.

The facts are sufficient to raise the issue that the minor brothers and sisters, nor any one for them, presented their claim to the Industrial Accident Board as a basis for -the award of July 2, 1926. Under the provisions of the Workmen’s Compensation Act, the Industrial Accident Board had no jurisdiction of the minor brothers and sisters because they had made no appearance before it. Without jurisdiction, any award as to these minor brothers and sisters was void, or at least voidable, and they were not required by law to perfect any appeal therefrom. The petition filed to the board 'by the minor brothers and sisters on the 7th day of March, 1930, consti-' tuted a direct attack on the award of July 2, 1926, and the facts pleaded were sufficient to give the board jurisdiction to set aside its former award on the ground, either that it was absolutely void or merely voidable, and to sustain its order nullifying and revoking its former order and assuming jurisdiction of tins claim. We do not review the facts on good cause further than to say that appellees pleaded good cause, both before the board and in district court, and the evidence was sufficient to sustain -the finding thereon in appel-lees’ favor both by the board and by the court. Having annulled and set aside its former award, and having assumed jurisdiction to pass upon appellees’ claim under their allegations of good cause, and having found all issues thereon in appellees’ favor, it follows -that the award made by the board on the application of March 7,1930, was binding in all respects against appellant, until set aside by its appeal to the district court; and was sufficient to give the district court jurisdiction to entertain appellees’ cross-action filed in this case by them in answer to appellant’s appeal.

As sustaining their proposition, appellant has cited to us the recent case of Pruitte v. Ocean Accident & Guaranty Corp., Ltd. (Tex. Civ. App.) 40 S.W.(2d) 254, 258. The holding of the court in that case, both as to the facts and the law, is reflected by the following quotation therefrom:

“The Workmen’s Compensation Act does not expressly require each beneficiary himself to file a claim with the Industrial Accident Board before that board would be authorized to make an award. The claim as filed by Wm. Pruitte upon the blank furnished by the board, so far as this record discloses, mentions all and gives correct information as to who the beneficiaries of Frank Pruitte were. And we have concluded that this application may be treated as sufficient to invoke the jurisdiction of the board to make an award covering the injury sustained while working at the Marshall Compress.
“Neither do we agree with appellants that the board was without jurisdiction as to the minor, Ester Pruitte, referred to in the application for compensation filed by Wm. Pru-itte on September 15, 1928. The general law of Texas has no application with respect to proceedings before the Industrial Accident Board, and since such act has no provision expressly requiring the appearance before the board by next friend or by guardian, the orders of the board are as binding upon the minor beneficiaries as they are upon adult beneficiaries. But we are of the opinion in this case that the application for compensation filed by Wm. Pruitte on September 15,' 1928, had the legal effect of an appearance before tlie board by Wm. Pruitte as tbe next friend of Ester Pruitte.
“Tbe application for compensation, however filed by Wm. Pruitte on September 15, 1928 made no mention of tbe injury sustained by Prank. Pruitte while employed by the Jefferson Compress at Jefferson, Tex., and since it is necessary for tbe board to have an application filed with tbe board- for compensation for an injury before it acquires jurisdiction to make an award (Southwestern Surety Ins. Co. v. Curtis [Tex. Civ. App.] 200 S. W. 1162), it is believed that tbe Industrial Accident Board never acquired jurisdiction of tbe injury received by Prank Pruitte on August 31, 1928, while working for the Jefferson -Compress until tbe application of March 28,1929, was filed. Although this application was filed more than six months after the'death of Prank Pruitte and the board made an- award denying tbe compensation, yet an appeal from the ruling was duly--prosecuted to the district court of Marion oóunty by filing cause No. 9716 and applicants were entitled to have a trial of this cause 'by the court and to have determined by the court or jury, if one should be demanded, along,- with', the other issues, the issue of whether good cause existed 'excusing the filing of the application for compensation within six months as provided for in article 8307, § 4a, R. S. 1925; Texas Indemnity Ins. Co. v. Holloway et al. (Tex. Civ. App.) 30 S.W.' (2d) 921.”

Our holding herein in no way conflicts with that case. We think it is correct to say, as the court said in that case, that each beneficiary is not required' -to' file a claim with the Industrial Accident Board, but that it is sufficient, where the claim filed names all the beneficiaries and is presented for and on their behalf, and that the general law of Texas “has no application with respect to proceedings before the Industrial Accident Board.” While we recognize the general principles announced by the court in that case, the facts of the ease at 'bar clearly distinguish it from the case cited. In this case no one filed a claim for the minors; we mean to say that the claim filed before the Industrial Accident Board did not give the names of the minors, and gave no information by which they could be identified. While it is true Luther H. Kelly signed his name to his claim as follows: “Luther H. Kelly, on behalf of myself and other relatives of deceased. P. O. Box 25, Mont (Belview, Tex.,” he answered the following question as indicated: “Which of the legal beneficiaries above named are minors? State Ages: None.” By this answer Luther H. Kelly represented to the board that none of the other relatives of deceased on whose behalf he filed the application were minors, thereby affirmatively excluding these appellees from the claim. We think this fact clearly invokes the proposition announced by the court in the case just quoted from that “it is necessary for the Board to have an application filed with the Board for compensation for an injury before it acquires jurisdiction to make an award.” Now, since no claim was filed for these minors, the board had no jurisdiction of them.

In this case appellant filed no assignments of error in the lower court, brought up none in its transcript, and has brought forward no assignments of error in its brief. Because of this omission, appellees move to strike appellant’s brief. Prior to the enactment of House Bill 1002 by the Forty-Second Legislature (Vernon’s Ann. Civ. St. arts. 1757, 1846), the law was as contended for by ap-pellees. But, under this new legislation, as construed by the Amarillo Court of Civil Appeals in Heatley v. W. P. Ponder & Sons et al., 40 S.W.(2d) 951, appellant’s brief was sufficient, and on authority of that case the motion to strike is overruled.

Without discussing appellant’s other propositions, it follows that the judgment of the lower court should in all things be affirmed, and it is accordingly so ordered.

Affirmed.


author: CALHOUN, J.

text:
    ALLEN v. STATE.
    No. I4I9I.
    Court of Criminal Appeals of Texas.
    Oct. 14,1931.
    Max Coleman, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Conviction is for unlawfully carrying a pistol ; punishment assessed at a fine of $100.

The information in this case charged, in the first count, the appellant with unlawfully carrying a pistol on his person. The second count charged the appellant with unlawfully going into a place where persons were assembled for amusement, to wit, a dance hall and restaurant in the negro section of Slaton, Tex., and that the defendant did then and there carry about his person a pistol. To 'the same effect, substantially, is the third count in the information.

Will Earnest, a witness for the state, testified that he was a deputy sheriff in Lubbock-county; that he helped arrest the defendant; that they arrested him about 2:30 a. m. on November 9, 1930; that they arrested the defendant at his place in Slaton, Tex., where he operated a restaurant; that at the time of the arrest, appellant was about 40 feet east of his house and about 20 feet from the toilet; that he had a six-shooter on his person; that they arrested him, brought him to Lubbock, and put him in jail. He testified that Mr. Conley was with him.

O. B. Conley, deputy sheriff, testified that he helped arrest the defendant about 2 o’clock on the night of November 9th. He further testified that he did not see the defendant in his house that night; that he did not see him go there or come out; that he was east of a ■ little house back of his restaurant when they arrested him, and that the appellant told him that he had had some trouble with a negro couple that night, and had to put them out of his place of business, and that he was expecting them to come back and cause trouble, and said he took the ice pick off the woman, but it was his ice pick; that he did not have a search warrant to search the negro and did not need one to search a negro. The state then closed its direct testimony. •

John Allen, the defendant, admitted hav■ing the pistol on his person, and testified that he was on his own premises, that is, the place he was occupying as a lessee, and that he was not off his own premises at any time during the time he had the pistol on. He testified that he lived on said premises and operated a restaurant in his private residence; that he had lived there about 2 years; that on the night in question he had had some trouble with a negro couple and had sent word to Mr. Tom Abel, the chief of police at Slaton, to come out and help him; that before the chief of police arrived the couple had left, hut had made many threats against his life; that after starting the couple away from his premises, he started to the toilet, which is out of doors and on the east edge of the lot which he had leased; that on account of the threats made against him by the couple, he went to the door of his kitchen, which is cut off from his restuarant and residence by a partition, and told the cook to hand him his gun, intending to put it up as soon as he returned from the toilet; that he had the gun for protection, and did not at any time enter his residence or restaurant while he had the pistol.

. As to having telephoned the chief of police, the defendant was corroborated by Tom Abel, the chief of police at Slaton. Abel further testified that appellant had the place leased from a Mexican by the name of Juan Reyes, and had been so living there for about 2 years.

The witness Robert Longley also corroborated the testimony of the appellant John Allen, to the effect that he gave him the pistol out of the kitchen window, and that the appellant did not come back into the house at all after he got the pistol, and before he was arrested.

After the defense had closed its case, the state’s witness, O. B. Conley, was- recalled by the state, and the following testimony, over the objection of the appellant, was admitted:

“The defendant was going out to a pile of cans southeast of his house to get some whisky. I believe he was in his residence with a gun on because I saw him come around the south side of his house and I supposed he came out of the west door. I do not believe he was on his own premises. I heard once he was not.”

Appellant objected to all of this testimony, for the reason that same was a conclusion of the witness, and not the proper manner to prove the ownership of the premises; that defendant was not being tried on a whisky charge and no whisky was found and the premises were searched and none was found in the pile of cans, nor introduced during the trial; and that no witness testified he saw him, and that all of same was merely an opinion of the witness.

Said bill of exception further shows that at this time the state’s witness, O. B. Conley, without being questioned by either the state or the court, voluntarily exclaimed: “He was present. Three months ago Juan Reyes told me he did not have those premises leased.”

Appellant then and there objected further to the testimony of the state’s witness, for the reason that this latter statement was a voluntary, self-serving declaration, made for the express purpose of unfairly convicting the defendant. The court overruled said objection, and permitted the testimony of the witness to remain before the jury, although the defendant requested the court to instruct the jury not to consider said testimony.

Appellant’s guilt or innocence depended upon the solution of the issue as to whether or not he carried the pistol any other place than upon the premises under his control, and as to whether or not he was in the restaurant with the pistol. The opinion of the said .witnesses objected to was the only evidence that in any way 'tended to show that appellant was not upon his' premises or was ever in his restaurant with a pistol. This solution against appellant was aided by the opinion of the deputy sheriff, Conley, and was purely opinion testimony upon the most material issue in the case. It was therefore hearsay and opinion testimony of a hurtful character upon the very issue the jury was impaneled to try, and should have been excluded. The failure to do so was such error as calls for a reversal of this case. Appellant’s position on this point is supported in numerous decisions of this court, some of which follow: Steagald v. State, 24 Tex. App. 207, 5 S. W. 853; Williams v. State, 30 Tex. App. 429, 17 S. W. 1071; Coyle v. State, 31 Tex. Cr. R. 604, 21 S. W. 765; Bennett v. State, 95 Tex. Cr. R. 70, 252 S. W. 790; Davis v. State, 114 Tex. Cr. R. 72, 24 S.W.(2d) 417; Starkey v. State, 115 Tex. Cr. R. 552, 27 S.W.(2d) 175; Anthony v. State, 115 Tex. Cr. R. 191, 29 S.W.(2d) 784; Boles v. State, 108 Tex. Cr. R. 204, 299 S. W. 407.

Alleged error in failing to give peremptory instruction on circumstantial evidence and refusal of the court to grant a new trial to procure certain testimony are also assigned as error. While raising more or less serious questions, such .matters are not likely to occur again, and therefore are not discussed.

Eor the error above indicated, the judgment is reversed, and cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examinéd by the judges of the Court of Criminal Appeals, and approved by the court.


author: LATTIMORE, J.

text:
    Ex parte RODRIGUEZ et al.
    No. (4890.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    John I. Kleiber and J. T. Canales, both of Brownsville, for appellants.
    Rogers Kelley, of Edinburg, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Applicants ask the issuance of a writ of habeas corpus, and that upon a hearing of same they be discharged from the custody of the warden of our state penitentiary, who holds them by virtue of an order and judgment of the Seventy-Ninth judicial district court of Texas directing their execution, in accordance with the terms of a mandate issued by the Court of Criminal Appeals of Texas after the affirmance upon appeal of judgments of said district court assessing against both- applicants the death penalty. As supporting their right to the issuance of the writ prayed for, applicants claim that they were denied counsel upon their joint trial for the offense named, and that, being charged capitally, such denial was so viola-tive of their rights as to make void the judgment of the trial court, and this court upon appeal, assessing against them said penalty.

The agreed facts accompanying the application set forth that applicants employed one whom they believed to be an attorney, who said he was an attorney, and who, during the trial in the court below and upon appeal to this court, held himself out as a licensed lawyer, but who has been found, since the affirmance of the judgment against applicants, to have been without license to so practice law. It is also part of the agreed facts that, when arraigned and asked by the trial court if they had counsel to represent them, applicants informed the court that they had engaged Mr. Garza; also that applicants pleaded guilty to the charge of murder upon their trial, and that before indictment each applicant had voluntarily confessed to participation in the murder charged against them; also that both applicants voluntarily took the witness stand and testified upon said murder trial, admitting their guilt, and reaffirming the statements in their confessions;

In the able brief filed in their behalf, applicants admit themselves without precedent for what they ask us to do in this regard. Unfortunately for them, however, the state is not without precedent in its opposition to the granting of the relief prayed for. True, section 10 of our Bill of Rights guarantees to every person accused of crime the right to be heard by himself or counsel, or both, but this applies with equal force to all persons accused of any character of crime from the smallest misdemeanor to the gravest capital felony. As far as this court knows, 'the right referred to has been jealously preserved in all cages brought to our attention.

A defendant, however, may prefer in any character of case to defend himself. Compton v. State, 67 Tex. Cr. R. 15, 148 S. W. 580. He has a perfect right to hire some one to represent him, or he may elect to waive his right to have counsel. However, even in capital cases, no imperative duty to appoint counsel is upon the trial court, and it only becomes - his duty when the court is apprised of the fact that the accused is too poor to employ counsel. Article 494, C. C. P.; Brown v. State, 52 Tex. Cr. R. 267,106 S. W. 368; Burden v. State, 70 Tex. Cr. R. 349, 156 S. W. 1196; McKee v. State (Tex. Cr. App.) 42 S.W. (2d) 77, opinion handed down October 7, 1931. The case last mentioned is in principle much like the one here involved.

Any claim that the applicants in this case were too poor to employ counsel to represent them is refuted by -the admission in the agreed statement of facts that they did so employ Mr. Garza, and of .course might have employed any one else acceptable to them.

There is no claim that applicants were induced to employ Garza by the acts or representations of any representative of the state. We do not uphold any imputation of wrongdoing on the part of the trial court growing out of the fact that he permitted Garza to appear and represent applicants, after they had, informed said judge upon arraignment that they had employed Garza as their counsel. We know of no rule of law which requires the trial judge to inquire and investigate the qualification for practice of coimsel who are employed and chosen by persons accused of crime, and who present themselves at the bar of such court accompanying and representing their clients. We could not make these propositions plainer by lengthy dissertation.

As reflected by their able and interesting brief, applicants seem of opinion that, upon the bare showing that the man whom- they employed was not a lawyer, this • court can and should, in the exercise of what they are pleased to call the fundamental principles of equity, overturn and vacate the judgment of a trial court of admitted jurisdiction, rendered upon a full hearing of all the facts; and also the judgment of this court upon a regular appeal and review of the judgment of the lower court.

Among the fundamental rules of equity are some such as that he who seeks equity must do equity; must come before the court with clean hands and show affirmatively that from a wrong done such persons are about to suffer injury which they would not suffer but for the alleged wrong. No effort was made in the matter before us to show that applicants had any defense to the murder charge, or that there were any mitigating facts or circumstances not brought before the trial court and jury. On the contrary, it is affirmed by the agreement of applicants that they personally pleaded guilty to murder; that they had, prior to their indictment, confessed their guilt; that each voluntarily, personally took the witness stand on their trial, and admitted their guilt of murder. Just what wrong to them the state has done, directly or indirectly, is not apparent. Cobb v. State, 71 Tex. Cr. R. 397, 160 S. W. 78; Patton v. State, 62 Tex. Cr. R. 28, 136 S. W. 42; Hayden v. State, 61 Tex. Cr. R. 211, 134 S. W. 703.

The effort of applicants in the matter before us appears to partake largely of the nature -of an application for a writ of coram no-bis, such as was denied in Ex parte Minor, 115 Tex. Cr. R. 634, 27 S.W.(2d) 805, and Ex parte McKenzie, 115 Tex. Cr. R. 315, 29 S.W. (2d) 771. We declined in those cases to vacate judgments which had become final merely upon a showing of a matter which in no way affected the jurisdiction or power of the trial court to render the "judgment entered, or the legality and regularity of any step necessary in the disposition of the causes.

Regretting that we find ourselves unable to agree with applicants, their request for a writ of habeas corpus is denied.


author: CHRISTIAN, J.

text:
    Ex parte PEDDY.
    No. 14858.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Maurice Short, J. W. Ellington, and Dal- ' las Ivey, all of Center, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

This appeal is from a judgment denying bail.

Appellant is under indictment charging him with furnishing arms and aid to one-Dewey Parker in the commission of the offense of robbery with firearms, appellant not being present when the offense was committed. Conviction was had upon the charge-in the district court of Shelby county and an -appeal thereafter taken to this court. The judgment of the trial court was reversed and the cause remanded by this court on June 24, 1931. See Peddy v. State, 40 S. W.(2d) 153. After the mandate of this court had been duly issued, appellant presented to the trial judge his application for a writ of habeas corpus wherein he requested that he-be granted bail. Upon a hearing it was agreed that the facts adduced upon appellant’s trial and reviewed by this court in Peddy v. State, supra, should 'be considered by the-trial judge in determining whether bait should be allowed. No additional testimony touching the circumstances surrounding the-commission of the offense was introduced. In the opinion reversing the judgment of the-trial court this court held that the testimony was insufficient to show the guilt of Dewey Parker, the principal named in the indictment. As hereinbefore stated, no effort was made upon the hearing of ■ the writ of ha-beas corpus to offer evidence touching the-identity of Dewey Parker as the principal in the commission of the offense.

The evidence before the court is not deemed such as to justify the refusal of bail. Under our Constitution, bail is a matter of' right, except in capital cases where the proof is evident. Section 11 of article 1, Constitution of Texas; Ex parte Perkins (Tex. Cr. App.) 40 S.W.(2d) 123, 124. “Proof evident” has been defined as follows: “ ‘Proof is evident’ if the evidence is clear and strong, leading a well guarded and dispassionate-judgment to the conclusion that the offense-has been committed; that the accused is the-guilty agent; and that he would probably be punished capitally if the law is administered.” -Ex parte Perkins, supra, and authorities cited.

In Ex parte Walker et al., 95 Tex. Cr. R. 267, 253 S. W. 520, it appears that the re-lators had been previously tried on indictments charging them with a capital offense, with the result that the jury assessed the-punishment at 99 years’ confinement in the-penitentiary. Thereafter, judgment of the-trial court was reversed by tbis court. Upon a bearing on a writ of babeas corpus before tbe trial court tbé relators were denied bail. In reaching tbe conclusion that bail should be granted, tbis court, speaking through Presiding Judge Morrow, said: “Tbe jury in passing on tbe same facts that are in the present record having refused to assess capital punishment, tbis court would not be warranted in regarding it as one in which there was ‘proof evident’ that the -re-lators were guilty of a capital offense. Eor these reasons we are of the opinion that the relators are entitled to bail.”

The penalty assessed against appellant when his case was tried was 99 years. As hereinbefore stated, this court held the evidence insufficient to show the guilt of his principal. In the light of the record, we are constrained to hold that bail should be granted.

The judgment denying bail is reversed, and bail granted in the sum of $5,000.

PER CURIAM.

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


text:
    Ex parte KENNEDY.
    No. 14861.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Stone, Strickland & Caves, of Henderson, for appellant.
    Lloyd W. Davidson, State’s Atty, of Austin, for the State.
   CALHOUN, J.

This is an appeal from an order of the district court of Rusk county refusing to reduce appellant’s bail upon appeal.

The appellant was indicted for the unlawful possession of intoxicating liquor for the purpose of sale, and the record shows that relator was duly tried and convicted of said offense, and his punishment fixed at a term of one year in the penitentiary.

From this judgment of conviction, the relator perfected his appeal to this court. The trial court fixed his recognizance on appeal at the sum of $3,000.

After notice of appeal was given and the district judge had fixed appellant’s bond on appeal, an application for a writ of habeas corpus was made by appellant to the district judge, setting up that he was unable to give a $3,000 bond, and asking a reduction in the amount of bail required. Upon the hearing, this was. denied, and from which order this appeal is prosecuted.

It is appellant’s contention that such bail is excessive under the circumstances, and that he has not the ability to make said bond in said amount, and is therefore deprived of the right to remain on bail while his appeal is pending.

The record shows that the relator is a man without any immediate relatives in Rusk county, except his wife and two small children; that he is a comparative stranger in said county, and that he is possessed of a very small amount of property; that he had made bail in the sum of $750 pending the trial of his case, and that he- had obeyed that bail and duly presented himself for trial. The record further shows that effort had been made in his behalf to furnish said bond in the sum of $3,000, but he had been unable to make bond in said amount. The evidence is further to the effect that the persons who made his appearance bond are willing to make bond for him in the sum of $1,000, but not for a greater amount. There is no unusual circumstance connected with the case.

Considering the rule for fixing the amount of bail laid down in article 281, C. C. P., and under the record before us, it is our judgment that the amount of bail on appeal should be reduced to $1,000. See the following cases as illustrative o'f the construction given by this court id applying the statute referred to: Sancedo v. State (Tex. Cr. App.) 70 S. W. 546; Ex parte Creed, 67 Tex. Cr. R. 173, 149 S. W. 192; Ex parte Barnett, 47 Tex. Cr. R. 299, 83 S. W. 378; Ex parte Castillo, 102 Tex. Cr. R. 52, 277 S. W. 126; Ex parte Martin, 71 Tex. Cr. R. 383, 159 S. W. 1182; Ex parte Colston, 105 Tex. Cr. R. 306, 288 S. W. 211.

The judgment of the trial court is reversed, and it is ordered that relator bé granted bail in amount of $1,000.

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: HAWKINS, J.

text:
    WELLS v. STATE.
    No. 14382.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Moore & Wilson, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale; punishment assessed being five years’ confinement in the penitentiary.

On the 26th day of June, 1930, officers, acting under a search warrant, searched the house and premises of J. J. Nowell. In all, they discovered one hundred and ninety-five gallons of whisky. Sixty gallons were buried in a maize patch some little distance from the house; the remainder being found in the house. The whisky was in cartons; each carton containing twelve half-gallon jars. Nowell testified that by arrangement with appellant he (Nowell) had- agreed to receive and store whisky which appellant might deliver to him, and in turn deliver it to designated parties, presumably agents of appellant ; that Nowell was to receive from appellant as compensation for so storing said whisky the sum of $30 per month. He further testified that the one hundred ninety-five gallons of whisky in question were delivered to his house by appellant on the 24th day of June, and all of it placed in the house; that on the night of the 24th and the night of the 25th he had buried sixty gallons of it in the maize patch where it was found by the officers. It sufficiently appeared that Nowell had brought himself within such relation to the whisky as characterized him an accomplice witness as a matter of law. The court recognized this, and so instructed the jury.

It is strenuously insisted that there is not sufficient corroborating evidence to meet the requirement of article 718, O. C. P., which inhibits a conviction upon the testimony of an accomplice, unless corroborated by other evidence tending to connect accused with the offense committed. The state undertook to furnish this corroborating evidence by the wife of J. J. Nowell as to the one hundred ninety-five gallon transaction. Her testimony has been carefully reviewed. It is not thought necessary to set it out in detail. The conclusion is expressed that it sufficiently meets the requirement of the law as tending to connect appellant with that transaction.

After developing its case as to the transaction occurring on June 24th, the state also proved by Nowell that on three other occasions prior to the 24th day of June appellant had brought whisky to his house, the first being about a month before, and the other two between then and the transaction described as having occurred on the 24th of June. Nowell claimed that appellant had brought several gallons on each of these occasions. These transactions seem to have had no connection with one another or with the transaction occurring on the 24th day of June. It appears from bills of exception that appellant objected to evidence of all of the transactions save that of the 24th of June, on the ground that it was proof of extraneous crimes, having no connection whatever with that claimed to have occurred on the 24th of June, and because they did not come within any of the exceptions to the rule inhibiting the proof of extraneous crimes. These objections were overruled. After the state’s evidence was developed, appellant demanded an election upon which transaction the state would rely; the state elected the transaction of June 24th; appellant then again renewed his objection to the proof of the three prior transactions, and asked the court to withdraw evidence thereof from the consideration of the jury upon the same ground as theretofore urged, viz. that they did not come within any exception to the rule inhibiting proof of extraneous crimes. The learned trial judge says in his qualification to the bills of exception that the three transactions, proof of which had been complained of, were, “of course, separate and distinct from the transaction elected upon by the State, but were related to that transaction in that each of said transactions was apparently in pursuance of the general plan and design.” The court seems to have been under the impression that, because the proof showed that Nowell had entered into a conspiracy with appellant by which appellant was to store the whisky on Nowell’s premises, and because the various quantities of whisky liad been delivered to Nowell by appellant in pursuance of that conspiracy, it furnished another exception to the general rule inhibiting proof of other offenses. In this respect we think the learned trial judge fell into error. 1’ractically the same question was before the court in Hunt v. State, 89 Tex. Cr. R. 89, 229 S. W. 869. In that case a conspiracy had been entered into to commit theft of automobiles, and proof went into the record regarding the theft of ears other than the one upon which the prosecution was based. The holding of the court was positive upon the point that proof of the other offenses was not admissible simply because they had been committed in pursuance of the same conspiracy under which the theft in the case on trial occurred; that proof of other thefts would be admissible only in the event they came within some of the well-known exceptions to the rule. Cited as supporting the holding in the Hunt case were Cone v. State, 86 Tex. Cr. R. 291, 216 S. W. 190; Long v. State, 39 Tex. Cr. R. 537, 47 S. W. 363; Smith v. State, 52 Tex. Cr. R. 80, 105 S. W. 501.

Appellant urged, upon the court still another reason why proof of the extraneous offenses should have been withdrawn from the consideration of the jury, to wit, that there was a total absence of corroboration of the accomplice witness as ‘to the commission of the extraneous offenses, and therefore a total failure to prove by legal evidence the appellant’s guilt of such extraneous offenses. The corroborating evidence furnished by Mrs. Nowell was restricted to the transaction as to one hundred ninety-five gallons of whisky delivered by appellant to Nowell on the 24th day of June. There was no corroboration by her or any other witness as to the three prior deliveries claimed by Nowell to have been made by appellant. It is well settled in this state that evidence of extraneous offenses should not be received, unless the accused is _ satisfactorily shown to be the party guilty of the commission of such offense, even though proof of the extraneous crimes comes within some of the exceptions. Walton v. State, 41 Tex. Cr. R. 454, 55 S. W. 566; Fountain v. State, 90 Tex. Cr. R. 474, 241 S. W. 489; Lankford v. State, 93 Tex. Cr. R. 442, 248 S. W. 3S9; Isham v. State (Tex. Cr. App.) 41 S. W. 622; Williams v. State, 38 Tex. Cr. R. 128, 41 S. W. 645; Denton v. State, 42 Tex. Cr. R. 427, 60 S. W. 670; Hocks v. State, 97 Tex. Cr. R. 480, 261 S. W. 1053.

The case of Lankford v. State, supra, seems to be directly in point in supporting the last ground upon which appellant based his motion to withdraw evidence of the extraneous crimes. The Lankford Case was tried prior to the amendment of the statute exempting purchasers of intoxicating liquor from being held as accomplice witnesses when testifying against parties who had sold such liquor. The collateral crimes proven in that case were the sale of liquor to witnesses who were accomplices in the transaction, and this court, speaking in regard to the matter, said: “⅞ ⅜ * The court should have instructed the jury that the fact of such sales could not be considered against the appellant unless his guilt thereof was shown by legal testimony. It is a well-settled rule that the guilt of one accused of crime cannot be legally shown by the uncorroborated testimony of an accomplice or any number of accomplices. It is tbe settled law in this state that when evidence of collateral crimes is introduced for one of the various purposes for which such • evidence becomes admissible, the jury should be instructed that they cannot consider against the defendant such collateral crimes, unless it has been shown to their satisfaction that the accused is guilty thereof.”

There being in the present ease no semblance of effort to corroborate Nowell with reference to the three transactions prior to that of June 24th, and he being an accomplice, it follows as a matter of law that ■there was no legal proof as to appellant’s guilt in the commission of those • offenses, and therefore upon that ground also appellant’s motion to have the testimony withdrawn from the jury should have been sustained.

For the reasons stated, the judgment is reversed, and the cause remanded.


author: CHRISTIAN, J. DATTIMORE, J.

text:
    FRITTS v. STATE.
    No. 14328.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    Rehearing Denied Oct. 28, 1931.

      See, also, 114 Tex. Cr. R. 542, 26 S.W.(2d) 643.
    Murchison, Davis & Murchison, of Haskell, for appellant.
    Will W. Hair, of Abilene, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, death.

The conviction is for the murder of D. Hamilton.

At the April term, 1928, of the district court of I-Iaskgll county appellant was indicted for selling intoxicating liquor to Earl Hamilton, the 17 year old son of deceased, D. Hamilton. The indictment was returned May 14, 1928. Earl Hamilton, son of deceased, was a witness before the grand jury in connection with said case. The case was set for trial October 22, 1928, and, upon being called on the date last mentioned, was postponed until the following Monday. Earl Hamilton was present in court on October 22d when the case was first called for trial. Appellant was there and saw him, and knew he was a witness against him. A few days before the case was to be called the second time appellant went to the home of deceased at night. Deceased and his son had been working in the field all day and had gone to bed early. Appellant drove up to deceased’s gate and called to Earl Hamilton. Deceased got up and went Into the hall, and appellant came up on the porch. Appellant asked deceased if his name was Hamilton. Deceased replied in the affirmative. Appellant then asked deceased to call his son Earl. Deceased asked appellant: “What do you want to talk to him about?” Appellant said: “I want to talk to him about some things.” On being called by his father, Earl Hamilton came out on the porch. All three of the parties seated themselves on the edge of the porch, and they began talking. The wife of deceased testified that Earl Hamilton said to appellant: “I told them I got it from you.” She testified further that ap-' pellant said something in an angry tone of voice, and that her husband (deceased) told appellant he did not want any of his foolishness. Immediately after this last remark was made the witness heard a shot and went into the hall. -Her husband fell to the floor near the front door, mortally wounded. The witness said she saw -appellant shoot Earl Hamilton in the back while he (Earl Hamilton) was running around the corner of the porch. Earl Hamilton died instantly. We quote the testimony, in part, of the daughter of deceased:

“Earl went out to the porch and I heard him speak to Fritts, he said ‘Hello Will,’ and he said ‘Hello Earl.’ And I heard papa tell him he could talk to him right here. I couldn’t understand all they said. I heard Earl say, T told them I got it from you,’ and when he did Fritts yelled -out something, and papa told him he didn’t want to hear any of his foolishness, and when he did that I heard a gun fire, two shots fired in succession and a pause, and another one, and I could hear mama scream. I got out of bed as quick as I could and went to the dining room door. I could see papa on the porch just outside the hall door; I don’t think he was dead at that time, but he was groaning.”

A witness for the state testified that some time before the homicide he had heard appellant say to one Lockaby: “I feel d-n sorry for you or for any man who ever testifies in court that he bought whisky from me.” Appellant denied that he made this statement, and testified that he had no ill will toward deceased or Earl Hamilton. He said he went to see Earl Hamilton about his testimony in the case that was pending against him, with no intention of harming him. According to his version, after he had talked to deceased and Earl Hamilton a short time, deceased said to him (appellant): “I will get my gun and kill you.” He testified that he was afraid deceased was going to carry the threat into execution, as he (deceased) approached the front door where he (appellant) had seen deceased place something as he came out on the porch. As to the shooting of Earl Hamilton, appellant declared that he did not know why he shot him, hut he explained that he was frightened.

It appears from the state’s testimony that deceased’s hack would have been to appellant as he approached the front door of his house. The wound- inflicted on deceased by appellant entered the left breast. Deceased’s shirt was powder burned. Earl Hamilton was shot in the back.

Bills of exception 1 to 3, inclusive, relate to the same question. The state introduced in evidence, over appellant’s objection, an indictment charging appellant with the sale of intoxicating liquor to Earl Hamilton, son of deceased. This indictment had been returned after Earl Hamilton had testified before the grand jury. He had told appellant that he had so testified before the grand jury. Appellant knew that Earl Hamilton was a witness for the state touching the matter of the alleged sale of liquor. Deceased had. advised appellant shortly before appellant shot him that his son, Earl Hamilton, would tell the truth when called to testify against appellant. It was the state’s theory, given support in the evidence, that appellant killed Earl Hamilton because his testimony had resulted in the indictment, and that he killed deceased because deceased had declared, in effect, that he wanted to see that his son testified to the truth when called into court. It is obvious, we think, from the state’s standpoint, that the indictment caused appellant to kill both deceased and Earl Hamilton, and was admissible in evidence as tending to prove motive. Testimony is admissible which fairly tends to raise an inference in favor of the existence of a motive on the part of the accused to commit the alleged offense for which he is on trial. Branch’s Annotated Texas Penal Code, § 1879; Barkman v. State (Tex. Cr. App.) 52 S. W. 69; Woodward v. State, 42 Tex. Cr. R. 188, 58 S. W. 135. The state is warranted in proving the relation of the deceased to a former ease if it furnishes a reason for ill will on the part of accused toward deceased. As stated by Mr. Branch, in his Annotated Penal Code, § 18S0: “A former indictment against defendant charging him with a separate offense from the one for which he is on trial may be put in evidence to show motive when it tends to support the theory that defendant intended to prevent adverse disclosures by deceased who was a witness against him.” Dill v. State, 1 Tex. App. 278; Johnson v. State, 29 Tex. App. 150, 15 S. W. 647.

Bill of exception No. 4 discloses that appellant was required to testify, over his objection that the incident was too remote, that he had been indicted by the grand jury of King county, Tex., in September, 1921, for the offense of perjury. The indictment was not connected with the offense for which appellant was on trial. If the impeaching testimony is not too remote, the accused, when testifying, or any other witness, may be impeached by the adverse party by proving by the witness on the cross-examination that he had been indicted for a felony. Branch’s Annotated Texas Penal Code, § 167; Hunter v. State, 59 Tex. Cr. R. 439, 129 S. W. 125, 131. The opinion is expressed that the objection .was properly overruled. It may be added that the evidence shows that appellant did not reform after his indictment in 1921. Numerous 'indictments charging him with felonies were returned at different times up to and including April, 1928. Hence, if standing alone, the indictment returned in 1921 should be held to be too remote; nevertheless, when considered in connection with the subsequent indictments, it was proper to require appellant to testify that he had been indicted in 1921. Oates v. State, 67 Tex. Cr. R. 488, 149 S. W. 1194, 1196. Any intention of holding that the indictment standing alone was too remote is disclaimed. We quote the language of Judge Morrow, in Shipp v. State, 104 Tex. Cr. R. 185, 283 S. W. 520, as follows:

“At what period of time testimony of a prosecution for an act of the accused which is discrediting to his veracity becomes too remote to warrant its receipt in evidence seems to the writer one that cannot be arbitrarily determined by the courts. Entering into the relevancy of such testimony, there would seem to be many circumstances. For example, the period of the life of the accused at which the discrediting act took place and his subsequent conduct are elements that must be taken into account. Supposing the accused to be a youth,' indiscretion amounting to a criminal offense committed by him ten years previous at a time when he was a mere child of tender years would seem, in the absence of supporting testimony showing prosecutions indicating continued evil disposition, to be too remote. 'Supposing the accused to be of middle age or more, and the discrediting fact to have taken place ten years or more antecedent to the time the proof of it was offered in evidence, his freedom from accusations of crime during the intervening space of time would seem of weight upon the relevancy of the proof. In the due administration of justice, the idea of reform — the fact that an individual once bad may have amended his ways — is not to be ignored by the courts. One may have been bad and become good, or may have borne an excellent character and a good reputation at no distant time and had become profligate and criminal in his tendencies. This court has oftentimes been called upon to consider, and has considered, the admissibility of testimony to the effect that the accused had been charged with an offense at some time previous to that for which he was on trial, but it has never, so far as the writer is aware, undertaken to fix arbitrarily and absolutely a space of time which would characterize such testimony as too remote. In the opinion of the writer, the nature of things precludes such a declaration. The receipt of such testimony should primarily be determined by the trial judge after an investigation, in the absence of the jury, to learn whether, under the ascertainable facts, the act is too remote. The exercise of such discretion is subject to review, and, in. case of abuse, to be revised.”

See Stratton v. State, 110 Tex. Gr. R. 254, 8 S.W.(2d) 171; Anderson v. State, 113 Tex. Cr. R. 450, 21 S.W.(2d) 499.

Bills of exception 6, 7, and 8 deal with the same question, and will be discussed together. Appellant testified, on cross-examination, without objection, that he had been indicted for selling intoxicating liquor to O. S. Shamburger. 1-Ie had not been tried on this indictment. The district attorney asked appellant if it were not a fact that he went to O. S. Shamburger after he was indicted and told him what he would do if he appeared as a witness against him in the liquor case. Appellant objected to the asking of the question on the ground that it was prejudicial, inflammatory, and irrelevant, and asked the court to instruct the jury to disregard it for any purpose. The objection being overruled, appellant answered in the negative. Substantially the same question was asked appellant in connection with an indictment charging him with the sale of intoxicating liquor to Roy Petit. The district attorney also asked appellant if he knew that Petit was in Louisiana when the case was called for trial. Appellant answered both questions in the negative. The matter was pursued no further by the district attorney. If the questions were improper, which is not decided, a reversal would not necessarily follow. In Booth v. State, 90 Tex. Or. R. 240. 234 S. W. 888, 889, this court, speaking through Judge Hawkins said: “It is in exceedingly rare instances where this court would feel called upon to reverse a case solely because counsel may have propounded an improper question.” We quote from Ard v. State, 101 Tex. Cr. R. 545, 276 S. W. 263, 265, as follows: “The asking of a question whose affirmative answer might be hurtful to the accused would ordinarily present no error when complained of in a bill of exceptions unless the answer is given, and, if given and answered in the negative, as is the case in appellant’s bill of exceptions No. 5, no error would be made to appear.”

In support of his contention that the mere asking of the questions constituted reversible error, appellant cites Baird v. State, 111 Tex. Or. R. 351, 12 S.W.(2d) 1634, and Clark v. State, 115 Tex. Cr. R. 71, 29 S.W.(2d) 390. In Baird’s Case the state elicited from the accused that she had been previously indicted. It was then shown by her counsel that the indictment had been dismissed. The state was then permitted to show that at a previous time a still had been found in the house of the accused, and that her brother had been tried and acquitted of a liquor charge growing out of the same transaction. Thus the' state introduced affirmative testimony hurtful to the accused. In the case at bar the answer was favorable to appellant, and no affirmative testimony supporting the matter sought to be proved was introduced by the state. In Clark’s Case the state asked Clark if he had not previously been indicted and the eases dismissed because the witnesses had been run off. Clark answered that he had been previously indicted, but that he did not know whether the indictments had been dismissed because the witnesses had been run off. Clark did not give a negative answer, but answered in a manner that left the matter uncertain. In view of the question and the answer in Clark’s Case, the imputation was present that Clark had been instrumental in keeping witnesses in separate and distinct cases from appearing against him. Considering the questions in the light of the facts in evidence, we think that, if the questions were improper, the holding in Ard v. State, supra, should be given application. It may be added that it is not clear that said questions were improper. According to the state’s testimony, as hereinbefore related, some time before the homicide appellant had said to one Lockaby: “I feel d-n sorry for you or for any man who ever testifies in court that he'bought whisky from me.” Appellant denied that he made this statement. He denied that he went to the home of deceased for the purpose of killing Earl Hamilton if he would not change his testimony, or leave the country. He interposed a plea of self-defense, and testified to facts tending to show that he was not actuated by malice when he fired the fatal shots. It is the rule that antecedent menaces or former quarrels between the parties may be proved to show the state of mind or malice of the accused at the time of the alleged offense, and to establish a motive for its commission. Branch’s Annotated Penal Code, § 1881; Martin v. State, 41 Tex. Cr. R. 242, 53 S. W. 849. However, proof of an extraneous crime or disconnected transaction should not be admitted to show motive, unless there is some logical connection between it and the particular act under investigation. Branch’s Annotated Penal Code, § 1882; Barkman v. State (Tex. Cr. App.) 52 S. W. 69; Woodward v. State, 42 Tex. Cr. R. 188, 58 S. W. 135. It is not clear that in the light of the facts and circumstances in evidence in this case that appellant’s acts and threats toward those who claimed to have purchased liquor from him, within wlpch class Earl Hamilton was embraced, and also deceased by virtue of his support of Earl Hamilton in testifying truthfully about the matter, were not logically connected with the killing of deceased and properly admissible as tending to show appellant’s state of mind and the motive that actuated him in firing the fatal shot. See Russell v. State, 84 Tex. Or. R. 245, 209 S. W. 671. However, we do not deem it necessary to decide whether the questions were proper.

Appellant brings forward eleven bills of exception in which he complains of the argument of the district attorney. We have carefully examined each of these bills, and are constrained to hold that the remarks of counsel were not unwarranted. For example, the district attorney stated in argument that a grand jury of King county, in indicting appellant for perjury, had believed that he had given false testimony in some other case or proceeding. This indictment was not connected with the case on trial. We see nothing improper in the argument. Again, the district attorney stated, in substance, in argument, that appellant’s customers were possibly so numerous on the occasion of the sale of intoxicating liquor to Earl Hamilton that he could not remember that he had had the transaction with Earl Hamilton. In view of the facts in evidence, this statement seems to be within the bounds of legitimate argument. Again, in argument, the district attorney pictured the sorrow in the home of deceased. Also, he urged that the infliction of death for crime was proper, and referred to the fact that some of the states which had abolished the death penalty were finding it necessary to bring it back into their procedure. It can serve no useful purpose to set out the remarks embraced in the eleven bills of exception. Suffice it to say that in examining said bills we have had in mind the rule state by Judge Hawkins in Silver v. State, 110 Tex. Cr. R. 512, 8 S.W.(2d) 144, 148, 9 S.W.(2d) 358, 60 A. L. R. 290, which we quote: •“Another thing that must be borne in mind is that the facts and surroundings of the particular case should be looked to in determining the effect of an argument complained of. The same language under a certain state of facts might be highly prejudicial, and not so regarded under other circumstances. This is illustrated in Todd v. State, 93 Tex. Cr. R. 553, 248 S. W. 695; Coates v. State, 98 Tex. Cr. R. 314, 265 S. W. 891; Vineyard v. State, 96 Tex. Cr. R. 401, 257 S. W. 548.’’

If the state’s testimony was to be believed by the jury, appellant committed an atrocious crime. If appellant’s theory that he killed deceased in self-defense had been believed, the jury would have acquitted him. Having accepted the state’s version of the transaction, it is not strange that the jury inflicted the extreme penalty. The conclusion is inescapable that the jury responded alone to the facts and circumstances in evidence in assessing the penalty.

All of appellant’s contentions have been carefully examined. The opinion is expressed that the record presents no question warranting a reversal.

The judgment is affirmed.

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.

On Motion for Rehearing.

DATTIMORE, J.

Appellant insists in his motion for rehearing that we were wrong in our original opinion in not holding it reversible error for the state’s attorney, on the trial of this case, to ask appellant while a witness if he had not gone to one Shamburger, in one instance, and one Petit in another, and told them what he would do to them if they appeared as witnesses against him in certain liquor cases. It is said in ^each bill of exception presenting this complaint that appellant answered “No.” In our original opinion we said, in substance, that the negative answers justified the trial court in concluding that there was no such harm possible from the mere asking of the questions as would have required of the trial court the granting of a new trial, even if the questions themselves were not permissible; a doubt being expressed on this point.

Appellant most earnestly insists that, upon the authority of Baird v. State, 111 Tex. Cr. R. 351, 12 S.W.(2d) 1034, and Clark v. State. 115 Tex. Cr. R. 71, 29 S.W.(2d) 390, we should have reversed the case for the mere asking of the questions referred to. We have again .carefully examined and considered the matter.

It is sound to say that the correctness of any citation of precedents depends upon the analogy in facts and applicable legal principles between the present and any cited case. In the case at bar the theory of the state, having foundation in testimony, was that appellant shot and killed deceased and his son Earl at night at their home, to which he had gone armed with a pistol for the purpose of compelling Earl, who was a witness against him in a pending liquor case set for trial the Monday following the date of the homicide, to either change his testimony ox-absent himself from court. The entire family of deceased had retired when appellant reached their house. He roused them and wanted Earl to come" out and talk to him. Deceased accompanied Earl to the porch. The state’s theory further was that Earl refused the approaches of appellant, stated his testimony, and that he was going to tell it that way, in which announcement lie was upheld by deceased, whereupon appellant became angry and shot first deceased, and then Earl, as the latter fled.

Appellant’s theory was that he did not go to said place for the purpose of having trouble with said parties, or to improperly influence or threaten Earl, but that he wanted to see Earl about what he was going to do about his testimony, and that he shot deceased in self-defense against an attack or threatened attack on the part of deceased. He said he did not know what made him shoot Earl.

In his cross-examination he admitted that he had been indicted for some fifteen other felony cases, many of them for selling liquor, but claimed that he had been tried in only one and convicted in none. He was further asked, as set out in bills of exception 6, 7, and 8, referred to and discussed in our orlg-■inal opinion, if he had not prior to this homicide gone to one Shamburger, a witness against him in a liquor selling case, also to one Petit who was in the same attitude, and, if he had not told these parties what he would do to them if' they testified against him in said liquor cases. The state proved a general threat made by appellant against all persons who might so testify, as is set out in our former .opinion.

Under the facts of this case, for the purpose of rebutting appellant’s claim of self-defense, and that he went to the home of deceased for a purpose other than to kill or compel Earl Hamilton by force or otherwise to change his testimony or absent himself from court, and also to show animus and motive of appellant in the entire transaction at the home of deceased, we think the state ■ entitled to prove said general threat, and in line with same to show by appellant while a witness, if they could, that he had gone to other parties, witnesses against him in similar cases, and threatened them or induced them to change their testimony or absent themselves irom court. The questions complained of seem to have had this in mind, but the inquiry was not further pressed after appellant’s negative answers thereto.

Mr. Underhill in section 158, in his work on Criminal Evidence, cites many authorities supporting the proposition that, when the issue is the present intention of the accused, testimony involving the commission of other offenses is admissible, if relevant. He says: “It is relevant to prove that the person whose intention is in question had performed acts of a precisely similar nature either before or after the act the intention of which is in question.” Mueller v. State, 85 Tex. Cr. R. 846, 215 S. W. 93; Brown v. State, 86 Tex. Cr. R. 8, 215 S. W. 323; Bottomley v. United States, 1 Story, 135, Fed. Cas. No. 1,688; McGlasson v. State, 37 Tex. Cr. R. 620, 40 S. W. 503, 66 Am. St. Rep. 842; Carnes v. State, 51 Tex. Cr. R. 437, 103 S. W. 403; Wyatt v. State, 55 Tex. Cr. R. 73, 114 S. W. 812, are cited in the notes under the above section. Mr. Underhill discusses ih sections 151-153, etc., of said work, the admissibility of testimony which may tend to prove other offenses when relevant to show guilty knowledge and purpose, or to establish the intent or motive of a given act or deed from circumstances, or to rebut a claim or inference, of innocent intent or mistake.

The eases of Baird v. State, supra, and Clark v. State, supra, relied on by appellant, are on facts so wholly different from those which appear in the instant case, which will be seen upon inspection of the opinions in said cases, as to render unnecessary any extended discussion of them to show that both on their facts and the legal principles announced by this court, in each, they are wholly different.

In line with what we said in our original opinion, however, it seems clear that, the questions asked and under discussion having been answered in the negative, there would be no doubt of the correctness of the holding that bills of exception 6, 7, and 8 reflect no reversible error. In addition to those authorities cited in the original opinion and as supporting this announcement see Huggins v. State, 60 Tex. Cr. R. 214, 131 S. W. 596; Thomason v. State, 105 Tex. Cr. R. 119, 286 S. W. 1104, 1106; Musick v. State, 106 Tex. Cr. R. 207, 292 S. W. 223; Alexander v. State (Tex. Cr. App.) 8 S.W.(2d) 176.

Appellant renews complaint of the argument of the district attorney, and we have again examined the record in view of said complaint. Bill of exception No. 13 as qualified by the court shows no error.

Without discussing in detail, we are of opinion that these complaints are without merit.

The motion for rehearing will be overruled.


author: HAWKINS, J. LATTIMORE, J.

text:
    ABERCROMBIE v. STATE.
    No. 14403.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Rehearing Denied Oct. 28, 1931.
    Wayne Somerville, of Wichita Palls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for knowingly receiving a stolen automobile; punishment being four years in the penitentiary.

The automobile in question was stolen in Graham, Young county, Tex., on the night of December 1, 1930. It was found in the possession of appellant some time in January, 1931, in the city of Wichita Palls, Wichita county, Tex. Appellant was attempting to sell the car. He told the prospective purchaser that he did not have the “papers” on the car, tout would have to go to Port Worth to get them. Becoming suspicious, the buyer examined the car and discovered the engine number had been changed. He caused appellant’s arrest. There were found on his person papers purporting to represent the transfer of a car bearing the changed engine number from one Leach to Bowen. The notary public in Port Worth who took Leach’s affidavit to the transfer testified that he was not acquainted with Leach, but took the affidavit of some one who so represented himself. He further testified that appellant was not present at the time. Upon the trial, appellant claimed to have bought the car in question from Bowen, who promised to meet him the next morning after the purchase and give him a bill of sale to the car, but failed to do this. Appellant also produced evidence at the trial which rather effectively supported his claim that he was in Chichasha, Okl., at the time the car was stolen in Young county, Tex., and, therefore, that he could not have been the thief.

The count of the indictment upon which, appellant was convicted alleged that the car had toeen stolen by some one to the grand jurors unknown, and had been received by appellant from some one to the grand jurors unknown. Evidence was produced by the state sufficient to support the allegations in the indictment that at the time the indictment was returned the grand jurors did not know who had stolen the car, nor from whom appellant had received it.

The court properly refused a special charge directing the jury to return a verdict of not guilty.

The grand jury did not know from whom appellant received the car. It was appellant’s claim that he received it from Bowen. The court told the jury pertinently, if they believed appellant bought the car from Bowen, and did not at the time know it was stolen, to acquit, or, if they had a reasonable doubt regarding that matter, to return a verdict of not guilty. There was no error in refusing the special charge requested upon the same subject.

Appellant requested the court to instruct the jury that, if appellant stole the car in question, they should acquit him of the offense of receiving and concealing stolen property. The charge was refused. Under some circumstances, the omission of such instruction would be reversible error, as illustrated in Allen v. State, 76 Tex. Cr. R. 416, 175 S. W. 700. Article 666, C. C. P., provides that an error regarding instructions to the jury, or the refusal thereof, shall not be ground for reversal, unless it was calculated to injure the rights of the defendant. Giving effect to said article, we think the refusal of the special charge last mentioned would not call for a reversal. The evidence presented toy appellant on the trial as to his presence in Oklahoma at the time of the theft in Texas appears to have been so’ convincing that the learned trial judge did not submit the count of the indictment charging appellant with stealing the car. The case turns upon the point of appellant’s lack of knowledge that the car had been stolen at the time he claimed to have come into possession of it from other parties.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

' The ear in question was stolen. Thereafter it was found in appellant’s possession. The state offered nothing further to prove him the actual taker. He testified that he bought said car in good faith from one Bowen in Fort Worth. The testimony sufficiently threw doubt upon his explanation to justify the trial court in submitting it to the jury. Fallon v. State, 89 Tex. Cr. R. 247, 230 S. W. 170; Fuller v. State, 99 Tex. Cr. R. 475, 270 S. W. 169; Mehlman v. State, 92 Tex. Cr. R. 455, 244 S. W. 523.

■ The testimony supports the conclusion that the story as to how appellant got the car was untrue. In the main charge the court told the jury that, if they believed appellant bought the car from Bowen without knowing that it was stolen, or if they had a reasonable doubt thereof, they should acquit. This fully and properly presented appellant’s defensive theory ¡based on his testimony. There seems to us no need to have given the special charge requested. This covers the complaints made in the motion.

The motion for rehearing will he overruled.


author: LATTIMORE, J. HAWKINS, J.

text:
    WARNER v. STATE.
    No. 14280.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    Rehearing Denied Oct. 28, 1931.
    John E. Clarke, of Hillsboro, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, five years in the penitentiary.

Article 62, P. C., and the authorities construing it, provide that if one charged with a felony less than capital be also properly charged with having been convicted at some time prior to the commission of the last offense, of another felony which is “the same offense, or one of the same nature,” he shall receive the highest penalty which can be affixed for the offense last committed. Appellant was charged with possessing intoxicating liquor for purposes of sale, and it was alleged that at a prior time he had been convicted of the offense of selling intoxicating liquor. The state’s theory evidently was and is that the two offenses charged were the same or of the same nature. Appellant contends that they are not. The question is somewhat difficult and important.

In Muckenfuss v. State, 55 Tex. Cr. R. 216, 117 S. W. 853, a misdemeanor case, this court held, in substance, that all offenses involving a violation of the sanctity of the Sabbath were “the same offense,” whether they be keeping a theater open on Sunday, horse racing on Sunday, selling goods on Sunday, etc. Entertaining the greatest respect for the eminent judge who wrote in that case, we think it wrong to lay down the rule that offenses possessing only a single element of sameness are therefore the same or of the same nature; and we think our opinion went too far in what we said approving the Muckenfuss Case, in Strickland v. State, 115 Tex. Cr. R. 410, 28 S.W.(2d) 818. Every rape, equally with every murder; is based on a necessary assault. Every bigamy and every swindling proceeds on the basic theory of fraud, but it would not do at all to say that these were therefore the same offenses, or offenses of the same nature.

It is the duty of the Eegislature to define every crime, and make the definition clear, and to avoid matters of doubtful construction. Article 6, P. C. It is our opinion that the two expressions used in said article 62, supra; viz.: “The same offense” and “of the same nature,” evidence merely the purpose of the Legislature to provide the higher punishment for him who so far approaches the attitude of an habitual criminal, as to follow one conviction by doing that which in substance, nature, and effect is the same offense, and that, though there be some differences, still the substance of the offense, the body of the crime, its collective elements, must be so nearly similar or identical as to justify the higher punishment as for the same offense as that formerly committed. As for instance, the subsequent taking from another of his property without his consent, in any of the ways forbidden by statute, might be deemed so similar or identical as to justify pleading and proof of a prior conviction for such taking in any of the ways made penal. So also of murder, maiming and assault to murder. So also of burglary, rape, robbery, etc., and attempts or assaults with intent to commit such offense. Strickland v. State, 115 Tex. Cr. R. 410, 28 S.W.(2d) 818. In the above case, reference is had to other cases for some extended discussion.

In the case before us, appellant was charged with possessing intoxicating liquor for the purpose of sale, and it was further alleged that at a prior time, on a day named, he was convicted of the offense of selling intoxicating liquor. On the instant trial, he was given the highest penalty for the offense charged. Having in mind what we said in Strickland’s Case, supra, we scarcely see how in reason it can be said that the offense of selling intoxicating liquor and possessing same for the purpose of sale, are not offenses of the same nature as much so as murder and-assault to murder, burglary and attempt at burglary, etc. Not all violations of what is called the Dean Law (Acts 37th Leg. [1921], 1st Called Sess., c. 61) are identical or so similar in elements and nature,as to enable them to be pleaded and proved as prior offenses of the same nature; but as to the possession for sale, and the sale of intoxicating liquor, we are constrained to hold same of the same nature. See also Johnson v. Com., 206 Ky. 594, 268 S. W. 302.

There are no bills of exception in this record. "We regard the evidence as sufficient to support the verdict and judgment.

The judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

The sole question decided in our original opinion was considered carefully, and the conclusion therein announced was reached only after a number of consultations. This court realized it was a matter of judicial construction to determine what was meant by the use in the statute (article 62, P. C.) of the language, “The same offense, or one of the same nature.”

Evidently it was not in the mind of the Legislature to restrict the increased punishment to cases where there had been former convictions for the same offense. If so, there was no necessity to use the additional words which make clear the purpose of the Legislature to enlarge instances where increased punishments were permitted. We endeavored in our original opinion to give such construction to the statute as would carry out the intention of the Legislature, and at the same time so restrict its meaning as not to invade the rights of one accused of crime.

The motion for rehearing is overruled.


text:
    HARDEE v. STATE.
    No. 14644.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    J. K. Russell, of Cleburne, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is the possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one year.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

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.


text:
    HARDEE v. STATE.
    No. 14645.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    J. K. Russell, of Cleburne, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one year.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

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.


text:
    HARDEE v. STATE.
    No. 14646.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    . J. K. Russell, of Cleburne, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is maintaining a house where intoxicating liquors were sold; the punishment, confinement in the penitentiary for one year.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is áffirmed.

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.


text:
    LAMAR v. STATE.
    No. 14631.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931
    I. W. Culp, of Temple, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for burglary; punishment, four years in the penitentiary.

The appeal is from a conviction in the district court of Bell county, Tex. We find duly filed with the record an affidavit made by the sheriff of Irion county stating that subsequent to appellant’s conviction he was confined in the county jail of Irion county, Tex., and that while so confined he made his escape from such custody and did not voluntarily return to any custody within ten days after said escape.

Under the law governing, it becomes our duty to dismiss this appeal, and it is accordingly so ordered.


text:
    HEFNER v. STATE.
    No. 14495.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Will R. Saunders, of Pampa, and C. C. McDonald, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for murder; punishment being assessed at ninety-nine years’ confinement in the penitentiary.

No statement of facts has been brought to this court and no bills of exception appear in the record save some objections to the court’s charge and the refusal of some special charges. In the absence of the facts proven, it is impossible for this court to appraise the objections to the charge or determine whether the court was in error in the refusal of special charges.

No error appears in the record. The judgment is affirmed.


text:
    HORNE v. STATE.
    No. 14621.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Joe McNamara, of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Aus-, tin, for the State.
   CALHOUN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one year.

The record is before us without statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

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.