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

text:
    SHOOPE v. STATE.
    No. 13315.
    Court of Criminal Appeals of Texas.
    June 18, 1930.
    Rehearing Denied May 27, 1931.

      Howard & Jackson, of El Paso, John B. Littler, and Rogers & Smith, all of Big Spring, and Jed Adams, of Dallas, for appellant.
    A. A. Dawson, State’s Atty., of Canton, for the State.
   HAWKINS, J.

Conviction is for operating a "gambling house, punishment being two years in the penitentiary.

The statement of facts is neither signed by the respective attorneys nor approved by the trial judge. It was filed in the trial court on October 10, 1929. It was not filed in this court until January 6, 1930, apparently having remained in the office of the district clerk for nearly three months without the defect having been discovered. In an effort to have us consider the statement of facts, letters and affidavits from the district attorney and trial judge are presented here. Prom the affidavits we learn that the statement of facts was never presented to the district attorney for his signature nor to the district judge for his approval. Under such circumstances, their statement that the statement of facts was correct would in no wise excuse the failure of appellant or his attorneys to comply with the plain provision of the statute regarding the preparation of the record for appeal. To do so would bring about a careless disregard which would inevitably lead to endless confusion.

Long after the record was filed here, the’ attention of the trial judge and the district attorney was called to the condition of the statement of facts, and by a letter dated long after ninety days from adjournment of court had expired, they undertook to authorize an attorney not connected with the case to sign their names to the statement of facts. Presumably because the attorney felt that he had no right to do this he did not sign their names, but if he had it would have availed appellant nothing, in view of the fact that the statement of facts was never presented to the trial judge and district attorney for approval, and is not even signed by appellant’s own attorney.

This court is not able to appraise the bills of exception in the absence of a statement of facts.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

The offense is that defined in article 625, P. O. 1925.

In the second count of the indictment the following is charged: “ * * * Did then and there keep and was interested in keeping a building, house and room for the purpose of being used as a place to bet and wager and to gamble with dice, and as place where people did then and there resort to gamble, bet and wager upon games played with dice.”

The statute involved has been considered in many cases. Among them are Sanchez v. State, 90 Tex. Cr. R. 156, 233 S. W. 982; Francis v. State, 90 Tex. Cr. R. 74, 233 S. W. 974; Spears v. State, 109 Tex. Cr. R. 389, 4 S.W.(2d) 979; Harvey v. State, 92 Tex. Cr. R. 645, 244 S. W. 1004; Musey v. State (Tex. Cr. App.) 33 S.W.(2d) 449.

The appellant contracted with the witness Thorpe to purchase a plot of land 100 feet square, situated in Howard county near what is known as the Scenic Drive, about two miles from the city of Big Spring. The purpose for which he bought the land was to build and conduct a road house. A part payment on the lot was made and a contract entered into to complete the payment in sixty days. A' house was constructed upon the lot. The house was divided into two compartments by a partition in which there was a door passing from one to the other. In the front of the house there was a restaurant and in the rear there was a gambling establishment. After the appellant was charged with the offense named, the payments on the lot and the construction of the house were paid by other persons while he was present. The material was bought upon his credit.

Several witnesses testified that they went to the building and found the appellant there and a number of other people. Some of the witnesses saw him only in the restaurant, and others saw him in both parts of the house. The gaming tables were under the immediate conduct of another person. However, the appellant’s conduct was sufficient to justify the conclusion by the jury that he was connected with and interested in the opera'tions in both parts of the building. The evidence is conclusive that the building, was kept for the purpose of being used as a place to bet and wager and to gamble with dice, and where people resorted for that purpose.

The appellant’s first bill of exception reflects his complaint of the refusal of the court to instruct the jury to acquit. The basis of the complaint is, in substance, that it was not shown that the building was owned by the appellant and was not shown that he was interested in conducting a gambling house. It was not necessary that the appellant own the house. However, the evidence is sufficient to show that he was the owner. It was likewise sufficient to show that he was interested in keeping the place in violation of the statute above mentioned. The court was fully warranted by the record in declining to instruct the jury to find a verdict for the accused. The court submitted the issue in a paragraph of the charge against which- no complaint is directed.

The witness Robb testified that he, in company with others, went to the place at night ⅛ that the appellant was near the door and conducted the witness and his companions to a girl, who checked their hats. This was in the restaurant part of the building. The appellant stood and waited until the hats were checked. The witness said: “That night Mr. Shoope told us he wanted us to check our hats, and not to keep them with us. * * * People were coming to and'from those rooms while we were there. No one was waiting on the door between the two rooms that I know of. ⅜ * * In this room where' we got our sandwich they had an orchestra playing, and I think there were some people dancing at the time.”

In the rear room there were a number of gambling tables where people were gambling with dice at a game called “craps.” There were about ten tables, covered with green cloth, and prepared in a manner suitable for playing the game mentioned. The witness said that he did not see the appellant in the room when the gambling was going on; that there were a number of people present. Other witnesses gave like testimony.

The reception of the testimony is assailed by bills of exception Nos. 1 and 2. The bills are not in shape to raise any legal question, as they go no further than to show the ground of objection. However, the testimony given by the witnesses was, In the opinion of this court, clearly admissible. One of the witnesses testified that he lost some money in gambling. The state’s attorney commented upon that fact. His argument is assailed as improper in stating that the appellant got the money which Robb lost. The comment should be classified as a proper deduction from the testimony given upon the trial.

One who holds the office of county judge and who is a lawyer is privileged to practice law in the district court. The complaint of the fact that the private prosecutor representing the state was also the county judge is without merit.

Counsel for the state remarked to the jury that if the evidence had not been sufficient the court would not have submitted the issues to the jury. The complaint of this is brought forward in a bill of exception. The court gave the usual charge with reference to the province of the jury in passing upon testimony and also instructed them to disregard the argument. The bill shows no error.

The motion for new trial brings forward the same matters to which the bills of exception relate.

The statement of facts was filed in the trial court and in this court without the signature of either counsel for the state or the accused, or by the trial judge. In the trial court there was entered a judgment declaring that the statement of facts was approved at the time it was prepared and filed, but that by oversight the signatures of the trial court and the attorneys were omitted. It was held under the circumstances detailed in the case of Berrian v. State, 87 Tex. Cr. R. 284, 221 S. W. 282, that a statement of facts which was filed within the time allowed by law and approved by the attorneys, and also by the trial judge, who, by inadvertence, failed to affix his signature thereto, would not be disregarded. The facts in the present case'are different from those in the Berrian Case, supra, and it is not clear that the statement of facts is in such condition that it can be properly considered upon this appeal.

Since the original hearing, some additional evidence, by way of affidavits, has come into the record touching the filing of the statement of facts. However, we have carefully examined the statement of facts with the result above stated, and are convinced that, considered in the light of the facts adduced, the record is void of any errors that would justify a reversal of the judgment.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: LATTIMORE, J.

license: Public Domain

text:
    C. J. MAREK v. STATE (2 cases).
    Nos. 14345, 14346.
    Court of Criminal Appeals of Texas.
    May 13, 1931.
    H. D. Barrow and Walter E. Jones, both of Jourdanton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for embezzlement; punishment, two years in the penitentiary.

The record is before us without bills of exception or statement of facts, and manifests that appellant pleaded guilty. The indictment, the judgment, and sentence appearing regular, the judgment will be affirmed.


author: CALHOUN, J.

text:
    MAREK v. STATE.
    No. 14347.
    Court of Criminal Appeals of Texas.
    May 13, 1931.
    H. D. Barrow and Walter E. Jones, both of Jourdanton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, embezzlement; punishment, two years in the penitentiary.

The record is before us without any statement of facts or bills of exception, and nothing is presented for review.

The judgment is affirmed.

PER CURIAM.

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


author: CHRISTIAN, J.

text:
    FERRELL v. STATE.
    No. 14114.
    Court of Criminal Appeals of Texas.
    May 13, 1931.

      Gentry & Gray, of Tyler, for appellant.
    Ernest S. Goens, Dist. Atty., and Nat Gentry, Jr., Co. Atty., both of Tyler, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

Officers testified that they found six gallons and a pint and a half of whisky in appellant’s automobile. They said they also found a rubber tube, a faucet, several empty pint bottles, and some stoppers in the car. They had seen appellant driving the car immediately before making the search. Appellant approached the car while the search was in progress. Appellant testified that he had no whisky in the car when he left home on the day of the search. He said: “There was not any whisky in there that T knew anything about. I didn’t know of any whisky at all in the ear.” Several witnesses for the state testified that appellant was drunk at the time the search was made. One witness' testified that shortly before the search appellant offered to sell him some whisky.

Appellant’s second application for a continuance was based on the absence of J. C. Duty. It was alleged that the absent witness would testify that appellant spent the night with him next preceding the day of the search; that the witness looked in the ear before appellant started on his journey, and that there was no whisky in it; that he saw appellant place some money in the side pockets of the ear. Attached to the motion for new trial was the affidavit of the witness setting out substantially the same facts embraced in the application for continuance. As to diligence, it was averred that appellant caused a subpoena to be issued for the witness on March 17, 19S0, and wired it to the sheriff of Harris county for service on the witness, his residence being in said Harris county; that appellant was unable to say whether process had been served.

There was an utter lack of diligence. It is stated in the application that appellant did not know what facts the witness would . testify to until a few days before the date of the trial. He should have ascertained immediately after his arrest whether the witness knew any facts material to his defense. According to his own testimony, he lived in the home of the witness, and had spent the night with him next preceding the day of the search and arrest. Why he did not talk to the witness and ascertain what he knew about the case is not disclosed. The indictment was returned on the 7th day of November, 1929. Appellant waited until the 17th of March, 1930, a period of more than four months, before he made application for process for the witness. He failed to discharge the burden resting upon him to establish the exercise of diligence. Section 314, Branch’s Annotated Penal Code; Hogue v. State, 08 Tex. Cr. R. 536, 151 S. W. 805; Boyd v. State, 57 Tex. Cr. R. 647, 124 S. W. 651.

We deem it unnecessary to discuss the materiality of the testimony other than to say that, if sufficient diligence appeared, we would be of the opinion that the action of the trial court in overruling the motion for new trial was not an abuse of his discretion iii determining that, had the absent testimony been present on the trial, no different result would have' been likely. Wiley v. State (Tex. Cr. App.) 36 S.W.(2d) 495.

Appellant objected to the testimony touching the result of the search on the ground that the officers had no search warrant, and that there was no “probable cause” justifying a' search without a warrant. Touching the question of probable cause, one of the officers testified, in substance, as follows: He met appellant on the road driving the automobile, and, upon talking to him, observed that appellant was drunk. After appellant had driven away, the officer met JesS Jones. Jess Jones told him that appellant had a load of whisky in his automobile. He said that' appellant had showed the whisky to him. Upon going to the place where appellant had stopped the car, the officer made the search, with the result hereinbefore described. We think the facts and circumstances recited by the officer are sufficient to constitute probable eaus'e; that is, “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is1 guilty of the offense with which he is charged.” Landa v. Obert, 45 Tex. 539; Battle v. State, 105 Tex. Or. R. 568, 290 S. W. 762; Smyrle v. State, 107 Tex. Gr. R. 663, 298 S. W. 598.

In 'one of appellant’s unnumbered bills of exception it is recited that the state asked appellant upon cross-examination if he was not under indictment in another county for another felony. Appellant answered: “I know it, it is the same thing that I am on here.” Appellant objected to the testimony on the ground that the ease against him in the other county was the same as the one on trial and could not be used to impeach him. The court qualifies the bill of exception with the statement that he instructed the jury not to consider the question and answer for any purpose. There is nothing in the bill of exception to show bad faith on the part of the district attorney in propounding the question. So far as the bill of exception is concerned, the district attorney did not know that the indictment in the other county involved the same act as that for which appellant was1 on trial. It is not for the purpose of impeachment proper to make proof that the accused is under indictment for a felony involving the same act as that for which he is on trial. Eaves v. State (Tex. Cr. App.) 29 S.W.(2d) 339. However, appellant made no objection to the question, but contented himself with objecting to the testimony after he had already answered the question. To have properly protected himself, appellant should have objected to answering the question. Upon learning that the same act was involved, the court promptly withdrew the testimony from the consideration of the jury. In the state of the record, the opinion is expressed 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 Oourt of Griminal Appeals and approved by the court.


author: MORROW, P. J.

text:
    GREENWOOD v. STATE.
    No. 14192.
    Court of Criminal Appeals of Texas.
    May 13, 1931.
    E. H. Davis, of Hempstead, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Burglary is the offense; penalty assessed at confinement in the penitentiary for a period of two years.

The motion for new trial was overruled and notice of appeal given on September 30, 1930. The statement of facts was filed on the 19th day of January, 1931, which seems to have been twenty-one days more than ninety days after notice of appeal was entered. The statute (article 760, C. C. P. 1925) demanding that a statement of facts, to warrant consideration, must be filed within ninety days after notice of appeal, precludes the consideration of the so-called statement of facts in the present record.

The indictment seems regular. There are no bills of exception, and no matters arising upon the face of the record showing any fundamental error.

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


author: LATTIMORE, J. HAWKINS, J.

text:
    WOFFORD v. STATE.
    No. 13800.
    Court of Criminal Appeals of Texas.
    Dec. 10, 1930.
    Rehearing Denied May 20, 1931.

      L. D. Hartwell, of Greenville, and McKinney & Berry, of Cooper, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

Officers searched appellant’s residence, operating under a search warrant, and found secreted in an upholstered chair seven pints of whisky. Appellant made application for a continuance in which he set up that he expected to prove by the absent witnesses that they had heard a doctor, now dead, tell appellant to get and use whisky for his rheumatism and other troubles.- There was no testimony before the jury that appellant had or used whisky for medicine. We do not perceive the relevance of the absent testimony. Appellant did not take the stand or use his wife as a witness.

The state introduced only one witness, the sheriff, who testified to the finding of the whisky in appellant’s house. He said that, when he went into the house, he told appellant that he had a search warrant, and appellant asked if witness was looking for whisky, and said, “Look all you want to, you'won’t find any.” No witness was introduced in behalf of the defense. There appears to have been no person on the place at the time of the search except appellant, his wife, and the searching officers.

Bills of exception complain of the refusal of the court to hear and act upon a motion to quash the affidavit and search warrant before requiring an announcement of ready for trial. We entertain no such practice in this state, and the refusal of the court to hear the motion was not error.

Complaint is made in two bills of -exception of the refusal of the court to give peremptory instructions in favor of the defendant. The court was justified in declining same. Bills of exception Nos. 4 and 5 complain of the refusal of special charges which were manifestly upon the weight of the evidence, and presented incorrect legal principles. There is not the slightest suggestion in the record that the whisky in question belonged to appellant’s wife. The trial court did not err in refusing to submit a special charge that, if the jury found the whisky belonged to her, they should acquit.

There is complaint also of the affidavit for search warrant. We think same in entire compliance with the statute. However, this question would pass out in view of the appellant’s express permission to the officer to make the search. There is complaint in one of the bills of exception of the admission of the'testimony of the officer on the ground that the warrant was not issued upon probable cause, and that the affidavit was not signed save by one person. The affidavit was signed by two persons, and, in the opinion of the court, the warrant was issued upon ample cause shown in the affidavit. There is complaint of the admission of the statement of appellant to the officer that he could look all he wanted to, but he would not- find anything. The statement was clearly res geste of the offense. Appellant was then in possession of the whisky, although it had not been discovered by the officer. The bill manifests no error.

The judgment will be affirmed.

On Rehearing.

HAWKINS, J.

Appellant again urges criticism of the affidavit upon which the warrant to search his house was-predicated. After a further examination of it, we fail to discover any defect as to description of property sought to be searched, nor any failure to state facts and information therein amounting to probable cause.

When the officers told appellant they had a-warrant to search his house for whisky, he said, “Look all you want to, you won’t find any.” An expression in our -original opinion indicating that this was consent by appellant for the search is criticized as being in conflict with the holding in Dixon v. State, 108 Tex. Cr. R. 650, 2 S.W.(2d) 272. We are inclined to think appellant is correct in his position under the facts here. See, also, De Aguirre v. State, 100 Tex. Cr. R. 584, 7 S.W. (2d) 7-6, and Monroe v. State, 110 Tex. Cr. R. 274, 8 S.W.(2d) 133. The affirmance of. the judgment, however, was not based upon a search made with consent. There was an express holding that the affidavit was legal.

The testimony appellant expected from his absent witnesses appears to be obnoxious to tbe rule against receiving “hearsay evidence.” See Corpus Juris, vol. 16, § 1233; Johnson v. State, 55 Tex. Cr. R. 134, 114 S. W. 1178. Aside from this, if the witnesses had been present and their evidence received, it would not likely have changed the result of the trial, in the absence of any claim by appellant that his possession of the liquor was for medicinal purposes. The concealment of the liquor in an unusual place — the bottom of an upholstered chair — smacks of possession for a conscious illegal purpose rather than a legitimate possession for medicinal use.

The motion for rehearing is overruled.


text:
    HALL v. STATE.
    No. 14350.
    Court of Criminal Appeals of Texas.
    May 13, 1931.
    See, also, 27 S.W.(2d) 187.
    E. T. Miller, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder; punishment, twenty years in the penitentiary.

Appellant’s notice of appeal was given on December 1, 1930. The statement of facts herein was filed on the 17th of March, 1931. The law requires that same be filed within ninety days after the giving of notice of appeal. The statement of facts cannot be considered because filed too late.

The exceptions to the court’s main charge and the refusal of three special charges are of such character as that same cannot be appraised in the absence of statement of facts.

No error appearing, the judgment will be affirmed.


text:
    Ex parte ADAIR.
    No. 14407.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    W. C. Linden, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The appellant was charged with murder. On a habeas corpus hearing he was denied bail.

It was admitted by the state that Clinton Collins killed Fritz Blank and that the appellant, Adair, took no part in the actual shooting. Collins entered a plea of guilty, and there was assessed against him a penalty of confinement in the penitentiary for a period of ninety-nine years.

The state introduced the confession of the appellant and also that of Fletcher Casey. In his confession the appellant stated that he accompanied Strickland, Collins, and Cásey to the place where the homicide took place for the purpose of buying whisky; that Strickland borrowed a pistol from the appellant; that he waited in the car while Strickland and Collins went into the house; that he heard shots fired but did not know that any one had been killed; that Collins told Adair later that he had shot Blank, and the appellant then hid the pistol which he had loaned to Strickland; that he did not know that either of the parties intended to commit murder, or that any one had been killed.

Casey’s confession was to the effect that he, Collins, Adair, and Strickland met at Adair’s house; that they were all bootleggers ; that Adair had a pistol and that he (Casey) had a rifle; that they went m a truck and an automobile; that some one yelled to come in; that when he heard the shots he fled in the truck; that Collins, Strickland, and Adair later caught up with him in the automobile.

The state failed to sliow the cause of the killing or the actual circumstances further than what has been recited above, and we think it has failed to discharge the burden which rested upon it to show a case in which the court was justified in denying bail.

The judgment is reversed, and the relator ordered discharged upon the execution of bail, with good and suflicient sureties, in the sum of $5,000.


text:
    MYERS v. STATE.
    No. 14067.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    C. R. Reeves, of Oklahoma City, Okl., for appellant.
    Eloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

On the 22d day of April, 1931, the judgment of the trial .court condemning the appellant to suffer confinement in the penitentiary for a period of three years for the theft of cattle was reformed and affirmed. Thereafter, on the 27th day of that month, the state’s attorney filed a motion, supplemented by the affidavit of the sheriff of Clay county, stating that the appellant, on the night of April 6, 1931, made his escape from the county jail of Clay county, and that he has not voluntarily returned. In obedience to the statute (article S24, C. C. P. 1925), this court is constrained to set aside the judgment of affirmance and dismiss the appeal, which is accordingly done.


text:
    TONE v. STATE.
    No. 14015.
    Court of Criminal Appeals of Texas.
    April 15, 1931.
    Rehearing Denied May 27, 1931.

      Mathis & Mathis, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for receiving and concealing property over the valup of $50; punishment, two years in the penitentiary.

The indictment in this case contained two counts, one charging felony theft, and the other charging receiving and concealing stolen property of the value of more than $50. The court submitted in his charge to the jury only the second count. The verdict of the jury found appellant guilty as charged in the indictment, and fixed his punishment. By some oversight in entering the judgment appellant was adjudged to be guilty of theft of property of the value of more than $50, etc. For some unknown reason further, when sentence was pronounced upon appellant he was sentenced as upon a judgment for felony theft-. Complaint is made of this situation in appellant’s brief, no attention seeming to have been paid to the matter in the trial court, and we are asked to reverse this case upon the proposition that the judgment and sentence do not follow the charge of the court.

This court is given express authority by the terms of article 847, C. C. P., to reform and correct judgments of lower courts as the law and nature of the case may require. Many authorities will be found collated under said article in Mr. Vernon’s Code of Criminal Procedure, and in Mr! Branch’s Annotated P. C. We conceive it within our authority to reform and correct this judgment and sentence so as that the judgment will adjudge this appellant to be guilty of the offense of receiving and concealing stolen property of the value of more than $50, and the sentence will be so reformed as that it shall follow the judgment thus corrected. The authorities are so numerous as not to need citation.

We find in this record three bills of exception. The first complains of testimony from Mr. Henckel, the alleged owner of the stolen property, as to its value at the time it was lost. The court in his qualification to the bill calls attention to the fact that Mr. Henckel testified that he knew the market value of such property as his, had recently bought same, and knew what it would bring on the market. The bill shows no error.

The next bill of exception complains of a question to Mr. Townsend while on the witness stand, asking him if while at Bay City appellant made any statement to the county attorney. We fail to see any reasonable ground for objecting to this question.

The remaining bill complains that witness Townsend was permitted to testify that while in his custody appellant made a written statement. This bill is also qualified by showing that the parties to whom the confession was made by appellant gave to him the full statutory warning.

The testimony seems ample to support the conviction. Two saddles, worth approximately $150, were missed at or about the same time and place. According to witnesses, about this time or little later appellant appeared and sold one of the saddles, claiming to own it. In a written confession made by him, which was introduced in evidence, he set up the fact that it was stolen by another party and delivered to him,- and that he in conjunction with the other party sold it. He took the witness stand himself and claimed that this written confession was made by him under duress and compulsion. The learned judge who tried the case is one of our most careful judges, and in his charge to the jury he fully submitted the law regarding such situation, and told them that if they believed the confession was obtained by compulsion, or if they had a reasonable doubt as to whether it was voluntarily and willingly made, they should acquit the defendant.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

It is appellant’s contention that the evidence shows if he had any connection with the stolen property it occurred in Harris county, and that the venue of the prosecution was not in Brazoria county.

No complaint of the venue seems to have been raised in the court below, but is presented for the first time.here. Article 847, C. 0.1?. (1925), provides that this court shall presume that venue is proven in the court below unless it is made an issue in the trial court.

The theft of the property occurred in Brazoria county. Article 200, O. O. P. (1925), also settles the point against appellant even if the issue of venue had been raised in the trial court. The article reads: “Receiving and concealing stolen property may be prosecuted in the county where the theft was committed, or in any other county through or into which the property may have been carried by the person stealing the same, or in any county where the same may have been received or concealed by the offender.” The provisions of the article just quoted fixed the venue in .either Brazoria county or Harris county at the option of the state.

The motion for rehearing is overruled.


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

text:
    Ex parte HEARTSILL.
    No. 13872.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    Rehearing Denied May 27, 1931.
    Second Motion for Rehearing Denied June 10, 1931.
    Barret Gibson, of Marshall, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

This is an appeal from a judgment of the district court of Harrison county remanding appellant to the custody of the sheriff of said county. Appellant sought by habeas -corpus to be discharged under a capias issued following his indictment for the offense of deserting his minor children.

Appellant attacks as unconstitutional the act of the Legislature appearing in chapter 195, Acts Regular Session of the 41st Legis-' lature (1929), which seeks to amend article 602, P. O. 1925 (Vernon’s Ann. P. O. art. 602), making penal the act of deserting a wife, or minor child or children, the ground of attack tbe lawmakers made changes in t5f J?0(Jy °f the act material to the definition offense which were not within the eaPtion oi ⅛® MU- as passed, Au law? passed by the Legislature of this state oriSmate in bills, upon each of which must appear a caption or title, and section 35, art. 3, of our Constitution forbids that any bill, with certain exceptions, shail contain more than one subject, which shall be expressed in its title. It has been held by the courts that when the express verbiage of such title limits and restricts the purpose of the bill, any attempt to legislate otherwise in such bill variant from the purpose prescribed, is in excess of the legislative power, and that a law subject to this complaint is unconstitutional. Ward Cattle & Pasture Co. v. Carpenter, 109 Tex. 105, 200 S. W. 521; Ex parte De Silvia, 88 Tex. Cr. R. 635, 229 S.W. 542; Hamilton v. Ry. Co., 115 Tex. 455, 283 S. W. 475; Gulf Production Co. v. Garrett (Tex. Com. App.) 24 S.W.(2d) 389; Bitter v. Bexar Co. (Tex. Com. App.) 11 S.W.(2d) 163, 168; Singleton v. State, 53 Tex. Cr. R. 626, 111 S. W. 736; Adams v. Water Works Co., 86 Tex. 485, 25 S. W. 605, 606.

The caption of House Bill No. 220, which is chapter 195, supra, is as follows: “An Act to amend Article 602 of the Penal Code of the State of Texas, 1925, so as to make the offense of desertion of wife or child a felony, providing a penalty therefor, and declaring an emergency.” Comparison of article 602, P. C. 1925, with the amendatory act set out in said chapter 195, supra, makes obvious the fact that by the latter act the definition of the offense of desertion of wife or children was materially changed. The words “Destitute or,” pertaining to the definition of wife desertion, are stricken out in the amendatory act. The words “in destitute or necessitous circumstances,” in that part of the defined offense pertaining to the desertion of children, are stricken out in the amendatory act. That such changes from the form and substance of article 602, J.925 P. C., were material, is apparent. To the mind of an interested public or Legislature, whether in favor of or against such law, but who might derive their knowledge of the purport or content of the amendatory bill from perusal of its title or caption, there might be much difference of attitude toward a bill which purported to make a felon of one who deserted his wife or children in destitute and necessitous circumstances, from what it would be toward such bill if its manifest purpose whs to thus punish one who left them with opulent relatives, friends, or abundant means of support,

The caption of the amendatory act as passed restricted .the purpose of the bill to the one single change, i. e. -a change in the penalty for the offense. The framers of the bill thus informed the public and their fellow legislators that the purpose of the bill was to make a felony of that which theretofore had been a misdemeanor. In the body of the bill substantial changes were made in the definition of the offense. The bill thus went beyond the express limitation of its caption, and under our Constitution and authorities this destroyed its effectiveness as a law.

Being constrained to hold that the amendatory act must fall, it would seem but proper for us to observe that the law in effect prior thereto will be again recognized as the law of this state, there being nothing in House Bill 220 expressly repealing old article 602, supra.

The Question arises as to what should be further said by us in this case. It appearing from the record before us that appellant is held under an ’ indictment regularly presented by a grand jury of Harrison county charging him with the offense of desertion of his children, and the only question properly before us being the constitutionality of • the law, it will be our duty to affirm the judgment remanding the appellant. This court has frequently held that questions as to the sufficiency of the indictment cannot properly be here raised upon habeas corpus hearing. Ex parte McKay, 82 Tex. Cr. R. 221, 199 S. W. 637; Ex parte Garcia, 90 Tex. Cr. R. 287, 234 S. W. 892; Ex parte Jarvis, 109 Tex. Cr. R. 52, 3 S.W.(2d) 84, 57 A. L. R. 82; Ex parte Evans, 109 Tex. Cr. R. 231, 4 S.W.(2d) 67; Ex parte Mollohan, 110 Tex. Cr. R. 452, 10 S.W.(2d) 86.

The judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

Asserting that there can be no prosecution maintained under the indictment described in the original opinion, the appellant, through his counsel, contends that the court was in error in failing to order the discharge of the accused. The contrary view is entertained in view of article 157, C. C. P., which declares in substance that if there is reason for belief that an offense has been committed, the prisoner should not be discharged because the proceeding under which he is held was irregular or void. To the same effect is article 158, C. C. P. See Ex parte Nelson, 84 Tex. Cr. R. 570, 209 S. W. 148; Ex parte Garner, 93 Tex. Cr. R. 179, 246 S. W. 371; Ex parte Lowe, 94 Tex. Cr. R. 307, 251 S. W. 506; Ex parte Acker, 85 Tex. Cr. R. 364, 212 S. W. 500. Other cases are collated in Vernon’s Ann. Tex. C. C. P. 1925, vol. 1, pp. 150, 151.

The motion for rehearing is overruled.

On Request for Leave to Eile Second Motion for Rehearing.

HAWKINS, J.

Appellant has requested leave to file a second motion for rehearing, in which he still insists that relator should have b'een discharged.

The amendatory act, referred to in our former opinions herein, being held unconstitutional, Would seem, under the terms of the act, to leave the misdemeanor statute still in operation, and it occurs to us the proper course would be for the district court to transfer the case to the county court. Eor that reason, relator w.as not ^discharged.

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


text:
    FORSOM v. STATE.
    No. 14419.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is burglary; penalty assessed at confinement in the penitentiary for a period of two years.

There has been filed the affidavit of the sheriff of Clay county in accord with article 824, C. C. P. 1925, showing the escap'e of the accused on the 6th day of April, 1931, and his capture and -reincarceration on the Sth of that month.

The appellant has filed a controverting affidavit admitting the escape but claiming a voluntary return. The facts set up in his affidavit, considered in their strongest light in his favor, do not show a voluntary return. In his fli he was overtaken by the sheriff and arrested. His affidavit is to the effect 4that he intended to continue' his flight until he had visited his family and that after such visit it was his intention to return to jail. This does not, in our judgment, bring him within the terms of the statute mentioned. See cases cited in Vernon’s Ann. Tex. C. C. P. 1925, vol. 3, p. 194, note 7; also, Reeves v. State, 109 Tex. Cr. R. 649, 7 S.W.(2d) 87.

The appeal is dismissed.


text:
    MARTIN v. STATE.
    No. 14312.
    Court of Criminal Appeals of Texas.
    May 13, 1931.
    C. P. Rogers and Jno. B. Littler, both of Big Spring, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder; punishment, ninety-nine years in the penitentiary.

Appellant was his own only witness. The testimony for the state shows that appellant entertained ill will toward deceased, and had threatened to kill him; that he shot him through the body .on the occasion in question, and admitted such fact to a number of witnesses who were told by appellant that if deceased was not dead he still had five shells left. The record supports the proposition that appellant was looking for deceased with his pistol in his hand shortly before the killing. The killing took place at an instant when no one happened to be observing the parties, but witnesses testified that they heard deceased call out, and looked around and saw deceased lying on the ground and appellant standing about ten feet from him with a pistol in his hand. No witness, who was present or who examined the ground where the shooting took place, gave testimony to seeing or finding anything in the nature of a weapon which could have been used by the deceased. Ap: pellant testified that deceased was advancing upon him with a wrench in his hand at the time he shot him. He said the wrench was about six inches long and that deceased had bis hand about the middle of the wrench. In its rebuttal the state introduced witnesses who testified that deceased was in the habit of folding his arm across his chest when he talked, and that both arms of deceased were burned or marked with powder at about the position they would have been in with reference to the entrance of the bullet into the body of deceased, if deceased had been talking to appellant at the time the shot wa.s fired.

The record contains-but one bill of exception in which complaint is made of the argument of the district attorney. From the recitals in the bill it appears that the wife of deceased while on the witness stand was asked if deceased made a statement to her before his death in regard to the shooting, which question was objected to and the objection sustained. The bill further sets up that in his closing, argument the district attorney said to the jury: “The -deceased’s mouth was closed forever, and that he could not tell what had happened and that he asked the little widow on the witness stand if the deceased made a statement to her in regard to the shooting.” This argument was objected to by appellant, and the court requested to instruct the jury not to consider same, which request was granted and the jury so instructed, but it was claimed that the argument was of such inflammatory and prejudicial nature and character that the instruction could not eradicate same from the minds of the jury. It may be that the question referred to in the argument was asked and the objection sustained, but notwithstanding this the testimony of the wife of deceased in the statement of facts shows that she said that her husband was rational after he was shot and that he did make a statement to her. She did not testify as to what the statement was. We confess ourselves not quite able to agree with appellant that the argument thus objected to was capable of harm. The widow of deceased made no effort apparently to detail to the jury what was in the statement made, nor is anything set out in the argument from which there would arise ahy necessary inference that the statement made by deceased. was of a nature or character in any way aside from or different from the testimony before the jury, or from which a fair deduction could be made that such statement contained matter inflammatory or prejudicial. Aside from the ordinary imputation of correctness attributed to the* court’s action in sustaining the state’s objection to the question, nothing in the record suggests that the statement made by deceased to his "wife was not at a time and place when it would be admissible as a part of the res gestae, nor was anything embodied in the language of the question which was in any way calculated to injure the rights of the accused.

As far as we can tell from the record, the homicide was wholly unjustifiable.

Believing the record to be without reversible error, the judgment will be affirmed.


author: MARTIN, J. MORROW, P. J.

text:
    GOODWIN v. STATE.
    No. 13718.
    Court of Criminal Appeals of Texas.
    Nov. 26, 1930.
    Rehearing Denied May 27, 1931.
    H. H. Taylor and G. O. Barkman, both of Texarkana, for appellant.
    R. G. Waters, Dist. Atty., and B. O. Boswell, Co. Atty., both of Texarkana, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MARTIN, J.

The offense is murder; the penalty, death. Lloyd Elliott in February, 1930, had a ■bunch of hogs, which ranged in and near the Sulphur river bottom in the vicinity of where appellant and his father and brother lived. Some of these hogs were missing on Friday. The deceased began a search for his missing hogs and visited at the home of one of the Goodwins. It is shown that appellant’s fa-’ ther had killed a short time before this homicide a hog which apparently belonged to Elliott, and that appellant became afraid that Elliott was after him or his father for the theft of his hog and told his brother that he was going to kill him. Deceased failing to return home, a searching party was organized, and on Monday morning his body was found in the Sulphur river; the head juried in the mud, and the feet protruding from the surface of the water. An examination of the'body disclosed two wounds, one in the head, apparently made by a 410 shotgun, and the other in the body, indicating a wound made by a 3S-caliber rifle. The state introduced Bud Goodwin, a brother of appellant, who testified that appellant admitted to him he had killed deceased and that the two had placed the body in the river where it was subsequently found.

For himself appellant testified that Elliott came upon him unexpectedly in the woods, where he was hunting rabbits; that a difficulty ensued and that he shot in self-defense; and that afterwards, becoming uneasy, he had hidden the body in the river.

Over objection, a 410-gauge shotgun and a 38-ealiber rifle shown to have been in possession of appellant on the day of the homicide were introduced in evidence by the state over objection of appellant. At the time these weapons were offered, the state was attempting by circumstances to connect the appellant with the crime, and they were clearly admissible for this purpose. It has been stated: “The State may introduce in evidence the weapon with which it is charged the homicide was committed, if it is properly identified as belonging to the defendant * * * or any weapon found in the possession of the accused or his criminal associates, which is similar in form and character to that which was employed.” Underhill’s Criminal Evidence (3d Ed.) Paragraph 494. See also McBrayer v. State (Tex. Cr. App.) 34 S. W. 114; Pay v. State, 52 Tex. Cr. R. 185, 107 S. W. 55; Williams v. State, 60 Tex Cr. R. 453, 132 S. W. 345; Betts v. State, 60 Tex. Cr. R. 631, 133 S. W. 251; Rodriquez v. State, 32 Tex. Cr. R. 259, 22 S. W. 978.

Nor do we think there was any error committed in introducing the rifle which bore on its barrel a notch recently filed and permitting state’s counsel to comment thereon. It is shown that appellant was in possession of a file with this rifle on the day of the homicide. Bill of exception No. 2, presenting this matter, contains the following paragraph: “It is certified that the State had introduced testimony showing defendant had filed the notch on the gun after he killed deceased.” If this notch was placed there by appellant in a braggadocio spirit to preserve and to illustrate his prowess as a killer, it was admissible on the question of his state of mind; this being an issue in all murder cases of the character shown here. If it had no significance, then it could not have harmed appellant.

The crime was- committed on Friday. On the Monday week following, appellant was apparently placed on trial. He filed no application for change of venue. Among other things alleged in his motion for new trial was the existence of a mob spirit. Testimony was introduced on a hearing of this motion showing that appellant had been spirited from jail to jail immediately preceding his trial, and that he was guarded by some twenty officers who sat around him during the trial.

If all of appellant’s charges in his brief are true, this case should not have been tried in Bowie county; but as the matter is presented, we are powerless to give him any relief. The question vvas raised by appellant for the first time after his conviction and clearly presents nothing for review by us. without usurping authority which has been withheld from us by statute. The record as a whole is perhaps sufficient to show that the unreasoning and revengeful passion of the multitude had been lighted and that its spirit brooded over appellant’s trial. This is the most ancient and the most sinister enemy of the orderly processes of the administration of justice by the courts with which governments have had to deal, and Anglo-Saxon jurisprudence is replete with safeguards against it. They have been incorporated into our Constitution and laws and the procedure for their preservation defined, and these we must follow. If the law had given to the courts the right to arbitrarily grant relief to the accused in any case they saw fit, the showing made in this record would present a serious question. Suck right, however, does not exist.

In addition to the above, which would present a serious question if properly presented, we note the court gave the following in charge:

“I instruct you that the witness Bud Goodwin is an accomplice.
“Now, you are instructed that you cannot convict the defendant upon the testimony, of said Bud Goodwin alone, unless you first believe that his testimony is true, and connects the defendant with the offense charged, and then you cannot convict the defendant upon said testimony unless you further believe that there is. other testimony in the case, corroborative of the testimony of said Bud Goodwin tending to connect'the defendant with the offense charged; and the corroboration is not sufficient if it merely shows the commission of the offense charged.”

Charges in similar language have been condemned in a multitude of cases. We take the following from the case of Grant v. State, 60 Tex. Cr. R. 360, 132 S. W. 350, 352, in an opinion by Judge Ramsey: “The authorities holding this charge erroneous are unbroken in this state since the case of Bell v. State, 39 Tex. Cr. R. 677, 47 S. W. 1010. See Fruger v. State, 56 Tex. Cr. R. 393, 120 S. W. 197; Maples v. State, 56 Tex. Cr. R. 99, 119 S. W. 105; Early v. State, 56 Tex. Cr. R. 61, 118 S. W. 1036; Time v. State [60 Tex. Cr. R. 58] 130 S. W. 1003; Fruger v. State, 50 Tex. Cr. R. 621, 99 S. W. 1014; Jones v. State, 44 Tex. Cr. R. 557, 72 S. W. 845; Garlas v. State, 48 Tex. Cr. R. 449, 88 S. W. 345; Hart v. State, 47 Tex. Cr. R. 156, 82 S. W. 652; Crenshaw v. State, 48 Tex. Cr. R. 77, 85 S. W. 1147; Washington v. State, 47 Tex. Cr. R. 131, 82 S. W. 653; Barton v. State, 49 Tex. Cr. R. 121, 90 S. W. 877; Dixon v. State [Tex. Cr. App.] 90 S. W. 878; Morawitz v. State, 49 Tex. Cr. R. 366, 91 S. W. 227; Reagan v. State, 49 Tex. Cr. R. 443, 93 S. W. 733; Oates v. State, 48 Tex. Cr. R. 131, 86 S. W. 769; Barrett v. State, 55 Tex. Cr. R. 182, 115 S. W. 1187; Newman v. State, 55 Tex. Cr. R. 273, 116 S. W. 577; Tate v. State, 55 Tex. Cr. R. 397, 116 S. W. 604.” See, also, Standfield v. State, 84 Tex. Cr. R. 447, 208 S. W. 532.

Manifestly, testimony should show guilt beyond a reasonable doubt, not merely “connect” the accused with offense, as charged above. There may be facts under which such a charge would be harmless error; but we do not here pause to analyze the question, since we are inhibited by the statute from reversing unless a proper exception in writing was directed by appellant' at the charge in the trial court. We find no exception of any character to the charge of the court, and therefore unless the error is fundamental, we are powerless to grant appellant relief. It may seem harsh and unjust for a man’s life to be taken whom the record shows has not been tried according to law, but such appears to be the demand of the Legislature, and to it we must submit. The rule which under these circumstances refuses us the right to reverse for such an error is inexorable and is an apt illustration of the fact that affirm-ances, as well as reversals, may result from technicalities.

Finding no error in the record which we are permitted to consider, the judgment of the trial court 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.

HAWKINS, J., absent.

On Motion for Rehearing.

MORROW, P. J.

The matter upon which the greatest reliance is placed is the claim that the appellant’s trial was not fair and impartial. In the consideration of that subject, note is to be taken of the fact that this court is controlled by the record, and looking thereto, the proof is evident' that the deceased was killed by the appellant. It is quite sufficient to show that the killing was upon malice aforethought.

The brief in behalf of the accused is ably prepared and forcibly presented in oral argument. In it, however, we have found much that is not apparent from the record. In passing, it'Will be said that this court is not impotent to give relief against a judgment of conviction when the record is such as makes it apparent that the conviction was not upon a fair and impartial trial. This is true, particularly in a capital case where the extreme penalty is assessed, even though there are statutory provisions available to the accused which ordinarily would be waived if not asserted during the trial.

Asserting in substance that the trial was rendered unfair, it is claimed that the mob spirit pervaded the trial, coerced the jury, and overawed the court. If such were the case, there are many precedents which would support this court in annulling the verdict.

Touching the application of the principles announced and the statutes cited in the appellant’s brief, the' facts shown by the record must guide this court. In the matters of procedure, that is to say, in the introduction of evidence and instructions to the jury, there were no errors by the trial court which would authorize a reversal of the judgment.

The only argument urged against the ver-diet is that the court erred in refusing to grant the motion for new trial which is based upon the claim that the trial was not fair and impartial; that the mob spirit was prevalent ; that there were fifteen or twenty officers present at the trial; that there were current reports that a verdict less than death would be followed by a mob. In support of the motion, the appellant called the sheriff, G-. H. Brooks, who testified in substance that there were present at the trial five sheriffs besides himself, who were visitors from other counties; that the deputy sheriffs of Bowie county were present, as well as the constables and deputies of three precincts of the county, and the United States marshal. The sheriff said that there was no evidence of a mob at the trial; that the people were stirred up and horrified by the offense; that there was some feeling against the accused; that the accused was moved from time to time after his arrest as a precaution against any formation of a mob'; but that this was not done from any knowledge or information that a mob was likely. The sheriff said he felt it was his duty to keep the accused hid. * He testified further that the crowd in the courtroom was larger than he had seen it on any previous occasion; that it was orderly and that there were no disturbances except from children who were restless ; that many of the people were school children who had been brought in by their teacher in order that they might observe a trial. The sheriffs weje inside of the bar. They were dressed in plain clothes and no arms werte esihibited.. The deputies were scattered about over the courtroom'. The sheriffs were not known to the jurors but were strangers. The only information or message received by the sheriff was that he had better use precaution, and upon that information he took the accused out of the county before the trial. The people were practically quiet during the trial.

McCall, the deputy sheriff of Bowie county, testified that he heard that there might be a mob, but that none was ever formed; that the accused was moved to Jefferson for two days, and from there to Marshall for two days and a night; that he moved the appellant under instructions from the sheriff. His testimony was in substance the same as that of the sheriff.

In overruling the motion for new trial, the trial judge used the following language which is attached to the bill complaining of his action:

“Approved with the following qualifications:
“The Court does not certify to any of the facts, grounds, or reasons alleged in the above bill, but on the other hand says that there was no evidence, demonstration, or indication of even any atmosphere of any violence, anger, or mob spirit or feeling on the part of those in attendance upon' this trial or elsewhere known to the jury, and in order that such might not arise in or around the eoiirt house, if any should exist on the part of the relations or immediate friends of the deceased, the Court had the peace officers referred to in this hill quietly stationed in and around the court house; hut no display was made of them to or before the jury; and the entire attendance throughout the trial were quiet, attentive, and gave no indication of any feeling, if any they had, either for or against the defendant.
“The number of people in attendance upon this trial is accounted for by the fact that the people especially the rural sections, throughout the county were not busy and they ‘brought their whole family to' attend the trial,’ and some rural school teachers brought their whole school to get a ‘lesson in Civics’, all of which is not an infrequent or unusual occurrence in this county, and the jury was in no way disturbed or affected by their presence. The defendant received a fair and impartial trial before a fair and impartial jury, who had no knowledge or information by hearsay or otherwise of the facts or circumstances of the case before- being selected as jurors, and the Court used extra precaution to and did see that no fact or circumstance reached their sight or hearing that would be even calculated to effect them save the testimony upon the trial.”

The ease of Steagald v. State, 22 Tex. App. 464, 3 S. W. 771, was-reversed upon several grounds; among them, the use of prejudiced jurors, a faulty charge of the court, and the failure to grant the motion for new trial, the court stating that under the facts before it, the trial court was in error in failing to change the venue upon its own motion. The record that was before the court, and the action on the appeal, exemplified the fact that in a proper case this court would exert its authority and order a new trial in a case where the death penalty is assessed and it is made manifest by the record that the right of the accused to a fair and impartial trial was denied.

A like ruling was properly made upon a similar record in the case of Massey v. State, 31 Tex. Cr. R. 371, 20 S. W. 758. Each of these cases illustrate and emphasize the point that circumstances may be such as render it impossible for one accused of crime to seek a change of venue, or may be such as would emperil his life should he do so, and that this court would .-not be powerless to relieve against injustice.

Faulkner’s Case, 80 Tex. Cr. R. 341, 189 S. W. 1077, 1081, was reversed because of an improper ruling upon the evidence. Presiding Judge Davidson, speaking for the court, in very cogent and forceful language, emphasized the authority to order a reversal where the trial was unfair. He said: “It occurs to the writer that to affirm the judgment on a record of this character would be sanctioning the mob spirit in the courtroom and depriving a man of a fair and just trial and without due process of law.”

In the Liggon Case, 82 Tex. Cr. R. 514, 200 S. W. 530, a like ruling was made. Judge Davidson, writing the opinion, declared that by failing to apply for a change of venue the accused would not waive his guaranteed right to a fair trial where his failure to waive it would bring about his death at the hands of a mob.

In the Mickle Case, 85 Tex. Cr. R. 560, 213 S. W. 665, the opinion reversing the case was written by Judge Lattimore and is similar in its essence to those to which we have adverted above. However, all of them were upon a a-ecord variant from that at present under consideration.

In the present case, there was no effort for a delay. McKenzie v. State (Tex. Cr. App.) 11 S.W.(2d) 172. No complaint was made of the speedy manner in which the accused was put to trial. The witnesses called upon the motion for new trial negatived the presence of a mob and supported the claim that the presence of officers and the transfer of the accused to different counties were but precautionary measures, rather than -forced action in fear of a mob. The mere fact that officers have found it expedient in time of excitement to remove one accused of a capital crime to a place of safety in another county in order to discourage the mob spirit, or that they may (as claimed in the present ease) have caused the presence of officers at the time of the trial to preserve order and prevent disturbances, standing alone, are not deemed sufficient predicate upon which this court may order a reversal of the judgment. The statement of the trial judge, unchallenged by explanation of the bill of exception, puts before this court a state of facts parallel with none of those controlling the action on appeal in the cases to -which reference' has been made above. The principles in the cases mentioned are sound and continue to prevail as long as the spirit of justice survives, when it appears that the mob spirit may have perverted and deflected even the tenor of the due administration- of law.

While under the facts before it this court feels unauthorized to reverse the judgment of conviction, still it must be conceded that the rapidity of the events which brought the appellant to trial and conviction, the conditions which invited his removal from place to place pending his arrest and arraignment, and the conditions which impelled extraordinary precaution against the formation of a mob, wore such as might well have impelled the-trial judge to change the venue on his own motion or to postpone the trial for a calmer-setting. Of those who tools part in the trial or of the many who were present and observed the proceedings, but two witnesses testified upon the hearing of the motion for new trial. Their testimony in the main combats the idea that either the trial judge or the jury was controlled by a mob. In exercising its power to annul a verdict upon the grounds set forth in the present appeal, this court, as above stated, is controlled by the evidence brought up in the record. In the executive department of the state there has been vested the authority to relieve against injustice. The Governor and the Board of Pardon Ad-visors are not restricted, as this court is, by the facts in the record. It is within their province to act upon information, affidavits, or otherwise, and thus inform themselves as to the merits of the questions before them. If there are facts such as would give serious reason for doubt of the fairness of the trial of the appellant, they are not in the record, and his remedy is not by appeal to this court.

None of the bills of exception taken to the rulings of the court upon the trial are such as to require or authorize a reversal of the judgment. The fault in the charge to which attention was called in the original opinion is not deemed such as would authorize a reversal of the conviction.

The attention of the trial court was not called to the fault in the charge mentioned in the original opinion. Otherwise it would doubtless have been corrected. The sufficiency of the charge is questioned on appeal for the first time.

The accomplice witness was Bud Goodwin, a brother of the accused. He was likewise under indictment. His testimony connects the appellant with the theft of the hog which his father killed and also connects the appellant with the death of the deceased. Touching the connection of the appellant with the theft of the hog, and in many .other particulars, Bud Goodwin is corroborated by the witness Sanders.

In the matter of showing the appellant’s direct connection with the killing of Elliott, Bud Goodwin, the accomplice witness, is corroborated by the testimony of the appellant given on the trial of the case, in which he admitted his connection with the stolen hog. He also admitted the presence of Elliott about the premises shortly before he disappeared. In substance, the appellant’s testimony is as follows: After taking the boat to the river and getting some fishing lines, he provided himself with two guns for the purpose of killing rabbits for bait. One of the guns was .a rifle; the other was a shotgun. He then hid behind a tree in the thicket and looked for rabbits. Without warning to the appellant, Elliott appeared. From the appellant’s testimony we quote: “When Lloyd Elliott rode up behind me he stopped and told me to get my God damn hell out of those woods, and he ran his hand down in his bosom. I figured he was going to shoot me. I had this .410 shotgun in my hand and I dropped it and picked up the Winchester and shot him, and hit him here (indicating). I did not shoot him in the back and did not intend to. He ran around the tree then and I shot him in the back of the head. I was going around the tree when I shot him the last time, and he was going around .the free. He did not say anything else.”

Appellant first hid the body by covering it with leaves, and later, with the aid of his brother, Bud Goodwin, put it in the river, where it was later found.

The deceased was shot three times — twice with a rifle and once with a shotgun. One rifle shot entered the back and went through his body. Another entered the top of his head, and the third, with a shotgun, entered (the head of the deceased. According to the testimony, the weapons were but a few feet from the victim when the shots were fired.

The motion for rehearing is overruled.


text:
    MYERS v. STATE.
    No. 14418.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. ⅜
   MORROW, P. J.

The unlawful manufacture of intoxicating liquor is the off ense; penalty assessed at confinement in the penitentiary for a period of one year.

The state’s attorney has filed a motion requesting a dismissal of the appeal Upon the ground of escape. Attached to the motion is the affidavit of J. M. Donnell, sheriff of Clay county, from which it appears that the appellant escaped from the county jail on the 6th day of April, 1931, and that he did not voluntarily return within the ten days, hut is still at large. By reason of such escape this court is deprived of jurisdiction of the appeal. See Articles 824, 825, C. C. P. 1925; Vernon’s Ann. Tex. C. C. P., vol. 3, pp. 194-196, and cases collated.

The state’s motion is granted, and the appeal is ordered dismissed.


author: LATTIMORB, J. HAWKINS, J.

text:
    PRICE v. STATE.
    No. 13989.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    Rehearing Denied May 27, 1931.
    Ira Lawley, of Groesbeck, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORB, J.

Conviction for conversion of .the funds of an estate by a guardian; punishment, ten years in the penitentiary.

Some question is raised in this case as to the sufficiency of the proof that appel-lánt converted any of the funds' of the estate in question, in Limestone county, Tex.; but we have concluded such proof sufficient. It is shown that on September 11, 1920, appellant filed with the clerk of the county court of Limestone county an annual account in which, upon oath, he states that he received from the United States government a net amount belonging to said estate of $2,240.14. This account was sworn to on September 9, 1920, before a notary public of Limestone county, Tex., which two circumstances would seem to show the personal presence of appellant in said county at said times. Among the checks issued by the United States Treasury, which are in evidence, is observed- one issued to appellant as guardian, indorsed by him in that capacity, upon the back of which check is also tlie indorsement of a Limestone county bank of date September 10,1920. These facts, together with appellant’s admission to Mr. Toomey, also in evidence, that he got all the moneys represented by these checks in evidence, would appear to support the conclusion that appellant converted in Limestone county, Tex., at least the amount of said check, which is $80.

We might further observe that in February, 1920, appellant returned into said court an inventory sworn to by him, together with .T. Sanford Smith and Jack Womack, appraisers, showing as the funds of said estate, $2,-028.39, “cash on deposit in bank.” The annual account filed September 11, 1920, .shows that appellant had also received from the United States government $2,240.14 net, as above stated; the aggregate funds of the estate shown in the two accounts mentioned being $4,268.53. Appellant filed another account on August 8, 1922, and swore to this before the county clerk of said county, in which said sworn statement is an “amount brought forward,” to wit, $2,240.14, and it is stated that the amount of $1,920 was collected by appellant between September 8, 1920, and said August 8, 1922, which total of $4,160.14 appellant swears is the amount received by him to said August 8th. The state introduced photostatic or photographic copies of checks issued by the Treasury of tlie United States payable to appellant as such guardian, all indorsed by him and paid by said Treasury between September 1, 1920, and August, 1922, the aggregate of which checks are $4,419.47. The testimony above referred to seems to indicate the reception by appellant as guardian of a much larger sum of money belonging to said estate than shown by any or all of his annual accounts.

Considering the questions raised of procedure, we think the indictment in this case sufficient. It follows the language of article 1538, P. C., and charges that appellant was the duly appointed guardian in Limestone County, Tex., of Green Smith, etc., and as such had charge of the estate of said Smith, and that with intent to defraud said Smith he did then and there convert to his own use certain moneys of said estate, described in the indictment, which moneys had come into his possession and were then and there under his care and charge as such guardian.

Appellant presented numerous exceptions to the court’s charge, each of which has been considered but none of which appear meritorious.

Appellant complains by several bills of exception of the introduction in evidence of inventories, annual accounts, written applications for appointment as guardian, and orders in said cause, etc.; the objection being that the instruments were not filed with the papers in this case three days before the trial and notice given appellant or his attorney, also that said papers were not proved up as the acts of appellant, etc. None of said bills show as a fact that the grounds of objection stated are in fact true. Ferguson v. State, 61 Tex. Cr. R. 152, 136 S. W. 465. As we understand this record, these documents were not such as are required by law to be recorded by 'the county clerk, hence no necessity for filing same three days prior to the trial, or for the giving of notice to appellant or his attorney. Said rule applies only to instruments which are required by law to be recorded.

Complaint appears of the introduction by the state of the vouchers or checks issued to appellant as guardian by the Treasury of the United States government; also to the notations and endorsements on the back of said instruments. By the Acts of the 67th Congress (42 Stat.) p. 24, § 306, which is title 31, § 46, United States Code 1926 (31 USCA § 46), it is expressly provided that pliotostatie or photographic copies of all books, records, papers, and documents in the accounting department of the United States government, when certified to by the Comptroller ■ or Assistant Comptroller General, under the seal of his office, shall be admitted in evidence, etc. Under the provisions of said statute, which has application here, the testimony referred to was admissible.

We have examined the other bills of exception, many of which present objections not verified; and are of opinion none of same present error for which this case should be reversed.

The judgment will be affirmed.

HAWKINS, J., not sitting.

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing appellant renews an attack upon the indictment. He does not in the motion point out any particular claimed defects, but refers us to bill of exception No. 2, which brings forward his original criticism of the indictment contained in a motion to quash. We are cited to many cases, all of which have been examined. Upon a further inspection of the indictment we have been unable to discover any vice in it, nor do any of the cases cited by appellant appear to sustain his criticism of it.

Several bills of exception brought forward complain of the introduction in evidence of inventory, annual accounts, written applications for appointment as guardian, and orders in said cause, etc. .Among other objections was one urged upon the ground that the instruments were not filed with the papers in this cause three days before the trial and notice given appellant or his attorneys. It was said in our original opinion that the bills failed to certify as a fact that the grounds of objection were true. In so far as the objection mentioned is concerned, it was overlooked that in the beginning of the bills it is certified that the instruments mentioned were not filed nor notice given. It was not necessary to file or give notice as to the orders or judgments of the probate courts. The original probate records were introduced. Their admissibility is controlled by article 3720, R. C. S., and not by article 3726, R. C. S., upon which appellant seems to rely. See Clayton v. State, 67 Tex. Cr. R. 311, 149 S. W. 119; Jackson v. First National Bank (Tex. Civ. App.) 290 S. W. 276; Manning v. State, 46 Tex. Cr. R. 326, 81 S. W. 957, 3 Ann. Cas. 867; McDaniel et al. v. Weiss et al., 53 Tex. 257.

As we understand the record, the inventory, accounts, application for appointment as guardian, and other documents were produced upon the trial by the clerk of the court in whose custody they were supposed to be and were identified by him as the original documents on file in the probate court. We quote from Hardin v. Blackshear, 60 Tex. 132: “Where the original papers in a judicial proceeding, sought to be introduced, are a part of the official records of the court where the cáse is being tried, or are brought into open court from the county court of the same county, in the custody of the clerk of that court, it has been held, under such circumstances, such original papers are admissible in evidence. Wallis v. Beauchamp, 15 Tex. 305; Houze v. Houze, 16 Tex. 601. In this connection, see, also, Styles v. Gray, 10 Tex. 503.” Manning v. State, 46 Tex. Cr. R. 326, 81 S. W. 957, 3 Ann. Cas. 867. No filing or notice as to the original documents was required. If it was necessary under the circumstances to prove the execution before they would have been admissible (which point we find it unnecessary to decide), we observe that there is no certificate in the various bills of exception supporting the truth of an objection that there was no proof of their execution, it being an objection only.

It was said in the original opinion that the documents in question were not such as are required to be recorded. As to this we were in error (article 4106, R. C. S.), and that statement in the original opinion is withdrawn.

Appellant criticizes that part of our opinion which sustains the receipt in evidence of certain photostatic copies of vouchers or checks authorized by section 46, title 31, U. S. Code 1926 (31 USCA § 46). Appellant’s position is that the law in question by its terms refers to section 661 of title 28 of the same Code (28 USCA § 661), which only permits copies of documents, etc., to be admitted in evidence “equally with the originals thereof.” Appellant contends that if the original documents had been present in court they would have been inadmissible as evidence because ■not properly proven up, and therefore the copies introduced were subject to the same infirmity. In his petition to the county court of Limestone county, Tex., for appointment as guardian for Green Tellis Smith, appellant represented that Smith had regularly enlisted as a private in the United States armies and that by such enlistment and such service the War Risk Insurance Bureau of the United States government was ready and willing to make a compensation award to him, but that he was'not mentally competent to sign such documents and pay vouchers as would be necessary to collect such award. It was under this application that appellant was appointed guardian of the estate of Green Tellis Smith. The inventory and accounts filed by appellant in said guardianship show no funds or property coming into his hands other than from the United States government under such compensation award. The photostatic copies of the vouchers or checks in question are shown to have been drawn against the Treasurer of the United States and payable to appellant as the legal guardian of Green Tellis Smith, and .upon the face of the vouchers purport to be from the treasurer of the War Risk Insurance Bureau. Upon the back of said vouchers appears what purports to be the signature of appellant as guardian of Green Tellis Smith.

Richard A. Toomey gave testimony to the effect that in a conversation with appellant concerning the amounts represented by the cheeks which had been introduced in evidence, appellant acknowledged that he had received the amounts of all the checks received by him as guardian of Green Tellis Smith from the United States Veteran’s Bureau, “including these checks,” having reference to the very checks or vouchers to the. introduction of which objection had been made. Regardless of whether the vouchers were received in evidence prior to or subsequent to the testimony of the witness Toomey, his testimony in connection with the other facts appearing in the record unquestionably made the vouchers or copies thereof admissible.

The motion for rehearing is overruled.


text:
    WHITTINGTON v. STATE.
    No. 14169.
    Court of Criminal Appeals of Texas.
    May 13, 1931.
    E. T. Miller, of Amarillo, for appellant.
    -Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

Operating under a search warrant; officers went to a house in the town of Amarillo for the purpose of making a search for intoxicating liquor. Upon entering the house they saw appellant and Neal Cobb. Upon seeing the officers, Cobb ran out in the back yard where he was stopped by one of the officers. We quote a portion of the testimony of deputy sheriff Vanderpool, as follows: “When I saw them it looked like they were bottling up whisky, .and when I got in there I found a hose down in the mouth of a bottle, but I can’t recall whether it was a jug.they were bottling it out of or a keg. I saw Whitting-ton (appellant) there pouring something out of something. As to whether I saw him pour anything out — well, he was fooling there with it. I saw him through the glass door when I kicked it open. They run out the back door. They were right in the room where the whis-ky was.”

Upon approaching the house ' the officers noticed that the shades were down. The search disclosed 14 pints of bonded whisky, 5 quarts of alcohol, 7 pints of alcohol, 1 quart of gin, 115 bottles of beer, 14 empty pint bottles, 12 gallons of beer mash, 11 empty quart bottles, and two 1-gallon glass jugs.

Appellant did not testify in his own behalf. He placed the owner of the house on the stand, who testified, in effect, that appellant did not rent or control the premises, l-le said that he had rented the house to another party.

Appellant objected to the testimony of the officers touching the result of the search on the ground that the description of the premises to be searched varied from the description of the house actually searched. The qualification appended to the bill of exception is to the effect that the description set forth in the affidavit was not at variance with the description of the searched premises. According to the proof introduced by appellant, he was in no manner interested in the premises. We quote from Cornelius on Search and Seizure § 12, page 62, as follows: “The right to complain because of an illegal search is a privilege personal to the wronged or injured party, and is not available to anyone else.” It is apparent that appellant is in no position to complain because of an illegal search. Pruett v. State (Tex. Cr. App.) 24 S.W.(2d) 41; Adams v. State, 113 Tex. Cr. R. 501, 21 S.W.(2d) 1057; Salinas v. State. 113 Tex. Cr. R. 142, 18 S.W.(2d) 663; Jenkins et al. v. State, 108 Tex. Cr. R. 184, 299 S. W. 642.

Bill of exception No. 10 brings forward an objection to a remark on the part of the trial judge made in the presence of the jury. It appears from, the bill that state’s witness Lewis was asked by appellant’s counsel on cross-examination if he remembered which side of the automobile he. got out on. The witness answered in the negative. At this point the court said: “What is the usé of asking which got out first, I think this is an immaterial matter, what is the use of asking which one got out first, I just think you are taking too much time on those things. I don’t think it is necessary to ask all of these questions.” After setting forth the answer of the witness,- the bill contains appellant’s objections to tbe remark. There is nothing in the bill to show that the testimony was material. Appellant did not request the court to instruct the jury to disregard the remark. We think the bill fails to manifest reversible error. See Gallardo v. State, 101 Tex. Cr. R. 46, 274 S. W. 150.

Appellant contends in his brief that bill of exception No. 11 shows that the court permitted the state to wrongfully introduce in evidence acts on the part of Neal Oobb. Looking to the bill, we find that it is recited only as grounds of objection that certain acts of Cobb occurring on the day preceding the search were introduced in evidence. The bill is manifestly insufficient to present error. See Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569. It may be added that, if the statement of facts should be consulted, it becomes apparent that the testimony was admissible. The testimony on the part of the state showed a conspiracy between appellant and Cobb to commit the offense for which appellant was on trial. In his Annotated Pen.al Code, § 693, Mr. Branch states the rule as follows: “When a conspiracy is shown, proof of the acts and declarations of co-conspirators is admissible to show the common design, purpose and intent of all the conspirators, whether such acts and declarations were made before or after the formation of the conspiracy, or whether the same was made before or after the defendant on trial entered into the conspiracy.” See Chapman v. State, 45 Tex. Cr. R. 479, 76 S. W. 477.

We are unable to determine from the recitals in bill of exception No. 18 whether the trial court fell into error in permitting the state to prove that some person called appellant’s phone number previous to the search and asked the party answering the phone to bring him a pint of “Water Hilled Frazier” to the McDonald Auto Supply Company. The bill sets out about two pages of testimony. The objection is that the testimony is incompetent, irrelevant, immaterial, hearsay, and'highly prejudicial. It is clear that some of the testimony was admissible. Appellant addressed his objection to all of it. If the testimony touching the conversation- with some party answering appellant’s phone was hearsay, its hurtful effect cannot be appraised, if the bill of exception alone be looked to. Wherein did the testimony furnish criminative evidence against appellant? The" bill of exception fails to answer the question. It merely advises us that a -third party asked -some one answering appellant’s phone to deliver a pint of “Water Filled Frazier” at a certain place. Is “Water Filled Frazier” an intoxicating liquor? The bill fails to show. In any event, it was incumbent upon appellant to single out the objectionable part of the testimony. Vaughn v. State, 102 Tex. Cr. R. 618, 280 S. W. 772.

Appellant timely and properly objected to the court’s definition of the term “possess,” which was as follows: “ ‘To possess’ or ‘the possession of’ of such liquor as described in the first count of the indictment, as those terms are here used in the law, means the exercise by the accused, either alone or acting together as a principal, as that term is hereinafter defined, with another person, of the actual care, control and management of such liquor, regardless of whether -he had any ownership in it or not.”

We do not understand the law to be that a person must own liquor before he can be held amenable to the statute denouncing possession of intoxicating liquor for the purpose of sale. Vinson v. State, 105 Tex. Cr. R. 107, 286 S. W. 1100. The charge of the court, in our -opinion, under the facts, stated a correct proposition of law.

A careful examination of appellant’s contentions leads us to the conclusion that reversible error is not presented.

The judgment is affirmed.

PEE 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..