text:
    SCHOOL SERVICES OF MISSOURI, INC., Appellant, v. Buddy G. CATON, Respondent.
    No. 24664.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.

      Lynn B. Nelson, Kansas City, for appellant.
    Louis Wagner, Kansas City, for respondent.
   HOWARD, Presiding Judge.

This is a suit on a promissory note for the face amount of $1,000.00, together with $100.00 attorney’s fees, wherein trial to the court without a jury resulted in a judgment for the respondent, maker of the note. Appellant has duly appealed to this court.

The respondent, Buddy Catón, enrolled for a series of dance lessons at the Fred Astaire Studio in Kansas City, Missouri. Appellant contends that the promissory note in the amount of $1,000.00 payable to Fred Astaire Studio was given in payment of this course of dance lessons. The note was sold to appellant on the day after its date. Appellant sues thereon claiming to be a holder in due course and thus not subject to the defenses that Catón might have against the payee, Fred Astaire Studio. Respondent defends on the basis of fraud, contending that he was induced to sign the note in blank, and upon a failure of consideration, contending that he never received the dance lessons for which the note was given, and that appellant took the note with knowledge of such infirmities. It appears that on the date in question, appellant bought an unspecified number of notes from the Fred Astaire Studio for which he paid $10,000.00 and among which was respondent’s note. At that time, appellant was buying all of the notes of the studio and under this arrangement he purchased a large number of notes, the total number being well over 100. In the view we take of the case, a more detailed statement of the facts and issues is not required.

Appellant’s brief contains only one assignment under Points and Authorities. This reads in its entirety “The Court Erred Because the Finding and Judgment of the Court Are Against the Weight of the Credible Evidence”. We have concluded that this point presents nothing for review and because of this violation of Civil Rule 83.05, V.A.M.S., this appeal must be dismissed. Civil Rule 83.05 sets out the requirements for briefs on appeal. 83.05(a) (3)requires that the brief for appellant shall contain: “The points relied on, which shall show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citation of authorities thereunder; * * * ” It is further provided in Rule 83.05(e) that “The points relied on shall briefly and concisely state what actions or rulings of the Court are claimed to be erroneous and briefly and concisely state why it is contended the Court was wrong in any action or ruling sought to be reviewed. Setting out only abstract statements of law without showing how they are related to any action or ruling of the Court is not a compliance with this rule.”

The point as it appears in appellant’s brief only sets out that the decision of the trial court is “against the weight of the credible evidence”. It has repeatedly been held that such a statement that the verdict or judgment or decision of the Court is “against the weight of the evidence” constitutes only an abstract statement, in violation of the specific provision of Civil Rule 83.05 quoted above, and that such an abstract statement presents nothing for review on appeal and further that the question concerning the weight of the evidence attempts to present a matter which is essentially for the consideration of the trial court and is not a matter which is ordinarily considered by the appellate court. Among the many cases so holding, see Stanziale v. Musick, Mo., 370 S.W.2d 261; In re Hyman’s Adoption, Mo.App., 297 S.W.2d 1; and Paro v. Pennsylvania Railroad Company, Mo.App., 348 S.W.2d 613.

The point relied on does not state why appellant is contending that the court was wrong in its decision. If we were to attempt an appellate review based upon this point, we would be required to perform the duties of counsel for appellant and search the record on appeal as well as the argument portion of the brief of appellant in order to ascertain appellant’s contentions and determine whether or not the trial court erred. It is the duty of counsel to perform this function and not the duty of the appellate court. See, in addition to the cases heretofore cited, Ambrose v. MFA Co-operative Association of St. Elizabeth, Mo., 266 S.W.2d 647, and Jones v. Farm Bureau Mutual Insurance Company, Mo.App., 284 S.W.2d 11.

Appellate review is properly limited under the civil rules to the assignments of error appearing in appellant’s brief and to those assignments of error which are properly set out according to the requirements of the rule. See Coen v. Eldridge, Mo., 347 S.W.2d 207, and State v. Brookshire, Mo., 325 S.W.2d 497.

As to court tried cases, as contrasted to jury tried cases, Civil Rule 73.01(d), V.A.M.S., provides that on appeal: “The question of the sufficiency of the evidence to support the judgment may be raised whether or not the question was raised in the trial court. The appellant court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”. In Robbins v. Robbins, Mo., 328 S.W.2d 552, it was pointed out that an assignment that the verdict was against the weight of the evidence implies that there is some evidence to support the verdict and from the very nature of things, such an assignment indicates that the case is not one of the absence of evidence but goes only to the weight of the evidence adduced. It would, therefore, appear that the appellant’s point which questions only the weight of the evidence does not purport to, and is not sufficient to raise the question of the sufficiency of the evidence to support the decision of the trial court.

While Civil Rule 73.01 requires us to review the case upon both the law and the evidence as in suits of equitable nature, it does not require us to ourselves search the record for any and all possible error; it does not require that we should substitute ourselves for the trial court in determining the question of the weight of the evidence, which is essentially a matter to be passed on by the trial court in its discretion; and it does not relieve the appellant’s attorney from his duty to comply with the mandatory provisions as to the contents of the brief of appellant, contained in Civil Rule 83.05, heretofore set out. Furthermore, Civil Rule 73.01 commands that the judgment shall not be set aside unless clearly erroneous and that we give deference to the trial court’s opportunity to judge the credibility of the witnesses. We do defer to this opportunity in the instant case. There were conflicts in the evidence and furthermore, even as to matters on which the evidence was not conflicting, the trial court is not bound to believe all of the testimony of each and every uncontradicted witness. As to this matter of credibility and deference of the appellate court to the trial court’s ability to judge thereof, see Mueller v. Mueller, Mo., 318 S.W.2d 365.

We, therefore, conclude that nothing is properly presented to us for review in this case because the single point set out in appellant’s brief is defective as heretofore noted. Further, we have, ex gratia, carefully examined the transcript in the case and the one exhibit which is attached to appellant’s brief. The transcript contains a stipulation that the exhibits would be filed separately with this court. Appellate has not seen fit to comply with this stipulation and we, therefore, have not had the benefit of examining the other exhibits in this case. From what we are able to glean from the argument portion of appellant’s brief and our careful study of the transcript, we have concluded that, in any event, the judgment of the trial court is not clearly erroneous, as required by Civil Rule 73.01 before we are authorized to disturb it.

For the foregoing reasons, this appeal is hereby dismissed.

All concur.


source: Caselaw Access Project

author: BROADDUS, Special Commissioner. PER CURIAM:

license: Public Domain

text:
    CITY OF INDEPENDENCE, Respondent, v. Albert E. KIRCHOFF, Appellant.
    Nos. 24403-24405.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.

      Lee D. Seelig, Kansas City, for appellant.
    George DeLapp, City Counselor, City of Independence, for respondent.
   BROADDUS, Special Commissioner.

On January 20, 1965, three complaints were filed in the Municipal Court of the City of Independence charging defendant with the violation of certain ordinances of that City. The first complaint charged that defendant did unlawfully operate a 1955 Plymouth Vehicle by “Driving under the influence of intoxicating liquor and drugs.” The second complaint charged that defendant “left the scene of the accident.” The third charged defendant with “Careless and heedless driving.”

Defendant was found guilty in the Municipal Court and the following fines were imposed upon him: $100 on the first charge, $100 on the second charge, and $35 on the third. Defendant appealed to the circuit court where the judgments were affirmed.

In the circuit court defendant filed in each case his motion for acquittal on the ground that there was no valid complaint lodged against him.

On defendant’s appeal here the sole issue raised is whether or not the complaints filed against him are legally sufficient as a basis for his prosecution.

The first complaint (case No. 24403) charged defendant with “Driving under the influence of intoxicating liquor and drugs.” In the recent case of Kansas City v. Franklin, Mo.App., 401 S.W.2d, 949, the complaint against defendant charged him with “driving while under the influence of intoxicating liquor”. In that case this Court stated: “The words ‘while under the influence of intoxicating liquor’ would seem to describe the defendant’s condition and would not leave any question.” We know of no reason for us to depart from that holding. Defendant’s contention as to the sufficiency of this complaint is denied.

The second complaint (case No. 24404) charged that defendant: “Left scene of accident.” The ordinance relating to this offense is as follows: “The driver of any vehicle involved in an accident * * * shall immediately stop such vehicle at the scene of the accident and by the quickest means of communication available shall notify the police, give them such information as they shall require and remain at said scene until authorized to proceed by said police. Such driver shall give his name, address and registration number, and such other pertinent information requested to any driver or injured party involved.”

Our courts have adhered to the general rule that the complaint must specifically allege the facts which amount to the offense defined and forbidden by the ordinance. As stated by this Court in the case of Kansas City v. Wiskur, Mo.App., 343 S. W.2d 89, “ * * * there can be no doubt that the rule is that an information charging violation of an ordinance without specifically alleging facts amounting to violation is insufficient.”

It is apparent that this complaint did not specifically allege facts which constitute the offense defined and forbidden by the ordinance.

The third complaint (case No. 24405) charged defendant with “careless and heedless driving.” In the case of City of Raytown v. Roach, Kan., 360 S.W.2d 741, this court held that: “The mere averment that defendant committed the offense of careless and imprudent driving would be no more than a conclusion of law and would not constitute the requisite statement of essential facts constituting the offense charged. See State v. McCloud, Mo.App., 313 S.W.2d 177.”

The judgment in case No. 24403, should be affirmed. The judgments in cases Nos. 24404 and 24405, should be reversed. .Your Special Commissioner so recommends.

PER CURIAM:

The foregoing opinion by BROADDUS, Special Commissioner, is hereby adopted as the opinion of the Court, and the judgment in the case No. 24403 is affirmed. The judgments in cases Nos. 24404 and 24405 are reversed.


author: LATTIMORE,'J.

text:
    MAYES v. STATE.
    No. 13951.
    Court of Criminal Appeals of Texas.
    April 29, 1931.
    Rehearing Denied Oct. 7, 193Í.
    A. G. Mueller, of Llano, and G. A. Walters, of San Saha, for appellant.
    Lloyd W. Davidson, State’s Atty., of Aus-' tin, for the State.
   LATTIMORE,'J.

Conviction for swindling; punishment, two years in the penitentiary.'

The facts, from the state’s standpoint, show that appellant gave to Mr. Deats a check for $150, drawn on the First State Bank -of Mason, Tex., in exchange for 'fifteen mares of the value of $10 each; that the mares were delivered to appellant and by him appropriated; that the check was presented to said hank and payment refused; that at the time the check was given on October 15, 1929, and at the date of trial in August, 1930, the hooks of said bank showed appellant to have had on deposit to his credit the amount of 24 cents, that being his balance from September 6, 1929, down to the date of this trial. No effort was made to show any arrangement with the bank to take care of 'such check upon presentation in due course'of business. The state also showed that on the day before the transaction which forms the basis of the instant' prosecution, appellant had engaged in a similar transaction with a Mr. Slator, and had purchased from Slator a number of horses, mares, and mules for'which appellant gave Slator his check on the same hank for $545, which check was returned unpaid.

Appellant claimed that he bad been engaged for a long time in buying, and selling stock, horses, mules, etc., and that he had often bought depending' upon his mother to help him carry out the terms of such transactions. He claimed that, in regard to the Deats and Slator transactions just above referred to, he asked each of them to hold their checks for a few days, and that they promised him they would. He said he intended to go back home and make arrangements to take care of the checks, but that upon ' reaching home he found his wife to be ill and in a hospital in Houston; that he at once went to where she was, leaving his mother to take care of his family. He further testified that he remained in Houston by his wife’s bedside through her illness and operations, and that while there his mother died suddenly, and that her estate was immediately put into court, and that he was thus unexpectedly deprived of his expected means of caring for said checks. There is no testimony showing what became of the animals purchased by him, or their proceeds if resold by him. He said that the expenses of his wife’s illness consumed all the money that he had, and that he was without further resources.

Bill of exception No. 1 complains of the refusal of an application for continuance. Since the application omitted several statutory requirements, it would appear to have been properly refused. The state controverted the application upon the ground that it did not set out that the witness named was not absent by the procurement or consent of the accused, and for the further reason that no diligence whatever was shown in the matter of issuance of process. In fact, while the indictment in. this case shows to have been returned in March, 1930, and the application for continuance to have been filed August 25, 1930, the application, as set out in the bill of exception, states that counsel for the accused had been employed only since noon of the day on which the application was, filed. We are impelled to hold the action of the court in declining to grant such application to be proper.

The second bill of exceptions complains of the refusal of the motion to quash the indictment. The particular ground of the motion appears to be. that the indictment does not allege that Mr. Deats sold and delivered to appellant the mares referred to, or that he delivered him anything of any value in exchange for said check. The indictment alleges the false representations as to said check, and the delivery and acceptance of the check, and the reliance of Mr. Deats upon same, and that he was induced thereby to part with title and possession of “said property and delivered the title and possession thereof to the defendant, who appropriated the same to his own use and benefit.” A pri- or allegation in the indictment relative to the property was that appellant did “acquire from the possession of M. D. Deats certain corporeal personal property belonging to the said M. D. Deats, to-wit: fifteen mares, each of the value of $10.00, and of the aggregate value of one hundred and fifty dollars.” The motion to quash seems without merit.

The next bill of exception complains of the fact that the trial court permitted the state to ask appellant, while on the witness stand in his own behalf, if he was not under other-felony indictments. Such practice has always been held admissible by this court as affecting the credibility of the accused as a witness. Bill of exception No. 4 presents objection to a similar question.

There is a bill of exception complaining of the fact that appellant was asked if he had not been indicted and convicted and sent t.o the penitentiary and served a term therein for embezzlement. We think the complaint of this testimony to have no foundation. Payne v. State, 40 Tex. Cr. R. 293, 50 S. W. 363; Boone v. State, 85 Tex. Cr. R. 663, 215 S. W. 310; Cooper v. State, 111 Tex. Cr. R. 622, 13 S.W.(2d) 834.

Bill of exception No. 6 complains of the refusal of the court to permit appellant to prove by the prosecuting witness that a day or two before this trial appellant had given him a mortgage on some stuff to take care of the indebtedness created by the check in question. We think the testimony incompetent. Appellant insists that this testimony was admissible at least in mitigation of the penalty. It might be, said in reply that he was given the lowest penalty.

We see no error in allowing the officer of the First State Bank of Mason, Tex., to testify that within his knowledge the account of appellant was correctly kept, and to state what the amount showed to have been to the credit of-appellant on the date of the transaction and since.

Another bill of exception presents complaint of the reception of the testimony of Mr. Slator as to the transaction had by him with appellant on the day preceding that here involved. The state takes the position that inasmuch as the Slator transaction was similar in all respects to the Deats’ transaction, and occurred only a day before, that it was admissible to show system. We are not as careful in our thinking regarding what constitutes system as we might be. Similarity of transactions, and proximity of time thereof, does not of itself constitute system. McGowan v. State (Tex. Cr. App.) 36 S.W.(2d) 156; Dong v. State, 39 Tex. Cr. R. 545, 47 S. W. 363, 364. From said Dong opinion we quote: “Now, we hold that because an offense has been committed by a defendant in the same manner that the offense charged may have been committed does not constitute this separate offense a part of a system. The fact that two distinct crimes may have been committed in the same way does not, in our opinion, constitute a system, as meant by the authorities treating of this subject.” When the purpose of the state is to rebut some claim of good faith, or lack of evil intent in the particular transaction involved, the state may prove appellant’s guilty connection with similar transactions contemporaneous or nearly so with the one involved. When the question of identity of the accused as the guilty party is combated and in doubt, the solution of such question may be aided by proof, in proper cases, of the identity of the accused as engaged in similar transactions at or about the time inquired abofit. In the instant case we are of opinion that the state prematurely introduced its proof of the Slator transaction. See Gregory v. State, 92 Tex. Cr. R. 574, 244 S. W. 615. But inasmuch as appellant on the stand as a witness in his own behalf set up the claim of good faith on his part in the transaction here involved, and of the fact that he had no intent to defraud or expectation that his check would not be paid or cared for — in which event the state should have been allowed in rebuttal to introduce testimony of the Slator transaction — we are of opinion that the error of the admission of such testimony out of its order and before it became properly admissible, and in view of the fact that appellant was given the lowest penalty, would not be such error as would call for a reversal of this case.

Bill of exception No. 9 as originally presented complained of the charge of the ■court. The bill as qualified presents no error. Bill of exception No. 10 does not appear to have been signed by the trial judge, and, therefore, cannot be considered.

Finding no error in the record, the judgment is affirmed.


author: CHRISTIAN, J. MORROW, P. .1.

text:
    CLEMENTS v. STATE.
    No. 14032.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.
    Rehearing Denied Oct. 7, 1931.
    Baker & Baker, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is assault with intent to murder ; the punishment, confinement in the penitentiary for two years.

The state’s testimony was to the effect that appellant shot Alexandre Jaramillo with a pistol and seriously wounded him. It appears that appellant and the injured party had theretofore had some trouble, there being testimony from appellant and his witnesses touching threats made by the injured party to kill appellant. State’s witnesses testified that Jaramillo was doing nothing at the time he was shot except holding his hands up in the air, and that after the first shot was fired appellant shot Jaramillo a second time while he was running away. Appellant testified, in substance, that Jaramillo knocked his jumper back as if he were going to pull a gun and that he shot him in the arm to keep him from getting his gun. He said he believed that his life was in danger at the time he fired upon the injured party. He further testified that he had been advised by several parties that the injured party had said he was going to kill him. We deem it unnecessary to set out in further detail the testimony.

Tho court charged an assault with intent to murder, aggravated assault, and self-defense.

Bill of exception No. T relates to the action of the court with reference to the voir dire examination of the members of the jury panel. In the case of Leon Rushing v. State, 36 S.W.(2d) 159, delivered October. 29, 1930, a similar situation was presented, and this court concluded that the procedure followed was not such as to warrant a reversal of the judgment. •

In bill of exception No. 2 complaint is made of the, refusal of the court to permit appellant to elicit from the injured party, upon cross-examination, that about two weeks before his difficulty with appellant he had been arrested by the sheriff of Coleman county for driving a car while drunk and running over some people. The court qualifies the bill of exception with the statement that lie permitted' counsel for'appellant, to interrogate the witness in regard to making threats against appellant and in 'regard to being intoxicated upon the occasion of his arrest by the sheriff of Coleman county. It is recited in the bill of exception that appellant expected the injured party to testify that-appellant assisted the sheriff in making the arrest, and that he made threats against appellant at the time. Moreover, it is stated in the bill that if the injured party had denied such matters appellant would have impeached him by the testimony of the sheriff. As qualified, we do not understand that the bill of exception reflects error. Whether or not the injured party ran over some people in Coleman would appear ,to be immaterial' unless a proper charge hád been filed against Mm for an offense of the grade of felony, or of misdemeanor involving moral turpitude. The matter Of having been properly charged with an offense of the character mentioned might have been, inquired into'for the. purpose of impeaching the witness. The bill fails to show 'that the charge had been filed.

' Bill of exception No. 3 recites thá't appellant was not permitted to explain “the action of the prosecuting witness” immediately before appellant shot him. We quote-from the testimony of appellant found on page 31 of the statement of facts as follows: “I,says to him ‘Alexandro why do you keep following me up hunting trouble? You ought not to be mad at me. You ought to be mad at Mr. Hamilton, the man that arrested you.’ I said ‘What do you mean by keeping following me. i am not the one for you to be sore at.. It is Mr. Hamilton’ and he said, ‘Well I am going to get you’, and did that way (indicating). He had' on a blue, jumper.- It fitted loosely around him. He knocked his jumper back and was in position like he was going to get his gun, and when he did that I shot him in the arm to keep him from getting his gun. He pulled his jumper back with his right hand. I knew that he was trying to get a gun or something to hurt me with. I believed that I was in danger at that time; I knew that I was in danger.”

It is observed that the testimony expected from the witness, as recited in the bill of exception, is the same as that above quoted. The trial court evidently concluded that the testimony sought to be elicited had already been given by appellant, or else he relented and thereafter permitted appellant to testify to the facts reflected by the bill of exception. Evidently the charge upon self-defense was predicated upon the statement we have quoted.

It appears from-bill, of exception No. 4 that over appellant’s objection the injured party was permitted to exhibit to the jury the scar made by the shot. Appellant objected on the ground that there was no denial that he had shot the injured party, and that the exhibition of the sear served no purpose in the case and was highly prejudicial. We are unable to determine from the bill of exception whether the wound tended to solve some issue in the case. We find only appellant’s ground of objections in the bill. A mere statement of a ground of objection in a bill of exception is not a certificate of the trial court that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569.

In his argument to the jury the district attorney stated, in substancé¡ that the testimony presented a “gilt edge” case of assault to murder, and that he (the district attorney) knew the law when he saw it. Again, he stated, “When you send this negro to the penitentiary you have done the best day’s work of your life.” The argument was objected to. The court overruled the 'Objection and declined to submit to the jury appellant’s written requested' instruction wherein the remarks would have been withdrawn from their consideration. We do not deem ;the argument improper.

' We have not undertaken to discuss each of the bills of exception found in the record. A careful examination of all of appellant’s contentions leads us to the conclusion' that reversible error is not presented. '

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.

MORROW, P. .1.

In the motion the conclusion that error is not revealed hy bill of exceptions No. 3 is challenged. It is claimed that it is revealed by the bill that the appellant was denied the privilege of stating to the jury the facts upon which he has based his right of self-defense. That part of the bill which presents the question is quoted as follows: “That while the defendant was a witness upon the witness stand in his own behalf, through his counsel, he was asked to explain the action of the prosecuting witness, and immediately before he, the defendant, shot, to which the State’s counsel objected on the ground that it was leading, and if permitted by the Court, the defendant would have testified that just before he shot the prosecuting witness, the prosecuting witness knocked his jumper back and was in a position as though he was going to get his gun. When he did that, he, the defendant, shot him in the arm to keep him from getting his gun.”

From the statement of facts it appears that the appellant gave testimony which went before the jury in exact accord with that which he claims in the bill of exceptions was excluded. An excerpt from his testimony is quoted in the original opinion in which the following appears: “He knocked his jumper back and was in position like he was going to get his gun, and when he did that I shot him in the arm to keep him from getting his gun.”

In his motion the appellant relies upon the principle that where there is a conflict between the statement of facts and a bill of exceptions, the bill prevails, citing Elkins v. State, 101 Tex. Cr. R; 377, 276 S. W. 291; Bank v. State, 95 Tex. Cr. R. 384, 254 S. W. 962; Berry v. State, 95 Tex. Cr. R. 600, 255 S. W. 739; Abies v. State, 106 Tex. Cr. R. 169, 291 S. W. 554.

In Martin’s Case, 107 Tex. Cr. R. 152, see page 163, 295 S. W. 1098, 1104, the question was discussed as follows: “To appraise a bill of exceptions, whether it relates to excluded testimons', or to determine whether from other sources or from the same witness testimony which in substance is the -same as that, the exclusion of which is complained of, are matters which this court has always held that it had a right to do, and which right, of necessity, it must have.” See also Plummer v. State, 86 Tex. Cr. R. 493, 218 S. W. 499.

In the present case, it is shown by the bill that the reception of the testimony was opposed upon the ground that the question ■teas leading. The court approved the bill as written. The verbiage of the question is not embraced in the bill but its substance alone. It must be assumed as the matter is presented that the question teas leading, and that for that reason the ruling of the court excluding the testimony was correct at the time the ruling was made. The record, that is, the agreed statement of facts approved by the trial judge, showing that such testimony was given to the jury, it is not competent for this court to'assume that it was improperly received. It would he more consistent with the record to assume that after the ruling reflected by the hill the question was changed and in response thereto the testimony was admitted.

As to the other matters presented in the motion for rehearing it is thought that no discussion further than that contained in the original opinion is required.

The motion is overruled.


author: CHRISTIAN, J. CHRISTIAN, J. MORROW, P. J.

text:
    WHEELER v. STATE,
    No. 13830.
    Court of Criminal Appeals of Texas.
    Dec. 3, 1930.
    Appeal Reinstated Jan. 21, 1931.
    Rehearing Denied Oct. 7, 1931.

      Marshall & Crunk, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is transporting intoxicating liquor ; the punishment, confinement in the penitentiary for two years.

While it appears that notice of appeal was timely given, there is nothing to show that said notice was recorded in the minutes of the court as required by law. This should appear from the certificate of the clerk, but in the present instance it merely appears that the instrument* containing the notice of appeal was filed. The appeal must be dismissed. Rodgers v. State, 85 Tex. Cr. R. 421, 213 S. W. 637.

The appeal is dismissed. Appellant is granted 15 days from this date in which to perfect the record.

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.

HAWKINS, J., absent.

On the Merits.

CHRISTIAN, J.

It is now made to appear from the supplemental transcript filed since the dismissal of the appeal herein that'notice of appeal was duly entered in the minutes of the trial court. Hence the appeal is reinstated, and the case considered on its merits.

• As the sheriff of Garza county was carrying the dishes from the jail to the American Café he saw appellant enter the back door -and advance to the center of the café. Seeing the sheriff, appellant tried to get by him. He was carrying a bulky object under his coat, which the sheriff thought was a fr.uit jar. A scuffle ensued, which resulted in the .discovery of the fact that appellant was transporting a fruit jar containing a half gallon ■of whisky. Appellant was not interested in "the café and was not one of its employees. -According to the testimony of the sheriff, ap.pellant'tried to run over-him-when he attempted to stop him. Appellant’s mother testified that she required whisky for medicinal purposes. According to appellant’s version, .he had bought the whisky, from a bootlegger, whose name he did not know for the use of .himself and mother. It further appears from ■the testimony of appellant that he requested the bootlegger to drive to the rear off the •American Café, where he paid him for the liquor, placed it under his coat, walked to the door of the café, and entered. Appellant further testified that he and his mother had been feeling bad, and that she had asked him to get her some whisky. Other witnesses for appellant gave testimony supporting his theory.

We are unable to reach the conclusion that the evidence is insufficient to support the conviction. Appellant’s affirmative ■defense was submitted in the charge of the court in a manner which evidently met his approval. In concluding that appellant did not transport the whisky for medicinal purposes, the jury were within their province. The state’s testimony was amply sufficient to support the theory that appellant unlawfully transported the liquor. It may be added that the fact that appellant resisted arrest and attempted to run by the sheriff was a circumstance the jury were at liberty to consider as tending to show his guilt.

When the case was called for trial, appellant presented his application for a continuance, wherein he alleged that he was, not ready for trial because of the absence of the witnesses, Bruce Hicks, Whittington, and Watkins. It was averred in the application that appellant expected to prove by the witness Hicks that he was with appellant at the time he purchased the whisky and heárd appellant state to the bootlegger that he wanted the whisky for the use of his sick mother, as medicine. The other witnesses would have testified, according to the averments in the application, that they saw appellant purchase the liquor from a bootlegger. It appears from the record that the indictment was returned on March 17, 1930. Appellant was arrested on the same date and incarcerated in jail,' where he remained until March 18th, at which time he was released and went to his home. On the 21st of March appellant made application to the district clerk for the issuance of subpoenas for the witnesses, requesting that such subpoenas be made returnable on the 24th of March, 1930. Attached to the application was the subpoena for the witness Whit-tington, which, according to the return of the sheriff, was not executed because the witness could not be located in Pecos, Tex. A telegram attached to the application shows that the witness Watkins could not be located in Waco, Tex. The application fails to recite that process was issued for the witnesses Hicks and Watkins. If subpoenas were issued for said witnesses, it is not shown that they were placed in the hands of the proper officer for service. If the bills of exception relating to the refusal pf the court to grant the continuance should be considered, it is doubtful whether the application shows sufficient diligence on the part of appellant to secure the presence of the witnesses.

Touching the bills of exception, it is observed that the application for continuance is not set out in said bills. It is merely recited that appellant presented his first application for a continuance when the case was called for trial, and that the court overruled same, to which action appellant took his exception. It is the holding of this court that bills of exception relating to the refusal to grant an application for a continuance must set out the application. The present bills fail to meet such requirement, in that the application is not set out in detail or in substance. Tex. Jur. vol. 4, p. 365; Pena v. State (Tex. Cr. App.) 1 S.W.(2d) 1095; Lucera v. State, 108 Tex. Cr. R. 441, 1 S.W.(2d) 633.

.Bill of exception No. 1, as qualified by the court, shows that the application for a continuance was granted to the extent of ordering a postponement o'f the trial. Appellant presented the same application at the time the case was called for trial a second time. Although appellant denominated it a first application for a continuance, it was a subsequent application, under the facts stated, and we must appraise it in the light of the statute and decisions relating to subsequent applications. Brannan v. State, 108 Tex. Cr. R. 418, 1 S.W.(2d) 279. The application being a second request for a continuance is fatally defective in omitting to aver that the testimony expected from the absent witnesses could not be procured from any other source known to the defendant. Brannan v. State, supra ; article 544, C. C. P. Being fatally defective in the respect mentioned, the trial court was justified in overruling it.

Appellant attached to his motion for a new trial the affidavit of the witness Hicks to the effect that he was present when appellant purchased the whisky from the bootleg-, ger, and that appellant stated to the bootlegger that he was buying the whisky for his sick mother. The application being fatally defective in the respect hereinbefore mentioned formed no basis for a complaint in a motion for new trial on account of the denial of the continuance in the first instance. Brannan v. State, supra. It may be added that an examination of appellant’s testimony fails to show that he stated to the bootlegger that -he was buying the whisky for his sick mother. He testified that he told the bootlegger that he wanted some whisky for his mother.

Where a party is arrested, or sought to be arrested, for an offense, and resists tharrest,' it is a legitimate fact to be proved. Silver v. State, 110 Tex. Cr. R. 512, 8 S.W. (2d) 144, 9 S.W.(2d) 358, 60 A. L. R. 290. Under this rule appellant’s objection to the testimony of the sheriff touching appellant’s attempt to run over him and the scuffle he had with appellant was properly overruled.

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.

MORROW, P. J.

Relying upon the case of Riddle v. State, 100 Tex. Cr. R. 587, 272 S. W. 165, appellant insists that the evidence does not support the conviction of guilt. That the appellant transported liquor was conceded. He defended upon his own testimony and that of his mother to the effect that the whisky was for medicinal purposes. The exculpatory testimony coming from witnesses who were interested in the defense cannot be regarded as conclusive against the state. Such announcement has been made in many cases, among them Hawkins v. State, 99 Tex. Cr. R. 569, 270 S. W. 1025. In the ease of Riddle v. State, supra, the inculpatory facts were circumstantial and the exculpatory evidence came from interested witnesses.

The conclusions touching the other questions raised in the motion are regarded as properly disposed of in the original opinion.

The motion is overruled.


author: ⅛ CALHOUN, J. MORROW, P. J.

text:
    STOKER v. STATE.
    No. 14149.
    Court of Criminal Appeals of Texas.
    April 20, 1931.
    Rehearing Denied Oct. 7, 1931.
    Davidson, -Blalock & Blalock, of Marshall, and T. W. Davidson, -of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin,John E. Taylor, Co. Atty., and Benjamin Woodall, Asst. Co. Atty., both of Marshall, for the'State.
   ⅛ CALHOUN, J.

- / The conviction is for murder, and the punishment assessed at four years in the penitentiary.

The testimony showed that about the 26th day of December, 1929, Chesley Ollison was tilled ón a public road in Harrison county, Tex., about two miles north of Harleton, npar. the residence of Sam Stoker." There bad- been a party and Christmas tree that nigbt at the Sam Stoker residence attended by a large number of negroes. The appellant and the deceased were both negroes. As the party was breaking up and the crowd dispersing, a fight or some kind of commotion took place in the r-oad some distance from the house of Sam Stoker and in the direction of Harleton. A woman’s voice was heard, and several men ran down there. It was in the nighttime, but the headlights of an. automobile seem to have given something of a vision of the parties. As to what started the fight and who the participants were, it appeared impossible to learn. The principal witnesses who testified about it were those who ran down there, including Wade Smith and Jessro Crockett.' Upon their arrival, they found a negro by the name of Cleve Smith and his wife and the deceased, Chesley Ollison, and his wife coming from the direction where the disturbance had been heard. The deceased, Chesley Ollison, and his wife were in some kind of an argument, according to one of the witnesses. The deceased had a stick in his hand, and his wife was begging him for his knife. No one saw the deceased pick up the stick. According to the witnesses for the state, the appellant, Monroe Stoker, appeared on the scene with a pistol, and shot the deceased down. No words were passed between them. After the shooting, the wife of deceased called out, “Don’t shoot any. more,” and said that the witness Wade Smith did the shooting. The evidence showed that deceased said to the constable and to a physician and others that Wade Smith shot him. One of the state’s witnesses, who was uncontradicted, stated that the deceased did not make the statement that he was shot by Wade Smith until after his wife made the statement and told him that Wade Smith had shot him. Wade Smith was arrested by ;the constable and put in jail, and later the appellant, Monroe Stoker, was also arrested and . afterwards indicted by the grand jury for 'the killing.

The appellant did not testify in the case, and neither did the deceased’s wife. Appellant offered several witnesses who testified that the appellant had gone around the house into the back yard and was driving his wagon out the side gate into the front yard or space in front of the yard where the party occurred at the time of the shooting.

Bill of exception No. I complains of the court’s action in permitting the witness Lyn-wood Little to testify to a statement made to him by the witness Jessro Crockett as to who shot deceased. This bill was qualified by the court as follows; “After the state’s witness, Jessro Crockett, had testified that the defendant, Monroe Stoker, shot deceased, he was asked by defendant on cross examination if he did not state to one Douglas Smith, Constable, shortly after the killing, that -Wade Smith shot deceased. In answer to this question he stated that he did not. Thereafter the defendant called Constable Smith to the stand and he testified that the witness, Crockett, did in fact make the statement to him. Haying been thus impeached, the court admitted the testimony complained of to show that the witness, Crockett, made statements similar to and in, consonance with the testimony he was then giving. At the time the testimony, was elicited no objection to same was made by, the defendant, the court’s attention being called to same for the first time during the cross examination of the witness by a motion to exclude, which motion was overruled for the reason herein-above stated.”

Where a state’s witness is attempted to be impeached by a showing that he made statements with reference to the transaction out of court different from and contradictory to his testimony delivered on the present trial, it is not error to permit the state to support the witness by showing that shortly after the transaction, and before any motive or inducement existed to fabricate, he made statements of the matter similar to his testimony delivered on the trial. Branch’s Ann. P. C. § 181; Bell v. State (Tex. Cr. App.) 20 S. W. 362; Northcutt v. State, 70 Tex. Cr. R. 577, 158 S. W. 1004, 1005; Smith v. State, 73 Tex. Cr. R. 521,165 S. W. 574. This bill, as qualified, was accepted without objection, and, as qualified, shows no reversible error.

Bill of exception No. 2 shows that, while the witness Lynwood Little was testifying for the state, he was asked on cross-examination by appellant the question, “Do you know of some trouble between Jessro and Monroe Stoker?” to which the witness answered, “Yes sir,” and further, “Was bad feeling between them, were they enemies of each other?” to which the answer was, “They had a shooting scrape, Jessro shot at Monroe.” On redirect examination the state’s attorney asked said witness, “Shot at him about his wife?” to which the witness answered, “Yes sir.” The court qualified the bill as follows: “ * * * The court was of the opinion that the state was entitled to explain the alleged assault, which the defendant had inquired about in the first instance, in order to explain the witness Crockett’s condu.ct and attitude towards defendant and to remove any unfavorable impression as to the credibility of the witness Crockett which might have been created upon the minds of the jury by reason of the alleged assault. However, when objection was made, same was promptly sustained and the jury verbally instructed to consider the question asked and the answer elicited for no purpose whatever. Furthermore the court in the main charge instructed the jury to consider the testimony for no purpose.”

If there was error in the admission of this testimony, under the circumstances we do not believe 'said testimony was so injurious to the rights of appellant as that the- injury of its admission could not be cured by the instruction given not to consider it.

Bills of exception Nos. 3, 4, and 5 reflect the complaint of the remarks of the state’s attorney in his closing argument to the jury. Each of the bills was qualified by the trial judge. In doing so he stated in some detail the facts in evidence which he regarded as sufficient predicate for the remarks of which complaint is made. The qualifications to the bills were accepted without protest, and, as qualified, the bills are not regarded as showing that state’s counsel in his argument used language which would justify this court in overturning the verdict of conviction. There being no exception to the qualification of the bills, the presumption of their accuracy is conclusive upon appeal. See Texas Jur. vol. 4, § 194, and notes, including Thomas v. State, 83 Tex. Cr. R. 325, 204 S. W. 999, and many other cases.

Bills of exception Nos. 6, 7, 8, and 0 each present for review the action of the trial court in refusing appellant’s special requested instructions wherein he sought to have the law of self-defense, and the defense of another submitted to the jury, and will therefore be treated together. Each of the bills are qualified by the trial court, which qualifications show that there was no evidence raising the issue of self-defense or the defense of another. There were no exceptions or objections to said qualifications. Looking to the facts, it is believed that the trial court was clearly within his rights in refusing said special charges. Appellant introduced a number of witnesses who testified that he was in another and different place at the time the killing occurred. He introduced no testimony which we find in the record which tended to suggest that deceased had made any threats against him, nor did any witness testify that at the time the killing-occurred that the deceased was making any assault upon him or any hostile demonstration towards him, nor do we believe that the evidence in this case raised the issue of the defense of another. It is true that one of the state’s witnesses testified that deceased had a piece of wood in his hand and was standing pear deceased’s wife when the killing occurred, but there is no evidence in' the record to show that deceased had threatened his wife or any other person; nor does it appear that he had or was at the time making any hostile demonstration towards her" or any other person. The appellant himself did not testify. No witness testified that-preceding the shooting of the deceased appellant was either being attacked, or about to be attacked, by anybody, nor that the deceased was attacking, or about to attack, any person. The facts do not in our opinion raise the issue of self-defense of either himself or the defense of another, but, on the contrary, the testimony of the state conclusively showed an unprovoked shooting of the deceased by appellant.

The court charged the jury that, if they believed from the evidence that the witness Wade Smith shot and killed the deceased, or if the evidence raised in their minds a reasonable doubt as to said fact, it would, be their duty to acquit the appellant and say by their verdict not guilty. The court also ■charged-on the defense of an alibi.

It is made to appear by exceptions to the court’s main charge that the appellant objected to the court’s definition of malice in his application óf same to the facts. It is insisted that no malice is shown, and therefore the court was in error in charging the jury that, if they found that appellant was actuated by 'malice when he killed deceased, they should affix the penalty for a homicide under such circumstances. The indictment in this case charged that the appellant “did then and there unlawfully voluntarily and with malice aforethought kill Chesley Ollison.” Having so charged in the indictment that it was done with malice aforethought, it was necessary for the court to define what was meant by malice aforethought. The court instructed the jury that, in the event they found the appellant guilty of murder, if they did do so, in no event could the jury assess his punishment therefor at a greater penalty than confinement in the penitentiary for five years, unless the jury believed beyond a reasonable doubt and from all the facts and circumstances in evidence that the defendant, in killing the said Ohesley Ollison, if they believed he did, was prompted by and acted with malice aforethought, as that term had been defined to them in the charge. Pie also charged the jury that,, if they had a reason•able doubt as to whether the appellant was •guilty of murder, as that term had been defined to them, they would give him the benefit ■of said doubt and acquit him.

The existence or nonexistence of malice, as well as the guilt or innocence of the appellant, are questions of fact for the determina-ción of the jury. They alone can determine :these issues under appropriate instructions :from the court. Controverted issues of fact :in this case were matters for the jury. The .jury in their verdict determined them against Che appellant.

Finding no reversible error in the record, 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.

MORROW, P. J.

The matters presented in the motion for rehearing are in substance identical with those considered and discussed by the court in the original opinion. A "careful re-examination of the record in the light of the appellant’s motion for rehearing leaves the court of the opinion that in concluding that the judgment should be affirmed the court was correct.

The motion for rehearing is overruled.


author: RANDODPH, J.

text:
    WEAVER BROS. v. JAGGERS et al.
    No. 3677.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 4, 1931.
    Rehearing Denied Dec. 2, 1931.
    Robt. A. Sowder, of Dubbock, for appellants.
    Douglas & Spiller, of Dubbock, for. appel-lees.
   RANDODPH, J.

Weaver Bros., as plaintiffs, brought this suit in the district court of Dubbock county against Bill Jaggers, A. C. Hendricks, and the J. C. Crouch Grain Company, as defendants. Judgment for defendants, and plaintiffs appeal.

It is alleged in plaintiffs’ petition that the plaintiffs were seed .merchants; that Jaggers was a farmer in Cochran county and a grower of such character of seeds as plaintiffs dealt in; that on March 14, 1930, Jaggers contracted to plant and grow in Cochran county 350 acres of sudan grass seed at $2.25 cwt. to be paid for at Lubbock and to cover all the seed raised on the land, and also alleged a number of advances made to Jaggers; that on the 21st of April, 1930, they further contracted with Jaggers for 150 acres additional of sudan grass seed at $2.25 cwt. under the same terms as contained in the first contract, and that the 350 acres and 150 acres were to be grown on the George Wolffarth lands in Cochran county, and were to cover all the acreage he planted on the Wolffarth land; that said Jaggers did grow about 500 acres of sudan grass seed on such lands, and by reason thereof plaintiffs were the owners, and were ready, able, and willing to pay the price therefor, less cost advances; that said lands grew about 70,000 pounds of sudan grass seed, which were loaded on cars and carried to Lubbock and delivered to the J. C. Crouch Grain Company; that Hendricks and Jaggers conspired together to defraud plaintiffs of their seed, it having increased in price to about $6 cwt. at pay-off time, and the said Hendricks converted said seed to his own use, and also concealed about 14,000 pounds of such seed after having shipped 53,310 pounds to the said Grain Company, and the said Hendricks converted said seed to his own use. In the alternative, plaintiffs pleaded that, if there was no conspiracy between Jaggers and Hendricks, Hendricks, being a creditor of Jaggers, seized all of said , seed under some claim of lien, and proceeded to. thresh it and appropriated the output, and, if Hendricks had any lien, it was inferior to plaintiffs’ lien; that Hendricks refused to deliver the seed after demand, and plaintiffs alleged as damages the difference between the contract price and the market value of 6 cents per pound, and asked credit for advances. .

Defendant Jaggers filed no answer, and neither did the J. O. Crouch Company.

Defendant Hendricks pleaded that he himself leased the land from Wolffarth and placed Jaggers thereon to grow and make the crop, and advanced him $2,000, and that thereafter Jaggers was to execute him a mortgage to secure the $2,000, which mortgage was executed about July 18, 1930, and that at Such time Jaggers was indebted to Hendricks in a sum more than $7,000, and to liquidate same Jaggers turned 'over the crops on the Wolffarth place, and said defendant claimed said crops as an innocent lienholder or purchaser by reason of having no notice of sale by Jaggers to the plaintiffs.

A jury was impaneled and sworn, and, after hearing the evidence, the court submitted to them the following special issues, which the jury answered as indicated after each issue:

“Plaintiffs Special Issue No. One. How many pounds of sudan seed were raised on the place known as ‘Alamo’ in Cochran County in the year 1930?” To which the jury answered: “69,905.”
“Plaintiffs Special Issue No. Two. Was said crop of sudan grass seed of the same general average in pounds per acre?” Which the jury answered: “Yes.”
“Plaintiffs Special Issue No. Three. What was the market price at Lhbbock, Texas, f. 0. b. ears Lehman or Pearley Switch, of such seed on or about Nov. 10, 1930? The jury answered this: “5⅜.”
“Plaintiffs Special Issue No. Pour. What amounts, if any, were advanced by plaintiffs to Jaggers on the sudan contract with him?” Answered: “617.39.”
“Plaintiffs Special Issue No. Five. How many pounds of sudan grass seed that were raised on the place known as ‘Alamo’ in Cochran County in the year 1930, were taken by defendant Hendricks?” Answered: “53,-450.”

And, the defendant Hendricks having filed his motion for the court to instruct the jury that the plaintiffs take nothing as against him, the court thereupon instructed said' jury to find in favor of the defendant Hendrick» and against the plaintiffs, Weaver Bros.; the-jury, in addition to their answers to the special issues given at the request of the plaintiffs, at the same time found a verdict in favor of defendant Hendricks against the plaintiffs, AVeaver Bros. Upon this verdict the trial court rendered judgment that the plaintiffs take nothing against defendant A. C. Hen: dricks and the J. C. Crouch Grain Company, but the court found judgment in favor of the plaintiffs against Jaggers in the sum of $1,-381.57, and also found the further sum of $617.39, with interest on both sums.

The first contract between the plaintiffs and Jaggers was dated March 14, 1930. In that contract it was provided as follows:

“Contract No. 417. Lubbock, Texas, March 14, 1930.
“This contract entered into, by and between Weaver Bros, of Lubbock, Lubbock County, Texas, and Bill Jaggers, of Lehman, Cochran County, Tex.
“Said Jaggers hereby agrees and binds himself to plant and cultivate for Weaver Bros. 300 acres of Red Top cane seed and 350 acres of Sudan seed and cultivate for them and deliver to them all the seed raised from said acreage, on the following terms: All seed to be delivered as soon as threshed, Red Top cane to be kept absolutely free from any mixture of other grain or noxious seed, dirt or Johnson grass, said grain to be rogued of all off brand heads of other seed before cutting, and seed to he well matured seed free-of mold or dampness, and to be scooped into-car 'and not through an elevator, all truck wagons or freight car and threshing machine to be swept clean before loading- or threshing, and delivered on car free from any mixture, and Lubbock railroad weights to be final and seed to be paid for after cleanout test has been made at Lubbock. Weaver Bros, agree to pay $1.25 per hundred for the seed not to lose more than five per cent cleanout, Weaver to furnish the red top seed and charge Jag-gers cost price, deduct from final settlément.
“The sudan seed are bought and agreed to by both parties at >$2.25 per hundred basis clean seed, in other words Weaver Bros, are to pay for the amount of clean seed based on the official test at Lubbock, and are to be paid for after seed reach Lubbock and clean-out has been ascertained, seed are to be absolutely free from Johnson grass and other noxious seeds, and loaded on ears free of charge to Weaver Bros, and railroad weights at Lubbock to be final. Said Jaggers agrees to deliver to Weaver Bros, all the seed raised on said lands, and all seed are to be well matured, merchantable seed, bright and suitable for seed, and the price is f. o. b. cars Lehman, Texas, paid on this contract $5.00, receipt of which is hereby acknowledged, same to be deducted from final settlement.
. “Weaver Bros, agree to furnish 50 cents per acre on said seed, in August or Sept., provided seed show as per contract and are matured ready to cut.
“[Signed] Weaver Bros.
“Bill Jaggers.”
’ The second contract, dated April 21, 1930, provided as follows:
“Contract No. 416.
“weaver Brothers
"A. V. weaver S. H. weaver
^Wholesale Dealers 300 aeres Sudan & Red
“Field Seeds. Top 150 acres each.
. “Lubboclc, Texas, April 21, 1930.
' “This contract entered into by and between Weaver Brothers of Lubbock and Bill Jag-gers of Lehman, Cochran County, Texas.
“Said Jaggers hereby agrees to plant and cultivate on new land first year in cultivation. 150 acres each of Red Top cane seed and:! Sudan seed, total of this contract 300 acres sudan and red top.
..“This contract in addition to one made on March 14, 1930, and it is understood and agreed by both parties hereto that the same terms shall apply on this contract as the one March- 14th,' 1930, seed are to be delivered to us free from mixture and good merchantable sped and all the terms of other contract carried. out in this one, railroad weights at Lubbock to be accepted as final and sudan is to be paid for on basis clean seed and red top basis not to lose more than 5% at a price of $1.25 per hundred f. o. b. cars for Red Top and' $2.25 per hundred for sudan, test for cleanout at Lubbock and to be paid for after cleanout test has been made and railroad has weighed same, Weaver to furnish seed at cost to us and same to be deducted from final settlement, said seed furnished to be the money paid consideration on this contract.
“[Signed] Weaver Bros.
“Bill Jaggers.”

It will be observed that the first contract provides for 350 acres of sudan grass seed to be planted and harvested and the second 150 acres of sudan grass seed to be planted and harvested, 'but does not describe any lands upon which these crops are to be planted and cultivated. Further, the contracts provide for a.delivery of the seed after cleansing and based on an official test at Lubbock, and there the seed to be ascertained to be absolutely free from Johnson grass and other noxious seeds, loaded on cars free of charge to Weaver Bros., and that the railroad weights at Lubbock were to be final.

The question for our decision is: Was this a sale by which title passed to Weaver Bros., from Jaggers of the sudan grass seed grown on the Wolffarth land known as the “Alamo” place.

A. Y. Weaver, one of the plaintiffs, testified that, at the time the first contract was signed, the one dated March 14, 1930, providing for the planting of 350 acres in sudan grass, -he did not know what particular land this crop was to be planted on. As to the second contract, the witness testified: “When I made the contract of April 21st, I knew which land that was to' be grown on. I don’t remember whether Bill (Jaggers) told me the exact ground that it was to be grown on or not. He told me that he was getting it from Mr. Wolffarth. * * * This land was also known as the ‘Alamo’ place.”

The defendant Jaggers testified that the first contract providing for 350 acres was to be grown upon the “Home Place,” which he identified as belonging to Hendricks and the crop from which is not in controversy.

The rental contract from Wolffarth to Jag-gers was dated April 4, 1930.

The contracts of sale from Jaggers to the plaintiffs failing to describe the land upon which, the crops were to be raised, and containing no reference within itself whereby the land could be identified and the particular land upon which the crop was to be grown not having at that time, been determined, as the plaintiffs testified, we are of the opinion that no title passed from Jag-gers to the plaintiffs to the crop in controversy.

It appears from the record that “all” the sudan grass seed to be raised by Jaggers upon 'the 150 acres of land and 'the 350 acres was intended to be conveyed, but it also appears, not only that the specific 350 and 150 acres had no location or- identity at that time, and it appearing also that the two tracts were to be taken ont of a larger acreage, unidentified, renders the sale of no force and effect.

In the case of Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec.' 274, T. B. Hall sold to Cleveland 100 bushels of corn to be taken out of a large bulk of corn then in Hall’s crib, and that C. B. Hall would measure it. A few weeks after this T. B. Hall died. After the death of T. B. Hall, C. B. Hall measured and delivered the corn to Cleveland, measuring it from a large bulk of corn then in T. B. Hall’s crib. On appeal to the Supreme Court, error was assigned to the trial court’s charge, in which the charge to the jury is as follows: “If you find from the evidence that the corn in question, that is, the one hundred bushels, was in a bulk with other corn, and had not been measured out and separated from the bulk, so that the same could be identified previous to the death of Hall, then the sale was incomplete, and you will find for the plaintiff the value of the corn as proved.”

In passing upon this charge, the Supreme Court, Judge Coke speaking for the court, says: “Considering this instruction with reference to the facts of this case, it involves two propositions: first, that in order to complete the sale of the corn, and pass the title to Cleveland, it was necessary that it should have been separated from other corn and measured, so as to be identified, and capable of specific delivery to and possession by the vendee; and, second, that if not so completed in the lifetime of Hall, the act of his agent, C. B. Hall, in separating, measuring, and delivering the corn after the death of his principal, was unauthorized and void, and conferred no right upon Cleveland to the corn delivered. We are of opinion that the charge on both propositions is correct. * * * But it is essential that nothing shall remain to be done (by the vendor) to the thing sold to put it into a condition for sale, or to identify it, or to discriminate it from other things. If anything remains to be done by the vendor which is material or important before the vendee can identify or possess the thing sold, or before it becomes deliverable, the sale is executory and incomplete, and the property in it does not pass absolutely to the vendee.”

This was the rule clearly laid down by the Supreme Court, and is recognized and followed in the case of Allén & Bros. v. Melton, 64 Tex. 218, but we realize that the recent decisions have' modified it in many particulars not necessary here to discuss. However, we do not think that it was ever intended that a seller could broadcast a sale and make it apply to property that was not located or definitely determined by the seller and the purchaser at the time of the trade. The fact that the contemplated crop had no location does not permit us to hold that title passed by a contract of sale of a crop to be grown upon any land which he may later lease, and therefore we hold that the title to such a crop does not pass.

A crop may be sold or mortgaged which is not-yet in existence, but: “Of course, the land upon which, and the year in which, the crop to be planted and cultivated in the future, is to be grown, must be agreed upon.” 13 Tex. Jur. 9, § 8.

The same rule is applied to descriptions in sales as in mortgages, in that such sales shall sufficiently describe the land upon which the crop is to be grown, and the tenant cannot pass title to such crops, unless he has a present interest in the land upon which the crops are to be planted. L. R. A. 1917C, 15 and 16 (e) and authorities thereunder. . ■ , .

We say this without reference to the claim of innocent purchaser made by defendant Hendricks, for in such sales no notice is required as against such purchaser.

We therefore affirm the judgment of the trial court upon our holding that the title to the crop did not pass from Jaggers to the plaintiffs.


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

text:
    McKEE v. STATE.
    No. 13998.
    Court of Criminal Appeals of Texas.
    April 29, 1931.
    Rehearing Denied Oct, 7, 1931.
    Leave to File Second Motion for Rehearing Denied Oct. 21, 1931.

      Harvey P. Shead, of Kilgore, and Spring, Haynie & Laurence, of Austin, for appellant.
    T. L. Price, Dist. Atty., of Tahoka, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, death.

Appellant killed W. R. Billingsley by shooting him with a pistol. Accompanied by Mrs. Emma Mayhall and her daughter, appellant left Breckenridge for the purpose of going to an oil field in New Mexico. Reaching the town of Sparenburg, appellant stopped his car, got out, and left the engine running. He told Mrs. Mayhall to remain in the car until he returned. Carrying two pistols with him, appellant went into the place of business of Mrs. Mary Bryce, a widow, exhibited a pistol, and attempted to rob Mrs. Bryce. Mrs. Bryce had a crippled son, who was lying on a cot. Appellant commenced' kicking the son, and demanded that he tell him where the money was. Mrs. Bryce demurred, saying to appellant: “I am a widow woman and that is all I have.” Appellant replied: “I don’t care a damn if you are; I am a widowed man too and I am going to get the money.”. Appellant continued his abuse of the crippled boy, and threatened to kill Mrs. Bryce. Going to the cash drawer, he took what money he could find. In an effort to protect Mrs. Bryce and prevent the robbery, deceased armed himself with a shotgun and rushed to the scene. He was in the act of opening the screen door when appellant saw him and shot him in the shoulder. Running toward the door, appellant fired a second shot at deceased, and hit him again. As he passed deceased, deceased struck him over the head with his shotgun, inflicting a wound. At this point deceased slipped and fell. After he was down, appellant fired two shots into his body. On firing the last shot appellant said to deceased: “I do not guess you think I am joking now.” Deceased said to appellant that he had killed him and that it was “a cowardly trick to rob a widow woman.” Appellant replied: “Well you will let me alone after this.” Deceased said: “Tes, oh God, yes, you have done killed me.” Deceased died a short time after the last shot was fired into his body.

The foregoing is the substance of the testimony coming from state’s witnesses. Appellant did not testify in his own behalf, but presented witnesses who testified that, in their opinion, appellant was insane. The state met the issue with the testimony of several witnesses who, after qualifying, expressed the opinion that appellant was sáne. The issue of insanity was submitted in the charge of the court..

The objection to the court’s charge on the ground that it failed to embrace an instruction covering the law of self-defense was not well taken. The issue was not raised. At the time deceased armed himself- and approached the scene of the homicide, appellant was engaged in committing the offense of i robbery. When deceased struck appellant with his shotgun, appellant was in the presence of the person he was robbing. Deceased had the legal right to kill appellant in preventing the robbery. By his own conduct appellant forfeited his right of self-defense. Under our statute, a killing is justifiable when it takes place in preventing a robbery if- done while the robber is in the presence of the one robbed or is fleeing with the property taken by him. . Article 1222, subd. 5, P. C., Brown v. State, 87 Tex. Gr. R. 261, -222 S. W. 252; 30 Corpus Juris, p. 49. Under the facts reflected by this record, it would be a strange doctrine that would accord to the accused the right of self-defense.

By affidavits filed- in this court six months after the trial, appellant seeks to invoke the provisions of article 1, § 10, of the Constitution of Texas, securing to the accused the right of being heard by counsel. These affidavits attack the right of counsel of appellant’s own choosing to practice law in this state'; it being averred that the disqualification was unknown to appellant until long after the trial. ■ Another attorney aided counsel chosen by appellant, and actively participated in the trial. We w.ould not be warranted in considering the affidavits. The questions they seek to present are not related to the exercise of the jurisdiction of this court. Article 5, § 5, of the Constitution of Texas, provides that the Court of Criminal Appeals shall have power upon affidavit or otherwise- to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction. Save affidavits raising questions affecting the exercise of the jurisdiction of this court, ordinarily we will not consider ex parte affidavits setting up matters not shown by the record. Texas Jurisprudence, vol. 4, p. 179; Williams v. State, 111 Tex. Cr. R. 378, 13 S.W.(2d) 112. There are exceptions, but they have no application here, and will not be discussed.

Bills of exception 3 to 5, inclusive, present the' following occurrence: State’s witnesses, Mrs. Mary Bryce, Jack Bryce, and Mrs. W. R. Billingsley, wife of deceased, had gone to the jail with the sheriff prior to the trial for the purpose of listening to appellant’s voice. They took hidden positions while the sheriff engaged appellant in conversation. The sheriff testified on his direct-examination by the state that appellant voluntarily engaged in conversation with him during the time the parties were in the jail. On cross-examination he stated that he purposely made appellant talk out loud in order that the witnesses might hear his voice. On redirect-examination he explained the expression “I made him talk out loud” by saying that he did not make the appellant talk, but merely engaged in conversation with him. On the trial Mrs. Billingsley testified without objection that she heard appellant talk while she was in the jail, and that the voice was that of the person who shot her husband; she having on the night of the homicide heard the voice of her husband’s assailant. After this testimony had been received without objection, Mrs. Bryce, who had also been present when deceased was killed; gave substantially the same testimony. The objection interposed to the testimony of Mrs. Bryce was that it was hearsay, a conclusion, and contrary to the provisions of article 727, O. O. P., relating to confessions while in custody. The same objection was interposed to the testimony of Jack Bryce and that of the sheriff touching their visit to the jail and the arrangement whereby appellant’s voice was heard by the witnesses. No words spoken by appellant, and nothing said by him while in jail, went to the jury. The witnesses merely said that they heard appellant talk and recognized the voice as being the same as that they had heard on the night of the homicide.

A similar situation was presented in Bris-coe v. State, 106 Tex. Cr. R. 402, 292 S. W. 893, 895. In holding that the procedure under consideration did not offend against the provisions of article 727, C. C. P., Judge Hawkins, speaking for the court, used language as follows: “However, giving the most liberal construction to the bill, if the purpose of the motion was to strike out that portion of the testimony of Pox which related to his statement that he identified appellant immediately upon hearing his voice while in jail, then we are of opinion Still the bill does not present error. The objections were that appellant was in jail at the time; that no statement he made while in jail could be used in evidence against him; and that he had not been warned and his ’statement reduced to writing. The effort here is to extend the provisions of article’727," C. C. P. 1925, -to exclude the evidence complained of. As heretofore stated, there was no effort made to introduce in evi-* denee anything appellant said, nor his manner while saying it; the witness only testifying to hearing his voice, and his identification thereby. It certainly would not transcend said article 727 for a witness to testify that he observed a certain party while in jail,.and identified him at the time of this observation; the testimony being otherwise admissible. To hold as here contended for by appellant would be to extend the rule involved beyond reasonable limits. Of course, if appellant had refused to talk, this incident could not.have been proven against him, because it would have been an act of appellant while under arrest which might be regarded by the jury as significant and of a criminative character. It has been held permissible to prove that, after arrest, the shoes were taken off accused’s feet, and placed in tracks for the purpose of comparison or identification. Walker v. State, 7 Tex. App. 264, 32 Am. Rep. 595; Guerrero v. State, 46 Tex. Cr. R. 447, 80 S. W. 1001; Pitts v. State, 60 Tex. Cr. R. 527, 132 S. W. 801. The principle there involved seems similar to hearing accused’s voice while in jail.”

In Barnes v. State, 106 Tex. Cr. R. 394, 292 S. W. 548 a witness was permitted to testify, over objection, that he heard appellant talk while he was in custody in the police station, and identified him by his voice. In an opinion by Judge Eattimore this court held that the fact that the witness testified that he had heard the accused talk while under arrest and recognized his voice, and that he identified him by his voice, was admissible. These holdings are adverse to appellant’s contention. We are therefore constrained to hold that his objections were not well taken.

Bill of exception No. 7 relates to the action of the trial court in permitting Mrs. Emma Mayhall to take the witness stand on behalf of the state; the objection being that she was incompetent because she was under indictment charging her with the identical offense for which appellant had been placed upon trial. The fact that the witness was an accomplice as a matter of law did not preclude the use of her testimony by the state. McGinsey v. State, 65 Tex. Cr. R. 362, 144 S. W. 268.

Bill of exception No. 8 recites that state’s witness Ida Mayhall, after having testified on direct and cross-examination, had been excused; that thereafter the witness was recalled by the state, and, over appellant’s objection, required to testify that she did the things appellant told her to do because she was afraid of appellant. The pertinent objection was that the state was attempting to bolster up the testimony of the witness by eliciting from her a self-serving declaration. The court qualifies the bill of exception with the statement that the original question objected to was withdrawn by the district attorney, and, in lien thereof, the witness was asked why she did the things appellant told her to do., The qualification further states that the testimony was admitted on the question of “the witness being an accomplice, which question was submitted to the jury in the court’s charge.” We are unable to determine from the bill of exception whether the testimony, if objectionable, could hare harmed appellant. The bill fails to show what testimony the witness had given. It is silent as to the “things appellant had told her to do.” If the statement of facts, should be consulted, we find that the witness had testified, without objection, that appellant had exhibited a pistol and threatened to kill the mother of the witness if she did not accompany him on his trip. Mrs. Emma May-hall, the mother of the witness, also testified, without objection, to substantially the same facts; that is, that appellant had threatened to kill her and had exhibited a pistol at the time he required her and Ida Mayhall to accompany him on the trip. On cross-examination of Ida Mayhall, before the state had ever asked her whether she was afraid of appellant, appellant elicited from the witness the following statement: “I did not tell those people that I was afraid of Ira McKee and that my name was not Ida Williams, because he said if I did tell it he would kill me. I was afraid to tell it and I did not want to leave my mother.” See statement of facts, page 42. If the testimony of which complaint is made was improperly received — and this is not conceded — substantially the same facts were proved by appellant himself. Hence the rule that the admission of improper evidence does not constitute reversible error if the same facts were proved by other and proper testimony, or by evidence which was not objected to, has application. Anderson v. State, 110 Tex. Cr. R. 241, 8 S.W.(2d) 124.

According to the recitals in bill of exception No. 9, Dr. J. C. Loveless, a regularly licensed physician, and qualified to give expert testimony, had been called as a witness for the state. Upon cross-examination appellant propounded to the witness a hypothetical question for the purpose of eliciting from him an opinion as to whether appellant was of abnormal mind. The state objected to the question, and the court sustained the objection. The qualification appended.to the bill recites that the court stated he would sustain the-objection for the time being, and that later, when Dr. Loveless was recalled to the stand, the court advised appellant’s counsel that he would permit the witness to answer the question set out in the bill of exception. It is further recited in the qualification that appellant’s counsel advised the court that he did not desire to ask the question. As qualified, the bill fails to manifest error.

Bill of exception No. 30 embraces a statement to the effect that Mrs. Billings-ley, widow of deceased, was permitted, over appellant’s objection, to testify that her husband stated at the time he died that he had lived a clean life and was not afraid to meet his Maker; thdt he was sorry to leave his wife and little boy; that he wanted his widow and child taken care,-of. The objection shown in the bill was that the statement of deceased was not a dying declaration, was hearsay, and calculated to arouse prejudice in the minds of the jury, in that it was wholly unrelated to the immediate facts surrounding the homicide. The qualification appended to the bill shows that a sufficient predicate had been laid for eliciting any ^proper declaration the deceased might have made as to the relevant facts and circumstances immediately surrounding the homicide. The qualification further shows that the statement set out in the bill of exception was made by deceased during the time he was describing the acts of appellant in shooting him. The court expressly states in the qualification that appellant objected to the entire statement on the ground that a proper predicate had not been laid for introducing the dying declaration, but that he did not object ,to the statement set out in the bill of exception, and made no request that it be withdrawn from the consideration of the jury.

As a general rule, this court will consider only questions which were before the trial court and which are brought up for review in the manner provided by statute. Texas Jurisprudence, vol. 4, • p. 41; Edwards v. State, 91 Tex. Cr. R. 196, 237 S. W. 933. We are in no position to pass on questions on which the trial court did not act. Robinson v. State, 110 Tex. Cr. R. 345, 7 S.W. (2d) 571. While the Court of Criminal Appeals has always been liberal in dealing with a recotd where the death penalty was inflicted, we cannot consider a matter such as is here complained of for the first time on appeal. Fisher v. State, 108 Tex. Cr. R. 623, 2 S.W.(2d) 249.

Bill of exception No. 11, as qualified by the court, shows .that the testimony therein set forth was not admitted.

Bills 12 and 13 bring forward objections to the testimony of two witnesses, who expressed the opinion that appellant was sane. It is shown by the qualification appended to the bills that each of the witnesses testified that they had known appellant, had' seen him, and talked to him on several occasions, and had closely observed his acts and conduct. They further testified, before being permitted to express an opinion as to appellant’s sanity, that, based upon their observation of appellant and their association with him, they had not noticed anything out of the ordinary in his conduct. It is well settled that a nonexpert witness, who has shown reasonable opportunity to observe the acts and conduct of the party inquired of, may state that he has never observed anything in the acts, speech, demeanor, or conduct of such party which was peculiar, or which led witness to believe or conclude such party of unsound mind, or abnormal. Upton v. State (Tex. Cr. App.) 20 S.W.(2d) 794, and authorities cited. We quote the language of Judge Lattimore in Shields v. State, 104 Tex. Cr. R. 253, 283 S. W. 844, 846, as follows: “We further observe that we are unable to draw the line distinction between the weight, effect, and admissibility of a statement by one who shows himself to have seen, associated, and been with another enough to enable the witness to say that he has never seen or heard anything in the words, looks, or acts of such other to indicate that he is of unsound mind or abnormal, on the one hand, and the same statement in other words, viz. that from the length of such association and opportunity for such observation, even though he cannot remember details, he is of opinion that the party is of sound mind.”

Giving effect to the announcement of the decisions, we think the hills of exception show that the witnesses -were qualified to express the opinion that appellant was sane.

Bills of exception 14 to 21, inclusive, bring forward extended arguments which it is alleged were made by state’s counsel in addressing the jury. The court qualifies the bills with the statement that no objections were interposed at the time' the arguments were made, and that no request that the remarks be withdrawn from the jury was presented to the trial judge. It is expressly stated in the qualifications that the matter was not brought to the attention of the court until the motion for new trial was presented, save that at some time during the argument appellant’s counsel whispered to the court that he was going to except to some of the remarks of counsel for the state. The court stated to appellant’s counsel at the time to make known his objections, but counsel remained silent. This court has committed itself to the proposition that ordinarily objections to the argument must be' made at the time it occurred in order that the attorney making may, if he sees fit, withdraw or explain it. In Sears v. State, 106 Tex. Cr. R; 219, 291 S. W. 547, 548, we said: “Unless objection to argument is called to the court’s attention at the time the objectionable statements are made, they cannot ordinarily be taken advantage of by 'later complaints.”

We quote from Harris v. State, 93 Tex. Cr. R. 544, 249 S. W. 485, 489, as follows: “It is Conceived that the orderly procedure which must characterize a trial demands that the complaint that in his argument counsel is transcending legitimate bounds should be addressed to the trial judge at the time, so that he may determine its propriety and use his authority to counteract any injustice that may portend. It is fair that the counsel should be accorded occasion to himself withdraw any inaccurate or objectionable feature of his remarks to the jury. When the opposing counsel sits silent, he waives any argument of his adversary that can, in consonance with the orderly administration of justice, be waived.”

In the remarks brought forward in the bills of exception, we find nothing calling for action on the part of the court in the absence of objection.

In bill of exception No. 22, complaint is made of the action of the trial court in refusing to grant a new trial on the ground that one of the jurors was prejudiced. It was alleged in the motion that the juror Hull had stated to one John Earl before going on the jury that he had formed an opinion in the case; that he knew that appellant had been sentenced more than one time to the penitentiary ; that he believed the best way to deal with such criminals was just to kill them. Mr. Earl would not testify that he heard the juror make the statement in question. Hull testified that he did not make the statement; that he did not know appellant; that he had never heard the case talked or discussed; and that he had no opinion whatever when he went on the jury as to appellant’s guilt or innocence. In Branch’s Annotated Texas Penal Code, § 565, p. 288, we find the following statement: “When it is sought to show on the hearing of the motion for new trial that a juror before the trial had expressed an opinion of defendant’s guilt or had made statements which showed a prejudice against defendant, the decision of the trial court on that issue will be sustained by the Appellate Court unless clearly wrong if the evidence bearing thereon was conflicting and was sufficient, if believed, to justify the action of the trial judge.”

See Meadors v. State, 101 Tex. Cr. R. 336, 275 S. W, 829, and McKenzie v. State (Tex. Cr. App.) 11 S.W.(2d) 172.

The trial court was warranted in concluding that the juror was not prejudiced.

We have carefully considered every contention made by appellant, and fail to find reversible error.

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.

MORROW, P. J.

Annulment of the judgment is sought upon the proposition that the selection of the members of the grand jury which found the in-ilictment against the appellant was illegal, in that the grand jury was selected by five jury commissioners. In the act of the Legislature of 1876, it was declared that the district judge shall, at each term, appoint three persons to perform the duties of jury commissioners. It was also declared that the jury commissioners shall select sixteen men from whom the members of the grand jury shall he selected. See R. S. 1879, art. 3017. The article mentioned has been carried into the civil statutes through several revisions, including that of 1925. See It. S. 1925, art. 2104. By chapter 37, Acts of the 41st Legislature (1929), Beg. Sess. (Vernon’s Ann. Civ. St. art. 2104 note), the statute was amended so as to declare that there should be appointed not less than three, nor more than five jury commissioners. The provisions of the act of 1876 were, by the codifiers, carried into the Code of Criminal Procedure 1925 in articles 333 and 338.

The grand jury was selected before the offense was committed. At the time of the indictment, the appellant was in jail charged with an offense. He was privileged to object to trial upon the indictment found and to move the trial court to set the indictment aside and to have adverse action on the trial passed upon by the appellate court. See Davis v. State, 105 Tex. Cr. B. 359, 2S8 S. W. 456. By failing to oppose his trial upon the indictment and to bring up a record showing the action of the court thereon, he waived any irregularity in the indictment which the law would permit to be waived. See Gentry v. State, 105 Tex. Cr..B. 617, 290 S. W. 541. That is to say, unless the formation of the grand jury was void, its action in finding the indictment is not subject to attach in any proceeding such as the present. See Ex parte Clemmins, 90 Tex. Cr. R. 261, 234 S. W. 667; Bryant v. State, 97 Tex. Cr. R. 11, 260 S. W. 598; King v. State, 90 Tex. Cr. R. 289, 234 S. W. 1107; Bussell v. State, 92 Tex. Cr. R. 93, 242 S. W. 240; Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569. The statutes governing the subject and the judicial announcements are many and uniform to the point stated. They will be found reviewed and collated in the opinion of this court in the case of Powell v. State, 99 Tex. Cr. R. 276, 269 S. W. 443. We are not to be understood-as ihtimating that, if the attach upon the indictment had been made at the proper time and preserved in the record, it should have been sustained. It is not clear ■that there is real conflict in the provisions of the statute touching the jury commission, or that, if there be conflict, the selection of the grand jury by a commission composed of five men, as provided by chapter 37, supra, would constitute more than an irregularity which might be waived.

Many months after the trial and after the record had reached this court, the appellant, for the first time, attacked the validity of his conviction upon the ground that upon his trial he was not represented by an attorney. Such matter is not upon any recital in the record of the trial court, hut it is upon his affidavit that the appellant relies. Erom the record it appears that the appellant was represented upon his trial by two attorneys; namely, H. P. Shead and J. P. Willis. In his affidavit it is claimed that he employed Shead but did not employ Willis. It is also stated in the affidavit, accompanied by a certificate from the clerk of the district court of Tarrant county, that by a judgment of that court Shead’s privilege of practicing law in the courts of the state had been suspended. That fact was unknown to the appellant at the time of his trial. Counter affidavits were filed showing that the judge who presided at the trial was not aware of the suspension; also that, before the judge was aware that the appellant had employed attorneys, the court offered to appoint an attorney to represent the appellant, but the appellant declined, stating that he had already employed an attorney.

In article 1, § 10, of the Const, of Texas, it is said: “In all criminal prosecutions; the accused * * * shall have the right of being heard by himself or counsel or both.”

In article 494, C. C. P. 1925, it is said: “When the accused is brought into court for the purpose of being arraigned, if it appear that he has no counsel and is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him.”

In article 11, C. C. P. 1925, it is said: “The defendant in a criminal prosecution for any offense may waive any right secured to him by law, except the right of trial by jury in a felony case.”

Except in rare cases involving its jurisdiction, the authority of the Court of Criminal Appeals is controlled by the record made in the trial court and presented on appeal, and cannot consider attacks upon the procedure presented by affidavit in the appellate court. See Const. of Texas, art. 5, § 5; also Vance v. State, 34 Tex. Cr. R. 395, 30 S. W. 792; Craddock v. State, 15 Tex. App. 641. It may be said, however, that, if' the court were authorized to consider the affidavits mentioned, the matter therein would he far from conclusive against the judgment. The decisions of this court and others are to the effect that the accused in a capital case may waive the appointment of counsel. See Compton v. State, 67 Tex. Cr. R. 15, 148 S. W. 580; James v. State, 27 Wyo. 378, 196 P. 1045; Billing Case Law, vol. 8, p. 84, § 40. See, also, Corpus Juris, vol. 16, p. 821, § 2077, note 23, and cases collated.

In this state the obligation to appoint counsel is predicated upon the showing that the accused was too poor to employ counsel, a condition which, in- the present instance, is negatived 'by the fact, as shown by the affidavit, that the appellant did employ counsel, though he claims as to one of those who represented him he made the mistake of employing one whose license to practice law in Texas had been suspended. Touching the other by whom he was represented, he presents no impeachment; nor is it contended that his defenses were not properly presented, or that in the conduct of his case there was either misbehavior, neglect, or incompetency upon the part of those by whom he was represented.

Counsel representing the appellant upon this appeal have been zealous and energetic, and have presented brief and argument showing research and thought. In the light of the brief, motion, and argument, the entire record has been reviewed. We are confirmed in the opinion that the announcements made in the original opinion are sound, and that the matters' urged in the motion for rehearing and discussed in the present opinion are not such as to require or authorize a reversal of the judgment of conviction.

The motion is overruled.

On Request for Leave to File Second Motion for Rehearing.

HAWKINS, J.

The views of this court regarding when a second motion for rehearing should be considered were expressed in Hickman v. State, 93 Tex. Cr. R. 407, 247 S. W. 518, and in Calley v. State, 103 Tex. Cr. R. 53, 279 S. W. 848.

The motion here sought to be presented is not thought to be within contemplation of the authorities cited. The points discussed upon consideration of the motion for rehearing are only reurged in the second motion, and the conclusion heretofore announced is not thought to be erroneous.

The request for leave to file second motion for rehearing is denied.