author: BELCHER, Commissioner. MORRISON, Judge

text:
    Sam HOOVER, Appellant, v. The STATE of Texas, Appellee.
    No. 37965.
    Court of Criminal Appeals of Texas.
    April 21, 1965.
    Rehearing Denied June 9, 1965.

      Warren Burnett, Odessa, Luther E. Jones, Jr., Corpus Christi, for appellant.
    Frank Briscoe, Dist. Atty., Sam Robertson, Carl E. F. Dally and Gus J. Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant was convicted of being an accomplice to robbery with firearms; the punishment, sixty years.

The indictment alleged that on or about March 11, 1964, and before the commission of robbery by firearms of Mair Schepps, by John Oscar Young, Samuel Spivey, and Calvin Sellars, the appellant did unlawfully and wilfully advise, command, and encourage them to commit said offense, the appellant not being present at the time of the commission of the robbery by said three named persons. The indictment also alleged the taking of $3,900 in money, a man’s diamond ring, and a woman’s diamond necklace, from Mair Schepps.

The evidence reveals that after Spivey, Young, and Sellars had been advised by the appellant that Schepps had $300,000 in money in his home, the appellant encouraged them among other things, to “get you a car and equipment (guns) and get ready to go in,” and he also told them where to look for the money in the house. These three men, wearing masks, two of whom were armed with pistols and one with a sawed-off shotgun, went to the Schepps’s home about 7 P.M., March 11, 1964. While they were preparing to enter the house, Mrs. Tuck, a nurse employed by Schepps, left the house to go to a nearby garage apartment and she was knocked unconscious by one of the masked men. Two of the robbers entered the main house and violently assaulted Mr. and Mrs. Schepps and the third robber brought Mrs. Tuck into the house shortly thereafter.

After numerous unsuccessful inquiries about the $300,000 the robbers’ acts of violence and torture increased, to compel the Schepps to reveal the location of the money. Mrs. Schepp’s jaw was broken, and some of her teeth were knocked out and others loosened; she was burned across the abdomen with a heated butcher knife; she was repeatedly burned on her face and body with cigarettes, and also repeatedly shocked with an electric wire placed to her teeth, breasts and private parts; a fireplace poker and a pistol were inserted into her vagina; and she was shot in the thigh with a .44 magnum pistol as she lay prostrate on the floor. Mr. Schepps was severely and brutally beaten and lay unconscious for short periods of time during the three-hour attack. The injuries of Mrs. Tuck were not so serious, but she required several days of hospitalization. The Schepps’s ten-month old baby was threatened, and a shot was fired into the baby bed where the child lay. Most of the furniture and furnishings in the house, especially those on the second floor, were torn, broken, demolished, and scattered in an intense and violent search for the $300,000 reportedly hidden therein.

Mair Schepps testified that he was in fear of his life and serious bodily injury when the robbers, against his will, took from him $3,900 in money, a man’s diamond ring of 4.83 carats, and a 2.70 carat diamond necklace.

A pair of slacks, a black shirt, a hat, a pair of gloves, and rolls of adhesive tape were found in a garbage can near the home of Calvin Sellars. Fibers taken from the articles were shown to be identical with those removed from the carpet in the Schepps home, and an examination of traces of human blood on some of the articles revealed the blood to be the same type as Mr. Schepps’s. Also a human hair taken from the shirt was shown to be identical to one removed from Sellars. Furthermore, the officers recognized the trousers found in the can as the same ones Sellars was wearing at the time of a previous arrest.

Upon a search of appellant’s house following the arrest of the three robbers, the officers found therein two diamonds, one weighing 4.83 carats and the other 2.70 carats. -A jeweler testified that he had at a time before the robbery mounted the two diamonds for the Schepps’s and that the two diamonds, which were shown him while testifying, were identical to those mounted by him for the Schepps’s. Mr. Schepps also identified the 4.83 carat diamond exhibited to him at the trial as belonging to him or “that it looks exactly like my diamond” taken from him during the robbery.

When arrested for the Schepps’s robbery, Sellars made an oral statement which led to the recovery of part of the jewelry that came from the Schepps’s home, and he also implicated Young, Spivey and appellant in the robbery. A .44 Magnum revolver recovered from the person to whom Young had given it for safekeeping was shown to have been the same gun from which the shots were fired in the Schepps’s home. The shotgun and masks recovered were also identified as those used during the robbery.

Testifying as a state’s witness, Samuel Spivey stated that appellant told him and Young about the $300,000 in money in the Schepps’s home; that after he and Young had viewed the Schepps’s house, they told appellant that another man was needed for the job and he selected Sellars. Spivey then detailed how the robbery was committed.

On the morning after the Schepps’s robbery, Billy Lyons, whose mother operated an apartment house for appellant, saw Young in appellant’s office. After Young left, the appellant exhibited to Lyons a man’s large diamond ring, saying this “probably” came from the Schepps robbery. In a division of the loot, Young had received the Schepps diamond ring. After Lyons had given the officers a written statement about what appellant told him and what he saw in appellant’s office, the appellant talked with Lyons and his mother. After implied threats against them, the appellant gave them $150 to leave the state. After their departure from the state, Lyons and his mother were located a few days before the instant trial.

The appellant did not testify but called witnesses who testified that they saw and conducted business with the appellant on Saturday preceding the robbery. Hence, during that time, he could not have been planning the robbery with Spivey and Young. Several other witnesses testified that they telephoned the appellant at his home numerous times between 7 P.M. and 11 P.M. on the night of March 11, and never received an answer.

Appellant’s wife testified that because of her illness she disconnected the residence telephones about 5 or 5:30 P.M. on March 11 and left them disconnected until the next morning; and that she never heard the appellant, who was at home during this time, talk with anyone by telephone. She identified the two diamonds exhibited to her during the trial as belonging to her and the appellant, or two like them, prior to March 11.

The appellant introduced in evidence the written statement of Samuel Spivey. In it Spivey states that he and two others robbed three persons in a residence on Memorial Drive in Houston, expecting to find $300,000 in money, but after a thorough search and much abuse of these persons, especially of one woman, they were unable to locate the large sum of money; that after leaving the house the three split the money they had taken and he received about $1,100 as his share, and he gave one of the other robbers a ring taken during the robbery.

By specially requested charge the appellant sought to have the jury instructed that if he was present during the robbery of the Schepps’s home to return a verdict of not guilty; and that in contemplation of law, he would be deemed to have been present -during such robbery if during its commission he talked over the telephone with one or more of the robbers and thereby attempted to assist in the perpetration of the robbery.

The testimony of the state was sufficient to show that an assault and the taking of property at the Schepps’s home had occurred before the appellant had said anything by telephone to one or more of the robbers in an attempt to assist in the commission of the robbery.

5 Branch (2), 23, Sec. 2589, reads as follows:

“In a robbery case it is not necessary to prove that all the property alleged was taken, and proof of the taking of any part thereof is sufficient in that regard. Harris v. State, 34 Crim 497, 31 S.W. 382; Jones v. State, [44 S.W. 152] 43 S.W. 162; Maloney v. State, [Tex.Cr.App.], 45 S.W. [718] 719; White v. State, [Tex.Cr.App.] 57 S.W. 100; Pones v. State, 43 Crim 201, 63 S.W. 1021; Robinson v. State, 62 Crim 645, 138 S.W. 704; Jones v. State, 64 Crim 510, 143 S.W. 621; Taylor v. State, 89 Crim 618, 232 S.W. 525; Bybee v. State, 122 Crim 202, 54 S.W.2d 142; Bailey v. State, 139 Crim 260, 139 S.W.2d [599] 500; Howell v. State, 154 Crim 8, 224 S.W.2d 228; Hall v. State, 160 Crim 553, 272 S.W.2d 896; Gizzo v. State, 160 Crim 593; 272 S.W.2d 898.”

This court has also held that in robbery cases the fact that the court charged in the terms of the indictment would not affect the above rule. Jones v. State, 171 Tex.Cr.R. 608, 352 S.W.2d 270.

In a case of robbery by the use of firearms, this court said in Brown v. State, 61 Tex.Cr.R. 334, 136 S.W. 265 that:

“Whenever a party is held up, and put in fear of his life by having a gun presented at him, and told to put up his hands and drop certain property, and he is forced to do so, and the party with the gun takes charge of the property, the offense of robbery is complete, and it is immaterial whether he not only expected to get other property as well as that he knows he is taking through force and fear.”

Further, to submit the specially requested charge to the jury as presented would he singling out certain evidence and would constitute a comment upon the weight of the evidence, hence improper. Art. 658 Vernon’s Ann.C.C.P.; Fulcher v. State, 163 Tex.Cr.R. 177, 289 S.W.2d 588. The refusal of the specially requested charge was not error.

It is insisted that the trial court erred in admitting into evidence the two diamonds claimed by the state to he a part of the robbery loot on the ground that they were seized during an illegal search of his home by officers acting under a void search warrant.

The appellant called his wife as a witness and she testified that the two diamonds exhibited to her during the trial, either belonged to her and the appellant, or two like them, before March 11 and that the appellant did possess either these diamonds or similar ones on March 17.

The identity of the two diamonds was sufficiently shown by the evidence to authorize the finding that they belonged to the Schepps’s and were taken from them in a robbery on March 11, and that the diamonds were found in appellant’s home, when appellant was present, on March 17.

Appellant is in no position to complain of the search of his house because he introduced the testimony of his wife showing that they either owned the two diamonds, or two like them, before March 11 and on March 17. 5 Tex.Jur.2d 704, Sec. 446. Also, the record further reflects that while Officer Hodges was testifying about the search, he was asked and responded as follows:

“Q: “What happened when you arrived at the defendant’s home?
“A: Mr. Hoover — I walked up and knocked on the door. Mr. Hoover came to the door. I advised Mr. Hoover I had a search warrant. Mr. Hoover told me a search warrant was unnecessary, to come on in and look anywhere I pleased.”

Appellant objected to the failure of the court to charge the jury, that, unless from non-accomplice evidence they believed beyond a reasonable doubt that there was corroboration of the testimony of the accomplice witness Spivey that the appellant advised, commanded, and encouraged the co-idictees to commit the robbery, then to find the appellant not guilty; and that they could consider the accomplice testimony only if from the non-accomplice testimony they believed beyond a reasonable doubt that there was corroboration of the state’s evidence that the co-indictees committed the robbery.

To comply with the objections to the charge, would increase the burden of proof beyond the statutory requirement that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed. Hence the refusal to respond to said objections was not error. Art. 716 V.A.C.C.P.

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

Opinion approved by the Court.

MORRISON, Judge

(dissenting).

Appellant was constructively present at all times by virtue of the three telephone conversations with his confederates during the course of the robbery. In the first call he asked one of his partners in crime if they had found anything, received a negative reply and said that he would call back later. In the second call they reported to him that they had found the items listed in the indictment. In the third call he instructed them to look in the deep freeze and in the attic in their search for the $300,000 which all parties supposed was concealed somewhere in the house.

Under the rule announced in Schwartz v. State, 158 Tex.Cr.R. 171, 246 S.W.2d 174, and discussed in Vol. 1, Vernon’s Ann.P.C. XII; XV, appellant, if not by the first telephone call, then by all three calls, was doing something which associated him with the execution of the unlawful act at the very time the robbery was being committed making him a principal and not an accomplice as submitted in the court’s charge.

The converse of what we have here was ably stated by this Court in Serrato v. State, 74 Tex.Cr.R. 413, 171 S.W. 1133, wherein the Court said:

“It is a correct proposition of law that one charged in an indictment as a principal cannot be convicted as an accomplice to the crime — they are separate and distinct offenses.
“ * * * Our decisions hold that the dividing line between principals and accomplices is that to constitute one a principal he must be doing something in furtherance of the common design, at the time the offense is committed, whether present or not, while an accomplice is one who, though having advised and agreed to its commission, is not present when the offense is committed, and who is not doing anything at the time in furtherance of the common design * *

In the relatively early case of Bass v. State, 59 Tex.Cr.R. 186, 127 S.W. 1020, this Court said:

“If the party charged, though not actually present, is engaged in or is doing something in the chain of causation which leads up to the offense and-is a necessary part of its accomplishment, he is a principal, though he may not be at the immediate time actually present. $ $ ‡ »

See also Hext v. State, 104 Tex.Cr.R. 46, 282 S.W. 242 and White v. State, 154 Tex.Cr.R. 489, 228 S.W.2d 165.

I respectfully dissent.


source: Caselaw Access Project

author: DICE, Commissioner. MORRISON, Judge.

license: Public Domain

text:
    Johnie CORRY, Appellant, v. The STATE of Texas, Appellee.
    No. 38093.
    Court of Criminal Appeals of Texas.
    April 14, 1965.
    Rehearing Denied May 26, 1965.

      Mays & Mays, Dave Miller, Frank D. Coffey, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Jack Beech, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is murder; the punishment, twelve years.

Appellant and her husband, the deceased, lived at 2619 Camilla Street in the city of Fort Worth. On December 23, 1963, the witnesses Kenneth Bray and Eddie Miller, employees of the Meissner Funeral Home, went to the address in response to a call, arriving at approximately 7:15 p. m. Upon entering the house they found the deceased sitting in a chair in a semi-conscious condition, with a bullet wound in his forehead. Appellant was present and, in talking to the ambulance attendants, stated that she thought the shot came through the screen and that the deceased had said “he was going to die like President Kennedy did.” The deceased was carried to the hospital, accompanied in the ambulance by appellant. On the way to the hospital appellant several times, referring to the deceased, said “ ‘He always said someone was going to kill him like they did President Kennedy’ and also, T believe the shot came through the screen or through the front.’”

It was shown that the deceased expired at the hospital on the night in question. An autopsy performed upon the body of the deceased revealed a .22 calibre bullet in the brain. The cause of death of the deceased was shown to be hemorrhage of and injury to the brain, produced by the bullet wound. It was also shown that when the officers went to the scene of the killing, a .22 calibre rifle was found lying across a deepfreeze near the back door of a utility porch.

Appellant was taken into custody at the hospital by the officers around 9 p. m. and carried to the city hall, where she was placed in jail. Shortly before midnight she was taken from jail to the crime laboratory for a paraffin test. During the test, appellant acted as if she were going to faint and was placed on the floor. Between 1 and 2 a. m. she was returned to the city hall and placed in jail.

The following morning (December 24), Detective D. G. Latham saw appellant at the city hall at 9 :30 a. m., and questioned her for two hours. Toward the end of the interrogation she was taken to a polygraph room adjacent to the crime laboratory. She was then taken to her home by other officers and returned to the city hall at 2 p. m. Upon her return she was again questioned by Detective Latham and at 2:25 p. m., made and signed a written confession, certain portions of which were introduced in evidence by the state as its Exhibit No. 3.

Before admitting the confession in evidence, a hearing was held by the court in the jury’s absence on the question of its admissibility. At such hearing, Detective Latham testified that appellant freely and voluntarily made the statement after having been given the statutory warning.

He further stated that on the day appellant made the statement, Attorney Dave Miller made a request of the witness, around noon at the city hall, to see appellant. At such time, appellant was not at the city hall but had gone with the officers to her home. After she was returned to the city hall, Attorney Miller did not talk to appellant before she made and signed the statement. Detective Latham further stated that at no time did appellant ask to call or see an attorney but after she had signed the statement and he asked her if she would like to call an attorney she stated that her father would “handle it.”

The confession was admitted in evidence by the court over appellant’s objection that it “was illegally taken * * * contrary to her civil rights” and she was denied the privilege of consulting with an attorney prior to the taking of the statement. Omitting the formal parts, it reads:

“My name is Johnie Morgan Corry and I live at 2619 Camilla street in Ft. Worth, Tarrant County, Texas. I am 48 years old and I went to the 11th grade in school. I married my husband, William Corry, about three years ago. When we married he moved into my house with me and we have lived there ever since.
“Yesterday afternoon about 1 pm I went across the street to visit some of my friends. I stayed over there about two or three hours. While over there I had about two or three drinks with my friends. I was not drunk. At about 4 P_M_I came home. When I got home my husband was not home but came home about an hour later. When he came home he was in a foul mood and started arguing with me. At that time I went to the back bedroom and got our J22 rifle that was in the corner. The shells were in the dresser drawer and I took them out and put one in the gun. I walked into the kitchen with the gun and saw Bill sitting in the living room in a chair. At that time I aimed the gun at him and pulled the trigger. I ran and put the gun on the deep freeze on the back porch and ranback to where Bill was. When I got back to where Bill was I noticed that his head was bleeding but I didn’t know exactly where I had hit him. At that time I called the police, and the ambulance. I make this statement of my own free will without any threats or promises from the police.”

Testifying as a witness in her own behalf, appellant related various acts of physical abuse and violence committed upon her by the deceased since their marriage in 1960. She stated that on the day of the killing the deceased came home around 4:30 p. m. in a bad mood; that he went into a bedroom, got the rifle, and returned to where she was and said, “ T think I am going to kill you and get it all over with.’ ” When she said, “ ‘Bill, what are you talking about ?,’ ” he replied, “ ‘I mean it,’ ” and then returned to the bedroom and put the gun down. Appellant stated that she then went into the bathroom and returned to the kitchen, where the deceased was sitting in a chair. When she inquired if he was ready for her to start dinner, he replied, “ ‘No, I’m going to finish the job that I started.’ ” She related that “Then is when I pulled the trigger, and he kept sitting there,” and she then put the gun on the deepfreeze and called the operator for an ambulance.

Appellant swore that she shot the deceased in self-defense and on her cross-examination admitted that the statements in her confession, introduced in evidence by the state, were correct except that portion which read: “At that time I went to the back bedroom and got our 22 rifle that was in the corner. The shells were in the dresser drawer and I took them out and put one in the gun.”

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of self-defense.

The jury by their verdict rejected the defense, and we find the evidence sufficient to support the conviction.

We first overrule appellant’s contention that the court erred in admitting the confession in evidence because she was denied the right to counsel, as required by the Supreme Court of the United States.

There is an entire absence of any proof in the record that appellant asked to see or consult an attorney, which distinguishes the case from Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, cited and relied upon by appellant. See: Miller v. State, Tex.Cr.App., 387 S.W.2d 401, opinion delivered February 3, 1965, where Escobedo v. State of Illinois, was distinguished because no request was made by the accused (Miller) to consult with an attorney before making the confession, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, also cited by appellant, is not here controlling, under the facts, because in that case the incriminating statements were obtained from the accused after indictment, by surreptitious means.

Nor do we agree with the contention that the uncontroverted testimony shows that appellant did not freely and voluntarily make the confession introduced in evidence by the state. To the contrary, the state’s proof that the confession was voluntarily made was not disputed by appellant in her own testimony. Prince v. State, 155 Tex.Cr.R. 108, 231 S.W.2d 419, cited by appellant, is not, under the facts, here controlling.

We find no reversible error in appellant’s bill of exception #1, which presents her complaint to certain jury argument of state’s counsel. The bill certifies that during the state’s closing argument the assistant district attorney stated, and the following transpired:

"MR. McLEAN: The other ambulance drive (r) said, T don’t remember what she said on the inside, but I remember going down that she said that he wanted or knew he was going to die like President Kennedy,’ and I tell you jurors he did die like President Kennedy, with an assassin’s bullet in his head.
“MR. COFFEY: Your Honor, I am going to object to this line of argument as being inflammatory under the circumstances of recent circumstances [sic], and I am going to request the jury not to consider it.
“THE COURT: Overruled.
“MR. COFFEY: Note our exception.
“MR. McLEAN: Your Honor, may I have my time?
“THE COURT: I will sustain the objection to that part about the President dying from an assassin’s bullet.
I don’t believe it is in the record.
“MR. COFFEY: Your Honor, I am going—
“THE COURT: I will instruct the jury not to consider that part.
“MR. COFFEY: Your Honor, under all the circumstances it is too inflammatory to be removed by an instruction, and I am going to request a mistrial.
“THE COURT: Overruled.
“MR. COFFEY: Note our exception.”

The statement by the district attorney that appellant said the deceased knew he was going to die like President Kennedy was amply supported by the evidence.

Under the record, any reference to appellant as an assassin was supported by the state’s evidence and did not constitute reversible error. Sorrell v. State, 135 Tex.Cr.R. 535, 120 S.W.2d 1058; Little v. State, 77 Tex.Cr.R. 339, 178 S.W. 326; Sue v. State, 52 Tex.Cr.R. 122, 105 S.W. 804.

The judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Appellant again urges our re-examination of Escobedo v. Illinois, supra. We quote from the first sentence in the opinion prepared by Mr. Justice Goldberg. “The critical question in this case is whether, under the circumstances, the refusal by the police to honor petitioner’s request to consult with his lawyer during the course of an interrogation constituted a denial of ‘the assistance of counsel’.” Appellant, in her testimony, did not intimate that she requested to consult with Mr. Miller or any other lawyer. Mr. Miller did not testify. Es-cobedo does not apply to the case at bar.

As to the argument, appellant concedes that appellant’s statement to the ambulance driver about the deceased’s apprehension that he was going to die like President Kennedy was admissible. He concedes that the use of the term “assassin” under the facts was not error, but does contend that the argument which likened the deceased’s death to that of our late President was erroneous. We are at a loss to see how the argument could be more injurious than the res gestae statement which appellant concedes was admissible.

Remaining convinced that we properly disposed of this case originally, appellant’s motion for rehearing is overruled.


author: DICE, Commissioner.

text:
    Annie BLANKENSHIP, Appellant, v. The STATE of Texas, Appellee.
    No. 38227.
    Court of Criminal Appeals of Texas.
    May 5, 1965.
    Rehearing Denied June 9, 1965.

      Jerry D. Kelly, Roy C. Hughes, Jr., Dallas, for appellant.
    Henry Wade, D'ist. Atty., Donald Koons, Curtis Glover and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 1436e, Vernon’s Ann.P.C., for the offense of shoplifting; the punishment, one month in jail and a fine of $250.

The complaint and information alleged that on or about the 10th day of April, 1963, in the County of Dallas and State of Texas, the appellant

“ * * * did unlawfully and fraudulently take while legally within a retail business establishment therein situate, as an invitee and licensee therein, and remove from the place at which it was then and there kept, stored and displayed for sale therein, certain goods and corporeal personal property, to-wit:
2 coin savings banks of the value of $0.59 each
3 sweaters of the value of $1.69 each
4 pairs men’s socks of the value of $0.69
3 pair shorts of the value of $1.99 each
of the value of Fourteen and 9§4oo Dollars the same being the corporeal personal property of Ray E. Gooding, hereafter styled ‘Owner,’ from the possession of the said ‘Owner,’ and without the consent of the said ‘Owner,’ and with the intent to deprive the said ‘Owner’ of the value thereof, and with the intent to appropriate it to the use of benefit of him, the said Defendant. * * * ”

We first overrule appellant’s contention that the court erred in overruling her motion to quash the information on the ground that it charged her with “being both an invitee and a licensee” and it did “not contain the name of the retail business establishment.”

The complaint and information followed the language of the statute, Art. 1436e, supra, and was sufficient to charge an offense. 30 Tex.Jur.2d 580, Sec. 27; Burney v. State, 171 Tex.Cr.R. 347, 347 S.W.2d 723. We do not agree with appellant that because the terms “invitee” and “licensee” have a different legal meaning the allegation that she was on the premises as an “invitee and licensee” rendered the state’s pleading invalid for repugnancy. The gist of the offense is that the accused be legally on the premises as an invitee or licensee. It would have been clearly improper to allege in the disjunctive that she was on the premises as an invitee or licensee. See: 30 Tex.Jur.2d 574, Sec. 28, and cases there cited. While it may have been better pleading to name the retail business establishment, the failure to do so did not render the allegation insufficient to charge an offense, as the name of the owner of the property removed from the establishment was alleged.

The state’s evidence shows that Ray E. Gooding was manager of the M. E. Moses Store #14 in the Pleasant Grove shopping center in the city of Dallas.

On the date alleged, Gooding saw the appellant in the store around 7:30 p. m., with a package of anklets in her hand and he also observed a bulge in her purse. He thereupon signalled to a saleslady to watch her. After he had gone to a stock room and returned, he observed appellant behind a dress rack putting four pair of men’s hose in her purse, which were priced at 69‡ per pair, retail. Appellant was also observed by the saleslady to pick up some ladies’ hose and attempt to put them in her purse. When she saw the saleslady, appellant put the hose down and then went around the corner and picked up four pair of men’s hose. Appellant then went to the checkout station, where she paid $1.00 for the anklets and left the store. As she came outside she was met by Gooding, who asked her for the men’s hose. Appellant denied that she had the hose and when told by Gooding that he had seen her put them in her purse, appellant went back inside to a check-out stand, where she opened her purse, took the men’s hose out, laid them on the counter, and offered to pay for them. Gooding refused to accept payment and appellant then walked down an aisle to the third counter, where she emptied her purse, and said ‘You can have all of it, I don’t want any of it.’ ” The items which appellant emptied from her purse consisted of three Buster Brown polo shirts priced at $1.69 each, three Buster Brown play shorts priced at $1.99 each, and two wooden banks priced at 59‡ each. Such items were not wrapped and were items that were for sale in the store. No other articles or sales tickets were in appellant’s purse when she emptied the contents on the counter. It was further shown that the goods in the store were under the care, custody, and control of Ray Gooding, the manager, and that he did not consent to appellant taking the items without paying for them.

Testifying as a witness in her own behalf, appellant denied having taken the items from the store and explained her possession of them by stating that before she had gone into the store she met her daughter in front and that her daughter had given a package to her to keep which contained the items found in her purse. Appellant’s testimony was corroborated by her daughter, who testified that she had purchased the items in the store around 5 p. m., for her children and had given the items, which were in a paper sack, to her mother in front of the store, while she went to a drugstore for some medicine.

The jury by their verdict chose to accept the testimony of the state’s witness and reject that of the appellant. We find the evidence sufficient to sustain the judgment of conviction.

We overrule the contention that the state failed to introduce any evidence showing that the offense occurred in a retail business establishment, as alleged. The store in question is referred to in the testimony as a variety store and was shown to be a place of business where many items, including clothing, were sold to the general public.

We also overrule the contention that the evidence is insufficient to sustain the conviction because the state failed to prove that appellant was either an invitee or a licensee, as alleged. Appellant testified that she entered the place of business to purchase merchandise, which showed that she was in invitee in the establishment. Appellant, having testified that she went to the store to purchase merchandise — which showed that she was an invitee on the premises, is in no position to complain of a certain question propounded to the witness Gooding as to whether she was a licensee or invitee in the store.

Error is urged to certain questions propounded to appellant’s witness, Catherine Weaver, on cross-examination, when she was asked if she (the witness) had been in an insane asylum in New Orleans and also as to who the father of her four children was.

The record reflects that the inquiry as to whether the witness had been in an insane asylum was made after she testified that she had been out of town under a doctor’s care, and her answer to the inquiry was that she had not been in an insane asylum. No proof was offered to contradict her testimony. In answer to the inquiry as to the father of her four children she testified that she had one child by each of her four marriages. No reversible error is perceived.

Appellant’s remaining contention is that the court erred in refusing to give her requested instruction to the jury on the law of circumstantial evidence.

There being direct testimony that appellant took certain of the items from the store, a charge on circumstantial evidence was not required. Rundell v. State, 90 Tex.Cr.R. 410, 235 S.W. 908. Furthermore, the facts shown are in such close juxtaposition to each other and to the main fact to be proved — the taking by appellant of the property — as to eliminate the necessity of charging on circumstantial evidence. De La O v. State, Tex.Cr.App., 373 S.W.2d 501.

The judgment is affirmed.

Opinion approved by the court.


author: MORRISON, Judge.

text:
    Jesse HUERTA, Appellant, v. The STATE of Texas, Appellee.
    No. 38234.
    Court of Criminal Appeals of Texas.
    May 26, 1965.

      T. P. Henley, Jack Paul Leon, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., Raymond A. Wietzel and Rudolph Georges, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the possession of heroin with two prior non-capital felony convictions alleged for enhancement; the punishment, life.

The prior convictions were stipulated, and no proof thereof was made before the jury as has been approved by this Court in Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864; Ex Parte Reyes, Tex.Cr.App., 383 S.W.2d 804; McDonald v. State, Tex.Cr.App., 385 S.W.2d 253; Crocker v. State, Tex.Cr.App., 385 S.W.2d 392; and Buhl v. State, Tex.Cr.App., 387 S.W.2d 677.

Narcotic Agent Staton of the Texas Department of Public Safety stationed in Arlington, but working undercover in San Antonio, testified that a few days prior to the day in question he met appellant, who was going under the name of “Chewy Flat”, that on May 7, at approximately 1:30 p. m. he was parked at a certain location in the city when appellant approached him and asked if he was the one who “wanted the gram of stuff”. When Staton answered in the affirmative, appellant asked where Joe was, and Staton replied that Joe had gone to call him, and appellant replied, “I have already talked to Joe.” At about that time, Joe, who was an informer working with Staton, returned, and appellant handed Joe a finger stall. Staton took it from Joe’s hand saying that it was his stuff and then paid appellant $45.00. Appellant was not arrested until May 20, because Staton’s undercover assignment in San Antonio was not complete. On the same afternoon Sta-ton identified appellant’s picture in the possession of the San Antonio Police; it was stipulated that it was appellant’s picture and that he had been called “Chewy Flat.”

The chain of custody was established, and by expert testimony it was shown that the finger stall contained sufficient heroin to make 10 to 15 number five capsules.

Appellant did not testify, but called his employers who established by a time sheet that he had reported to work at 3:57 p. m. that afternoon.

Appellant called his common-law wife, who detailed their movements and established a complete alibi for him. Appellant’s mother testified that appellant, his wife and child left her home at 1:30. It was shown that her home was not a great distance from the point where Staton testified he met appellant.

The jury chose to accept Staton’s testimony and reject appellant’s alibi, and we find the evidence sufficient to sustain the conviction.

Appellant’s contention that the evidence was insufficient to support the conviction because the State’s witness, Officer Staton, was an accomplice witness and was not corroborated as to delivery of the heroin was overruled by this Court in Sutton v. State, 170 Tex.Cr.R. 617, 343 S.W.2d 452, and Alexander v. State, 168 Tex.Cr.R. 288, 325 S.W.2d 139.

He further contends that the evidence is insufficient to support the conviction because the appellant was merely an accommodation possessor for the benefit of the purchaser, Staton. Reliance is had upon Durham v. State, 162 Tex.Cr.R. 25, 280 S.W.2d 737. The distinction is quite apparent. In Durham the evidence showed that the accused paid $6.00 for the narcotics and delivered it to the State’s witness and received $6.00 from him, and it was not shown that the accused was in any way interested in behalf of the seller. In the case at bar the record is silent as to where or from whom appellant secured the heroin which he sold to Staton for $45.00. We overrule appellant’s contention that his possession of the heroin was only fleeting. The record does not show when or where he acquired the same, but he did have it in his possession when he approached Staton’s automobile and asked him if he wanted it.

The Court did not err in admitting the picture of appellant which had been shown to Staton in his motel room on the afternoon of the day in question. All identification marks were removed, and, as far as the jury were able to determine, it might have been taken in a penny arcade.

Complaint is made of a portion of Staton’s testimony in which' he stated that Joe Nino told him prior to his meeting with appellant that he was going to call appellant. The objection to such testimony was sustained, and the jury were instructed not to consider the same. This hearsay was nullified when Staton later testified that appellant asked where Joe was, and Staton told him he had gone to call appellant, and appellant acknowledged receipt of the call.

On the question of the jury misconduct alleged in appellant’s motion for new trial, we have here a novel situation. The trial was on October 26, and attached to the appellant’s amended motion for new trial are two affidavits of a private investigator dated November 4. The affiant recites therein that he accompanied appellant’s attorney to the home of Mr. Cruz Flores, who had served on the jury, and inquired of him about what was said among the jurors during their deliberations. He stated that Mr. Flores told him that the jury had discussed appellant’s failure to testify in his own behalf and several other things of lesser importance and concluded with the recitation that he asked Mr. Flores to give him a written statement to that effect and that Flores declined to do so. Attached to the State’s answer to such motion is an affidavit of Mr. Flores dated December 1, made before a representative of the State, in which he swears that he did not tell the investigator there was a discussion concerning appellant’s failure to testify and that none had occurred.

At the hearing on the motion Mr. Flores was called as a witness by appellant. He denied the truthfulness of the investigator’s affidavit and reiterated that there was no discussion by the jury of appellant’s failure to testify. Appellant also called juror Alexander Flores and juror Jimenez and was able to elicit nothing from them in aid of his motion. He then called the investigator, and he reaffirmed that his affidavit reflected the truth as to his conversation with Mr. Cruz Flores. No one else was called to testify. We find no abuse of discretion in the court’s action in overruling the motion.

Finding no reversible error, the judgment is affirmed.


author: WOODLEY, Judge.

text:
    Alfred Don RICHARDSON, Appellant, v. The STATE of Texas, Appellee.
    No. 37920.
    Court of Criminal Appeals of Texas.
    March 31, 1965.
    Rehearing Denied June 9, 1965.
    Teague & Carlisle, by Marvin O. Teague, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, W. Louis White and Joe C. Shaffer,
    Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is robbery; the punishment, enhanced under Art. 63 P.C., life.

Conviction at a former trial was reversed. See Richardson v. State, Tex.Cr.App., 379 S.W.2d 913.

The state’s evidence was to the effect that appellant entered the unopened relocated cafe of the complainant and by assault robbed the owner of two wallets or billfolds and two or three dollars in money.

Appellant, an ex-convict who was arrested the following day, testified and offered evidence to the effect that he was at another and different place and did not and could not have committed the offense.

In submitting appellant’s defense of alibi the court charged the jury:

“Now, if the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place where the offense was committed at the time of the commission thereof, you will find him ‘not guilty’.”

Appellant’s attack upon this instruction as constituting a comment by the court that the offense of robbery was committed is supported by Supina v. State, 115 Tex.Cr.R. 56, 27 S.W.2d 198, which he cites and relies upon, and which requires reversal.

The state does not contend and, under the record, we are in no position to hold that there was no issue as to whether or not the offense of robbery had been committed — as was the situation in Johns v. State, 129 Tex.Cr.R. 206, 86 S.W.2d 235.

The judgment is reversed and the cause remanded.


text:
    Ex parte Frank Rance PARKER.
    No. 38261.
    Court of Criminal Appeals of Texas.
    May 26, 1965.
    Robert B. Billings, Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding relator to custody for extradition to the State of Kansas to answer a charge “by information” of Burglary and Larceny.

There is no evidence in the record indicating that the offense of “Burglary and Larceny” may be prosecuted in Kansas upon an information. In absence of proof that the law of Kansas in this regard differs from that of Texas, it is assumed that prosecution for such offense upon an information is not authorized by Kansas law. Ex parte Doyal, 167 Tex.Cr.R. 83, 318 S.W.2d 642; Ex parte Goodwin, Tex.Cr.App., 384 S.W.2d 874; Ex parte Gardner, 159 Tex.Cr.R. 365, 264 S.W.2d 125; Ex parte Cooper, 163 Tex.Cr.R. 642, 295 S.W.2d 906; on second appeal, Tex.Cr.App., 308 S.W.2d 22. Furthermore, the information is not supported by affidavit or complaint and the supporting affidavit of the prosecuting attorney is upon information and belief only. See Ex parte Logan, 151 Tex.Cr.R. 129, 205 S.W.2d 994; Ex parte Kinsloe, 134 Tex.Cr.R. 299, 115 S.W.2d 955, and cases therein cited.

We further observe that the hearing was before a “special judge” and the record fails to show his authority to hold the hearing or to enter the order from which this appeal was taken. See Arts. 1886, 1891, 1934 Vernon’s Ann.Civ.St.; Art. 556 Vernon’s Ann.GC.P.; 33 Tex.Jur.2d 469, Sec. 95.

The order remanding relator to custody for extradition is reversed.


text:
    Glen Albert DUNN, Appellant, v. The STATE of Texas, Appellee.
    No. 37925.
    Court of Criminal Appeals of Texas.
    March 17, 1965.
    Rehearing Denied May 5, 1965.
    Second Motion for Rehearing Denied June 9, 1965.

      Howard B. Law, Tom Purnell, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Nelms, Ross Teter and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for negligent homicide in the second degree; the punishment, one year in jail.

The indictment charged that while engaged in the performance of an unlawful act of driving and operating an automobile “in violation of and failing to obey a red traffic light and signal * * * lawfully existing and erected by the city of Dallas, a municipal corporation,” the appellant did by negligence and carelessness cause the death of Guy William Hall by causing his (appellant’s) automobile to collide with the automobile driven by the said Hall, thereby causing injuries to the said Hall, from which injuries he died.

We overrule appellant’s contention that the indictment is fatally defective because it does not clearly and sufficiently set out the elements of the offense.

The indictment charged commission of the unlawful act of failing to obey a red traffic light and signal. It was alleged that the unlawful act and offense was committed in the County of Dallas and State of Texas. The failure to describe the light and signal or to allege the street and city where the unlawful act was committed did not render the same insufficient. The use of the term “red traffic light and signal” did not render the indictment duplicitous, and it was not necessary under the ordinance stipulated to negative any exceptions therein. We do not agree that the indictment failed to allege the facts constituting negligence. The negligent act was the unlawful act of violating the traffic signal, as alleged. Pettigrew v. State, 163 Tex.Cr.R. 194, 289 S.W.2d 935.

The evidence was undisputed that on the night in question the appellant, while driving his automobile in a westerly direction on Main Street in the city of Dallas, was involved in a collision with an automobile being driven by the deceased in a southerly direction on Ervay Street. In the collision, which occurred near the center of the intersection, the deceased received certain injuries from which he died.

It was shown, by stipulation, that certain traffic control signals consisting of red, yellow, and green lights were in operation at the intersection which had been installed by the city and that to pass on a red light without coming to a complete stop was a violation of the city ordinance.

The state’s witness Johnnie Vanburen Wheat testified that on the night in question he was on duty as a night watchman at a department store and that he witnessed the collision. The witness testified that appellant entered the intersection when the traffic light facing him was red, and that deceased drove his vehicle into the intersection when his traffic light was green.

Testifying in his own behalf, appellant swore that when he drove into the intersection the traffic light was green.

The jury, by their verdict, resolved the dispute in the testimony against the appellant, and we find the evidence sufficient to sustain their verdict.

Error is urged to the court’s action in admitting certain evidence offered by the state to the effect that appellant was intoxicated at the scene of the collision.

An examination of the record reflects that the evidence was offered to rebut appellant’s own testimony that he had consumed no alcoholic beverage prior to the collision. The record further shows that while appellant objected to some of the testimony, there was other and similar testimony relative to his intoxication admitted without objection. No reversible error is presented. Davis v. State, 168 Tex.Cr.R. 588, 330 S.W.2d 443.

We overrule appellant’s remaining contention that the statutes defining the offense of negligent homicide in the second degree are invalid because of indefiniteness. Articles 1230-1243, Vernon’s Ann.P.C. The offense of negligent homicide in the first degree has been held to be sufficiently defined. Morris v. State, 35 Tex.Cr.R. 313, 33 S.W. 539; Pehl v. State, 153 Tex.Cr.R. 553, 223 S.W.2d 238. Upon this authority we uphold as valid the statutes defining the offense of negligent homicide in the second degree.

The judgment is affirmed.

Opinion approved by the court.

ON MOTION FOR REHEARING

MORRISON, Judge.

The appellant again contends that the indictment charging him with negligent homicide in the second degree is fatally defective for the failure to clearly allege essential elements of the offense. Specifically, appellant urges that the indictment did not allege that the offense occurred within the territorial limits of the city of Dallas, that there was no allegation that the traffic light was located within the city of Dallas, and that there was no allegation of violation of an ordinance of the city of Dallas.

The pertinent portion of the indictment charging the unlawful act states that appellant “was in the performance of an unlawful act, to wit, driving and operating a motor vehicle, to wit, an automobile in violation of and failing to obey a red traffic signal * * * lawfully existing and erected by the city of Dallas, a municipal corporation.”

The above quoted language clearly charges that the offense took place in the city of Dallas, and that the traffic light was lawfully erected within the corporate limits of the city of Dallas because such city had no “lawful” authority to erect traffic control devices except within its corporate boundaries. The city of Dallas, a municipal corporation, had authority by virtue of Article 6701d, Section 31(a), Vernon’s Ann.Civ.St., to place and maintain such traffic control devices within its jurisdiction, and violations thereof were made punishable by the provisions of Article 6701d, Section 143, supra. It was not necessary for the indictment to allege that this prosecution was predicated upon the violation of a city ordinance.

Appellant’s motion for rehearing is overruled.


author: McDONALD, Presiding Judge. DICE, Commissioner.

text:
    Clem McCLELLAND, Appellant, v. The STATE of Texas, Appellee.
    No. 37833.
    Court of Criminal Appeals of Texas.
    March 10, 1965.
    Rehearing Denied May 5, 1965.
    Second Motion for Rehearing Denied June 9, 1965.

      Smith & Lehmann, by J. Edwin Smith, Houston, Reagan & Welch, by Jack Welch, Marlin, Dixie & Schulman, Jack J. Raw-itscher, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Carl E. F. Dally, Gus J. Zgourides, Asst. Dist. Attys., Houston, Thomas Bartlett, Jr., County Atty., Marlin, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The conviction is for the offense of accepting a bribe; the punishment, five years confinement in the state penitentiary and a fine of $5,000.00.

The appellant was indicted for the offense of accepting a bribe from James Bry-son Martin, Ross Evahn, David Hudson, E. R. Coffey, and R. M. Duren. It was alleged that the bribe accepted by the appellant was made to him by the five named persons to secure their appointment as appraisers, administrators, and guardians in probate proceedings in the Probate Court, of which the appellant was then Judge.

The appellant’s motion for change of venue from Harris County was granted, and the case was tried in Falls County.

This is an appeal from appellant’s trial and conviction in Falls County.

The state’s testimony reflected that the appellant, Clem McClelland, was at the time alleged the duly elected and acting Probate Judge of Harris County, Texas. As Probate Judge, he was required by the Probate Code of the State of Texas to appoint appraisers, administrators and guardians in the cases filed in the Probate Court.

The state adduced evidence showing that James Bryson Martin, one of the parties involved in giving the bribe to the appellant, and two other persons acting as incor-porators, obtained on December 2, 1960, Articles of Incorporation from the Secretary of State of the State of Texas, authorizing the corporation to do business under the name of Tierra Grande, Inc. It was shown that the other two parties were friends and former business associates of Martin, but that they had no financial or other interest in Tierra Grande, Inc. One of the parties merely accommodated the appellant by acting as an incorporator. The other party admitted her signature was genuine upon the Articles of Incorporation, but did not know when or under what circumstances it had been signed.

The evidence adduced by the state further showed that on December 2, 1960, a bank account for Tierra Grande, Inc., was opened in the Citizens State Bank in Houston, Texas. During that month, and every succeeding month until May, 1962, E. R. Coffey, R. M. Duren, Ross Evahn, David Hudson, and James Bryson Martin made frequent, unequal deposits into the account of Tierra Grande, Inc. Other than the deposits made by these individuals, there was only one other deposit in the amount of $5,-000.00 made into the account. The deposits into the account were shown by voluminous bank records kept in the regular course of business of the Citizens State Bank, in which the Tierra Grande account was located. David Hudson and E. R. Coffey maintained bank accounts in the same bank, and from the records of their accounts it was shown that Hudson had deposited into the Tierra Grande account the total amount of $4,750.00, and E. R. Coffey had deposited the total amount of $3,666.10. Deposits totaling $7,975.00, shown to have come from his account in the Texas National Bank, were made by R. M. Duren. Deposits in the amount of $6,775.00, shown to have come from his account in the National Bank of Commerce, were made by Ross Evahn. Deposits made to the Tierra Grande, Inc., account by James Bryson Martin, totaling $558.00, were shown to have come from his account in the Bank of Texas. All of these banks were located in downtown Houston.

It was reflected from the state’s testimony that the only two persons authorized to make withdrawals from the Tierra Grande, Inc., account were James Bryson Martin and Helen Smith. Helen Smith, who signed most of the checks, was and had been for a number of years the appellant’s secretary.

From testimony adduced by the state, it was shown through the bank records kept in the regular course of business of the Citizens State Bank, that virtually all of the money which had been deposited into the Tierra Grande, Inc., bank account had been withdrawn systematically every month for the benefit of the appellant. The money was used to pay his club bills, parking garage fees, payment on automobiles, to send his son to camp, to pay gasoline bills, and a large part was paid to the appellant or to his wife directly. The records kept in the regular course of business of the Bank of the Southwest, where appellant maintained bank accounts, revealed that the checks drawn on Tierra Grande, Inc., payable to him or his wife, had been endorsed by them and deposited into their private accounts.

State’s evidence adduced further showed that from January 1, 1961, to May, 1962, Judge McClelland had appointed James Bryson Martin, Ross Evahn, David Hudson, E. R. Coffey, and R. M. Duren as appraisers in estates for a total of 3511 times. In this same period of time, the appellant had appointed as appraisers 257 other persons, and they had acted a total of 2,225 times. This evidence was obtained from the public records of the Probate Court.

The evidence further revealed that each appraiser in each estate received a fee of $5.00 which was charged to the court costs and paid to him through the Court all during the time up to January, 1962, when this practice was discontinued. From a random sampling of the estates, it was shown that additional appraisal fees in substantial amounts were received by the five named appraisers, James Bryson Martin, E. R. Coffey, R. M. Duren, David Hudson, and Ross Evahn.

The appellant did not testify as a witness in his own behalf. He did introduce certain evidence showing that the various appraisers had received a large number of appointments before the formation of Tier-ra Grande, Inc.

The indictment, omitting the formal parts, charged:

“ * * * that on or about the 2nd day of December, A.D. 1960, in said County and State, that Clem McClelland was then and there Judge of the Probate Court of Harris County, Texas, a judicial officer, the said Clem Mc-Clelland having been duly elected and qualified as such officer and having entered upon the duties of said office, a part of said duties being the appointment of appraisers, administrators and guardians in matters, causes, and proceedings filed in the Probate Court; and the said Clem McClelland did then and there unlawfully, wilfully, and corruptly accept a bribe from Ross Evahn, David Hudson, E. R. Coffey, R. M. Duren, and James Bryson Martin in that he did accept Twenty-Five Thousand Seven Hundred Eighty-Three Dollars and Ten Cents ($25,783.10) in money, and did then and there accept the same from the said Ross Evahn, David Hudson, E. R. Coffey, R. M. Duren, and James Bryson Martin under an agreement with the said Ross Evahn, David Hudson, E. R. Coffey, R. M. Duren, and James Bryson Martin with the understanding that his acts, decisions, judgments, and recommendations would be influenced thereby in his judicial capacity to thereafter appoint them, the said Ross Evahn, David Hudson, E. R. Coffey, R. M. Duren, and James Bryson Martin as appraisers, administrators, and guardians in matters, causes, and proceedings then pending before the said Clem McClelland in his judicial capacity, and in matters, causes, and proceedings which would thereafter be brought before and come before the said Clem McClelland in his judicial capacity in violation of his duty as said officer.”

We think the evidence presented by this record conclusively shows that the five named persons, James Bryson Martin, David Hudson, E. R. Coffey, Ross Evahn, and R. M. Duren, each had an agreement with appellant and bribed him for the benefit of themselves with the understanding that his (appellant’s) acts, decisions, judgments and recommendations would be influenced thereby in his judicial capacity to thereafter appoint them, as was done, as appraisers, administrators and guardians in causes then pending and in causes thereafter to be brought before appellant in his judicial capacity. The “dummy corporation”, Tierra Grande, Inc., might be termed the “collector”. This corporation took or collected the money from the five men, and it was in turn received and collected by appellant. The money went into a common pool, Tierra Grande, Inc. The money, of course, lost its identity or common source when it was deposited so that it would have been impossible to determine how much of each of the five men’s deposits went to appellant at a given time. It is entirely possible that appellant made a separate and distinct arrangement with each of these five individuals. It is immaterial whether one of the five knew what the other four were doing or not. It is also immaterial whether each man had the same arrangement with appellant or not. One of them might have been paying in, or depositing only 5% of his fee to Tierra Grande, Inc., whereas, another might have been paying in 20% and other three 25%. All five men are under the terms of the indictment as “bribers”. As we view the charge, when appellant agreed with one or more of these five to accept a bribe, to take something of value to influence his judgment, and he then did so, the offense was complete. The various payments that were made via Tierra Grande, Inc. were actually installments upon the existing agreement and in fulfillment of the nefarious bribery contract and were things done in furtherance of the operation agreement. The various acts and transactions of each of the five were admissible to show their, scheme and design and agreement with appellant and their understanding with him, as well as being admissible to show the completion of the bribery act by them. We are not here dealing with extraneous offenses, but we are dealing with one offense involving many transactions.

We find the evidence abundantly sufficient to support the jury’s verdict.

Appellant brings forward numerous contentions in his brief. Among them, he contends that the trial court erred in not sustaining his motion to quash the indictment. It is his position that the indictment is both insufficient to advise him of the nature and cause of the accusation against him and that it is duplicitous in that it charges more than one offense in the same count. While the order of the Court overruling appellant’s motion to quash does not show an exception by appellant to the court’s ruling, as required by Art. 760e, Vernon’s Ann.C.C.P., to constitute an informal bill of exception under such article, Brooks v. State, 170 Tex.Cr.R. 555, 342 S.W.2d 439, we have nevertheless examined the indictment in the light of appellant’s objections thereto. As we stated in our opinion in Martin v. State, delivered January 6, 1965, No. 37,037, not yet reported, the indictment follows the statute, and the allegations are sufficient to charge the offense of bribery under Art. 158, V.A.P.C.

Appellant’s contention that the trial court erred in refusing to require the state to have elected upon which transaction they would rely for a conviction has already been answered by us. No election was necessary.

Complaint is made of the failure of the Court to charge on the law of principals. While it is true that such a charge was given in Martin v. State, supra, it should be remembered that Martin was charged as one of five men who had bribed one judge (this appellant). Such is not the case here because appellant is charged singularly with accepting bribes from five different men to perform a similar act for each of them and receive his reward through one common source. In such a case no charge on principals is required.

We have carefully examined appellant’s remaining contentions. We think it unnecessary to unduly lengthen this opinion by writing further on any of these matters. We have previously expressed the views of this Court and fully answered some of these same contentions in our prior opinion in McClelland v. State, Tex.Cr.App., 373 S.W.2d 674. The other contentions do not, in our opinion, merit discussion.

Finding no reversible error, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant insists that we were in error in our holding that an election was not required under the facts and construes certain language in our opinion — when we stated: “It is entirely possible that appellant made a separate and distinct arrangement with each of the five individuals. * * * As we view the charge, when appellant agreed with one or more of the five to accept a bribe, to take something of value to influence his judgment, and he then did so, the offense was complete.”— as holding that separate offenses of bribery were committed when payments were made by the five individuals named in the indictment.

By such language it was not our intention to hold that five separate offenses were committed, as we specifically pointed out that:

“We are not here dealing with extraneous offenses, but we are dealing with one offense involving many transactions.”

The fact that R. M. Duren had been appointed administrator of the Hogan estate three years prior to the presentment of the indictment did not make the evidence of his receipt of $2,500 as an administrator’s fee in the estate and the deposit of one-third«of such amount into the Tierra Grande account proof of an extraneous offense. Such payment and deposit could have been for appointments and fees in other estates, made after the offer to bribe was accepted by appellant.

Appellant also insists that we were in error in concluding that a charge on the law of principals was not required, and insists that the question is not whether he and the five individuals named in the indictment were principals but whether the five were acting together with each other as principals in the crime. It is argued that a charge on principals should have been given as to the five individuals so that the jury’s consideration of the evidence of their acts and conduct could have been limited to the acts of those who the jury found were acting together as principals in the bribery of appellant.

By the very nature of the offense, the five individuals named in the indictment could not be principals in the acceptance of the bribe by appellant which they themselves were offering and paying.

The contention urged by appellant that the court erred in refusing to quash the indictment because of the public examination of state’s witnesses in a court of inquiry prior to the return of the indictment was overruled in McClelland v. State, supra, cited in our original opinion, where it was held that such was not a ground for quashing an indictment in this state.

We have again examined the authorities, and adhere to such ruling.

In State v. Branch, 68 N.C. 186, cited by appellant, the witnesses upon whose testimony the indictment was presented were examined before the grand jury in open court.

No such procedure or facts are presented in the case before us.

The motion for rehearing is overruled.

Opinion approved by the court.


author: BELCHER, Commissioner.

text:
    Oceola HUBBARD, Appellant, v. The STATE of Texas, Appellee.
    No. 38228.
    Court of Criminal Appeals of Texas.
    May 5, 1965.
    Rehearing Denied June 9, 1965.
    John Whiteside, Fort Worth, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State. •
   BELCHER, Commissioner.

The conviction is for murder; the punishment, fifteen years.

The evidence reveals that both the appellant and the deceased were living on the second floor of the same rooming house at the time the deceased was killed.

About midnight the landlady heard the appellant and the deceased arguing. Upon investigating, she saw the appellant standing outside the bathroom while the deceased was inside. She told them to come to her room, which they did. As the appellant came to the room door he had a razor and a Coke bottle in his hands, but the landlady did not see anything in deceased’s hands. At this time, the appellant said, “I’m through”, and left, going down the stairs. After a brief time, the landlady heard someone coming up the stairs. Then, through the glass door, she saw the appellant use a pistol to knock on her door and heard him say at the time that if she did not open the door he would kill her, too. When she opened the door, the appellant walked into the living room, shot the deceased with the pistol, and then left, going down the stairs. Neither the appellant nor the deceased said anything as appellant entered the room and shot the deceased.

Due to a spot radio broadcast, an automobile in which the appellant was riding was stopped a short time after the killing and the arresting offlcer recovered the pistol from under the front seat by following the direction of the appellant.

It was stipulated that the death of the deceased was caused by the gunshot wound.

Testifying in his own behalf, the appellant stated that on returning to his room after going to a nearby cafe, he saw the deceased at his room door, picking the lock with a knife; that the deceased ran into a bathroom; and that he (appellant) went to the landlady’s room, told her what had occurred and that he had previously informed her of deceased’s attempts to enter his room. Appellant returned to his room as the landlady took the deceased into her room. After hearing the deceased, while in the landlady’s room, repeatedly curse him and say that he was going to kill him (appellant), the appellant put a pistol in his pocket and went to the landlady’s room to tell her that either he or the deceased had to move. When she opened the door and the appellant told her that one of them had to move, the deceased told appellant he was going to kill him, saying, also, “You ain’t running nothing here”. The deceased then reached in his pocket for a knife, which appellant could see, and advanced toward him as the appellant was backing away. Appellant further testified that as the deceased pulled his knife out, he shot him because he thought the deceased was going to kill him; and that he did not intend to kill him but was only trying to prevent being hurt by the deceased.

The jury resolved the issues of fact against the appellant, and we find the evidence sufficient to support the conviction.

The appellant insists that the state’s attorney committed reversible error in making the following argument before the jury: “This is a man who (counsel) would try to tell you has been convicted for having a hypodermic needle. Ladies and gentelmen, every person who suffers from asthma, many people who have to take insulin shots have hypodermic needles. They haven’t been convicted and sent to the penitentiary for having a hypodermic needle. The charge that man went to the penitentiary (for) was for having in his possession, narcotic paraphernalia. Ladies and gentlemen, do you think a man who would use narcotics; have it in his possession — ”.

To such argument the appellant objected “For the reason, first, it is improper argument, and second, there’s been no evidence of any such situation existing; that he had anything in his possession in the way of narcotics.”

The objection was sustained and the jury were instructed not to consider such argument, but the motion for a mistrial was refused.

The appellant testified in part as follows:

“Q: You said something about you had previously had a conviction for some kind of paraphernalia, a hypodermic needle?
“A: Yes, sir.
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“Q: How long had it been since you had served your prison term for conviction under the Texas Narcotics Act that this shooting happened? How long had you been out of the penitentiary?
“A: I imagine about a year and a half or a year.”

In view of appellant’s admission of his previous conviction, considered along with the other evidence, and the court’s action in sustaining the objection to said argument and instructing the jury not to consider it, we see no error.

The judgment is affirmed.

Opinion approved by the Court.


author: DIXON, Chief Justice.

text:
    Sol MINZER et al., Appellants, v. FIRST NATIONAL BANK IN DALLAS, Appellee.
    No. 16488.
    Court of Civil Appeals of Texas. Dallas.
    April 30, 1965.
    Rehearing Denied May 28, 1965.

      Wynne, Jaffe & Tinsley and Harold Hoffman, Dallas, for appellants.
    Coke & Coke, J. Edwin Fleming, Dallas, for appellee.
   DIXON, Chief Justice.

Appellants Sol Minzer, Harry Mark and Fritz Glazer, landlords, filed this suit against their tenant, appellee First National Bank in Dallas, hereinafter called the Bank, seeking forfeiture and cancellation of a long term lease contract.

The relief originally requested by appellants was that the Bank be enjoined from continuing to construct or maintain a 50-story banking house and office building in such a way that the part of the building covering appellants’ land will be structurally connected with the other part of the building covering adjoining land; that a mandatory injunction issue commanding the Bank to alter, reconstruct, or demolish said -building; and in the alternative that the lease be declared forfeited and cancelled, and appellants restored to possession of their property.

Before the case came on for trial the Bank had completed the structure. In oral argument appellants stated that they no longer asked for injunctive relief but were asking only for cancellation of the lease contract and restoration of possession of their property.

On July 23, 1954 appellants and the Bank entered into a written agreement whereby for a term of 95 years and four months appellants as lessors leased to the Bank as lessee a tract of land 50 feet wide and 200 feet deep running from Elm Street to Pacific Avenue in downtown Dallas.

The lease contract provides:

“2. As used herein, ‘improvements’ shall mean the building or buildings now located on the above-described land, as well as any buildings, building, or part thereof, that may hereafter, from time to time, be located thereon during the term of this lease.
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“4. Lessee shall have the continuing right at all times during the existence of this lease to alter or remodel improvements, and in addition, to demolish all or any part thereof and build new and different types of improvements, constructed of any type of materials, in lieu of the improvements so demolished, all as Lessee may desire, except that (a) no such alteration or remodelling of improvements shall substantially reduce the value of said improvements below what it was immediately prior to such alteration or remodelling, and (b) in event of demolition by Lessee, the improvements so demolished shall be replaced, prior to termination of this lease, by improvements costing Lessee at least One Hundred Thousand Dollars ($100,000.-00),- or at Lessee’s election, Lessee shall pay Lessor such amount, upon termination of this lease.” (Emphasis supplied.)

In 1951 the Bank had built a seven-story structure consisting of motor banking facilities and a parking garage on leased property adjoining that of appellants. After leasing appellants’ property in 1954 the Bank demolished the building then on appellants’ land and enlarged the motor bank and parking garage by constructing a ten-story building on appellants’ land, the top three stories of which extended over and added to the seven-story structure already in use. Several walls were eliminated so that the improvements on the two adjoining tracts of land were made available for use and were used as one building.

In 1960 the Bank acquired other adjoining properties by deeds and long term leases. The properties so acquired constitute an entire block in the business district of Dallas, being bounded on the South by Elm Street, on the East by Akard Street, on the North by Pacific Avenue and on the West by Field Street.

After acquiring the above properties the Bank demolished the structures existing on them including the enlarged motor bank and parking garage, part of which had been on appellants’ land. The 50-story banking house and office building was then constructed covering the entire city block above described, including appellants’ property.

The trial court sustained a motion for summary judgment filed by the Bank. Judgment was rendered that appellants take nothing by their suit.

In their first and third points on appeal appellants say that the court erred in granting a summary judgment because (1) said “judgment was based on an erroneous construction of the terms of the lease agreement” ; and (3) if the lease agreement does not expressly or impliedly prohibit the conduct of the Bank, then the lease contract is ambiguous in that respect, and there is a fact issue regarding the intentions of the parties.

The gist of appellants’ complaint in these two points is that the Bank violated the terms of the lease contract of July 23, 1954 by building one large integrated structure covering several tracts of land, said structure uniting the improvements over appellants’ land with the improvements over adjoining tracts in such a manner that appellants’ reversionary interest in their property is incapable of separation from the improvements on adjoining lands. Appellants say that their reversionary interest is thus damaged by being made less desirable and less marketable.

In our opinion the lease contract between appellants and the Bank is not ambiguous. Article 2 of the contract clearly authorizes the Bank to build part of a building on the premises leased from appellants. Article 4 of the contract expressly states that the Bank "shall have the continuing right to demolish ‘improvements’ and build new and different types of improvements * * * all as lessee may desire (Emphasis supplied.)

Appellants admit that the contract permits the Bank to construct part of a building on appellants’ land; nevertheless appellants contend that the contract does not, either expressly or by implication, grant to the Bank the right to connect that part of a building to a part of a building on adjoining land.

We cannot agree with appellants. As we see it, if a tenant is permitted by the terms of a lease contract to build only part of a building on leased premises, it follows by implication that such part of a building may be connected to the other part of the building on other premises. We think it would be absurd to construe this lease contract to mean that the Bank is given permission to cover appellants’ land with part of a building but such part must stand separate, alone and isolated — disconnected with the other part of the building on adjoining land.

Our analysis of the agreement also finds support in that part which provides that after demolishing existing improvements the tenant may build new and different types of improvements in lieu of the demolished buildings — “all as Lessee may desire.” As our Supreme Court said in Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617, 620: “Generally the parties to an instrument intend every clause to have some effect and in some measure to evidence their agreement, and this purpose should not be thwarted except in the plainest case of necessary repugnance.”

Appellants contend that by joining the improvements over appellants’ land with the improvements over adjoining tracts the Bank has committed common law waste. In support of this view appellants cite us to several cases in which restaurant owners, department store operators, and others have leased adjoining properties and have endeavored to convert the improvements on them into one structure for business uses by eliminating walls between them or cutting passageways between them. Hamburger & Dreyling v. Settegast, 62 Tex.Civ.App. 446, 131 S.W. 639; F. W. Woolworth v. Nelson, 204 Ala. 172, 85 So. 449; Klie v. Von Broock, 56 N.J.Eq. 18, 37 A. 469.

Common law waste has no application when, as is the case here, under the terms of the lease contract itself the tenant has the right to connect improvements on one tract he has leased to improvements on an adjoining tract which he has also leased. In none of the cited cases did the tenant have the express right to demolish the existing improvements; or have the express right to construct part of a building on the leased premises; or have the express right after demolishing an existing building to construct in lieu thereof buildings of various types — all, as the tenant desired.

Since the lease contract is not ambiguous extrinsic evidence was not needed and was not admissible to explain its terms. Appellants’ first and third points are overruled.

In their second point appellants assert that there is a fact issue as to whether under Article 4(a) of the lease agreement the alteration or remodeling of improvements substantially reduced the value of said improvements below what it was immediately prior to such alteration or remodeling.

There is no fact issue under Article 4 of the lease. The Bank did not avail itself of its right under Article 4 to alter or remodel existing improvements on appellants’ land. What it did was to avail itself of its continuing right under the express terms of said article to demolish the existing improvements. Under the circumstances clause (a) of Article 4 is not applicable. Clause (b) is applicable. And clause (b) very plainly provides that in the event of demolition by lessee the improvements so demolished shall be replaced prior to termination of the lease by improvements costing lessee at least $100,000, or at lessee’s election lessee shall pay lessor such amount, upon termination of the lease. Only at the termination of the lease do lessors have the right to complain of the breach of clause (b), and then only if the improvements constructed by lessee to replace the demolished improvements cost less than $100,000. Even if such should turn out to be the case, the Bank could comply with clause (b) by the payment of $100,000 to lessors. Appellants’ second point is overruled.

The judgment of the trial court is afifirm-ed.

Affirmed.