author: CALHOUN, J.

text:
    HOLLAND v. STATE.
    No. 14093.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    State’s Rehearing Denied June 3, 1931.
    R. T. Wilkinson, Jr., and F. B. Caudle, both pf Mt. Vernon, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The conviction was for murder and the punishment assessed at four years in the penitentiary.

Appellant operated a hamburger stand in the city of Mt. Vernon. Nearby was a filling station. About the noon hour on Sunday, the deceased and his eighteen year old son came into appellant’s place of business in a drunken condition. Deceased was cursing and applying vile epithets to those in and around and about tbe place of business. After they came 'into the hamburger stand, appellant remonstrated with the deceased to get out of his place of business.' About this time the son of the deceased vomited on the floor, whereupon the appellant put the young man out of his place of búsiness. It was the state’s contention that, after deceased left the place of business, appellant went out of the building and committed an unprovoked assault upon deceased, striking him with his fist and stabbing him with a butcher knife in the left side.

It was appellant’s contention that the deceased had voluntarily abused him and cursed him and threatened him, and at the time of the attack was advancing upon him, and that he struck deceased in self-defense. Appellant also testified to a lack of intent to kill.

The case was submitted to the jury under the law of murder with and without malice, also upon the issue of assault to murder, aggravated assault, and self-defense.

The record is very voluminous, and there are a number of bills of exception, most all of which relate to the matter of the charge.

By bills of exception Nos. 6, 8, 9, and 10, appellant presents exceptions to the court’s charge upon the law of self-defense, and bill of exception No. 38 presents appellant’s special requested charge upon that issue. Said bills of exception go to the court’s charge applying the law of self-defense to the facts herein, as contained in paragraph 10, which is as follows: “If from the evidence you believe the defendant killed the said Hiram Carpenter, but further believe, or have a reasonable doubt thereof that at the time of so doing the deceased had made an attack on him or had made some movement or demonstration as if to attack'the defendant, which, from the manner and character of it and the relative strength of the parties and the defendant’s knowledge of the character and disposition of deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury viewed from the defendant’s standpoint at the time, and that acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him.”

Appellant objected and excepted to the court’s charge and to paragraph 10 thereof, for the reason that same was too restrictive and did not submit the law of apparent danger from the facts of this case.

The appellant testified in his own behalf that the deceased and his son had come to his place of business just before the difficulty, both intoxicated, and that deceased had cursed and abused him severely, and had threatened to close his place of business, that appellant had put the deceased’s son out of his house after he had vomited on his floor, and that appellant was followed out of the house by the deceased. Appellant further testified that deceased turned around and said, “You g- d — —■ m-- f-s- of a b-, you lay down that knife and we will stretch you out”; that he had his sleeves rolled up and his fists doubled up and started towards him. He further testified that the deceased was a strong man physically; that he would weigh about 175 or 180 pounds; that he knew him at the time, and regarded him as being a dangerous man: that he was afraid of him; that he believed he was a man that would try to put into execution a threat when he had made it; that, when he made the statement about stretching him out, he believed he was fixing to get on him; that the son of deceased weighed about 150 pounds; that, when the deceased told him to lay down the knife, he did not think the deceased wanted to fight, but thought he was going to do what he said he was going to do, that he was going to string him up.

Appellant was corroborated by other witnesses as to what the deceased said and that the deceased was going towards the appellant at the time he made the remarks.

In the case of Carlile v. State, 90 Tex. Cr. R. 1, 232 S. W. 822, 824, appellant excepted to the court’s charge for failure to submit the issue of self-defense based on apparent danger. The charge in that case complained of was as follows: “If from the evidence you believe the defendant killed the said John Lance, but further believe that at the time of so doing the deceased had made an attack on him, or was about to make an attack upon him, which, from the manner and character of it, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation, or fear the defendant killed the deceased, then you will acquit him.”

The court in passing upon said exception held that the same was well taken, especially in view of the fact that, if the appellant in that case had any right of self-defense at all under the facts in the case, it was based almost, if not entirely, upon apparent danger, and therefore it was strictly appellant’s right to act upon the theory of apparent danger, and f;hat-the court should have charged the jury in substance that, if they believed from the evidence that appellant killed deceased, but that at the time of such killing it reasonably appeared to appellant, from the acts of deceased, viewed from what the jury believed to have been his standpoint at the time, that deceased was about to make an attack upon him which from the manner of same, etc.

As in the Oarlile Case, supra, if there vyas self-defense in. this case at all, it was the right to defend against demonstrations of apparent danger, and under these circumstances it is the belief of the defendant as to the existence of facts and not the truth of facts that should be submitted to the jury. A party attacked has the right to act under the reasonable appearance of danger viewed from his standpoint, and the jury sho'uld be so told. Although, a correct statement of the legal proposition may appear in an abstract definition in somé part of the court’s charge, it does not take the place of or obviate the necessity for the application of such principle to the facts. Bazan v. State, 111 Tex. Cr. B. 320, 12 S.W.(2d) 788; Gilbert v. State (Tex. Cr. App.) 26 S.W.(2d) 644; Singleton v. State, 86 Tex. Cr. R. 401, 216 S. TV. 1094, and authorities cited. The court should have charged that it was the right of the appellant to defend against apparent danger as it reasonably appeared to him at the time from the acts and words of the deceased rather than in the language used in paragraph 10 of the court’s charge: “If you believe * * * the deceased had made an attack on him or had made some movement or demonstration as if to attack the defendant.”

Appellant also excepted to said charge because it limited appellant’s right of self-defense to an actual attack, movement or demonstration as if to attack on the part of deceased, when the testimony showed the use of words on the part of deceased and by him, which may have produced in the mind of appellant a fear of death or serious bodily injury.

We believe the charge complained Of should have referred to both the acts and words of the deceased, where the facts show from appellant’s standpoint, as they do in this case, that the words as well as the acts of the deceased may have produced in the mind of the appellant a fear of an attack at the hands of the deceased^, and a charge is unduly restrictive whictó limits the jury’s consideration to the acts of the deceased where the testimony shows the use of words which may have, in connection with the acts, produced in the mind of appellant fear of death or serious bodily injury. See Perkins v. State, 110 Tex. Cr. R. 262, 8 S.W.(2d) 122, and authorities cited; also Bazan v. State, 111 Tex. Cr. R. 320, 12 S.W.(2d) 788.

Bills of exception Nos. 27, 35, 36, 46, and 49 present a proposition that may well be considered under one discussion. The following proposition is submitted under these bills: That the court’s charge upon self-defense as applied to the issues of assault to murder and of aggravated assault was too restrictive, for the reason that same limited the appellant's right of self-defense to an apprehension or fear of death or serious bodily injury.

The issues of murder, assault to murder, and aggravated assault were charged upon by the court. The court only gave one charge on the issue of self-defense. The court’s charge limited the appellant’s right of self-defense on all of the issues to an attack by the deceased which caused him (appellant) to have a reasonable apprehension of death or serious bodily injury. This was timely excepted to by appellant, and specially requested charges presented, which exceptions were overruled and the charges refused. This question as here presented has been before this court in a number of cases. See Stroud v. State, 113 Tex. Cr. R. 621, 24 S.W.(2d) 52, and Forest v. State, 108 Tex. Cr. R. 159, 300 S. W. 51, 53. Both of these cases were murder cases in which the conviction was for murder. We quote from the Forest Case, supra:

“Bearing in mind, however, that one of the issues in this case is aggravated assault, as well as murder, is a charge correct which authorizes an acquittal only if it reasonably appeared to defendant that he was in danger of death or serious bodily injury? This was the effect of the court’s charge in this case on self-defense. This is correct in a homicide case, but unquestionably too restrictive in an aggravated assault case” — citing Hix v. State, 51 Tex. Cr. R. 431, 102 S. W. 405; Britton v. State, 95 Tex. Cr. R. 209, 253 S. W. 519; Schütz v. State, 96 Tex. Cr. R. 287, 257 S. W. 880.

Continuing, the opinion says:

“An analysis of the authorities on this subject makes it plain, that, while an attack which evidences a purpose less than to kill or do. serious bodily injury may reduce the offense below the grade of murder, such an attack cannot justify the defendant, except when his own act is not of a higher grade than aggravated or simple assault, and not then unless he used no more force than was necessary to protect his person from the assault so made or threatened. Hix v. State, supra.
“Aggravated assault being a proper issue in this case, it will be necessary for the court to give a further charge on self-defense in accordance with the views herein expressed.”

We have not undertaken to discuss all of the bills of exception, numbering more than fifty, for the reason that a number of the bills complaining of the court’s action are not likely to occur upon another trial of this ease, and it is deemed unnecessary to discuss them. The appellant admits that a number of said bills of exception do not show reversible error. While some of the matters urged are subject to a fair criticism, they are scarcely of such a substantial or weighty nature as would justify us in reversing the case.

Because the charge of the court on self-defense is unduly restrictive of the rights of the appellant under the evidence in the case, the judgment is reversed and cause remanded.

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.


source: Caselaw Access Project

license: Public Domain

text:
    SOMMERLATTE v. STATE.
    No. 13969.
    Court of Criminal Appeals of Texas.
    May 20, 1931.
    Jos. V. Frbka, of Columbus, and Emanuel Roos, of Eagle Lake, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin; for tho State.
   CALHOUN, J.

The offense is adultery; the punishment a fine of $1,000.

It appears by appellant’s bill of exception No. 1 that, before announcing ready for trial, the appellant filed his sworn motion to quash the indictment, which was in the nature of a plea to the jurisdiction. Among other grounds set out in said plea was that the clerk of the district court of Colorado county failed to make an entry upon the minutes of said court that an indictment upon which the prosecution herein is predicated was by the grand jury presented in open court, and that at least nine grand jurors were present at the time the same was presented, if presented; and that the transcript accompanying the said alleged indictment is in fact not a -true transcript of the minutes of said district court pertaining to the proceedings in the said district court; and that no such proceedings as certified to were entered in and upon the minutes of said district court. Said bill shows that testimony was heard in support of said motion before defendant pleaded to the indictment. The cér-tifieate of the district court accompanying the transfer of the case to the county court appears to embrace substantially all that is required under the statute in the transfer of indictments for misdemeanors from district courts to inferior courts having jurisdiction of the offepses charged.

The witness W. 0. Papenberg, on the hearing of said motion, testified substantially as follows: “My name is W. O. Papenberg. I reside in Columbus, Texas. I am Clerk of the District Court of Colorado County, Texas; I was Clerk of said court in September 1929; the book I have here is the ‘Misdemeanor Docket’; it is a book that has been used for many years by my predecessors; in this book I enter all the indictments returned by the Grand Jury for misdemeanors; I just enter the name of the defendant or defendants, the nature of the offense and the date the indictment is returned; if I did not know what this book is used for I would not know what it is; there is nothing in the book or about it to show what the book is except on the outside in the name Misdemeanor Docket; there is nothing to indicate what the names that are entered here moan except that I know what they mean; if I were to die no successor of mine would know what the book is; the law does not provide for any such book in my office as this; if this book would be lost and someone found it no one would know what the meaning of it was unless I told him.”

Being shown the certificate of the district clerk accompanying the transfer of the case to the county court, he testified as follows: “It is a paper called ‘Transcript of Order from District Court’; I certify to it and it is my signature thereto and the seal is the seal of the District Court of Colorado County, Texas; I certified that ‘The foregoing contains a true copy of all the proceedings taken in said District Court in the criminal case of The State of Texas vs. Joe Sommerlatte and Yetta Kan-steiner No. 349, also a Bill of Costs that have accrued therein in said Court’; being asked in what hook and page the orders as set out ta said transcript of order from District Court I answer that there are no such orders or proceedings recorded in any minutes or any book in the District Clerk’s Office and if I were requested to furnish a certified copy of these proceedings as I have certified to here over my signature, I could not furnish the same because no such orders and proceedings are recorded in my office in any book; it has just been the custom for many years to transact the business in that way and transfer Misdemeanor Cases in that way and I just continued it when I became District Clerk and no one has raised any question about it.”

He further testified that the district judge did not tell him to transfer the case nor did he give him any written order nor enter any order upon any docket nor direct him to make any entry upon the minutes of the court directing the transfer of the indictment in this case to the county court, and that, if this paper was lost, he could not furnish a duplicate or a certified copy of.it, because no such orders as he certified to were in existence or of record in his office in any minute book or upon any docket.

Article 394, C. C. P., provides that the fact of the presentment of an indictment in open court by a grand jury shall be entered upon the minutes of the court. Article 419, C. C. P., provides: “Upon the filing of an ifidictment in the district court which charges an offense over which such court has no jurisdiction, the judge of such court shall make an order transferring the same to such inferior court as may have jurisdiction, stating in such order the cause transferred and to what court transferred.”

In the case of Wilkins v. State, 109 Tex. Or. R. 510, 5 S.W.(2d) 770, where the question was raised by sworn plea, preliminary to the trial, challenging the jurisdiction upon the ground that there was no order of the district court transferring the case to the county court, the plea was overruled and exception taken. Presiding Judge Morrow held: “Under the statute (article 419, C. C. P. 1925), where an indictment is returned in the district court for an offense which is not within the jurisdiction of that court, but is within the jurisdiction of the county court, an order shall be made by the judge of the district court transferring the case to the county court. Compliance with the statute has been uniformly required. When a misdemeanor case is prosecuted upon an indictment, the order mentioned is essential to the jurisdiction of the county court. See Harris v. State, 57 Tex. Cr. R. 84,121 S. W. 1116; Richardson v. State, 57 Tex. Cr. R. 2S5, 122 S. W. 560; Harper v. State, 84 Tex. Cr. R. 345, 207 S. W. 96; Henson v. State, 103 Tex. Cr. App. 139, 280 S. W. 585.”

It being shown from the undisputed evidence on the plea that there never was entered upon the minutes of the district court the fact of the presentment of the indictment in this case in open court by a grand jury, and that no order was ever made by the judge of ■the district court transferring the same to the county court, as required by law, the plea should have been sustained.

The judgment is reversed, and cause remanded.

PER CURIAM.

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


text:
    CLICK v. STATE.
    No. 14230.
    Court of Criminal Appeals of Texas.
    May 20, 1931.

      A. G. Mueller, of Llano, Walter Petsch, of Kerrville, Alfred Petsch, of Fredericksburg, and J. F. Taulbee, of Georgetown, for appellant.
    Lloyd W. Da-vidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, murder; punishment, confinement in the penitentiary for life.

The killing took plac.e on the 11th day of September, 1930, on a street in the residence section of Llano, and was viewed by approximately half a dozen eyewitnesses. The deceased was seen and heard begging for his life, and was shot in the back as he ran from the appellant across the street.

The appellant admitted the shooting and killing of deceased, but claimed that the difficulty in which the deceased lost his life grew out of the conduct and treatment of the deceased towards the wife "of appellant; that just recently before the shooting took place he had first hand information of the, deceased’s misconduct towards his wife; that' on the night preceding the killing he saw the deceased in company with his wife under suspicious circumstances on the streets in the town of Llano; that thereafter on the same night his wife communicated to him concerning the misconduct of the deceased towards her,-and also threats'deceased had made to take the life of the appellant; that the next morning after said communication had been made to him by his wife he met the deceased accidentally; that, when he first saw the deceased, deceased was sitting on a tractor, and that he jumped-off of the tractor, and that he did not know what deceased was going to do; that he killed the deceased because he had insulted his wife, abused her, and tried to rape her, and had tried to break up his home and ruin his life and had made threats against him.

Bill of exception No. 6 complains that, while the appellant was-testifying on cross-examination, the district attorney asked the appellant the following question, which had not been alluded to in any part of the appellant’s examination, to wit: “Now then, Mr. Click, if that be true, tell the jury why it was that you made the statement, under due and proper warning, after your arrest, in the presence of J. B. Mayes, this Justice of the Peace, and in the presence of Dan McDonald, and in the presence of Mr. Bruhl, County Attorney, that you had intended to kill the-deceased on Wednesday, but your heart failed you.”

Appellant objected to the question, among other reasons, because it appeared from said question that at the time of the alleged confession the appellant was under arrest, and that the alleged confession had not been reduced to writing and witnessed, as required by law. The bill further shows tha.t, in the presence of the jury, after said objection was made, the district attorney made a lengthy argument, contending, among other things, that said confession did not have to be in writing, and that for impeachment purposes, when the defendant gets on the stand and says a certain thing, the state can show that there had been contradictory statements made by the defendant, and that under the law the state had the right to elicit the evidence for impeachment; purposes. The bill further shows that the court called upon both sides to submit authorities; that the appellant submitted his authorities, and that thereupon the court stated in the presence of the jury that “We will now proceed to.make the record,” and directed the district attorney to ask the question again; that thereupon the same question was again asked the appellant in the presence of the jury, and the court asked the appellant’s counsel, “Now what is the defendant’s objection to that question,” and thereupon the appellant’s counsel again objected to said question, whereupon the court stated that the objection would be sustained for the time being. Appellant’s counsel thereupon moved the court to instruct the jury to the effect that the question was improper, and that the state had no right to ask the same, and that the jury must not consider said question or the argument.of the district attorney in reference thereto, and that in reply to said motion the court made the following statement to the jury, to wit; “The Court will take it that the jury understands that they are to consider no testimony except that which goes before them and is permitted. Of course when this matter comes up, the record can be made and the question which is now under discussion is not in evidence, and unless it is in evidence, if it ever is, you will not be permitted to consider what has been said in your presence.”

The bill further shows that the court at no time thereafter ever granted the motion of the appellant to instruct the jury to the effect that the question was improper and that the state had no right to ask the same, and that the jury must not consider said question nor the argument of the district attorney in reference thereto.

This court has uniformly held that proof of a confession, or of statements or acts amounting to a confession, made while defendant is in custody or confinement, and which would not be admissible as original evidence, is not admissible to impeach him. Branch’s P. C. § 74; Morales v. State, 36 Tex. Cr. R. 234, 36 S. W. 435, 846; Bailey v. State, 40 Tex. Cr. R. 150, 49 S. W. 102; Hill v. State, 72 Tex. Cr. R. 109,161 S. W. 118. Article 727, C. C. P., inhibits the use against one accused of crime of a confession made while under arrest, unless it comes within some of the exceptions embodied in the statute. In the case of Hext v. State, 104 Tex. Cr. R. 46, 282 S. W. 242, 243, on motion for rehearing, Presiding Judge Morrow, speaking for the court, used in part the following language: “The purpose and effect of the statute is to prevent the prosecution from using, against the accused, by the testimony of the officer having him under arrest, of a verbal statement made by the accused which the state seeks to use in proving the guilt of the accused” — citing numerous decisions of this court. See also Donohoe v. State (Tex. Cr. App.) 27 S.W.(2d) 215; Lightfoot v. State (Tex. Cr. App.) 35 S.W.(2d) 163.

It is not in every ease that this court would feel called upon to reverse a case solely because counsel for the state may have propounded an improper question, but will do ho only where the question asked is 'manifestly hurtful and the effect of which would be to prejudice the jury against the person on trial, and in cases where the court necessarily must conclude from the record that the accused may have been injured and the record does not authorize the conclusion that he was not. In the case of Dailey v. State, 106 Tex. Cr. R. 99, 291 S. W. 242, 244, Judge Lattimore, speaking for the court, in part used the following language: “The state, through her representatives, has no right to ask questions manifestly hurtful and obtain answers, the only possible effect of which could be to prejudice the jury against the person on trial.”

The question asked necessarily put in the minds of the jury a statement which the state had no right under the law to go into. The matter was again .brought before the jury through the argument of the district attorney, and was for the third time brought to the minds of the jury by the district attorney again asking the question by direction of the trial court, thereby forcing the appellant to again object to said question. We believe the same was calculated to prejudice the appellant in the eyes of the jury, and, the appellant’s punishment having been fixed at imprisonment for life, we cannot say that he has not been injured thereby, and under the authorities we feel constrained to hold that such action calls for a reversal of this case.

Bill of exception No. 1 complains of the action of the trial court in failing to grant the appellant’s application for habeas corpus filed in court some seven or eight days prior to the trial and called to the attention of the trial judge and of the district attorney and insistence made for a hearing thereon to the end that appellant might be admitted to bail pending his trial. Said bill also complains of the refusal of the court to postpone the hearing of said case until the application for ha-beas corpus could be heard.

We do not deem it necessary to discuss said bill of exception at length, but it may be stated as a general rule that, while a writ of habeas corpus is a writ of right, it is not a writ of course, and the rule is that probable cause must first be shown to obtain the writ, whether it be granted at common law or under the statute. Where one entitled to a writ of habeas corpus makes proper application for it to the proper court having jurisdiction, said application conforming to all the statutory requirements and' probable eause being shown, the writ of habeas corpus cannot be denied to the relator, for it then becomes a constitutional right. Neither can it be denied where the granting of it is made an imperative duty by statute. It should be granted without unreasonable delay. See Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 742; also Choice v. State, 52 Tex. Cr. R. 285, 106 S. W. 387.

Bill of exception No. 2 complains of the action of the trial court in refusing appellant’s application for a continuance. Bill£ Nos. 3, 3A, 3B, and 3C and bills Nos. 4, 4A, 4B, and 4C, and bill No. 5 all complain of the action of the court in regard to the impaneling of the jurors. As these questions are not likely to occur on another trial of this case, we deem it unnecessary to discuss them.

Bills of exception Nos. 7 and 7A are as to certain statements elicited from appellant’s wife on cross-examination. The court qualified said bills to the effect that the wife of the appellant was cross-examined by the state only as to such matters appertaining to her testimony given on direct examination, and, as so qualified, they present no error.

The judgment is reversed, and eause remanded.

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: LATTIMORE, J. MORROW, P. J.

text:
    ABRAHAM v. STATE.
    No. 14391.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    Rehearing Denied June 3, 1931.
    Hughes & Monroe, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for permitting a gaming device to remain in a building in possession of appellant to be used for gaming purposes; punishment, thirty days in the county jail.

We find in this record no statement of facts or bills of exception. By the terms of article 630 of our Penal Code it is provided that, if any person shall knowingly permit any gaming device to remain in his possession or on premises under his control to be used for gaming purposes, he shall be imprisoned in jail not less than thirty days nor more than one year. The information in this case sufficiently charges the offense, and is followed by the judgment.

No error appearing, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

The prosecution is under article 630, P. C. 1925, which reads as follows: “If any person shall knowingly permit any gaming paraphernalia, table, or device or equipment of a gaming house, of any character whatever to remain in his possession or on premises under his control or of which he is owner and to be used for gaming purposes, he shall be imprisoned in jail not less than thirty days nor more than one year.”

The information contains the following:

“ ⅜ ⅞ ⅜ xiicl unlawfully and knowingly permit a gaming device to-wit: a device commonly known as a slot machine to remain! in his possession and on his premises under his control, then and there situated in Dallas County, Texas, to be used for gaming purposes.”

Apparently the information sufficiently charges the offense denounced by the statute, quoted above.

The judgment was entered on the 18th day of February, 1931. On the same day the motion for new trial was filed and overruled. Subsequently, on the following day, an amended motion was filed, in which it was claimed by the appellant that upon his arrest, and before he was allowed to make bail or interview counsel, he was taken before the court; that he was informed by the arresting officer that the punishment for the offense would be by a fine only; that upon such information he entered a plea of guilty; that no warning was administered to him by the trial court. The motion was supported by no proof, so far as shown by the record, except the affidavit of the accused. There seems to have been no permission obtained to file the amended or second motion after the first motion was overruled. Such permission was a matter of discretion of the trial court, in the absence of which this court would not be authorized to reverse the conviction. The amended motion, filed without permission after the original motion was overruled and supported by the appellant’s affidavit alone, is not such a showing as would justify this court iq ordering a reversal of the judgment. See Alvarado v. State, 83 Tex. Cr. R. 181, 202 S. W. 322.

The motion in arrest of judgment challenges the sufficiency of the information to which reference has been made above.

The motion for rehearing is overruled.


text:
    R. L. FRANCE v. STATE.
    No. 14392.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    Rehearing Denied June 3, 1931.
    Hughes & Monroe, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for permitting a gaming device to remain in a building in possession of appellant to be used for gaming purposes; punishment, thirty days in the county jail.

We find in this record no statement of facts or bills of exception. By the terms of article 630 of our Penal Code, it is provided that, if any person shall knowingly permit any gaming device to remain in his possession or on premises under his control to be used for gaming purposes, -he shall be imprisoned in jail not less than thirty days nor more than one'year. The information in this case sufficiently charges the offense, and is followed by the judgment.

No error appearing, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

The procedure in the present appeal is identical with that related in the case of Abraham v. State (Tex. Or. App.). 39 S.W.(2d) 42. Upon the authority of the case mentioned, the motion for rehearing is overruled.


author: LATTIMORE, J. HAWKINS, J.

text:
    LANDERS v. STATE.
    No. 13568.
    Court of Criminal Appeals of Texas.
    Dec. 10, 1930.
    Rehearing Denied June 3, 1931.
    McKinney & Berry, of Cooper, Sturgeon & Sturgeon, of Paris, and Crosby & Estes, of Greenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

The prosecutrix, Miss Rachel Jeter, and appellant were practically reared in the same community, and there is no dispute of the fact that they went constantly with each other for several years at and prior to the time of this alleged seduction. She testified that they became engaged, and that in the month of December, 1926, when she was sixteen years old, appellant had intercourse with her upon his promise to marry her; that thereafter he had other acts of intercourse, in all of which she consented, relying upon his promise to marry her; that she became pregnant, whereupon appellant ceased his attentions to her and refused to marry her. The testimony of the young lady touching her engagement to marry appellant was corroborated by a number of witnesses.

As we understand appellant’s .defensive position, it is that, while he had numerous acts of intercourse with prosecutrix, same were with her consent and according to her desire, and were not had upon his promise to marry. He testified that the first act of intercourse between them occurred prior to December, 1926. There is no testimony in the record showing any act of intercourse by prosecutrix with any person other than appellant prior to the date mentioned.

In his main charge the court told the jury that, if they believed from the evidence beyond a reasonable doubt that appellant, on or about the 1st of December, 1926, had carnal knowledge of Rachel Jeter, an unmarried female under the age of twenty five years, by a promise to marry her, and if they believed from ithe evidence that she was at that time a chaste woman — that is, one who had never theretofore had carnal knowledge of a male person — and that if they further believed from the evidence that such carnal knowledge, if any, was secured by appellant by means of such promise to marry her, then and in that event they should find the appellant guilty of seduction.

[t, 2] As we understand appellant, he claimed upon the trial, and still claims, that Miss Jeter was induced to yield her person to him moved by lust and desire, and that she did not rely upon a promise to marry. There were some exceptions to the charge upon the idea that it did not sufficiently present the point above referred to. We observe that the court below gave special charge No. 5 asked, by appellant. In said special charge it is said:

“To constitute the offense of seduction, it must appear that carnal intercourse with the female was accomplished by means of a promise to marry her, made prior to the illicit intercourse, such promise and the yielding her virtue in consequence thereof, constitutes the gist of the offense. * * *
“If you believe from the evidence that the defendant had intercourse with Rachel Jeter on or about December 1, 1926, and at said time was not engaged to her and had not promised to marry her and did not at said time under promise of marriage carnally know her, or if you believe that defendant had carnal intercourse with said Rachel Jeter as alleged and at said time had promised to marry her, and you further believe that she yielded her person to his carnal embraces simply from her own will and sexual desires and not because of any promise to marry or if you believe she had had intercourse with some person before she copulated with defendant, you will acquit the defendant and say by your verdict not guilty.”

In our opinion, said special charge adequately presented to the jury the proposition that, if she yielded her person to appellant through other considerations than the promise to marry, they could not convict; also we are of opinion that said special charge submitted to the jury that they could not convict if they found that, prior to her halving intercourse with appellant on the occasion mentioned, she had had intercourse with any person. In other words, the court told the jury, in substance, that, if at the time she had intercourse with appellant, which forms the basis of this prosecution, she was an unchaste woman, they could not convict.

There are many bills of exception in the record complaining of leading questions. A leading question is not merely one that can be answered “Yes” or “No,” or that calls for the answer “Yes” or “No,” but it must go further and suggest to the witness the answer which the interrogator desires. We have examined the bills of exception, and are unable to agree to the appellant’s contentions. ,

We do not think the court erred in declining to grant appellant’s third application for continuance. As to the witness Fagan, no diligence is shown. Other witnesses appeared and testified.

We have considered the various contentions made on behalf of appellant, and, not being able to agree with any of them, and no error appearing, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

It is the settled law in this state that to make out the offense of seduction the injured female must have surrendered her virtue solely on the promise of marriage; if she submits to the carnal embrace partly because of such promise and partly from some other inducing cause, it is not seduction. Barnes v. State, 37 Tex. Or. R. 320, 39 S. W. 684; Nolan v. State, 48 Tex. Cr. R. 436, 88 S. W. 242; Simmons v. State, 64 Tex. Cr. R. 619, 114 S. W. 841; Muhlhause v. State, 56 Tex. Cr. R. 288, 119 S. W. 866; Collins v. State (Tex. Cr. App.) 26 S.W.(2d) 242. It is appellant’s contention that the' issue last suggested was raised by the evidence, and that no instruction covering it was given the jury. In the main charge the court gaye no defensive instruction at all. Written exceptions were presented complaining in substance that nowhere in the charge was the jury instructed that appellant should be acquitted if pro-secutrix consented to carnal intercourse “through any other inducement than a promise of marriage.” Appellant further contends that special charge No. 5 which was given and which is set out in our original opinion, does not cover the issue raised. By reference to the charge, it will be seen that upon the subject under discussion it only told the jury, if prosecutrix “yielded her person to Ms (appellant’s) carnal embrace simply from her own will and sexual desires, and not because of any promise of marriage,” he should be acquitted. The charge does not undertake to inform the jury what would be the legal result if she yielded her person partly through the promise of marriage and partly through some other inducing cause, such as that called to the court’s attention in special charge No. 15. A portion of special charge No. 15 is as follows: “* * * Or if you believe she was moved to submit to carnal intercourse through her own passion, or a desire to get defendant to continue his visits to her, and not alone on an unconditional promise to marry, in good faith relied upon by Rachel Jeter, or if you have a reasonable doubt as to whether she was moved to consent through motives other than a promise to marry, you must acquit.”

Appellant relies upon the testimony of prosecutrix as raising the issue covered by said requested charge. Her testimony is as follows: “ * * * Before I yielded to him he asked me to have intercourse with him and says anyway what difference did it make; he insinuated that I was cruel and didn’t love him, and everything. Yes, he had asked me to do that before; the first time he asked me to have intercourse with him was about six or ■seven months before that and I refused; he also asked me between that date and the date I finally yielded to him to have intercourse with him and I refused each time; when I refused he got mad and left a time or two —left; he left two or three times. I yielded to him when I did on the promise to marry, I would not have yielded under any other conditions whatever; I believed his promise to marry at that time. If I had not believed him and trusted him to marry me I would not have yielded my virtue to him.”

It is appellant’s contention that the issue sought to be submitted in special charge No. 15 was pertinently raised by the evidence quoted, and that the refusal of said special charge was error.

We are of opinion the evidence quoted, when fairly construed, does not raise the issue contended for by appellant. It is positive to the point that prosecutrix had on more than one occasion refused appellant’s im-portunities, and yielded only when she did upon the promise of marriage. The relation by her of appellant’s conduct when disappointed in his desires cannot fairly he construed as raising the issue presented in the requested charge.

The motion for rehearing is overruled.


author: LATTIMORE, J. I-IAWKINS, J.

text:
    UNDERWOOD v. STATE.
    No. 13702.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    Rehearing Denied June 10, 1931.
    Hamilton, Fitzgerald & Grundy, of Memphis, 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, one year in the penitentiary.

The facts show that two officers searched appellant’s house and garage with his consent, and found in said garage three half gallon jars of whisky, buried under the dirt floor. Also in the garage there was found a pasteboard carton containing three empty jars like the buried jars which contained the whisky. All were square jars with tops alike. Appellant took the stand and gave substantially the same testimony as to the finding of tie jará' of whisky as'that' of the officers, and admitted; that 'the - empty jars in the carton belonged1' to hitó and were put there by his wife^but denied the ownership, possession, or knowledge of tke'wh'isky filled jars. A pint bottle with eC small quantity of whisky in it was setting on a table in appellant’s house. He said his child picked .up this bottle on the road and- brought it to the house. 1-Ie also testified that he had only lived at the place somewhere from, one .to..three weeks, a-t the time'of the raid. No other members of appellant’s family were used as witnesses. The officers testified .that they had a search warrant which they offered to read to appellant before they made the search.

[I,’2] Bill of exception No. l"complains of the reception of. the.'testimony of one of said officers, the objection being that the rule had been asked, and that this witness had been excused from the rule by the court and was in the courtroom and heard other witnesses testify. The court qualifies the bill by saying that this witness was the actiye deputy sheriff waiting on his court. Dobbs v. State, 94 Tex. Cr. R. 898, 251 S. W.1057.

Bill‘No.-2 brings up for review the court’s action in.allowing this same officer to-have charge of the jury- during 'this trial"; he being a material witness for -the state. The same qualification appears on this bill as is bn bill No. 1. No effort was made to show any word or action on the part .of said officer which did or might influence the jury-fin any way. We uphold the discretionary actions of rtrial courts in such matters, unless we are led to oelieve some injury shown.

■ [3] The' third and last bill of exception sets up that in his opening argument to the jury the district attorney said: “The officers must .have- had some reason for thinking the defendant had whisky in his possession or they wouldn’t have gone out there armed with a search warrant and searched his place.”

This was objected to as being upon a matter not before the jury, and "as not being a legitimate deduction from anything in the record, and as being an effort to bolster up the state’s case, and also an effort to lead -the jury to think the officers in possession of evidence against appellant, outside the récord.

It is the law in this state that a search warrant -to search for liquor upon the premises of any person cannot legally issue until an affidavit has been made by some credible person that in some specified way the law against -the making, selling, possessing, etc., of intoxicating liquor has been, or is being, violated — -which law- is presumptively known to every citizen, of this state. The testimony in this- case, showing without dispute that the officers were armed with a search warrant when they went to appellant’s place on the occasion in question, carried with it as a necessary inference that' the' affidavit required had'been made as a predicate for the issuance of the warrant. The fact of the officers’ possession of such search warrant would afford good ground for the argument, foi% whether such affidavit had been made by these officers or others, it must needs have been made, and must -have rested on knowledge or belief, based on some fact recital. The inference was not unreasonable. The argument would 'hardly be proper, but is not of such character 'as' to 'call for reversal under the facts.

The court’s charge was exceptionally fair. In addition to a full and correct charge on circumstantial evidence, the jury were told that, if they found that the whisky was put in the garage by some person other than appellant, or'without appellant’s knowledge, or if they had, a reasonable doubt, on this point, they should acquit;, or, if they had a reasonable doubt that the liquor found, if possessed by appellant, was possessed for purposes of sale, they ^hould acquit — these in addition to •a general application to the • whole case of the doctrine of reasonable doubt. . The court also told-the jury not to consider for any purpose whatever any fact or circumstance not introduced in evidence on the trial of this cause. ■ ‘ .

■ There- being no other bill of exception, and the evidence supporting-the verdict, the judgment will be affirmed. .

On Motion -for Rehearing.

I-IAWKINS, J.

One ground of appellant’s motion for rehearing is that the record fails to show that ■the oath prescribed by law had been duly administered to the special judge who -tried the case. The original transcript shows the oath and signature of the judge, -but omitted the jurat of the officer who- administered the oath. A supplemental transcript now before us shows that the oath and jurat were properly recorded in the court minutes.

Regarding the • complaint of the argument of the district attorney, we observe -that the fact of the officers’ possession of a search warrant was in evidence. Whether the affidavit therefor was made by them or by others is not shown by -the bill, and was not known to the jury. The fact that the search warrant had been placed in the hands of the officers was sufficient to account for their action in making the search, without any previous knowledge or information on their part. Eor this reason, as intimated in the original opinion, we think the argument complained of should not have been indulged. A similar argument under some state of facts might, raise a more serious question, but, under the facts of the present case, we think it does not call for a reversal.

The motion for rehearing is overruled. •


author: CHRISTIAN, J.

text:
    GARCIA v. STATE.
    No. 14214.
    Court of Criminal Appeals of Texas.
    May 20, 1931.
    Albert Stein, of Houston, for appellant.
    O’Brien Stevens, Or. Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is burglary; the punishment, confinement in the penitentiary for five years,

At 3 a. m. appellant entered the private residence of Mr. Edge, by opening a back door. Hearing a commotion in the dining room, Mr. Edge, who had just answered a telephone call, upon making an investigation, saw appellant going down the back steps. He pursued appellant for about 2½ blocks and finally caught him. Appellant spoke to him in Spanish, telling him that he was drunk. Mr. Edge delivered appellant into the custody of the officers. Upon making an investigation of the room in which appellant had been, the injured party foulnd that his wife’s trunk had been opened. Before appellant entered the house the trunk was closed.

Appellant testified that he was very drunk when he entered Mr. Edge’s house and that he believed at the time he was entering his own home. He said that he had been at the home of friends drinking beer and was on his way home when he entered the residence of the injured party. He testified further that when he got into the house and found a light burning he discovered his mistake and immediately left. Witnesses for appellant testified that he was drunk at the time he left his friend’s house.

In rebuttal the state offered proof to the effect that the residence of the injured party did not in any way resemble the cottage in which appellant lived. There were sevefal streets between the Mexican quarters, where appellant lived, and the place where Mr. Edge lived. Mr. Edge testified that there was no light in the room when appellant entered. Both the injured party and the officer into whose custody appellant was delivered testified that appellant was not drunk, the officer sqying that appellant “lacked a long ways of being drunk.”

We are unable to reach the conclusion that the evidence is insufficient to support the conviction.

No bills of exception are brought forward.

The judgment is affirmed.

PER CURIAM.

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


text:
    FITZGERALD v. STATE.
    No. 14301.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    Rehearing Denied June 3, 1931.
    J. W. Gulwell, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

The testimony for the state seems to conclusively establish appellant’s guilt. There being no contention in appellant’s brief as to the sufficiency of the testimony, we see no need for setting same out at any length.

The state introduced one Churchill, a s,elf-confessed accomplice, and reliance was largely had upon his testimony for conviction. Bill of exception No. 3 complains of the overruling of appellant’s objection to the testimony of this witness, made upon the ground that the witness was at the time of this trial an escaped convict from the penitentiary of Texas, and that he had never been pardoned. Under the provisions of our law, article 708, O. O. P., as amended by chapter 13, General Laws, First Called Session, 39th Legislature (1926), Vernon’s Ann. C. C. P. art. 708, as construed in Underwood v. State, 111 Tex. Cr. R. 124, 12 S.W.(2d) 206, 63 A. L. R. 978, any convict is competent to testify as a witness, even though convicted of a felony and un-pardoned, provided he was convicted subsequent to the taking effect of said amended statute as above referred to. Said statute took effect in January, 1927.

Neither the bill of exception complaining, of this matter nor the record otherwise shows when the witness Churchill was convicted. We said in Spann v. State, 32 S.W.(2d) 455, 456, that, in order to avail the objector pre-, senting an objection to the competency .of a witness upon the above ground, he must make it affirmatively appear that said witness had become a convict and his disability thus attached, prior to the taking effect of said statute. The only thing we find in this record relative to the time of conviction of the witness Churchill is a statement that he went to the penitentiary and was there received in April, 1928. Under these facts the action of the trial court in overruling appellant’s objection was correct, and the bill shows no error.

Appellant’s bill of exception No. 2 presents objection to a quoted portion of the testimony of Mr. Heare. The objection was that the witness was testifying as to an invoice that he did not know -was correct, and that his testimony was secondary evidence. There is nothing in the bill by which this court may be apprised of the soundness or truth of the facts thus stated as objections. Such bill is of no avail.

Bills of exception Nos. 5 and 6 complain of the refusal of the court to instruct the jury to return a verdict of not guilty. We perceive no error in the refusal of the requested instruction. Bill of exception No. 7 complains of the refusal of a special charge instructing the jury that the witness Churchill was incompetent. This charge was correctly refused.

There were no exceptions to the charge of the court.

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

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing, appellant complains of our refusal to, consider bill of exception No. 2. It recites that on cross-examination the witness Heare testified to certain facts set out in the bill. It is then recited that appellant objected to the testimony which he had himself elicited. It was evidently the purpose of appellant to complain that, .by reason of the things developed on cross-examination of the witness, his evidence given on direct examination should have been withdrawn, but the bill discloses there was no such request made of the court.

There seems to be no question as to the identity of the property taken from the burglarized depot. One witness testified positively that appellant told her that it was taken out of the depot at Tahoka.

The motion for rehearing is overruled.


author: HAWKINS, J.

text:
    McCarty v. STATE.
    No. 14245.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    L. D. Ratliff, Dennis P. Ratliff, and L. D. Ratliff, Jr., all of Haskell, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

The prosecution was under article 1377, P. C. (1925), amended by Acts of the- Second Called Session of the Forty-First Legislature (1929), chapter 26, page 41 (Vernon’s Ann. P. C. art. 1377). The act in substance provides that whoever shall enter upon the inclosed lands of another without the' consent of the owner, and “shall catch or take or attempt to catch or take, any fish,” etc., shall be guilty of an offense. Conviction resulted with punishment assessed at a fine of $10.

The sufficiency of the complaint and information was challenged by motion to quash upon various grounds, one being that the charge against appellant was uncertain, it being alleged in the disjunctive. That the state’s pleading was defective in the particular mentioned is supported by many authorities cited in section 503, Branch’s Ann. Tex. P. O.

The judgment is reversed, and the prosecution ordered dismissed, under the present pleading.


text:
    SMITH v. STATE.
    No. 14409.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    Harney & Buckley, of Borger, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the ’State.
   HAWKINS, J.

Under an indictment charging assault with intent to murder, appellant was convicted of aggravated assault and his punishment assessed at seven months’ confinement in the county jail.

The record is before this court without statement of facts or bills of exception, save some exceptions to the charge of the court. In the absence of the facts, objections to the court’s charge cannot be appraised.

Nothing is presented for review, and the judgment is affirmed.


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

text:
    ARNOLD v. STATE.
    No. 13911.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    Rehearing Denied June 10, 1931.
    Y. L. Shurtleff, of Breckenridge, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for theft of an automobile belonging to W. W. McCallie; punishment was assessed* at two years in the penitentiary.

No bills of exception are brought forward. Two requested special charges were refused, but it does not appear from any notation thereon that any exception was reserved to the action of the court in declining to give them. They are only indorsed “refused” over the judge’s signature. In such condition they may not be considered. See Linder v. State, 94 Tex. Or. R. 316, 250 S.W. 703, in which the question was discussed at length in both the original opinion and the opinion on rehearing, and many authorities referred to. See, also, Cunningham v. State, 97 Tex. Cr. R. 624, 262 S.W. 491; Benson v. State, 105 Tex. Cr. R. 268, 287 S. W. 1097.

The car was stolen on a Sunday night from a point near a church in the city of Breckenridge where it had been driven by McCallie’s wife. The car was discovered on Wednesday near a creek about two miles from the city. It had been stripped of practically all removable parts, including the casings, tubes, an'd rims. In fact, about all that remained of the car was the body and the top. Some of the casings and tubes had certain marks or peculiarities about them by which the owner could identify them. A few days after the theft, appellant was arrested in Mineral Wells where he was trying t.o sell casings and tubes which he then had in his possession, some of which were positively identified by McCallie as those taken from his car. If appellant made any explanation of his possession of the stolen property at the time of his arrest, it is not disclosed by the record. No testimony was offered by appellant on the trial. The evidence sustains the conviction.

, The judgment is affirmed.

On Motion for Rehearing,

MORROW, P. J.

That an automobile was stolen is definitely shown by the evidence. After being stolen, it was removed from tire street in Breckenridge to a point some distance from that city, and the movable parts thereof taken away. Some of these parts were afterwards found, in the possession of the appellant. Such finding affected him as the possessor of recently stolen property, and such possession, unexplained, together with the other facts mentioned, was sufficient to identify him as the taker of the automobile. The precedents up>on the subject are numerous. Many of them are cited by Mr. Branch in his Ann. Tex. P. C. §§ 2463-2465, inclusive.

The jury was adequately instructed upon the law of circumstantial evidence, and their finding under the record is'binding upon this court.

The motion is overruled.


author: LATTIMORE, J.

text:
    JOHNSON v. STATE.
    No. 14252.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    Clyde E. Thomas, Martelle McDonald, and Thomas J. Coffee, all of Big Spring, for appellant.
    Lloyd W.-Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

It appears from the record that a saddle was stolen, the value of same being more than fifty dollars. Several months thereafter said saddle was found in the house of appellant. He neither made any explanation of his possession nor offered any testimony upon this trial. For some reason the trial judge saw fit to charge the jury upon the proposition of an explanation of recently stolen property. Appellant excepted to the charge on this point upon the ground that there was no necessity for such ehargé, there being no evidence of any attempt to make such explanation. We think .the exception well supported. In the absence of' testimony of some explanation, or attempt at same, such charge could only be confusing to the jury. In the charge relative to this matter the court stated that if the jury believe that recently after the loss of the saddle appellant was found in possession thereof “and offered no reasonable explanation,” etc., that then the jury should take into consideration the possession of the property alleged, etc. Certainly it would be a charge on the weight of the evidence to instruct the jury that they could take into consideration the fact that the appellant made no explanation of his possession of such recently stolen property.

Over objection the state was permitted to prove by the owner of the alleged stolen saddle that some time after its loss he had a conversation with a certain woman, which conversation is set out in bill of exception No. 2. As part of said conversation it appears that said woman told him that appellant got his saddle, and that it was in appellant’s trunk, etc. The court should not have permitted this conversation which was out of the presence and hearing of appellant, and in no sense binding upon him. The facts stated were very damaging to appellant’s rights.

There is some confusion in the récord as to whether at the. time the sheriff went to appellant’s house for the purpose of searching same, he searched it and found the alleged stolen property prior to the time appellant came home, there being a question as to the legality of the search; also as to whether the officer informed appellant that he had a search warrant before appellant told him to go ahead and search. If the case should be tried again the record may be in better shape for us to pass upon the propriety of the issues thus affected.

For the errors mentioned, the judgment will be reversed and the cause remanded.


text:
    BROWN v. STATE.
    No. 14250.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    Adams & Hamilton, of Jasper, 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, one year in the penitentiary.

Officers, armed with a search warrant, went to a house in which were found appellant, Bill McBride, and Modelle Lawson. Officer Sam Smith preceded the others. He seems to have gone into several rooms of the house by himself before the other officers reached the scene. He testified that Modelle Lawson was lying upon a bed in a north room of the house, and that about the time the other officers appeared “they made a dive at the whisky to break it or cover it up.” Three full pints of whisky and another bottle about one-fourth full were found in and about the bed which had been occupied by Modelle Lawson. The house in question was referred to in testimony by some of the officers as Jettie Brown’s residence; Jettie Brown being appellant. A number of empty bottles and containers were found around the house.

Appellant introduced no testimony other than to show by her mother that she was under twenty-five years of age — this in support of her application for a suspended sentence.

There are a number of hills of exception in the record. In one appears complaint of the charge of the court; the ground of complaint being that the court instructed the jury in regard to prima facie evidence as follows: “You are further' charged that proof of the possession of more than one quart of intoxicating liquor shall be prima facie evidence of guilt; but the defendant shall have the right to introduce evidence showing the legality of such possession.”

The exception is that the court failed to define what was meant by the words “prima facie evidence.” In Garlington v. State, 25 S,W.(2d) 333, we seem to have saicL'that, where a charge regarding prima facie evidence was given, it would be error, upon exception-thereto, not to define the meaning of the words “prima facie.” In a case such as this it would appear hurtfully erroneous for the court to tell the jury, as applicable to the guilt of the accused, that possession of more than a quart of intoxicating liquor would be taken as prima facie evidence of her guilt, without giving an appropriate instruction defining what was meant by that expression.

There is another complaint of the refusal of the court to charge on circumstantial evidence. We are constrained to believe under the facts of this case that the refusal of the court to give such charge was erroneous. The comparatively small amount of liquor found was in pint bottles, and appears to have been in the bed occupied by Modelle Lawson. There is no testimony of affirmative ownership, possession, or control of the liquor by appellant other than the inference arising from the fact that it was in a house apparently under her control. There being three grown people in said house at the time the officers went there, one of whom was in the bed where the whisky was found, it would seem fair to the rights of the accused to have given the jury an appropriate instruction on the law of circumstantial evidence.'

We are not inclined to agree with appellant’s complaints directed at the admission of the testimony of the officers.

Eor the errors mentioned, the judgment will be reversed and the cause remanded.


text:
    CURTIS v. STATE.
    No. 14342.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    Francis M. Chaney and Hubert A. McCar-ley, both- of Dallas, for appellant.'
    William McCraw, Crim. Dist. Atty., and Andrew J. Priest, Asst. Dist. Atty., both of Dallas, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, death.

Tony Todora, husband of deceased, Irene Todora, was the only witness used by the state to identify appellant. Other witnesses present on the occasion of the homicide were unable to identify appellant .as the slayer of deceased. Appellant is a small yellow negro.

Appellant’s second application for a continuance was based on the absence of the witness Emma Robertson. The witness had been duly served with process, but was too ill to appear and testify. It was averred in the application that the testimony the witness would give could not be procured from any other source known to appellant. According to the averments in the application, which were supported by . the affidavit of the witness, within a few minutes after deceased was killed, Tony Todora, who had been struck by the same bullet that killed deceased, said that the man who did the shooting was a “big, tall, heavy-set black negro, that he was coal black.” It appears from the application and affidavit that Todora was crying and shouting in great' excitement when he made the statement, and that it wa's immediately after the shooting that he uttered the words attributed to him by the witness; that the witness would testify on another trial that To-dora made the statement under the conditions to which reference has been made was affirmed in her affidavit, which was attached to the motion for new trial.

The statement attributed to Todora by the absent witness was res geste. Todora was a party to the transaction, having been wounded by the shot that killed deceased. He made the statement attributed to him within a few minutes after the fatal shot had been fired and while he was laboring under great excitement. His declaration was part of the transaction itself, and admissible as original evidence under the rule of res gestae. Branch’s Annotated Texas Penal Code, § 83; Simpkins v. State, 94 Tex. Cr. R. 456, 251 S. W. 1084. While the testimony of the absent witness would have had the effect of impeaching Todora, it was admissible as original evidence. Hence the rule that a continuance to secure testimony which would only be available to impeach a witness will be denied is without application. Branch’s Annotated Texas Penal Code, § 324; Early v. State, 51 Tex. Cr. R. 382, 103 S. W. 868, 123 Am. St. Rep. 889.

The identity of deceased’s slayer was the question for solution by the jury. The finding by the jury that appellant fired the fatal, shot was.based alone on the testimony of Todora. It is obvious that the res geste statement, if he made it, in which the witness declared that his wife’s slayer war a large black negro, constituted material testimony. It was contradictory of the state’s testimony, and, if believed, would have destroyed the state’s case, as appellant is a small yellow negro. The opinion is expressed that the motion for new trial should have been granted.

In the closing argument to the jury, private prosecutor used language as follows: “This defendant has been up in jail since last April bleaching out and he is a lot whiter now than he was when arrested.”

This argument had no support in the evidence, and should not have been made. The court sustained appellant’s objection, and instructed the jury not to consider the remarks for any purpose. In view of the fact that the judgment must he reversed because of the refusal of the court to grant a continuance, we pretermit further discussion of the hill of exception.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


text:
    SMITH v. STATE.
    No. 13783.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    E. A. Landman, of Athens, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Appellant was convicted under the provisions of chapter 195, Acts of the Regular Session, Eorty-First Legislature, which seeks to amend article 602, P. C. 1925 (Vernon’s Ann. P. C. art. 602), making .penal the act of deserting a wife or minor child or children. The punishment was assessed at confinement in the penitentiary for eighteen months.

In Ex parte Heartsill, 38 S.W.(2d) 803, delivered May 6, 1931, this court held that the amendatory act was void, in that it went beyond the express limitation of its caption. We quote the language of Judge Lattimore in the opinion as follows: “The caption of the amendatory act as passed restricted the purpose of the bill to 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.”

The prosecution and conviction herein being under the amendatory act,- it becomes our duty to order a reversal of the judgment.

The judgment is reversed, and cause remanded.

PER CURIAM.

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


text:
    MAGEE v. STATE.
    No. 14180.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    J. Mitch Johnson and Carlos O. Ashley, both of San Saba, and J. Edward Johnson, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, statutory rape; punishment, five years in the penitentiary.

. The eyidence shows that the prosecutrix was 16 .years of age at the time of the alleged offense. She placed the date of the act of intercourse on May 4, 1929.' The evidence shows that she gave birth-to' a child on the 27th day of February following. She testified that on the day the act of’intercourse took place, she came to the town óf San Saba in company with the appellant, whom she had known for a period of about three years; that they were accompanied by a sister of the appellant 'and a Sister of hers; that the two other girls got out of the car at San Saba, and she and appellant drove out on the highway; that appellant stopped the car on the side of the highway, and that, while in the front seat of the car, the appellant engaged her in an act of intercourse over her protests and against her will; that appellant first began his importunities by begging her to have intercourse .with him and by hugging and kissing her. She denied ever having consented to the act. She testified that this was her first act of intercourse, and that it was accompanied with considerable pain. She also testified that several cars passed by while they were by the side of the road, but that she made no outcry nor did anything to attract the attention of the occupants of the cars. She testified also that the appellant had torn her bloomers off of her; that she did not communicate the fact of his conduct to either of the other girls, whom they met when they returned to town and all of whom returned home in the same car; that she did not communicate the fact to anybody until about the 7th day of December following, when her pregnancy became known by her mother, and she then for the first time told her the fact and said that the appellant was the cause of her ¡condition.

There was testimony to show that the child was a fully developed nine months old child, given by the attending physician.

• The appellant denied the act entirely, and denied that he had ever had intercourse with the prosecutrix, but admitted that he had taken her driving on the occasion as stated. He contended, that the time when he and the prosecutrix and his sister and the sister of the prosecutrix came in town together was on the 29th day of June, 1929. Corroborative evidence of the fact that the trip to town was made on the 29th day’ of June, 1929, was given by several witnesses.

The indictment charged straight statutory rape. It did not charge rape by force.

Several bills of exception relating to the matter of permitting the introduction of subsequent acts of intercourse with other persons than the appellant are presented. The appellant offered to prove that in July, 1929, which was a short time after the date fixed, the prosecutrix was recognzied on the road in company with another man neaV Corpus Christi; that some parties picked them up, and that she introduced the man with her as her husband, and stated that they were on their way to Mexico; that these parties furnished them a ride into Corpus Christi, and that she and the man associated there together as husband and wife. In connection therewith, the appellant offered to prove that in October, 1929, one Joe Drew had an act of intercourse with the prosecutrix at her solicitation. All of this testimony the appellant offered for the purpose .of showing the acts and conduct, as well as acts of intercourse, on the part of the prosecutrix subsequent to the date fixed as the date of the act of intercourse between her and appellant.

The trial court charged the jury in substance that, if in fact they believed the pros-ecutrix was not a chaste female at the time of said act, if they should find that there was an act of carnal intercourse, as alleged in the indictment, or that if they had a reasonable doubt on this issue, they would return a verdict of not guilty.

The testimony sought to be elicited by the appellant as to subsequent acts of unchastity on the part of the prosecutrix was excluded upon the objection of the state’s attorney that the same was inadmissible because they were-acts subsequent to the time alleged in the indictment.

The exact question here presented was presented to this court in the case of Williams, v. State, 105 Tex. Cr. R. 381, 288 S. W. 205, 206. This court in. that case, speaking through Judge Lattimore, held: “The issue joined being whether the girl was chaste, and the burden of .supporting this being upon-appellant, he was entitled to all legitimate-testimony shedding light on the issue. Beyond question proof of prior acts of intercourse with others would establish the contention of unchastity. It seems that subsequent acts, when reasonably near the date-of the alleged offense, would have the same-effect.”

Continuing, Judge Lattimore used the following language: “Our Legislature in 1918-having specifically declared that in consent cases of rape when the female is over 15 years of age and under 18 proof of previous unchaste character would be a defense, this brought into such cases a defensive issue not theretofore involved — i. e., the unehastity of the female. Same has always been an issue in seduction cases. Under the present law of rape and in a case on facts such as those before us, we see no reason for applying one rule of evidence on the issue of the chastity of the injured female, and on exactly the same issue apply a different rule in seduction cases. The issue of the chastity of the injured female at the time of the occurrence, if attacked' by a certain character of proof in the one case, certainly could be attacked by the same character of proof in the other. The court erred in rejecting this testimony.”

Under the above authority, the refusal of the trial court to admit the evidence sought to be introduced deprived the appellant of evidence he was entitled to offer on a material issue, and was error prejudicial to hie rights under the law.

The issue of the sufficiency of the evidence is also raised. However, in view of the reversal of this case upon another ground and the further fact that the evidence upon another trial may not be the same as upon the instant' trial-, we pretermit discussion of same.

Several bills of exception complain of the argument of the district attorney, and, in view of the evidence as a whole, we cannot say that said arguments were entirely justified, but we deem it unnecessary to discuss them, in view of our conclusion in this case.

For the error mentioned, the judgment is reversed, and cause remanded.

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 pourt.


author: CHRISTIAN, J. CHRISTIAN, J.

text:
    BOYD v. STATE.
    No. 14181.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    Rehearing Granted May 27, 1931.
    Taylor & Irwin, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is unlawfully selling morphine; the punishment, a fine of $100 and confinement in jail for 365 days.

The term of court at which appellant was convicted may by law continue more than 8 weeks, and did continue fro-m the 1st day of September, 1930, until the 1st day of November, 1930, which was approximately 9 weeks. The trial court entered an order granting appellant 10 days in addition to the time allowed by law in which to prepare and file his bills of exception and statement of facts. This being a misdemeanor case and the term of court having continued more than 8 weeks, appellant was entitled under the law to 30 days after final judgment in, which to file his statement of facts and bills of exception.' Subdivision 5 of article 760, O. 0. P. Including tbe 10 days’ additional time allowed by tbe. court, appellant bad 40 days after final judgment in wbieb to file tbe bills of exception and statement of facts. Tbe record discloses that said instruments were filed more than 40 days after final judgment. This was too late. See Stewart v. State, 108 Tex. Cr. R. 661, 2 S.W.(2d) 440; Elbury v. State (Tex. Cr. App.) 25 S.W.(2d) 846.

Tbe judgment is affirmed.

PER CURIAM.

Tbe foregoing opinion of tbe Commission of Appeals has been examined by the judges of tbe Court of Criminal Appeals and approved by tbe court.

On Appellant’s Motion for Rehearing.

CHRISTIAN, J.

In connection with bis motion for rehearing, appellant lias filed affidavits wherein it is shown that it was not due to tbe negligence of appellant or bis attorney that tbe statement of facts and bills of exception were not filed in time. Upon tbe showing made tbe statement of facts and bills of exception will be considered.

It was charged in tbe complaint and information that appellant “did unlawfully sell, furnish and give away five grains of morphine to Albert Nunn.” Appellant made a motion to quash tbe complaint and information, but failed to specify as one of tbe grounds that they were duplicitous. Article 720, Penal Code, denounces as offenses tbe selling, furnishing, and giving away of morphine. One commits, an offense who sells morphine, and likewise it is an offense to make a gift of morphine. Each is a separate offense. See Todd v. State, 89 Tex. Cr. R. 99, 229 S. W. 515. Tbe complaint and information are duplicitous, but appellant waived all right to complain of such defect. A duplicitous information is not necessarily fundamentally defective. One accused of an offense may protect himself against tbe disadvantage of a trial under a duplicitous information by motion to quash, or exception to tbe information, or be may demand an election by tbe prosecution, but, failing to avail himself of one of these privileges, be cannot avail himself of this defect in tbe information after verdict. Melley v. State, 93 Tex. Cr. R. 522, 248 S. W. 367.

Appellant contends that tbe evidence is insufficient to support tbe conviction. Appellant and one Mosher roomed together in a bouse in Dallas; there being evidence in tbe record that appellant controlled tbe bouse. Appellant testified that be bad nothing to do with the control of the bouse, but merely paid his part of tbe rent for tbe room In which be and Mosher lived. Two federal narcotic agents employed Albert Nunn, who was a morphine addict, to go to tbe bouse in which appellant roomed for the purpose of purchasing morphine. In addition to paying Nunn a stipulated sum for bis services, tbe officers furnished 'him three $1 bills which they bad marked. Nunn went to the house and returned in about thirty minutes with some morphine, which he delivered to the officers. The officers then entered the house and made a search. They found the three marked $1 bills in Mosher’s pocket. A® they entered the house, appellant was sitting on the porch getting a shave, and Mosher was in the room be and appellant occupied. The officers found no morphine in the possession of appellant. There is nothing in the record showing possession of morphine by Mosher at the time the search was made. Nunn testified that he purchased the morphine from Mosher after appellant had instructed Mosher to make the sale to him. He said that appellant was sitting on the porch getting a shave when be entered the house, and that, after appellant told Mosher to sell him the morphine, he and Mosher left the porch and went into Mosher’s room, where Mosher delivered the morphine to him.' Nunn admitted that he had been employed by the officers and directed by them to the bouse where Boyd lived for the purpose of purchasing morphine. Appellant denied that he had anything to do with the sale of morphine, and declared that he possessed no morphine at the time Nunn came to the house. He testified further that he was sitting on the porch getting a shave when Nunn came in; that he did not know Nunn’s purpose in coming to the house; that he did not tell Mosher to sell morphine to Nunn; that he was not present when the sale was made, and knew nothing about it. The barber who was shaving appellant testified that appellant did not instruct Mosher to sell morphine to Nunn, and that appellant did not enter the house with Mosher and Nunn. Mosher admitted that he sold the morphine to Nunn, but declared that it belonged to appellant and was sold under appellant’s direction.

Mosher was an accomplice witness by virtue of the fact that he sold the morphine. It was undisputed that Nunn deliberately and intentionally entered the house for the purpose of bringing about a sale of morphine to him in order that prosecution might be instituted against the seller. We quote from Bush v. State, 68 Tex. Cr. R. 299, 151 S. W. 554, 556, as follows: “Wherever a party deliberately or intentionally originates or succeeds in bringing about a violation of the law, he becomes a particeps criminis of that violation, and therefore when used as a witness must be corroborated. There is a line of cases which holds that where an officer or other parties understand or are led to believe that a violation of the law is in contemplation, and take steps to detect that crime, or get evidence by which the guilty parties may be punished, he would not be an accomplice, but in such cases 'he is not an original party to the bringing about the crime and is not guilty of originating or initiating it. In that character of case his connection with it is after the inception of the crime and after it has been determined upon, and he only then gets into it as a detective or for the purpose of arresting the party and bringing him to punishment. There is another line of cases which holds that, where the party originates the crime or is instrumental in its initiation and brings it about, he then becomes a parti-ceps criminis and when testifying as a witness in the case is an accomplice. The leading cases in this state are Dever v. State, 37 Tex. Cr. R. 396, 30 S. W. 1071; Steele v. State, 19 Tex. App. 425. The opinion was by Judge Hurt and draws the distinction above mentioned between parties who were playing the role of detective for the arrest and punishment of parties, and those who originate the crime or assist in originating it in the first instance.”

This court, in Huggins v. State, 85 Tex. Cr. R. 205, 210 S. W. 804, expressed the opinion that the rule announced in Bush v. State, supra, was correct, but held that the fact that a purchaser of intoxicating -liquor brings about -the commission of the offense of selling does not bring him within the rale applicable to accomplice testimony. Article 670, Penal Code, providing, among other things, that the purchaser of intoxicating liquor shall not be held in law or in fact to be an accomplice, was considered to remove the purchaser of intoxicating liquor from the rule applicable to accomplice testimony, notwithstanding the purchaser, conspiring with others, brings about the commission of the crime for the purpose of instituting prosecution.

We have no statute exempting the purchaser of morphine from the rale applicable to accomplice testimony. Hence, under the facts reflected by the record, Nunn was an accomplice witness. He testified that he frequently bought morphine from parties for his own use, and that he did not report the sales to the authorities. It was only when he was paid to bring about a violation of the law that he made report to the authorities. His sole -motive in the present case was to bring about a violation of the law for the purpose of receiving stipulated sums from the enforcement officers.

It was incumbent upon the state to corroborate Nunn and Mosher. 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”; and “the corroboration is not sufficient if it merely shows the commission of the offense,” -but it must tend to connect the accused with its commission. Article 718, C. C. P.; Durham v. State, 106 Tex. Cr. R. 85, 290 S. W. 1092.

The test as to the sufficiency of the corroboration is to eliminate from the case the evidence of the accomplice witness, and then examine the evidence of the other witnesses with the view of ascertaining if there be inculpatory evidence; that is, evidence of incriminating character, which tends to connect the accused with the commission of the offense. If there be such evidence, the corroboration is -sufficient; otherwise not. Durham v. State, supra; Jones v. State, 59 Tex. Cr. R. 559,129 S. W. 1118. Applying this test, other than the testimony of the accomplice witnesses, we find that -the record reveals circumstances as follows: Mosher and appellant occupied the same room. Appellant was on the porch getting a shave at the time Nunn entered the house for the purpose of purchasing morphine and at the time the officers made the search. Upon searching the house, the officers found Mosher in the room occupied by him and appellant. They found in his pocket three marked $1 bills. A witness for the state testified that appellant controlled the house, and that,' when he whs arrested and taken to jail after the officers made -the search, he turned over the keys to the house and garage to one of its occupants. We are unable to reach the conclusion that the fact alone that appellant roomed with Mosher, and that he'probably controlled the house in which they roomed, was evidence of an incriminating character which tended to connect appellant with -the sale of morphine by Mosher to the witness Nunn.

Appellant’s motion for rehearing is granted, the judgment of affirmance is set aside, the judgment of the trial court is now reversed, and the cause remanded,

PER OURIAM.

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.