author: WOODLEY, Judge.

text:
    Paul BONE, Appellant, v. The STATE of Texas, Appellee.
    No. 38110.
    Court of Criminal Appeals of Texas.
    May 26, 1965.
    Rehearing Denied June 26, 1965.
    Clyde, Hines & Craig, by A1 Clyde, Fort Worth, for appellant.
    Robert M. Mahanay, Dist. Atty., Cle-burne, Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

Our prior opinion ordering the appeal dismissed is withdrawn and the appeal is reinstated.

The offense is misapplication of public funds (Art. 95 P.C.); the punishment, 10 years.

Trial was before a jury in the District Court of Bosque County on a plea of not guilty, venue having been changed from Somervell County where the indictment was returned on April 16, 1964.

The indictment alleged that on or about the. 31st day of March, 1964, Paul Bone (appellant) “was then and there the Sheriff and Tax Collector of Somervell County, Texas, and the said Paul Bone did then and there fraudulently take, misapply and convert to his own use Twenty One Thousand Five Hundred Forty Four and Seventy Two/100 Dollars in money, the same being then and there current money of the United States and which said money had theretofore come into and then and there was in the custody and poss/ess)ion of the said Paul Bone by virtue of his said office; which said money belonged to Somervell County, Texas * *

The evidence shows that appellant was the duly elected Sheriff and Tax Collector of Somervell County, having been first elected in 1957 and having served continuously up until the time he was removed from office shortly after April 1, 1964.

Somervell County having a population of less than 10,000 inhabitants, the provisions of Art. 7246 Vernon’s Ann.Civ.St. were applicable and the sheriff was also the assessor and collector of taxes.

Among the duties of his office was the collecting of fees for the registration, license fees and license plates for motor vehicles. The total collections being less than $50,000 in a calendar year, all of such receipts were allocated to Somervell County.

As Tax Collector, appellant was required to report monthly to the State Highway Department giving a record of motor vehicle registrations and other fees. Copies of these records were retained at the Sheriff’s office.

Miss Wynell Whitt, the County Treasurer, worked for appellant on a part time basis, issuing car licenses, license plates and registration receipts- and collecting the fees therefor.

All such fees, whether cash or check, were customarily kept in an unlocked drawer in the Sheriff’s office until such time as the Sheriff deposited them in the bank. At irregular intervals appellant issued checks payable to the County Treasurer, County Judge and County Auditor.

Eugene Brown, a certified public accountant who lived at Fort Worth, served as County Auditor for Somervell County by appointment of the District Judge, from 1960 until after April 1, 1964. Under his agreement with the Commissioners Court he was to come to the county once every three months to prepare the annual report and the budget, to set up books and to prepare the annual report of the County Treasurer “ * * * and to check whatever I could or whatever I had time to, everything else.”

During his term as County Auditor Mr. Brown, from time to time, checked the books, records and reports kept by appellant, including the automobile license registration reports “ * * * to be sure that the money went into the County Treasurer.”

Mr. Brown testified that the records in the Sheriff’s office were always in very good condition but his reports were consistently late. In June or July, 1963, when he completed his work on the auto registration for 1962 Mr. Brown discovered a shortage between the amount collected, according to the reports of the appellant, and the amount paid to the County Treasurer and he discussed the matter with appellant who said he would check on it and let him know the next time he came down.

When he came back in October appellant “ * * * said that the amount was correct and he would pay it.”

The latter part of January, 1964, he again discussed the matter of the shortages with appellant “ * * * and he said that he had been busy and that he would make the amount up.”

In the latter part of March, 1964, Mr. Brown went to appellant’s office and told him that the shortages had to be made up and that he would be back in ten days and “ * * * if he wasn’t caught up, I would have to report it to the County Commissioners.”

On March 30 and 31, 1964, receipts were issued by Mrs. Whitt for registration, license plates and fees, totalling $5,204.94. The cash and checks received by Mrs. Whitt were left in the usual place in the office.

On the night of March 31, 1964, appellant left Glen Rose.

Checks in the aggregate sum of $3,509.71 were found in the night depository at the First National Bank of Glen Rose. $308.77 was found in the Sheriff’s office. The balance of $1,386.46 represented by the receipts introduced in evidence was missing.

Cecil Parker, who was named acting sheriff after appellant abandoned his office, and who at the time of trial was Auditor for Somervell County, testified as a witness for the state. On cross-examination appellant elicited from said witness the following :

“Q. After you were named acting Sheriff, when did you next see this defendant?
“A. When he returned, I have forgotten the exact date, but it was near the last of April.
“Q. The latter part of April?
“A. Yes sir.
“Q. At that time, did he deliver anything to you?
“A. Yes sir, he — not when I first saw him. Do you mean during that day?
“Q. Yes.
“A. He turned over $800.00 to me.
“Q. In cash?
“A. Yes sir, forty twenty dollar bills.
“Q. Did you have any conversation as to«/hat that was ?
“A. As well as I remember, he told me that was what he had left.”

The court charged the jury on the law of circumstantial evidence and authorized the jury to convict upon a finding beyond a reasonable doubt that appellant misapplied or converted to his own use $21,544.72 or any lesser amount of current money of the United States belonging to Somervell County that had come into his possession by virtue of his office. “Current money” as used in the charge was defined as currency and coins issued by the United States Government.

Viewed in the light most favorable to the jury’s verdict, we find the evidence sufficient to sustain the jury’s findings.

Appellant’s remaining ground for reversal is that the trial court erred in failing and refusing to charge the law of accomplices insofar as the witness Temple Summers, County Judge, and Eugene Brown, former Auditor, were concerned.

The contention is that these witnesses, having knowledge of the commission of the offense, failed to act which made them accessories and accomplice witnesses.

No exception to the charge or requested charges appear in the transcript. The claimed errors are not before us for review. We express the view, however, that the evidence did not raise the issue or show that the named witnesses were accessories or accomplice witnesses.

No reversible error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Loyd RAGLAND, Appellant, v. The STATE of Texas, Appellee.
    No. 38201.
    Court of Criminal Appeals of Texas.
    May 19, 1965.
    Rehearing Denied June 26, 1965.

      Billy Hall, Littlefield, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the subsequent offense of drunken driving, a felony; the punishment, one year in the penitentiary.

The evidence presented by the state shows that on the night in question the appellant was stopped and arrested by Deputy Sheriff Edward Roberson while driving his pickup truck on a public street and highway in the city of Hereford.

Officer Roberson testified that he went to the scene in response to a call and that he stopped the appellant after his pickup just missed striking another pickup parked on the side of the street. The officer further testified that when he asked appellant for his driver’s license he could not find it and handed him a blank piece of cardboard; that appellant had the odor of alcohol on his breath and was very slow in his speaking. The opinion was expressed by the officer that at such time appellant was intoxicated.

Policeman Don Aycock, of the city of Hereford, who went to the scene and observed the appellant, corroborated Officer Roberson’s testimony and expressed his opinion that appellant was intoxicated. Aycock further testified that when he drove appellant’s pickup to the sheriff’s office he found two bottles, one empty and one partially filled, in the vehicle.

It was further shown that after his arrest, appellant executed a written consent to give a blood specimen and that he was taken to a hospital, where the blood specimen was taken from him. Officer Roberson testified that after the specimen had been put in the vial and sealed, he placed it in a container and then filled out the proper forms and mailed the container to the Department of Public Safety.

Chemist Eldon Straughan, of The Texas Department of Public Safety, testified that he received the sealed container in Lubbock in the course of the “departmental mail” and proceeded to break the seal and make an analysis of the blood specimen. He testified that the analysis disclosed that the specimen contained .26 percent alcohol and that a person with such concentration of alcohol in his blood would be intoxicated.

Proof was made of the prior alleged conviction for drunken driving by the introduction in evidence of a certified copy of the information and judgment in Cause No. 371, styled The State of Texas vs. Loyd Ragland, in the County Court of Hansford County, wherein the defendant in the cause was convicted on May 11, 1955, of the misdemeanor offense of driving while intoxicated.

Sheriff J. B. Cook, of Hansford County, called as a witness by the state, identified appellant as the defendant convicted in the cause.

Appellant did not testify but called several witnesses who testified that they had seen appellant during the day and night prior to the occasion of his arrest and that he had not been drinking and did not have the smell of alcohol on his breath. One of the witnesses, Alvin Young, testified that the night before he used appellant’s pickup and left in the vehicle two vodka bottles, one being empty and the other having some vodka in it.

The jury by their verdict resolved the disputed issue of intoxication against appellant, and we find the evidence sufficient to sustain the verdict,

Error is urged to the court’s action in overruling appellant’s motion to quash the jury panel.

The transcript contains the motion to quash filed by appellant, together with the court’s order overruling the same and appellant’s exception thereto. The same was ordered filed as appellant’s formal bill of exception #1. The motion and the court’s order, with appellant’s exception, do not certify to any facts and are insufficient to constitute a formal bill of exception. There being no separate statement of facts of the evidence adduced upon the hearing of the motion, such motion and the court’s order with appellant’s exception are insufficient to constitute an informal bill of exception, under the provisions of Art. 759a, Sec. 6, and Art. 760e, Vernon’s Ann.C.C.P. Lopez v. State, 171 Tex.Cr.R. 672, 352 S.W.2d 747; Lacy v. State, 168 Tex.Cr.R. 220, 325 S.W.2d 392; Crawford v. State, 165 Tex.Cr.R. 147, 305 S.W.2d 362. Nothing is presented for review.

Various objections were urged to the court’s charge.

We have examined the charge in the light of the objections and find no reversible error. Contrary to appellant’s contentions, the court charged the jury with respect to all elements of the offense and required them to find and believe beyond a reasonable doubt, before convicting appellant, that he had been previously convicted as charged and that on the date alleged he did operate a motor vehicle upon a public highway while under the influence of intoxicating liquor. The court’s failure to define the term, “intoxication,” was not error, as such term need not be defined. Galan v. State, 164 Tex.Cr.R. 521, 301 S.W.2d 141. In submitting forms of verdict in the charge, the court submitted all possible verdicts which could be rendered. Hence, under the facts, no error is shown. Garcia v. State, 162 Tex.Cr.R. 594, 288 S.W.2d 513.

We have carefully examined appellant’s informal bills of exception to the court’s ruling on the admission and rejection of testimony and find no reversible error.

In permitting Officer Roberson to relate the conversation with appellant when his consent was given to take the blood specimen, over the objection that appellant was under arrest, the court did not err, as it is held that the confession statute, Art, 727, V.A.C.C.P., has no application to the obtaining of a blood specimen for chemical analysis. Owens v. State, 164 Tex.Cr.R. 613, 301 S.W.2d 653; Sartain v. State, 171 Tex.Cr.R. 192, 346 S.W.2d 337.

State’s exhibit #2, which was the container and vial in which appellant’s blood specimen was placed, was properly admitted in evidence over the objection that its chain of custody had not been properly traced. Deputy Roberson identified the exhibit as the sealed container which he mailed to the Department of Public Safety, and Chemist Straughan identified it as the sealed container received at the department’s Lubbock office in the mail.

The two bottles found in appellant’s pickup after his arrest were properly admitted in evidence. Bedwell v. State, 165 Tex.Cr.R. 143, 305 S.W.2d 372; Lacy v. State, supra. In permitting Officers Cox and Roberson to testify that certain notations were made on the bottles, the court did not err. The notations on the bottles, as disclosed by the testimony, consisted of the date they were seized, the license number of the vehicle, Officer Roberson’s initials, and the designation of one of the bottles as empty and a line drawn at the level of the liquid in the other. The notations were means of identification of the exhibits and nothing of an evidentiary nature was presented to the jury which was not otherwise properly before them. Ellison v. State, 154 Tex.Cr.R. 448, 227 S.W.2d 817.

The judgment is affirmed.

Opinion approved by the court.


author: BELCHER, Commissioner.

text:
    Ex parte Ira Woodrow WILSON.
    No. 38285.
    Court of Criminal Appeals of Texas.
    May 26, 1965.
    Rehearing Denied June 26, 1965.
    No attorney of record on appeal, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and James C. Brough, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from an order in a ha-beas corpus proceeding remanding the appellant to custody for extradition to the State of California.

Upon the hearing, the executive warrant of the Governor of this state was introduced in evidence, and it appears regular on its face. It made out a prima facie case authorizing extradition. Ex parte Seffens, Tex.Civ.App., 376 S.W.2d 348.

The appellant did not testify. However, it was stipulated by the appellant in person, his counsel, and the attorney for the state, that he is the same person named in the executive warrant.

The executive warrant of the Governor of this state authorized the trial court to conclude as he did and remand the appellant for extradition. Ex parte Tangney, 165 Tex.Civ.R. 386, 307 S.W.2d 804.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Kenneth Lee ISAACS, Appellant, v. The STATE of Texas, Appellee.
    No. 38254.
    Court of Criminal Appeals of Texas.
    May 19, 1965.

      James E. Faulkner, Coldsprings, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Ripley E. Woodard, Jr., and Thomas C. Dunn, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is assault with intent to rape; the punishment assessed by the court on a plea of guilty, 8 years.

Appellant was indicted for rape of a girl under IS years of age. Tried before a jury on a plea of not guilty, he was found guilty and assessed a term of 25 years.

Motion for new trial filed October 16, 1964, alleging among other things that he had not been adequately represented by counsel at his trial, was granted on November 13, 1964.

On the same day appellant, represented by different counsel, obtained the consent of the district attorney and pleaded guilty before the same trial judge to assault with intent to rape.

The judgment on the trial before the court rendered November 13, 1964, recites: “Indicted for a Felony: Statutory Rape, a Felony, But upon motion of the state, the offense reduced to Assault with Intent to Rape, a Felony, and the Defendant is on Trial Herein for Assault With Intent to Rape, a Felony.”

A similar reduction of assault with intent to murder alleged in the indictment to aggravated assault, to which the defendant pleaded guilty, was upheld in Mock v. State, 164 Tex.Cr.R. 335, 298 S.W.2d 583.

Sentence pronounced the same day recites: “Ten days time for filing motion for new trial waived by the Defendant in open court”

On November 23, 1964, counsel who represented appellant at his jury trial for rape filed motion for new trial and appellant gave notice of appeal in open court from the conviction on plea of guilty of assault with intent to rape.

The statement of facts agreed to by counsel contains the following stipulation:

“MR. DUNN: Is it agreed and stipulated with you, Isaacs, and you, Mr,, Mabry, that we may offer into evidence the same testimony as offered on the trial as indicated by the notes of the Reporter?
“MR. MABRY: Yes Sir.
“MR. ISAACS: Yes Sir.
“MR. DUNN: We offer that same evidence, Your Honor.
“(Whereupon the evidence and testimony adduced upon the original trial of this case was admitted by the Court into evidence and is as follows:)”

There follows the Question and Answer Statement of Facts at the jury trial including the testimony of the girl to the effect that she was 13 years old at the time appellant placed himself on her and she could feel his private parts in her private parts. She fixed the time as the latter part of December 1963.

The indictment presented January 20, 1964, alleged that the offense was committed on or about the 28th day of November, 1963.

Appellant having waived the time allowed for filing motion for new trial and sentence having been pronounced, the trial judge was not bound to consider or rule upon appellant’s motion for new trial thereafter filed.

Appellant had been confronted with the witnesses at his trial before the jury. The trial judge having heard such evidence, the stipulation by appellant and his counsel and counsel for the state to the effect that such evidence as shown by the notes of the Reporter might be introduced in the trial on appellant’s plea of guilty constituted a sufficient compliance with Art. 12 Vernon’s Ann.C.C.P. King v. State, 167 Tex.Cr.R. 494, 320 S.W.2d 842; Watson v. State, Tex.Cr.App., 363 S.W.2d 934.

Four formal bills of exception were filed, all of which were refused. Defendant’s Bystanders Bills were filed and were controverted. Appellant’s Bystanders Bills are not before us for consideration.

One of the three affiants to appellant’s bills is his wife. Another is his father. The third is appellant’s stepmother.

Neither of the three affiants appears to qualify as “an uninterested looker-on.” Art. 667 V.A.C.C.P.; Rules of Civil Procedure, rule 372(j); Avant v. State, 161 Tex.Cr.R. 577, 279 S.W.2d 863; Chance v. State, 125 Tex.Cr.R. 318, 68 S.W.2d 212.

The judgment is affirmed.


author: McDONALD, Presiding Judge.

text:
    Luther Earl KEPLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 38301.
    Court of Criminal Appeals of Texas.
    May 26, 1965.
    Rehearing Denied June 23, 1965.

      Homer A. Brown, of Brown & Brown, Garland, for appellant.
    Henry Wade, Dist. Atty., Charles Caper-ton, Scott Bradley and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is driving while intoxicated; the punishment assessed by the jury’s verdict, 90 days in jail and a fine of $50.00.

The trial of this cause commenced on the morning of November 2, 1964. The record reflects that counsel for appellant and the Court had some discussion as to what time the Court would conclude the trial for the day, and the Court either estimated about 4:30 P.M. or replied around 4:30 P.M. he normally adjourned for the day. The State completed its testimony and rested at around 2:30 or 3:00 P.M. Appellant then called two witnesses who testified, and the appellant also testified in his own behalf. The Court then granted appellant a five minute recess for the purpose of procuring a witness, Mr. Ward. When Mr. Ward did not appear, the State recalled Mrs. Delona Sherman, as a rebuttal witness, at appellant’s suggestion. Appellant’s witness having not yet appeared, appellant’s counsel recalled to the stand a state’s witness, Officer Spence. After he had cross-examined Officer Spence only to the extent of some four and one-half pages in the statement of facts, he inquired of the Court: “Judge, if we get through with this witness can we wait until- — ”, and the Court replied: “Unless your witnesses are here when we get through with this one I am going to adjourn for the day and we will argue it Wednesday morning.” Appellant’s counsel then inquired of the Court: “Will we have the right to bring our witnesses Wednesday morning?”, and the Court responded: “No, sir, because you announced ready to 9:00 o’clock this morning — I have taken two recesses for you.”

This examination took some 23 pages in the statement of facts. The record reflects that during appellant’s examination of this witness it was after 4:30 P.M. and the clerk’s office had closed. It is apparent from the record that the Court had taken two recesses to give appellant’s counsel time to obtain his witnesses. In the ensuing discussion between the Court and counsel for appellant it may be concluded that appellant’s counsel either told the Court or led the Court to believe that he, appellant’s counsel, wanted to delay the case until Wednesday, November 4, 1964, being the day after the general election and then to put on said witnesses. The trial court evidently interpreted appellant’s counsel’s remarks to mean that he intended to delay the trial by examining the state’s witnesses until such time as the court had to recess for the day, and then to put on his absent witnesses on Wednesday. At approximately 5:30 P.M. appellant demanded that the Court issue an attachment for the witnesses that he had subpoenaed. The Court refused the demand for the reason that the clerk’s office had been closed for almost an hour. Appellant had subpoenas issued for said witnesses on 1:43 P.M. and 1:45 P.M. on the date of the trial, after both sides had announced ready at 9.00 A.M. and the trial of the case was in progress. The subpoena for the witness, Ward, was issued at 1:43 P.M. commanding him to appear at 3:00 P.M. on said date, November 2, 1964. This subpoena was executed at 3:05 P.M. on said date. The other subpoena for the witness, Betty Fugate, was issued at 1:46 P.M. on November 2, 1964, commanding said witness to appear on Wednesday, November 4, 1964, and said subpoena was executed at 4:00 P.M. on November 3, 1964. The trial court did not recess for the day when the hour of 4:30 P.M. had been reached, and advised appellant’s counsel that he had announced ready at 9:00 A.M. that morning and must now proceed. After appellant’s lengthy examination of Officer Spence and having recalled Officer Peterson, between 5:20 and 6:00 P.M., after a five minute recess, the Court closed the testimony in the case and excused all the witnesses and ordered arguments for 10:00 A.M., Wednesday morning, November 4, 1964. The appellant had the two witnesses in question available in the Courtroom to testify on November 4, 1964, before either party had closed their case, or before the appellant had rested and before the charge had been read to the jury, and, of course, prior to arguments being made.

The trial judge fell into error in refusing to allow appellant’s counsel to adduce testimony from the two witnesses who were available to testify on Wednesday, November 4, 1964. Although the testimony of these two witnesses is brought forward by bill of exception and the state takes issue with the testimony and says that it is either cumulative or of no probative value, we feel that appellant had the right to adduce it and allow the jury to weigh its credibility and probative value. It was an abuse of discretion not to allow its submission to the jury. Art. 643, Vernon’s Ann.C.C.P., provides for the allowance of testimony to be introduced at any time before the argument of a cause is concluded, if it appear that it is necessary to a due administration of justice. In Meeks v. State, 135 Tex.Cr.R. 170, 117 S.W.2d 454, this Court held that it was not within the discretion of the Court to exclude the testimony of witnesses present before the Court read his charge to the jury and prior to the time the argument began. We there said: While further time would have been taken if the witnesses had been permitted to testify, it is not shown that a postponement would have resulted. No facts and circumstances are presented which would in any manner indicate that the introduction of such testimony would have impeded the trial or in any way interfered with the due and orderly administration of justice. Also, see Stanley v. State, 138 Tex.Cr.R. 486, 137 S.W.2d 34.

The judgment is reversed and the cause remanded.


text:
    Oswald Robert BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 37660.
    Court of Criminal Appeals of Texas.
    April 28, 1965.
    Rebearing Denied June 23, 1965.

      Percy Foreman, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Houston, Carl E. F. Dally, James C. Brough and F. M. Stover, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is unlawfully possessing a dangerous drug, to-wit, barbiturates; the punishment, a fine of $3,000.00 and 365 days confinement in jail.

Appellant was the licensee of a Liquor Control Board permit, operating a liquor store at 270 West Gray Street in the City of Houston. It was upon these premises that the officers found 200,000 barbiturate capsules behind a stack of whiskey. The labels had been removed from the cartons containing these dangerous drugs. There was no pharmacy license for these premises.

Appellant and his brother owned and operated a pharmacy at 1110 West Dallas, duly licensed. The testimony reflects that Officer R. E. Scholls, a Narcotics Agent for the Texas Department of Public Safety, and a group of a total of 7 officers went to the pharmacy on the day in question for the purpose of inventorying the drugstore, “to inventory all the drugs that he was licensed for”. Appellant and his brother, Kenneth Brown, were there. The officer related that he completed his inventory and that he had occasion to question the Brown brothers in regard to any more drugs. He stated that the appellant told him that they had some more drugs at 270 West Gray. The officers and the two Brown brothers then proceeded to the liquor store at 270 West Gray, which bore the name, “Gray Cut Rate Drugs,” where the officers went into another room to the back side of the store. They found quite a bit of liquor in cases and a search of the room disclosed different types of exempt narcotics and the barbiturates and amphetamine. Officer Scholls testified that he asked both Browns what was over there where he noticed the liquor cases against the wall and that appellant’s brother answered that it was liquor. When the officers moved the liquor cases they found the cartons containing the drugs. He related that he asked both Browns what was in the cartons and that Kenneth Brown told him “I think it is whiskey.” Witness Scholls then opened the cartons in the presence of the two Browns and “I again asked both of them if they had invoices for these barbiturates to which Mr. Kenneth Brown replied, no, we do not.” The officer further testified that he “asked both of them if they would tell me where they came from” and Kenneth Brown said, “I would rather not say.” Officer Scholls also testified that he asked the appellant “a question in regards to it”, and “He said my brother answered for me.”

The record reflects that Kenneth Brown was charged jointly with his brother, the appellant, for this same offense.

Appellant, by the testimony of his nephew, presented the theory that these drugs had been stored at the licensed pharmacy on West Dallas and were moved, on the nephew’s orders, to the location at which they were found, without appellant’s knowledge, and that appellant was told about this a short time before Officer Scholls discovered it.

Appellant at no time attempted to show that the 200,000 capsules of barbiturates in issue were used in the normal course of business in the operation of the pharmacy he and his brother were licensed to operate at 1110 West Dallas.

The Court charged the jury on the offense of possession of a barbiturate, and instructed the jury to acquit if they had a reasonable doubt as to whether it was possessed for use in the usual course of business by appellant and his brother as a pharmacy, drug store, duly registered with the State Board of Pharmacy.

Article 726d, of the Penal Code of Texas, Sec. 3, reads in pertinent part:

“The following acts, the failure to act as hereinafter set forth, and the causing of any such act or failure are hereby declared unlawful, except as provided in Section 4:
“(d) The possession of a barbiturate or hypnotic drug, * * * by any person unless such person obtained the drug under the specific provision of Section 3(a) (1) and (2) of this Act and possesses the drug in the container in which it was delivered to him by the pharmacist or practitioner selling or dispensing the same; and any other possession of a barbiturate or hypnotic drug, * * * shall be prima facie evidence of illegal possession.
“Sec. 4. The provisions of paragraphs (a) and (d) of Section 3 shall not be applicable:
“(a) As to the delivery of dangerous drugs to persons included in any of the classes hereinafter named, or to the agents or employees of such persons, for use in the usual course, of their business or practice or in the performance of their official duties, as the case may be; or
“(b) To the possession of dangerous drugs by such persons or their agents or employees for such use:
“(1) Pharmacy, drug store, dispensary, apothecary shop, or prescription laboratory, duly registered with the State Board of Pharmacy(Emphasis supplied.)

The burden of proof is on the State only to the extent of proving unlawful possession of barbiturates. The prima facie case having been made, the appellant, charged with unlawful possession of barbiturates, had the burden of showing any facts by reason of which he was exempt, excused, or excepted under the statute. Brown v. State, 168 Tex.Cr.R. 67, 323 S.W.2d 954.

We find the evidence sufficient to sustain the jury’s verdict.

The investigation resulting in seizure of contraband was authorized by Article 666-13 (d), of the Penal Code of Texas, which provides that acceptance of a permit or license issued under the Liquor Control Act “constitute [s] an express agreement and consent on the part of the permittee or licensee that ⅜ * * any peace officer shall have at all times the right and privilege of freely entering upon the licensed premises for the purpose of conducting any investigation * * It was also authorized by invitation of appellant and his brother, Officer Scholls having testified, without being controverted, that he did not have appellant in custody at the time.

Appellant objected, at the time of trial, to the introduction of State’s Exhibit 1. These are copies of separate liquor licenses in the name of appellant for the premises where he and his brother operated a drug store at 1110 West Dallas, in Houston, and for the premises where the contraband was seized, for which there was no pharmacy license. Admission of these exhibits into evidence, they having been certified by the Honorable Coke R. Stevenson, Jr., Administrator of the Texas Liquor Control Board, is authorized under Article 3731a, Vernon’s Ann.Civ.St., expressly made applicable to criminal cases by Article 704, C. C. P. Fite v. State, 158 Tex.Cir.R. 611, 259 S.W.2d 198; Spencer v. State, 164 Tex.Cr.R. 464, 300 S.W.2d 950.

There are no formal bills of exception. It is apparent from our consideration of the other informal bills that none of them reflect merit.

Finding no reversible error, the judgment is affirmed.


text:
    Don Wesley GRIFFITH, Appellant, v. The STATE of Texas, Appellee.
    No. 38295.
    Court of Criminal Appeals of Texas.
    June 9, 1965.
    Charles R. Wheeler, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Grady Hight, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

Upon a plea of guilty before the court without a jury, appellant was convicted of burglary, and his punishment was assessed at ten years.

It was “agreed and stipulated by and between the parties hereto” that if T. J. Law-ler were present and under oath he would testify that on January 16, 1964, he owned and operated a grocery store on White Settlement Road; that on that day he closed the store by using locks on both the front and rear doors; that when he later returned to the store in response to a call from the police he found that it had been forcibly entered by the breaking of the lock on the front door; that the stamp and money order machines and the cash register had been broken open and $535.16 in money was taken from them, but that an unsuccessful effort was made to open the safe; and that he did not give anyone his permission to break and enter the store.

It was further “agreed and stipulated by all parties hereto” that if Captain Davis of the White Settlement Police Force were present and under oath he would testify that while on routine patrol he noticed that an item which was usually in the front window of the store was missing; that upon investigating he saw movements inside the store and then saw the appellant running from the rear of the store; that he fired a warning shot and the appellant stopped; that he took the appellant into custody, and found $535 and “some change” in the pocket of one of three persons, including the appellant, who were arrested at and in the store.

It was also “agreed and stipulated” that if John Brady were in court and under oath he would testify that he was assistant district attorney of Tarrant County; and that on January 16, 1964, the appellant, in accordance with the statutory provisions, made and signed a written statement to him. The written statement made to John Brady was offered in evidence.

At this time the trial continued as follows :

“Is that and the other stipulations agreed to, by the Defendant and by his Counsel ? ?”
“APPELLANT’S ATTORNEY: We would change the stipulation, Your Honor, insofar as the recovery of the money is concerned. The three subjects found there, including the Defendant, were searched; and the money was recovered from the three subjects.”
“STATE’S ATTORNEY: Your Hon- or, the three subjects found there, including the Defendant were searched, and the money was recovered from the three subjects * * * Our file does not indicate which subject it was, that had the money in his pocket.”
“APPELLANT’S ATTORNEY: We accept that stipulation now, Your Hon- or, with that correction, and agree to it.”
“THE COURT: All right — Mr. Griffith, (appellant) do you accept the stipulation now, as stated?”
“THE DEFENDANT: Yes sir.”
“THE COURT: Is there any part of it that you want to change now ? Oris there any part of it that you now object to?”
“THE DEFENDANT: No sir.”
“THE COURT: All right — I will accept the Stipulation — And State’s Exhibit No. 1‘, (Appellant’s written statement) will be admitted.”

Omitting the formal parts, the statement reads in part:

“My name is Don Wesley Griffith * * * On January 16, 1964, myself, Billy Charles Graham, and Jimmy Edward Russell, decided to break into a grocery store on White Settlement Road * * * I believe it is in the 8100 block, which is here in Fort Worth, Tarrant County, Texas * * To the best of my recollection, we got to the store around 2:00 A.M. There was a padlock on the front door, which I knocked off, and we all three went inside * * * The store was closed at this time and locked up for the night * * * We knocked open a stamp machine and got some money out of it, and got some money out of the cash register, but we didn’t have time to count it before the police same * * Just as we were fixing to leave, I looked out the front door and saw the police car * * * I was the one that did the beating on the machine and on the safe * * * I left running out the back door, and heard a shot, and surrendered to the police. The other — . were still in the place, and the police went in there and got them.”

It is evident from the questions and statements pertaining to the stipulations, including the questions of the court which were directed to the appellant and his answers thereto, that the appellant personally joined in the agreements and stipulations as herein shown.

Appellant contends that the evidence is insufficient to support the conviction on the ground that no witnesses were sworn or testified, that no affidavit of any witness was introduced by stipulation, and that no stipulation was made waiving the confrontation of witnesses.

The constitutional right of an accused to confrontation and ‘the right to cross-examine the witnesses against him is a right which may be waived. Art. 11, C.C.P., Vernon’s Ann.C.C.P. art. 11; Villarreal v. State, 152 Tex.Cr.R. 369, 214 S.W.2d 464.

In the absence of any objection to the admission in evidence of the written statement of the appellant and the agreements and stipulations made by the parties, they were properly received in evidence in the trial before the court and constituted evidence of probative force.

The facts contained in the agreements and stipulations as shown and the written statement of the appellant, introduced without objection, admitting the commission of the burglary as alleged, are sufficient to comply with the provisions of Art. 12 C.C.P., Vernon’s Ann.C.C.P. art. 12, requiring the state to introduce evidence into the record showing the guilt of the accused who waives a jury and pleads guilty to a non-capital felony. Watson v. State, Tex.Cr.App., 363 S.W.2d 934.

The record contains no formal or informal bills of exception.

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

Opinion approved by the Court.


author: McDONALD, Presiding Judge. BELCHER, Commissioner.

text:
    Joe CUNNINGHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 38091.
    Court of Criminal Appeals of Texas.
    April 7, 1965.
    Rehearing Denied May 26, 1965.
    Second Motion for Rehearing Denied June 23, 1965.

      Pena & Leopold, by L. Aron Pena, Edin-burg, for appellant.
    R. L. Lattimore, Dist. Atty., John F. Dominguez, Asst. Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is aggravated assault; the punishment, a fine of $300.00.

The information alleged the injured party to be a decrepit person and the accused to be a person of robust health and strength, which brought the offense within the terms of Subdivision (4)- of Art. 1147, Vernon’s Ann.P.C.

In view of our disposition of this case we shall not relate the details of the assault.

The complaining witness, Robert A. Mc-Elroy, testified that he did not know how big a man appellant was. “I would say 140 or 150 pounds, I don’t know anything about his weight or anything about it, but I know he is a big man. I was told he was 49 years old. I don’t know.”

While the state’s evidence reflects that the complaining witness was 76 years of age, had been in the hospital prior to the alleged assault and also had suffered four heart attacks, it also reflects that he managed a 1400 acre place and that he had worked on fences, dug holes and put up the fence posts. The last time the complainant did such work “was last spring.” The offense is shown to have been committed in the month of August.

Mrs. Frank O’Neil, daughter of the complaining witness, testified that she did not know appellant personally, only by sight. When asked the question, “He is a pretty good size man, isn’t he?” she replied, “Yes, he is.” Mrs. O’Neil further related that she put her father to bed after the alleged assault, gave him some heart medicine and then took him to the doctor the next morning, but that her father did not have a heart attack after the encounter with appellant. She stated that appellant was a big man, “I’d say 200 pounds, six foot.” She stated that her father is a very old man, 76, and a very weak man.

Dr. Charles Queen testified that Mr. Mc-Elroy was one of his patients; that he had treated him for a heart disease; that he had had him in the hospital just recently with a heart attack; that he treated him on August 11, 1964, (the next day after the offense) for some superficial contusions about his face and one on his shoulder and that the only medication that he gave him was some tranquilizers. The doctor further testified that Mr. McElroy suffers from what is commonly called hardening of the arteries, common at his age, and that he has a certain amount of heart disease associated with this hardening of the arteries and has at times exhibited certain evidence of heart failure but that he is fairly well controlled under medication that he takes.

The state then rested its case and appellant’s counsel moved for an instructed verdict of acquittal based upon lack of evidence showing appellant to have been a person of robust health and strength and the prosecuting witness to have been a decrepit person.

Subsequent testimony adduced by appellant reflects that he is 50 years of age; that his health is “pretty erratic”; that he was injured by shrapnel in World War II in combat; that he had had malaria, an enlarged liver and spleen; that he has asthma, still suffers from “the old injuries”, draws disability compensation from the government and that his disability at this time is 55%; that he does no work but supervises his farming operation of 1500 acres which he owns; that he is six feet tall and weighs about 220 pounds.

At the conclusion of his testimony appellant re-urged his motion for an instructed verdict.

Looking to the testimony adduced upon the trial, we find no evidence that the assaulted party was a “decrepit” person within the meaning of the term. This Court previously set forth a legal definition of the term “decrepit” in the case of Hall v. State, 16 Tex.App. 6, and in Little v. State, 61 Tex.Cr.R. 197, 135 S.W. 119, in the following language :

“We understand a decrepit person to mean one who is disabled, incapable, or incompetent, from either physical or mental weakness or defects, so as to render the individual comparatively helpless in a personal conflict with one possessed of ordinary health and strength.”

which definition was cited with approval in Lutz v. State, 147 Tex.Cr.R. 236, 179 S.W.2d 979, and which was also used by the trial court in his charge to the jury in this case. Proof of age is not sufficient, and it is incumbent upon the state to prove that the injured party was decrepit. Drake v. State, 150 Tex.Cr.R. 317, 201 S.W.2d 231.

It is also an essential element of aggravation of assault that the state prove the allegation that the defendant was a person of robust health and strength. We think the state failed to adduce sufficient evidence to meet its burden beyond a reasonable doubt that the defendant was such a person. Alston v. State, 170 Tex.Cr.R. 17, 338 S.W.2d 723.

Finding the evidence insufficient to sustain the jury’s verdict, the judgment is reversed and the cause remanded.

ON STATE’S MOTION FOR REHEARING

BELCHER, Commissioner.

It is strenuously insisted that the evidence is sufficient to show that the assaulted party was decrepit when considered in accordance with the approved legal definition of that term as used in the statute and defined in the charge, and that this court erred in not so holding.

The evidence reveals the following, in addition to that shown in our original opinion:

The assaulted party was actively engaged in the management and operation of a 1400-acre farm.

A farm employee of the assaulted party testified that the latter drove a pickup and always came for him to go to work about 6:30 A.M.; that he had worked for the assaulted party for four years.

On the day of the difficulty the assaulted party and the appellant met in the road near their respective farms. At appellant’s suggestion they went to the back of a field to look at a fence line between the farms. After a discussion, an argument arose, resulting in the appellant striking the assaulted party. When the appellant began cursing him and shaking his finger in his face, the assaulted party took a hammer from the pickup and “brought that hammer around there, and he (appellant) backed away and he did not bother me any more”; that he told the appellant he would use the hammer and appellant got out of the way. The assaulted party got in his pickup and told the appellant he was going home and if he got closer than three hundred yards to him he would get hurt. The assaulted party then drove away. He did not suffer a heart attack during the difficulty nor at any time thereafter, according to the evidence.

4 Branch’s 2d 116, Sec. 1732, reads, in part, as follows:

“In order to warrant a conviction for an assault on a decrepit person the testimony must show that the victim was comparatively helpless in a personal conflict with one of ordinary health and strength, and that such condition on the victim’s part was because of his physical or mental weakness or defects. * * * ft

From a re-examination of the record, it is concluded that this case was properly disposed of originally.

The motion for rehearing is overruled.

Opinion approved by the Court.

Second motion for rehearing denied; WOODLEY, J., dissents.


author: McDONALD, Presiding Judge. MORRISON, Judge.

text:
    Ex parte Richard E. SMITH.
    No. 38064.
    Court of Criminal Appeals of Texas.
    April 14, 1965.
    Rehearing Denied May 26, 1965.
    Second Motion for Rehearing Denied June 23, 1965.

      Albert Armendariz, El Paso, for appellant.
    Leon B. Douglas, State’s Atty., Austin; Edwin F. Berliner, Dist. Atty., Jack N. Ferguson, Asst. Dist. Atty., El Paso (On Rehearing), for the State.
   McDONALD, Presiding Judge.

This is an appeal from an order entered in a habeas corpus proceeding, remanding appellant to custody for extradition to the State of California to there stand trial for the offense of “omitting to provide for a minor child.”

The hearing was held before the Honorable William E. Ward, Judge of the 34th District Court of El Paso County, Texas. The introduction in evidence of the executive warrant, regular on its face, made out a prima facie case authorizing the remand of appellant to custody for extradition. Ex parte Mackerman, Tex.Cr.App., 376 S.W.2d 350; Ex parte Seffens, Tex.Cr.App., 376 S.W.2d 348; Ex parte Hoover, 164 Tex.Cr.R. 251, 298 S.W.2d 579.

Appellant attempted to submit himself to the jurisdiction of the El Paso District Court and to comply with any order of support entered by said Court in order to be relieved of extradition in the manner provided for in the Texas Uniform Reciprocal Enforcement of Support Act, Vernon’s Ann.Civ.St. Art. 2328b-2, Sec. 6. We agree with the action of the trial judge in holding that the Uniform Reciprocal Enforcement of Support Act of the State of California, West’s Ann.Code Civ.Proc. § 1650 et seq., which was introduced and was before the Court, has no provision for the appellant to submit to the jurisdiction of a Court in an asylum state as a bar to his extradition, as is provided for by the above Texas statute.

The evidence adduced at the hearing was either by stipulation or without objection.

The judgment remanding appellant to custody for extradition is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Appellant introduced in evidence a judgment of the 120th District Court of El Faso dated November 4, 1960, which ordered him to pay the sum of $15.00 a week into the registry of the Court for transmittal to the probation officer in San Francisco, California. He testified at a hearing held November 4, 1964, that he complied with the order for fifteen weeks, but had paid nothing since. He further testified that he paid an income tax for the year 1963 on a reported income of $5,000. Appellant is in no position to rely on the provisions of Section 6 of Article 2328b-2, V.A.C.S. because he demonstrated by his testimony that he had not brought himself within the terms of such section, which in effect grants him asylum only so long as he complies with the terms of the Court’s order.

Clearly he was extraditable under the holdings of this Court in Ex parte Coleman, 157 Tex.Cr.R. 37, 245 S.W.2d 712 and Ex parte Brito, 172 Tex.Cr.R. 409, 358 S.W.2d 122. In Ex parte Peairs, 162 Tex.Cr.R. 243, 283 S.W.2d 755, we held that a State might constitutionally pass a law which would facilitate extradition.

Appellant’s motion for rehearing is overruled.


author: WOODLEA, Judge. MORRISON, Judge.

text:
    Howard Harry McKINNEY, Appellant, v. The STATE of Texas, Appellee.
    No. 37919.
    Court of Criminal Appeals of Texas.
    March 17, 1965.
    Rehearing Denied May 5, 1965.
    Second Motion for Rehearing Denied June 9, 1965.
    Clyde W. Woody, Houston, for appellant.
    Frank Briscoe, Dist. Attys., Carl E. F. Dally, James C. Brough and Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEA, Judge.

The offense is murder without malice (Art. 802c Vernon’s Ann.P.C.); the punishment, 2 years.

The undisputed evidence, including the testimony of the appellant and his confession, shows that on December 16, 1961, appellant, while driving his automobile on a public highway, collided with and inflicted injuries upon Charles Johnson, a pedestrian, from which he died

Appellant, a 53 year old man who held a responsible position with a leading oil company in Houston, and whose good reputation for being a peaceful and law abiding citizen was admitted, testified: “I just saw a blurred object and felt a thud,” and stopped, at which time he saw the man lying on the right side of his car on the shoulder of the road.

The evidence shows that there were no obstructions which could have obscured appellant’s vision and the only other cars on the highway near the scene were traveling in the same direction, one some 400 yards behind and the other almost as far ahead of appellant.

The state’s evidence shows that appellant was intoxicated. Witnesses who observed him at the scene testified that he staggered, had the odor of an alcoholic beverage on his breath; his speech was slurred, and in their opinion he was intoxicated.

Blood and urine specimens were taken from appellant with his consent. Analysis of the sample showed that the blood contained .23 percent alcohol and the urine .28 percent. The chemist testified that a person who had such percentage of alcohol in his blood and urine would, in his opinion, be intoxicated and that all persons having in excess of .10 percent of alcohol by weight in their blood stream would be intoxicated.

Appellant testified that he was not intoxicated but admitted that he had had three beers during a period of three hours preceding the accident and that he had consumed three or four mixed drinks the night before, ending about 11 P.M.

On cross-examination of Police Officer Goodson he was asked and answered:

“Q. Did he also tell you how much he had had to drink ?
“A. Yes, sir, he did.
“Q. And did he not tell you he had had three beers?
“A. No, sir. He said he had six.
“Q. He had six?
“A. Yes, sir.
“Q. Was that all day or that afternoon?
“A. He said it had been that afternoon.”

Appellant testified that he drank “a couple of bottles of beer * * * between' 12 and 1 o’clock” with the owner of a Fishing Camp and stopped at a cafe and drank a third bottle between 2 and 3, and testified:

“Q. Did you tell the police that you had had six beers, or just what did you tell them?
“A. I don’t recall telling him I had that many. In fact, I don’t know that he asked me how many I drank.”

On cross-examination appellant denied that he told Officér Goodson that he drank six bottles of beer between 12 o’clock and the time of the accident, or told him he drank four beers. He was then asked and answered, without objection:

“Q. Do you recall having signed a statement that very same day in which, after telling Officer Goodson that you had six beers in an oral confession, and when he got to putting it down in writing you then told him you had approximately four bottles to drink and that was in about two or two and a half hours’ time?
“A. I signed that statement but I didn’t read it.”

In rebuttal the state recalled Officer Goodson who testified without objection that appellant told him at the time of giving the statement that he had had “approximately four” bottles of beer and had told him earlier that he had “approximately six.”

Officer Goodson having identified the written statement and testified that he read the warning appearing at the top thereof to appellant, the state offered it in evidence and appellant’s counsel stated: “We have no objection.”

The statement introduced reads in part:

“I would like to add that I have had approximately four bottles of beer to drink today in about two or two and a half hours time.”

The ground for reversal presented in appellant’s brief is the contention that the trial court erred in failing to instruct the jury on the voluntariness of his statement to police officers “even in the absence of an objection by appellant to the introduction of such statement and the absence of any exception to the court’s charge regarding said statement or requested instruction on the same.”

Appellant relies solely upon the testimony showing that appellant was intoxicated to support his contention that the confession was not voluntary or that an issue as to voluntariness was raised. He suggests that Vasquez v. State, 163 Tex.Cr.R. 16, 288 S.W.2d 100, should be modified so as to exclude such a confession as a matter of law.

We find no merit in appellant’s claim of error.

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

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Appellant now urges that the trial court erred in failing to submit to the jury the question of the voluntariness of his confession. Reliance is had primarily on Stevenson v. Boles, D.C., 221 F.Supp. 411, 4 Cir., 331 F.2d 939, and Boles v. Stevenson, 85 S.Ct. 174. As stated in our original opinion the confession was admitted without objection and no request was made that the jury be instructed on the issue of its voluntariness.

In Stevenson, supra, the Court had before it the question of involuntariness due to the action of the police. Here we have a question of the consciousness of what the accused was saying which resulted solely from his own misconduct.

Neither Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, nor Stevenson, supra, requires a finding of volun-tariness in such a case.

Appellant’s motion for rehearing is overruled.


text:
    Franklin Duane HEARN, Appellant, v. The STATE of Texas, Appellee.
    No. 38326.
    Court of Criminal Appeals of Texas.
    June 9, 1965.
    No attorney of record on appeal.
    Henry Wade, Dist. Atty., John Nelms, Kenneth Blassingame and W. John Allison, Asst. Dist. Attys., Dallas, and Leon B„ Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted of the subsequent offense of drunken driving, a felony, and his punishment was assessed at confinement in jail for eighteen months.

Trial was before the court and a jury, upon appellant’s plea of guilty to the indictment.

At the trial, evidence was offered by the state which showed that on the date alleged the appellant drove and operated a motor vehicle upon a public road and highway in Dallas County while under the influence of intoxicating liquor, and it was stipulated that he had theretofore been convicted of the alleged misdemeanor offense of drunken driving.

The record contains no formal or informal bills of exception and the proceedings appear to be regular.

The judgment is affirmed.

Opinion approved by the court.


text:
    James Wendell HITT, Appellant, v. The STATE of Texas, Appellee.
    No. 38262.
    Court of Criminal Appeals of Texas.
    May 26, 1965.
    Rehearing Denied June 26, 1965.
    R. Kelley Pierce, William F. Billings, Dallas, for appellant.
    Henry Wade, Dist. Atty., Tom Reese, John Vanee and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for knowingly passing as true a forged instrument; the punishment, three years.

Allie Ruth Elley, called as a witness by the state, testified that she was employed by Medallion Stores, on Northwest Highway in the city of Dallas, and worked in the customer service, cashing checks and handling credit. She related that on the afternoon of October S, 1963, the appellant came into the store and presented a check to her to be cashed. The check, introduced in evidence as state’s exhibit #1, was a printed check of the American Sheet Metal Company, of Dallas, #23,178, dated October 4, 1963, payable to the order of James W. Clark, in the amount of $98.13, drawn on Texas Bank & Trust Company of Dallas and signed “American Sheet Metal Company, By Frank Grimes.” Mrs. Elley stated that after appellant produced his driver’s license and endorsed the check, she accepted the check and gave him the amount of money written on the face of the instrument. He then left the store.

It was further shown that on the night of October 4, 1963, the building occupied by American Sheet Metal Company in Dallas was broken into and burglarized. After the burglary, a check protector and some twelve hundred and four of the company's blank printed checks were discovered missing. Among those missing was check #23,178.

Robert Allison, president of American Sheet Metal Company, testified that, after the burglary, payment was stopped at the bank on all the missing checks. He stated that the typewritten figures and names were not on state’s exhibit #1 when the building was locked on October 4, 1963, and that the company did not have an employee by the name of James W. Clark. He further stated that he had no one in his employment by the name of Frank Grimes and that the persons authorized to sign the company’s checks were he and his wife, Pauline M. Allison; further, that he did not authorize anyone to sign the name, “Frank Grimes,” to any of the checks.

It was further shown that appellant was arrested in connection with the investigation of the burglary and later charged with the forgery and passing of the check in question. Following his arrest appellant made and signed a written confession on October 10, 1963, which was introduced in evidence as state’s exhibit #5.

Before admitting the confession in evidence, a hearing was held by the court, in the jury’s absence, on the question of its voluntary nature. At the hearing, Detective W. A. Davis, to whom the confession was made, testified that before appellant signed the confession he was given the statutory warning and that no promises to or threats against appellant were made. Appellant testified that following his arrest he was threatened by the officers and was not advised that he had the right to talk to a lawyer. Appellant’s wife testified that she visited appellant in jail and was led to believe by the officers that if her husband did not confess he could not be released on bail and that she so advised appellant.

At the conclusion of the hearing, the trial judge made an independent finding, duly entered of record, that the confession was voluntarily made. The court specifically found that before appellant signed the confession he was duly warned; that no promises of immunity were made to him and that he was not mistreated in any manner. The court further found that appellant’s wife was permitted to visit him; that he was permitted to use the telephone and at no time did he request counsel.

In his confession, appellant stated:

“On Saturday, October 5, 1963, I received an American Sheet Metal Company check from William Pool. This check was made payable to James Clark and was made out in the amount of $98 and some cents. I do not remember the name used as signer on this check. I went to Medallions Store-on Northwest Highway where I endorsed the check as James Clark and cashed it. I kept 60% of the money and gave William Pool 40% of the money received from Medallions.”

Appellant did not testify in his own behalf on the issue of his guilt or innocence but called his employer, George McClindon, who testified that he had never known of appellant using the name James W. Clark or Frank Grimes.

The court submitted the issue of appellant’s guilt to the jury upon a charge on. the law of circumstantial evidence, and we find the evidence sufficient to sustain the verdict.

In his brief, appellant complains that the court erred in overruling his motion for continuance.

No formal bill of exception appears in the record to the court’s action.

While the record contains the motion for continuance and the court’s order overruling the same, the order does not show an exception by appellant to the court’s ruling. In the absence of an exception to the court’s ruling, the claim of error is not before us for review. Art. 760e, Vernon’s Ann.C.C.P.; Jenkins v. State, 146 Tex. Cr.R. 458, 299 S.W.2d 946; Dominguez v. State, 164 Tex.Cr.R. 571, 303 S.W.2d 384; Leonard v. State, 172 Tex.Cr.R. 394, 356 S.W.2d 926.

No reversible error appearing, the judgment is affirmed.

Opinion approved by the Court.


text:
    Calvin Coolidge SWINDELL, Appellant, v. The STATE of Texas, Appellee.
    No. 38346.
    Court of Criminal Appeals of Texas.
    June 9, 1965.
    No attorney of record on appeal for appellant.
    Henry Wade, Dist. Atty., Harryette Ber-cu, C. M. Turlington and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is felony theft; the punishment, 9 years.

The indictment alleged the theft of an outboard motor of the value of over $50 from Dallas L. Long.

Mr. Long testified: His outboard motor, of the value of at least $350, was on his boat which was on his front lawn. About 10:45 P.M. he got out of bed, went to the window and saw two men at the back of his boat. He got his gun, went outside and saw the men about 50 or 75 feet down the street. They were out in the middle of the street carrying the motor. He called to them to stop. One of the men ran across the street and got away. The other man was the appellant. He fell down and the motor fell on him. Mr. Long restrained him until officers who were called arrived and took him into custody.

Testifying in his own behalf, appellant admitted having removed the motor from the boat without the consent of the owner. His version of the matter was that he and Marvin Vogt had planned a fishing trip with another couple and a girl; that Vogt said the motor belonged to his brother-in-law and asked him to help him because it ‘'was too heavy for him to load in the car so he could take it and try it out.”

Mr. Long testified that the motor was taken without his consent; that the gas line, battery cables and wiring were cut and that when he asked appellant where his car was “he said they were going to use one parked down the street.” He identified a boat cushion which the arresting officer testified was found in the trunk of a car that was parked “under two large trees in the darkness there” around the corner, with the trunk lid raised and the ignition on.

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

The judgment is affirmed.