author: . SHARP, J. CURETON, C. J.

text:
    WEST AUDIT CO. v. YOAKUM COUNTY.
    No. 1045-5242.
    Commission of Appeals of Texas, Section. A.
    Feb. 4, 1931.
    Lockhart & Garrard and F. D. Brown, all of Lubbock, for plaintiff in error.
    Bean & Klett, of Lubbock, for defendant in error.
   . SHARP, J.

West Audit Company, a corporation, brought this suit in the district court of Yoa-kum county, alleging that Yoakum county, acting through its commissioners’ court, employed the West Audit Company to make an audit of its records and financial affairs, the work to begin about November 1, 1926, and to be • completed as rapidly as consistent with thorough and accurate auditing; that the term to be covered was from 1907 to 1926, inclusive, and then annually thereafter for the years 1927 and 1928. That as compensation the county agreed to pay to the West Audit Company at the rate, of $25 per day for each senior accountant employed, and $15 per day for each junior accountant employed, not to exceed two senior and two junior accountants, and in addition thereto to pay the expenses of said accountants while actually employed in the work. That the contract is in writing and is dated November 8, 1926.

That plaintiff, in pursuance of said agreement, performed the services of auditing the books, etc., and from time to time communicated to the offices of the county the information derived from said audit, and by reason thereof the county was benefited as a direct result of the labors performed by the West Audit Company. That just as the audit was nearing completion the courthouse without any fault or negligence on the part of the West Audit Company, was destroyed by-fire and the books of the county, as well as the work sheets and data used by plaintiff, were also destroyed.

Plaintiff prayed for judgment establishing said debt on said contract, and in the alternative that it have judgment for the reasonable amount of its services for performing said labor and for general and equitable relief.

The defendant challenged the allegations made by plaintiff and. in answer thereto, among other things, alleged that the contract ■ made by and between plaintiff and defendant was in violation of the Constitution and statutes of Texas, and therefore was void and unenforceable. The case was tried before the court without a jury, and judgment was rendered that plaintiff recover nothing against the defendant. An appeal was made to the Court of Civil Appeals for the Seventh Judicial 'District, and the judgment of the trial court was affirmed. The Supreme Court granted a writ of error.

We will describe the parties to this suit as plaintiff and defendant as was done in the trial court.

Counsel for West Audit Company contend that the Honorable Court of Civil Appeals erred in holding that at -the time of the making of the contract -sued on ¡no tax was levied to pay the interest and create a sinking fund to discharge the indebtedness contemplated by the contract, and that the contract was in violation of article 11, § 7, of the Constitution, and therefore void.

The trial judge made the fallowing findings of fact and conclusions of law:

“I find that plaintiff and the Commissioners Court of Yoakum County entered into a contract or agreement which was entered on the minutes of said court on the 8th day of November,. ¿926, in substance as follows:
“That Yoakum County, acting through its commissioners court employed the West Audit Company to make an audit of its records and financial affairs of Yoakum County, and furnish to Yoakum County a complete and detailed statement of the result thereof, the work to begin about November 1st, and to be completed as rapidly as consistent with thorough and accurate auditing; that the term to be covered was from 1907 to 1926 inclusive, and then annually thereafter for the years 1927 and 192S. And that as compensation, the County agreed to pay plaintiff at the rate of $25.00 per day for each senior accountant employed, and $15.00 per day for each junior accountant employed, not to exceed two senior and two junior accountants, and in addition thereto to pay the expenses of each of said accountants while actually employed in said work.
“I further find that plaintiff caused two senior and two junior accountants to work at said job 21½ days, being the days of November 22nd, 23, 24, 25, 26, 27, 28, and 30, and December 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and half of December 16, and that they were employed only for said length of time; and that the actual expenses while engaged in the work amounted to $165.00; and that the total amount of labor and expenses is $1885.00.
“I further find that when the contract was made, and when the plaintiff was employed to do the work, there was not on hand money to pay therefor, nor was there prospect of collecting it out of the taxes legitimately levied for the general fund purposes, such as to justify a reasonable expectation that there would be on hand to meet the payment of the contract, or for the work undertaken and permitted to be done, and that no provision was made for levying a tax to provide for the interest and sinking fund to pay said indebtedness, as required by Section 7 of Article 11 of the Constitution.
“I further find that while the work was in progress, that the courthouse of Yoakum County was burned, and that such fire destroyed several of the books, records and' check stubs, warrant stubs, reports, etc., and also all the written data that plaintiff’s employees had prepared to the date of said fire, and that it was not possible for plaintiffs to complete the audit after the destruction of said records, books, data and .etc., and make a detailed statement of the result of the audit.
“I further find that the destruction of said books and records was not the result of the negligence of the plaintiffs.
“Conclusions of Law. .
•. “Based upon the foregoing findings of fact, I conclude as a matter of law that the contract' of employment was entire in its nature, and that neither party was responsible for the destruction of said records, books, data, etc., and that when the subject matter of said contract was thus destroyed, it discharged the contract, and both parties thereto.
“I further conclude, as a matter of law, that since the destruction of the books and records was not the fault or negligence of plaintiffs, that it is not liable to the defendant on defendant’s cross action for the value thereof.”

R. P. Moreland, county judge. of Yoakum county, at the time the contract was made and during the time the labor was performed by the West Audit Company, testified substantially as follows:

“As to whether or not, in talking to these gentlemen about the matter, there was any estimate made to me by Mr. West as to the probable expense of that audit, not to begin with. After they got into it I saw it was costing the county a heap more than we had anticipated, and I talked to them about it and they said it was bigger job than we thought, .twenty years to audit, and I didn’t want to be too impulsive about it. I don’t remember his ever giving me an estimate of what it was going to cost.. I don’t remember if he ever did at any time; he had several conversations. He just told me what it would cost per man per day, didn’t make any estimate of the number of days. * * *
“As to whether or not it is a fact that these commissioners expected to pay these boys for this work out of the current revenues of the county; I don’t know that I could say; we expected to pay them, expected to give it to them. As to whether there were funds available for that purpose, the fact of the pay never occurred to us. We expected to issue a warrant as we would in any other current transaction, payable out of the funds available at that time if there were any. We expected to give them a warrant just like a warrant for officers’ services and they could go to the treasurer and get it if they could. We did know there were considerable taxes to be collected in January, which is the regular time to collect them, and also knew'about how much that would be. I do not know how much was collected and passed to the credit of the General Fund for the past year. They usually collected from twenty two to- twenty five hundred dollars, that all went to the General Fund of the county. Our valuation is $1,648,158.00, on which the Jury Fund gets 15 cents, the Road and Bridge Fund 15 cents and the General Fund 25 cents. I guess the General Fund would be $3500.00 to $4000.00. I may be talking too fast; it would be about four thousand dollars. If it had all been collected there would have been collected and credited to the General Fund something over four thousand dollars. And in fact we had several thousand dollars due as delinquent taxes which had not been collected; I don’t think it would have run over three thousand or thirty five hundred dollars at the outside, delinquent taxes due the county.
“As to whether we didn’t expect to issue any time warrants or make any provision for future payment of this debt that the county would owe these auditors , and as to whether as far as they were concerned It was- to be a cash transaction; it was a warrant transaction, we didn’t expect it to cost as much as it did. As to whether we didn’t know or couldn’t have determined with any degree of certainty as to what the cost would be; the commissioners understood that they were to pay twenty five dollars a day for the seniors and fifteen for the juniors and pay their expenses while here; we didn’t know how long it would take. Now there was right smart demand among the officers and tax payers for an audit. In fact they presented the commissioners court with a petition as long as your arm signed by practically a majority of the tax payers of the county insisting that they wanted these books audited. That was one of the causes of our employing the auditors, then there were a lot of us going out— they were going to change officers and we thought it was no more than right that they should all know where we was.”

It appears from the record that it would have been impossible, at the time of the making of the contract, for the commissioners’ court to provide for the levying and collecting a sufficient tax to pay the interest thereon and provide a sinking fund, for the reason that they did not know, and had no way of estimating, the amount of the debt, or how much tax to levy, or how muc-h sinking fund to provide for.

To pay for the audit it was intended to issue a warrant as could be done in any other current transaction, payable out of the funds' available at that time; and the evidence tends to indicate that the parties acted in good faith with reasonable ground to believe that the current revenues would be sufficient for that purpose.

In our judgment the contract made by Yoakum county with the West Audit Company does not violate article 11, § 7, of the Constitution of Texas. The West Audit Company contracted with Yoakum county to audit the books of that county for a certain sum per day, and neither party could make any estimate of the number of days it would require to complete the contract and could not, therefore, arrive at the amount necessary to pay for the work to be done. In this view we think we are sustained by the following authorities: City of Tyler v. Jester & Co., 97 Tex. 344, 78 S. W. 1058, 1062; City of Houston v. Glover, 40 Tex. Civ. App. 177, 89 S. W. 425, 427 (W. E. Ref.); Tackett v. Middleton (Tex. Com. App.) 280 S. W. 563, 44 A. L. R. 1143; Austin Brothers v. Patton (Tex. Com. App.) 288 S. W. 182.

In the case of City of Tyler v. Jester & Co., supra, which case, in our opinion, involved an analogous question, Judge Brown in rendering the opinion of the Supreme Court says:

“It appears that the parties to the contract intended that the sum should be paid out of the current revenue for the year, and there is nothing to indicate that they did not act in good faith, with reasonable ground to believe that the current revenue would be sufficient for that purpose.”

In the opinion of City of Houston v. Glover,, supra, Judge Pleasants says:

“The employment of appellee by the city to prepare plans and specifications for the buildings which it proposed to construct was not the creation of a debt, in the purview of sections 5 and 7 of article 11 of the Constitution, which prohibits the creation of a debt by a municipal corporation unless at the time of its creation a tax be levied to provide a fund to pay the interest and create a sinking fund for the payment of the debt at maturity.”

Counsel for Yoakum county contend that the contract of employment made with West Audit Company was for services of an auditor such as is provided for in article 1641, R. S. 1925; and since the requirements of that article were not complied with, in that there was no resolution of the commissioners’ court of Yoakum county reciting the reasons and necessity thereof, and no resolution was presented in writing at a regular or called session of the court and permitted to lie over until the next regular term, and no notice of said resolution was published or posted as required, that the letting of the contract was not made in accordance with the provisions of article 1641.

It is undisputed that the provisions of' article 1641 were not complied with in making the contract in controversy. In our opinion West Audit Company cannot recover upon the written contract made with Yoakum county to audit its books. Plaintiff in its petition asked in the alternative that it have judgment for the reasonable amount for its services rendered. It appears from the record that there was a strong demand among the officers of the county for an audit; that some of the officers were going out of office and others were succeeding them, and all desired to know the exact condition of affairs. In fact, a petition; signed by practically a majority of the taxpayers of the county, insisting that the books be audited, was presented to the commissioners’ court, and that was one of the causes for the court employing the auditors.

No issue of fraud on the part of West Audit Company getting the contract with the county has been raised, nor is it questioned that the work on the atfdit was accurately and efficiently performed. It, is further-shown by the evidence that in pursuance of the agreement with West Audit Company, several men went to work upon the audit, and that they worked many days. That during the time they were at work they had several conversations with the members of the commissioners’ court of that county and no one-protested or objected to the audit being made. That from time to time the officers discussed with the men at work on the audit the condition of the books as they found them. That the condition of the affairs of the various officers, as reflected from the books, was communicated to the members of the commissioners’ court, and they received the benefit of their labor in that respect for Yoakum county. The evidence tends to show that this was of benefit to the county and was received by the officers representing the county.

It is the well-settled rule in this state that when a county has received the benefit of a contract which it had power to make, but which was not legally entered into, it may be compelled to do justice and to pay the consideration or at least to pay for what it has received. In such cases the law will imply a contract. Oity of San Antonio v. French, 80 Tex. 575, 16 S. W. 440, 26 Am. St. Rep. 763; Boydston v. Rockwall County, 86 Tex. 234, 24 S. W. 272; Gallup v. Liberty County, 57 Tex. Civ. App. 175, 122 S. W. 291 (W. E. Ref.); Sluder v. City of San Antonio (Tex. Com. App.) 2 S.W.(2d) 841, 844; Payne et al. v. Bank (Tex. Com. App.) 291 S. W. 200, 210.

Judge Leddy, in the case of. Sluder v. City of San Antonio, supra, after reviewing many decisions of the various courts in an exhaustive opinion, tersely states the rule as follows:

“The rule thus firmly established by the courts of this state rests 'upon the obligation of a municipality to do justice when it has received money, property, or services of another. Under such circumstances, the plainest principles of justice require that it should not be permitted to receive and retain the benefits of a contract without paying the reasonable value thereof. This principle is, we think, supported by the great weight of authority.
“In the case of State of Minnesota et al. v. Bert Clark, 116 Minn. 500, 134 N. W. 129, 39 L. R. A. (N. S.) 43, it appeared that the statutes of Minnesota provided that ‘no contract with a municipal corporation, for the doing of any public work, shall be valid for any purpose, unless the contractor shall give a bond to the municipal corporation,’ for the purpose of securing persons who furnish labor and material, etc. The Supreme Court of Minnesota held that a contract in which no bond was given as required by statute was wholly void, and no recovery would be permitted thereon. The rule of implied contract, however, was sustained, and the plaintiff was permitted to recover the reasonable value of the labor and material furnished by him in performance of such contract.”

In Page on Contracts, vol. 5, § 2719, p. 4795, the following rule is laid down:

The amount which can be recovered by one who has performed in part under a contract which is discharged by impossibility, is ■generally limited to the value of the property which actually passed to the adversary party by reason of such performance, or to the value of the services of which the adversary party actually had the benefit.”

The foregoing rule seems to us to be sustained by sound principles of justice. '

In the ease of Weis v. Devlin, 67 Tex. 507, 3 S. W. 726, 729, 60 Am. Rep. 38, Judge Stay-ton, in discussing the doctrine of entirety of contract, and the opinions of the various courts in holding that a recovery could not be had when the agreement was to perform labor to complete an entire job, says:

“The cases which hold that a recovery cannot be had in such cases are made to rest largely on the entirety of the contract, and the holding in the particular jurisdiction that apportionment cannot be made.
“The tendency of recent decisions has been to ameliorate that rule, and in this state it has long ceased to be recognized.
“As we said in Carroll v. Welch, 26 Tex. 149, which arose on a contract to do the entire wood-work on a building: ‘According to the modern decisions of this court, the rule appears to be that, if the employee abandons his contract, the employer shall be charged with only the reasonable worth or the amount of benefit he has received on the whole transaction, and, in estimating the amount, the contract price cannot be exceeded. The former is allowed to recover for his part performance its reasonable worth, not to exceed the contract price, and the latter to recoup or reconvene his damages for the breach of contract by the former. When the employee is discharged without cause, or is prevented by the employer from completing the performance, he is entitled to recover for the part performed, and the damages he has sustained by breach of contract by the employer. If both parties have broken the contract, or there has been a mutual abandonment of it by both parties, the employee is entitled to recover the reasonable worth of the services he has rendered the employer.’
“If such be the rule even in case of violation of contract, the employee certainly cannot be-denied a recovery when by inevitable accident he has been prevented from performing the contract. By the case of Gonzales College v. McHugh, 21 Tex. 257, ’which was a case of builder’s contract, the rule in force in this state is further illustrated. Hillyard v. Crabtree, 11 Tex. 264 [62 Am. Dec. 475], was a case arising on a builder’s contract, entire in its nature, which the employee was prevented from completing by his sickness, and the same rule was enforced. ‘If a contract which is entire, after part performance, is rescinded i)y the mutual consent and act of the parties as to the residue, or the further performance is prevented by law or the- act of God, without fault of either party, the contractor may recover on a quantum meruit for what he has done. In such ease, neither party is in fault, and therefore is not responsible to the other for failing to fulfill the entire contract. In a recovery on a quantum meruit there is an apportionment of so much of the agreed compensation to the contractor as he has earned in what he has done; he recovers such part of the entire compensation as is equal to the part he has performed of the entire contract.’ 2 Suth. Dam. 507. This was the rule of the civil law. Dom. Civil Daw, 553.”

The able and learned trial judge and the eminent associate justice who wrote the opinion for the Court of Civil Appeals made no findings upon the issue of implied contract, as raised by the evidence and the pleadings in this case, or what was the reasonable value of the services rendered by the West Audit Company to Yoakum county, or whether or not the county was benefited by the work so rendered, and this phase of the case does not appear to have been passed upon in reaching the conclusions stated by the two courts. In view of this fact, we think justice would be best subserved in holding that this case should be reversed and the cause remanded for another trial.

We recommend that the judgments of the Court of Civil Appeals and the trial court be reversed, and this cause be remanded to the trial court for another tria,l.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both reversed, and the cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


source: Caselaw Access Project

author: LEDDX, J.

license: Public Domain

text:
    FREELS v. WALKER, Commissioner of General Land Office, et al.
    Motion Nos. 9122, 9123, 9125; 1170—5488.
    Commission of Appeals of Texas, Section B.
    Feb. 18, 1931.
    For former opinion, see 26 S.W.(2d) 627.
    E. F. Smith of Austin, and Alden Latham & Young, of Chicago, Ill., for relator.
    Robert Lee Bobbitt, Atty. Gen., and W. W. Caves, Asst. Atty. Gen., for respondent.
    R. J. Randolph, of Austin, for intervener M. L. Davis.
   LEDDX, J.

The motion for rehearing in this case is supported by elaborate and able arguments filed by the various respondents.

All of these arguments vigorously urge the proposition that Bowen, by filing his application for a mineral permit in the office of the county clerk, thereby acquired a right to take the necessary steps to obtain a mineral permit which was superior to that of any other person subsequently filing an application for a permit on the same land. From this premise, the correctness of which must of course be conceded, it is argued that, as the right thus acquired»was superior to that of a stranger, it was superior to that of the landowner to'reinstate his forfeited purchase. In other words, the insistence is that the owner of the land which had been forfeited is placed upon a parity with a stranger who desired to obtain mineral rights in the land by an application filed subsequent to Bowen’s.

This contention overlooks the fact that the rights of a stranger as against Bowen would be controlled alone by the act under which the filing took place. Bowen being prior in point of time, his right would, of course, be superior to one subsequently filing under the same act. In a contest between Bowen and a later filing by a third party under the permit act, the construction of article 5326, which governs the right of th,e owner of the land to reinstatement, is not in any way involved. When we come to consider his right of reinstatement as against tlie right acquired by Bowen in filing Ms application in the county clerk’s office, quite a different situation is presented, as the relative rights of the parties then require the construction of a statute in no way material as between Bowen and a stranger. This statute confers the privilege upon the owner whose land has been forfeited to reinstate at any time by paying all past-due interest, provided the rights of a third party have not intervened. The Legislature might have provided that the landowner would be entitled to reinstate his forfeited purchase, provided a third party had not filed in the office of the county clerk an application under the Mineral Permit Act. It did not .see fit, however, to make such provision, but, in lieu thereof, conferred upon the landowner the absolute privilege of reinstatement, except where the rights of a third party had intervened, without in any manner defining the character of.right which would he deemed sufficient' to bar reinstatement. Such right, not being expressly defined, leaves the statute subject to construction by the courts. It is susceptible of two constructions: First, that the right contemplated as being sufficient was an imperfect and incomplete one, which would include the filing of an application in the office of the county clerk under the Mineral Permit Act; and, second, that it contemplated only such a vested right as was existent, valid, and enforceable at the time the landowner sought reinstatement.

The statute being subject to these two interpretations the question arises, Which one should prevail?

It is the settled rule to give a statute which seeks to relieve’ from forfeiture the most liberal interpretation of which its terms are fairly susceptible. Gulf Production Co. v. State (Tex. Civ. App.) 231 S. W. 124.

Again, it has been frequently determined by our courts that the utmost liberality should be used in construing statutes affecting the rights of settlers upon the public lands of this state.

When tested by the above rules, it must be held that the Legislature contemplated the landowner should not be deprived •of the privilege of reinstatement, unless the intervening right of a third party should be a valid and enforceable one, and that an incomplete or imperfect right derived from the'preliminary filing of an application for a mineral permit in the county clerk’s office is insufficient to constitute the character of right contemplated. To interpret the statute in accordance with respondents’ contention would be to give it the most narrow construction of which it is susceptible, which would plainly be contrary to the rules uniformly applicable to the construction of statutes of this nature.

In Cruzan v. Walker (Tex. Sup.) 26 S.W. (2d) 908, 909, Justice Greenwood, in discussing the character of intervening right deemed by the court to be sufficient to bar reinstatement, said:

“The words of the statute providing for reinstatement when no rights of third parties have intervened having been judicially defined by the Court of Civil Appeals, with the sanction of this court, in such manner as to defeat a reinstatement only when such rights are valid, existent, and legally enforceable when written request for reinstatement is made, the re-enactment of the statute without change in its words, in the revision of 1925, was a legislative adoption of the judicial definition of the terms of the statute. Cargill & Dennis v. Kountze Bros., 86 Tex. 400, 22 S. W. 1015, 25 S. W. 13, 24 L. R. A. 183, 40 Am. St. Rep. 853; Country Club v. State of Texas, 110 Tex. 49, 214 S. W. 296, 5 A. L. R. 1185.”

It is true the above observation was not made under a state of facts similar to those here involved, but the court was discussing the character of right sufficient to bar the owner’s privilege of reinstatement and the pronouncement is at least persuasive of its views on this question.

We recommend that respondents' motions for rehearing be overruled.


author: CALHOUN, J. LATTIMORE, J.

text:
    JACKSON v. STATE.
    No. 13897.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1931.
    Rehearing Denied Feb. 18, 1931.

      George C. Cochran, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, assault with intent to rape; punishment, confinement in the penitentiary for twenty-five years.

The appellant’s first assignment of error complains of the court’s action in failing to quash the indictment, for the reason that the same does not' charge the appellant with any crime. We think the indictment sufficiently charged the appellant with the offense of assault with intent to rape. Branch’s Ann. P. C. § 1685, and authorities cited therein; Westerman v. State, 53 Tex. Cr. R. 111, 111 S. W. 655; Taylor v. State, 44 Tex. Cr. R. 154, 69 S. W. 149; Oxsheer v. State, 38 Tex. Cr. R. 499, 43 S. W. 335.

Assignment No. 2 complains of the court’s action in overruling appellánt’s motion for an instructed verdict, for the reason that there was no evidence showing an intent on the part of the- appellant to commit the offense of rape.

Assignment No. 3 complains of the insufficiency of the evidence to show an intention on the part of the appellant to commit the offense of rape, and therefore said conviction should not be sustained.

These two last assignments will be considered together.

On the trial of the ease, the following facts in brief were shown: Complaining witness, Tessie Coleman, testified that she was thirty years of age and weighed 78 pounds. That on the night of the 30th of March, 1930, she was living at 5423 Morning Side, which is known as the Viekery-Belmont addition of Dallas. That she was boarding there. That she worked in a drug store, and on this particular night she worked until 12:30. That she started home, and the street car she went out on was a Vickery street car. That she rode out to the end of the street ear line. That the place she lived,was four blocks from the end of the car line. That there were only two passengers and herself on the street car, one a white man and the other a negro. That they all got • off at the same place, the end of the car line. That as she started up the street she heard a noise behind her, footsteps, and that she thought she heard some one running. That some one overtook her, and that she thought they were going to pass her, but instead the person grabbed her. That she knew it was a negro who grabbed her. That she had a purse and some money, but, when the negro grabbed her, he pulled out a big knife. That she was screaming all the time; that he kept choking her and threw her to the ground, and that she said, “Take my purse and my money, but let me alone.” That he did not say anything, but continued to choke her, and then he said, “G- d- you, I’ll kill you if you don’t stop screaming.” Then he choked her almost down, and that she was screaming all the time. She does not know what made him quit. She was struggling with him all the time, but when he left she jumped up and ran across the street and into a house on the corner of Ridgedale. That she just fell in the door, and in a few minutes the ambulance came and got her. That by reason of said assault she was bruised on her eyes and face. Her eyes were very red as a result of being bruised and choked. Her neck was swollen and red. Her throat was swollen and scratched. Her nose was swollen, and felt as though it was broken, and her mouth was swollen. That from that house she went to she was taken to Baylor Hospital. That she was there four or five days. That she could not see during all that time. That, when she ran into the house after the attack, slie was blind from blood, and could not see when she got to the sanitarium. That, when the negro was choking her, she was lying on her back on the ground. That she did not know who it was other than that it was a negro. She said the white man got off of the street car at the time she did and went ahead of her. She walked along behind him until he went into a house. That when he went into the house she heard the footsteps behind her. That she could identify the negro that came up behind her. As to how she knew it was the same negro who got off the street car, that negro got off there, and was behind her, and she heard his footsteps all the time. That the assault lasted only a few minutes, and that she was resisting all the time and screaming. That he had a knife in his hand when he started to assault her, and that in the struggle she knocked the knife out of his hand. She did not know whether or not he picked up the knife when he went off, because she was blinded by blood and was stunned. That she resisted him to the best of her ability.

Dr. O. T. Woods, who was called to the Baylor Hospital, testified that he saw Miss Tessie Coleman, and that she was injured substantially as the said witness, Miss Coleman, had testified, and that he made further examination of the lower part of her body, and found at least a dozen scratched marks or lacerations on the underside of the left leg above the knee.

The witness S. M. Crider testified: That he was a conductor on the Dallas Railway Company line. That he recalled the night of the assault very well. That Miss Coleman was on his car that night. That, when he got to the end of the line, three passengers were on the car. That he knew who they were. That one of them was the colored man here, the defendant in this ease, Harvey Jackson, and there was also a tall slim fellow who lived on the corner of McMillan and Ridgedale. He is here as a witness. That was all that was in the car, jnst those three passengers. They got off at the end of the line. “As Miss Coleman got off I spoke to her and she spoke to me.” That he then walked around to put his trolley up. That the car don’t turn around, you just change the trolley. That he hesitated a moment to watch Miss Coleman, and that the colored fellow walked to the curb — they both were walking towards the same curb and in the same direction. That he then got in his car and started back to town. He positively .identified the appellant, Harvey Jackson, as being the one on the car. He stated that the appellant did not appear to be drunk nor insane. That, when he last saw Miss Colaman, she was apparently ten or fifteen feet behind the white man, and the negro was between him and her. He did not watch over thirty seconds. That the next time he saw the appellant he was at the city hall, about 3 o’clock that morning. • He was by himself in a cell. That they brought him out, and he identified him. That the section out there is very thickly populated until you get to the end of his line. There were no houses along there on Ridgedale for several blocks, just one house on the corner and the rest is vacant. That he never recalled seeing the appellant until that night.

The witness J. W. Fritz testified he was in the detective department of the city of Dallas; that he had been connected with the police department for ten years, and had been a detective about seven or eight years; that he had occasion to talk to .the appellant, Harvey Jackson, at the city hall, and that he made a. voluntary statement, which was reduced to writing; that, before he made the statement, he gave the appellant warning; that he read the warning to him at the top of the statement blank a couple of times; that, having warned him, he reduced the statement to writing ; that the appellant signed the Statement; that it must have been early in the morning that the statement was made; that the statement was witnessed by George Litner, who was known as public defender, and Bill Duncan, also a witness for the state. He then stated that (indicating) in his statement is the signature of the appellant; “that is the warning that was given before he made the statement, and I read it to him again in the presence of the two witnesses.”

The state then introduced in evidence appellant’s voluntary statement as follows:

“Date Mar. 29-30.
“The State of Texas, County of Dallas:
“To Whom it May Concern:
“After I have been duly warned by J. W. Fritz that I do not have to make any statement at all, and that any statement I make may be used in evidence against me on the trial for the' offense concerning which this statement is herein made, I wish to make the following voluntary statement to the aforesaid person:
“My name is Harvey Jackson.
“My address is 5450 McComas Ave in rear.
“I am 26 years old.
“About eleven o’clock or maybe later tonight I left.Henry Stanford’s house on Clark St. I caught the Vickery car and rode to Vanderbilt. After I got off of the car I saw a woman get off of the same car at the end of the line. I thought it was my wife as my wife had a black coat and hat. I then started after her and caught her a little ways from where she got off of the car. I hit her two times with my fist before I saw she was a white lady. After I knocked her down and saw she was a white lady I heard some one coming and I ran off and left her.
“[Signed] Harvey Jackson
“Witness:
“Bill Duncan, (address) % City Hall
“George Lintner (address) % City Hall.”

The witness then stated that he visited the scene at the end of the car line; that he went back there that night; that he found a poek-etknife; that there was blood on the blade; that there were puddles of blood on the grass and leaves up there where the lady had been attacked; that he did not see Miss Coleman that night; that he saw her later; that he examined the appellant relative to there being marks, or scars on him; that he had scratches on his wrists and arms; they were fresh scratches and bleeding; that these scratches were on his wrists and the back of his hand; that they appeared to be made by a finger nail; that there was no pressure brought to bear on the appellant to make the statement; that he was talking calmiy when he made it.

There were one or two other witnesses who lived in the neighborhood where the attack was made who testified that they heard screams about the time of the attack.' One of them testified that there was a steady flow of screams, with just' slight interruptions. Another witness testified that, when he heard the screams, and that when the screams ceased, he saw a form running up the center of the street. -J. K. Burton testified that he heard the screams; and started to go out, and that he heard the screen on the porch open and some one ran against the door; that, when he got there, Miss Coleman was on his porch; that she was covered with blood, and he could not tell who it was; that he said, “What is the matter,” and she said, “A negro has attacked me.” She said he beat her and tried to kill her. “When she said that X grabbed her arm and pulled her in and she fell right inside the door.” He testified that her eyes were blackened up, and her face just beat in every way, and blood running from her eyes and nose, and I thought from her mouth; that his wife ran to her and grabbed towels and wiped her face off and turned her on her side to keep her from choking to death with the blood; that he called the ambulance; and that she was carried away.

W. W. Connor testified: That he was employed by the police department, and that on that particular night Mr. Hughes was with him. That they were patrolling the streets in an automobile. They saw the defendant, Harvey Jackson. That he was about half a block south of McComas street on Greenville avenue when he saw him. That, when he saw the appellant, he stopped him and questioned him. He seemed to be a little bit nervous'; had blood on his hands and some splotches on his face, and that he noticed some on his shoes. That he carried him on down to the drug store, and then turned him loose after he made an explanation about the blood. That about forty-five minutes later he arrested the appellant in a servant house on Mc-Comas and McMillan streets. That, át the time he took him to the drug store and turned him loose, appellant stated.in explanation at that time that two negroes had been fighting on Central avenue, and .that he tried to separate them, and that was where he got the blood on his face, hands, and shoes.

It was also shown by the evidence that the officers picked up at the place of the assault a lady’s black close-fitting hat, rather dirty; also a woman’s pocketbook.

The appellant offered no testimony, and did not testify himself.

The court submitted in his charge to the jury both assault with intent to rape and aggravated assault, and there was no exception taken to the charge or to the evidence offered by the state. No motion for a new trial was filed. The issue of whether or not the assault was made with the specific intent to rape to have carnal knowledge of the woman assaulted without her consent by force was fairly submitted to the jury in the court’s charge, and, the jury having decided said issue against the appellant, we see no reason under the facts in this case to disturb the verdict.

Judgment affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

Solely on the ground that the evi-. dence did not support the judgment, .appellant moves for a rehearing. In a written statement made and signed by him shortly after the occurrence, he admitted the assault, but affirmed that he thought the woman in the case was his wife, and that, after he had struck her a few blows, upon discovery that ‘she was a white woman, he ran away. The extent as well as the purpose of the assault were fact conclusions placed by statute within the province of the jury, and seldom disturbed .by us, and then only when we find either no substantial support for the verdict or else are led to believe it influenced by passion or prejudice. Such is'not the case here.

The motion for rehearing will be overruled.


author: HAWKINS, J.

text:
    POPE v. STATE.
    No. 13950.
    Court of Criminal Appeals of Texas.
    Jan. 28, 1931.
    Thos. C. Turnley, of Galveston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for aggravated assault, punishment being confinement in the county jail for ninety days.

No statement of facts is brought to this court. The only question presented arises on the court’s refusal to arrest the judgment.

In substance, the averments of the indictment are that appellant drove an automobile at a greater rate of speed than permitted by law, and that while so negligently and carelessly driving said car he struck and collided with another car' being driven by W. E. Thomas, and that by reason of such collision serious bodily injury was inflicted on said Thomias.

By motion in arrest of judgment appellant attacked the indictment as duplicitous. If there is any merit in appellant’s complaint (which it is not necessary to decide), it came too late. The question of duplicity must he raised in limine. It cannot be raised after verdict by motion in arrest. Melley v. State, 93 Tex. Cr. R. 522, 248 S. W. 367; Kocich v. State, 94 Tex. Cr. R. 74, 249 S. W. 494; Lumus v. State, 94 Tex. Cr. R. 191, 250 S. W. 425; Brown v. State, 96 Tex. Cr. R. 413, 254 S. W. 495, 257 S. W. 891; Garner v. State, 100 Tex. Cr. R. 626, 272 S. W. 167; Ramsey v. State, 108 Tex. Cr. R. 182, 299 S. W. 411; Anderson v. State, 113 Tex. Cr. R. 450, 21 S.W.(2d) 499.

The judgment is affirmed.


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

text:
    WRIGHT v. STATE.
    No. 13644.
    Court of Criminal Appeals of Texas.
    Nov. 5, 1930.
    Appeal Reinstated Dec. 17, 1930.
    State’s Rehearing Denied Feb. 18, 1931.
    J. M. Parker, of Gorman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is rape; the punishment, confinement in the penitentiary for seven years.

This court is without jurisdiction to pass upon the merits of the case owing to the fact that the appeal bond does not comply with the legal requirements, in that it fails to state that appellant was convicted of a felony. This is an essential statutory requisite. Read v. State, 109 Tex. Cr. R. 314, 4 S.W.(2d) 547. See article 817, C. C. P. 1925. It is merely stated in the appeal bond that appellant “stands 'charged with the offense of a felony.”

Appellant is granted fifteen days from this date in which to properly perfect his appeal.

The appeal is dismissed.

PER CURIAM.

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

HAWKINS, J., absent.

■ CHRISTIAN, J.

A proper appeal bond having been filed, the appeal is reinstated and the case considered on its merits.

Prosecutrix, Dessie Wright, testified to three acts of sexual intercourse with appellant. It was uncontroverted that prosecu-trix was over fifteen and under eighteen years of age at the time, and that she consented to the illicit relations. Appellant failed to testify in his own behalf, and contented himself with offering testimony to the effect that prosecutrix had extended camal favors to another man previous to the date relied upon by the state in this ease. Prosecutrix denied relations with any man other than appellant.

Bill of exception No. 10 recites that the first act of intercourse between prosecutrix and appellant occurred on the 29th of December, 1926; that the court permitted prosecu-trix to testify that she and appellant had two subsequent acts of intercourse, one on the 9th day of February, 1927, and a later act, the date.of which was not fixed. It appears that the first act of intercourse occurred at the home of Lon Simpson, and that a second act occurred in a pasture some distance removed from the home of Simpson. The only controverted issue in the case was whether, before appellant had sexual relations with prosecutrix, she had already become unchaste by indulging with another man. The testimony touching subsequent carnal acts did not tend to solve any controverted issue. If appellant was guilty of rape, it was upon the first act. No prosecution for such crime could have been predicated upon any act oí intercourse occurring thereafter, as prose-cutrix admitted that the first act was indulged in willingly by her. Appellant timely objected to the testimony of prosecutrix. touching subsequent acts. The objection was overruled. Thereafter, as shown by bill of exception No. 17, he ma.de a motion to the court requesting that such testimony be excluded and withdrawn from the jury. A special charge on the subject was timely and properly presented. The court declined to give it, but instructed the jury, in substance, that testimony of subsequent acts of intercourse could not be considered, if at all, “except for the light, if any, it might throw upon the act committed on December 29, 1926.” This charge was timely and properly objected to, and request again made that said testimony be withdrawn from the consideration of the jury. The conclusion that the learned trial judge fell into error is supported by many authorities. McKnight v. State, 98 Tex. Cr. R. 355, 265 S. W. 892; Rosamond v. State, 97 Tex. Cr. R. 569, 263 S. W. 297; Rosamond v. State, 94 Tex. Cr. R. 8, 249 S. W. 468; Cabana v. State, 111 Tex. Cr. R. 48, 10 S.W.(2d) 997.

For the error discussed, 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.

On State’s Motion for Rehearing.

MORROW, P. J.

The conviction is for rape upon Dessie Wright, a girl over fifteen and under eightoen years of age alleged to have taken place on the 29th day of December, 1926. Appellant interposed as a defense that at the time he had intercourse with her the prosecutrix was unchaste by reason of her intercourse with Otto Lasiter on the 23d day of December, 1924. That the appellant’s act of intercourse with the prosecutrix took place ón December 29, 1926, was not controverted. There was, however, introduced by him testimony showing that the act of intercourse between Las-iter and the prosecutrix took place in December 1924. The state introduced two other acts of intercourse between the appellant and the prosecutrix, namely, one on February 9, 1927, and another on'March 12, 1927. The state takes the position upon this appeal that the two subsequent acts of intercourse mentioned were admissible as bearing upon the chastity of the prosecutrix at the time of the first act of intercourse with the appellant. Apparently such is not the view of the subsequent acts which prevailed in the trial of the case. The court instructed the jury as follows: “You are further charged that the State has elected to rely for a conviction in this case upon the act of carnal knowledge, if any, between the defendant and Dessie Wright committed on or about December 29th, 1926, if it was. Therefore you cannot consider any other act, if any, of sexual intercourse between the defendant and said Dessie Wright, except for the light, if any, it may throw upon the act committed, if committed, on or about December 29th, 1926.”

Objection was made and reserved to the paragraph of the charge quoted above. A request was made that the jury be instructed, in substance, that the two subsequent acts of intercourse could not be considered as having any bearing upon the alleged act of December 29, 1926. The exception was overruled and a special charge covering the same subject was refused by the court, in,which action we think he was in error.

That the appellant had intercourse with Dessie Wright on December 29, 1926, was proved without controversy. Touching that act’she said: “I was on the car fender and Jake was on the ground, or the step that you step up on to get in the car. There was not a complete act of intercourse at that time. I took my clothes down and we had intercourse. I didn’t' believe then it was an intercourse, but later I could tell it was. I could feel his parts, but it ran up against something. His private went part of the way into my private and it went against something.”

Describing the second act of intercourse, that is, the one of February 9th, she said that there was some pain; that she' shed no blood at the previous, act, but that there was much pain during the second act. The third act was accompanied by pain and bloodshed.

The testimony establishing the first act of the prosecutrix with the appellant is un-controverted, and the charge of the court upon that subject appears to have been obviously wrong and probably misleading to the jury. The state now contends that the presence of pain and blood in the act of March 12th and pain in the act of February 9th were available to the state to controvert the testimony that the prosecutrix and the witness Lasiter had engaged in sexual intercourse. Lasiter gave no description of the extent to which his alleged transaction was successful, or the incidents that accompanied it, and the prosecutrix denied it in toto. On behalf of the state a doctor testified that after March 12th he examined the vagina of the prosecutrix and found the hymen completely ruptured. The other parts of the female organ were normal. The doctor further said that some pain always attends the first act of intercourse where the hymen was ruptured; also a slight hemorrhage.

Touching the admissibility of the testimony showing subsequent acts of intercourse, the precedents to which state’s counsel refers are not deemed applicable. In Crosslin’s Case, 90 Tex. Cr. R. 467, 235 S. W. 905, the question of chastity was not specifically involved., and that Crosslin had any sexual relations with the prosecutrix was vigorously controverted. ' In Bradshaw’s Case, 82 Tex. Cr. R. 351, 198 S. W. 942, the conviction was for incest. The accused denied any act of intercourse. In Rosamond’s Case, 97 Tex. Cr. R. 569, 263 S. W. 297, and Lawrence v. State, 87 Tex. Cr. R. 61, 219 S. W. 460, there was a reversal in each instance because of the introduction of subsequent acts of intercourse.

The misdirection of the jury in the matter hereinabove discussed requires a reversal of the judgment of conviction. Upon another trial, the evidence might be different. If, however, the state is unable to' prove additional facts rendering the subsequent acts of intercourse admissible in evidence, it is the opinion of the writer that they should be excluded. The fact that the absence of details touching the extent of the penetration in the claimed act of intercourse with Lasiter, and the fact that prior to the examination of the prosecutrix by the doctor there were, according to the state’s theory and testimony, three acts of intercourse with the appellant, the evidence touching the subsequent acts is deemed of no cogency as establishing the chastity of the prosecutrix at the time of the first act of intercourse with the appellant.

The motion for rehearing is overruled.


author: LATTIMORE, J. HAWKINS, J.

text:
    FALCO v. STATE.
    No. 13868.
    Court of Criminal Appeals of Texas.
    Jan. 14, 1931.
    Rehearing Denied Feb. 18, 1931.
    Robert D. Peterson and C. R. Glass, both of • Marlin, for appellant.
    Uoyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

The indictment charged burglary of the house of A. M. Peacock. The proof made was of burglary of the house of Abner Peacock. We think there was no variance between the allegation and proof. Franklin v. State, 37 Tex. Cr. R. 312, 39 S. W. 680. Variance as to-middle initials is immaterial. Spencer v. State, 34 Tex. Cr. R. 65, 29 S. W. 159.

A defense witness, testifying to .tlie good reputation for peace and quietude of tlie accused, may be asked on cross-examination by tbe state if be bas not beard that sucb accused bad been indicted for assault to murder. We perceive no error in tbe complaint of this. Branch’s Annotated P. 0. § 184, cites cases supporting our view, Young v. State, 41 Tex. Cr. R. 445, 55 S. W. 331; St. Clair v. State, 49 Tex. Cr. R. 481, 92 S. W. 1095.

A witness swore that about 2 or 2:30 a. m. on tbe night of the alleged burglary, be saw appellant and bis codefendant near tbe railroad station in a ear, said station being shown to be not far from tbe bouse burglarized. Over objection the witness testified that appellant and bis companion asked him to burry and leave as they were expecting some girls to come to their car. Other testimony showed that at about 2:30 or 3 a. m. on said night appellant and bis codefendant were seen in tbe act of removing a sack of something from said burglarized bouse and putting it into tbe car. We think it not erroneous to prove tbe presence of said parties near tbe station at tbe time first mentioned, also that what they said to induce tbe witness to leave tbe vicinity was admissible.

We think tbe special charge, tbe refusal of which is complained of in bill of exceptions No. 3, was fully covered by tbe main charge in so far as same was applicable.

That in defining theft tbe court inserted in bis charge tbe clause “or from tbe possession of some person bolding tbe same for him,” there being in tbe record no proof that tbe property in tbe bouse in question was being held for tbe owner by any one elsé, would not seem an error, if any, capable of possible injury to the accused. Certainly not sucb error as would call for a reversal. See article 666, O. O. P.

Some of tbe witnesses against appellant were negroes. Appellant testified that on numerous occasions be bad gambled with these negroes, that they got hot or sore with each other, and cursed each other, but that beyond this be bad no dealings or transactions with them. In bis argument to tbe jury the state’s attorney said:

“This defendant, who admitted be bad gambled with these negroes and said be bad won their money and that they bad won bis and would cuss at them, is tbe kind of man who would perjure himself to beat this case.”

This was objected to apparently on tbe ground that there was no testimony that appellant bad ever won money from these ne-groes, or that they bad won bis, and that hence tbe expression of said attorney’s opinion that appellant won money from them and they won money from him was without- testimony to support it. It certainly would not be a far-fetched inference from testimony that certain parties gambled with each other often, to conclude that some would win from others and others would win from some. The complaint in this bill of exceptions appears to us to have no merit.

Tbe facts in tbe case seem amply sufficient to support tbe conclusion of guilt. A seed bouse located near tbe railroad station above referred to was burglarized apparently by the removal of a plank which was nailed to tbe side of tbe bouse. A witness testified that about 2:30 or 3 o’clock on tbe night of tbe burglary be saw a car standing close to said seed bouse, in which car was appellant, and that bis codefendant was standing with one foot on tbe running board of tbe car and that be was removing a sack from tbe bouse and putting it in tbe car. This witness said bis attention was called at tbe time by bearing tbe “squeak” of a nail. Search of tbe car of appellant tbe following morning revealed tbe presence in it of cotton seed. The contents of the seed bouse referred to were shown to be cotton seed in sacks.

Binding no error in tbe record, tbe judgment will be affirmed.

On’Motion for Rehearing.

HAWKINS, J.

Appellant renews bis contention that tbe evidence fails to show him to have been a principal in the burglary, and challenges tbe correctness of tbe statement in our original opinion that “a witness testified that about 2:30 or 3 o’clock on tbe night of tbe burglary be saw a car standing close to said seed bouse, in which car was appellant, and that bis codefendant was standing with one foot on tbe running board of tbe car and that be was removing a sack from tbe bouse and putting it in tbe car.” It will be borne in mind that tbe evidence established that tbe burglarized seed bouse and tbe railroad station were near together. Tbe witness Bartlett testified:

“I was traveling across the bridge into town that night and I saw Louis Ealco and Lee Matelski, and when I first got on tbe bridge I beard a nail squeak, and when that happened, be (Louis) raced tbe motor of the car, as be was sitting in tbe car, and -bad on ■ a white shirt,’and Lee Matelski bad one foot on tbe car and tbe other on tbe seed bouse and was pulling at a board, and I beard somebody say ‘there comes somebody’. I heard Louis say that. Yes sir, when I came up on tbe foot of tbe bridge, tbe car was parked by tbe seed bouse and Lee Matelski was standing one foot on tbe wall and one on tbe car, and be gave tbe board a second pull, and it come off, and. Louis said ‘there comes somebody’ and Lee got in tbe seed bouse and Louis drove off. About five minutes later, I saw them again. I went around to the depot where the mail sack is, and the car come on back, and I got around the edge of the platform to see who was in the car, and Louis was in the car, and later.on Lee brought a sack of seed, and put it in the car. The defendant here was in the car I saw.”

The evidence quoted unquestionably makes appellant guilty as a principal. The breaking and entry of the building, that is, the burglary, actually occurred while appellant was bodily present. The subsequent placing of the seed in the car by appellant’s coprincipal some five minutes later only evidenced the culmination of the intent with which the burglary was committed, that is, the theft of the seed.

The motion for rehearing is overruled.


author: LATTIMORE, j.

text:
    McCAUGHLIN v. STATE.
    No. 13980.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    W. C. Wills, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, j.

Conviction for possessing mash for the manufacture of intoxicating liquor; punishment, three years in the penitentiary.

The record is here without any bills of exception. The facts are ample to support the conviction. Officers found on premises under the control of appellant a number of tanks full of mash which was in process of fermentation. Appellant was present, and, in substance, admitted to the officers that it was his. No testimony was introduced on behalf of the appellant.

In appellant’s motion for new trial he set up that he was denied his right to have legal representation because of the fact that the counsel whom he had employed failed to appear and present his defense. Also that the state’s attorney indulged in argument calculated to injure his rights. It will be a sufficient answer to the last proposition to say that no bill of exceptions was taken to the argument of counsel, but, inasmuch as he had no one representing him upon the trial, the trial judge, apparently in an effort to be perfectly fair, heard testimony on both propositions. An attorney who had been spoken to by appellant to .represent him testified on the hearing of said motion that appellant had never paid him anything, and had been notified by him that he would not act for the defense because of the failure to pay thei fee. On the other proposition, persons who heard the argument of the prosecuting attorney gave testimony showing that the argument actually made was not of a character calculated to injure the rights of appellant.

No error appearing, the judgment will be affirmed.


author: CHRISTIAN, J.

text:
    FUNDERBURK v. STATE.
    No. 13876.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    V. L. Shurtleff, of Breckenridge, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

Operating under a search warrant, officers searched appellant’s private residence and found therein a large quantity of whisky. It was appellant’s defense, given support in his own testimony, that the whisky had been placed in his residence, without his (appellant’s) knowledge and consent, by a man by the name of Little. Appellant’s testimony was also to the effect that the whisky had been placed in his residence while he was away from home. Referring to what a boy who was working for him told him about the matter, appellant said: “After he got back he told me that a guy had walked up ■ to him and told him that he had a truck that was broke down; asked him if he was working for me, and if I was going to come back or stay all night; that he had a truck that was broke down, and that he would like to unload some stuff and put it in the house if I would let him. The boy told me that he told him to come on up, and that it was all right, he could put the stuff in the house. I told the boy that it didn’t sound good to me because that fellow used to handle liquor. He said the fellow’s name was Little. I had known Little a right smart while ago, three or four years ago.”

Appellant further testified he had just returned from a fishing trip when the officers searched his house; that he had not entered the house and did not know there was whisky iin it. The officers testified that appellant was in the lot feeding his chickens when they made the search.

The court charged on circumstantial evidence. In his argument to the jury the district attorney used language as follows: “The argument made by defendant’s counsel is not applicable to this case, because this is not a case solely on circumstantial evidence, the defendant was there in his lot when the officers came and the liquor was in his house, and it can not be a ease of circumstantial evidence.”

Appellant timely and properly objected to the argument on the ground that it was improper for the district attorney to state to the jury that the case was not one of circumstantial evidence when the court had expressly charged the jury on the law relating to such subject. Also, appellant presented to the court a special requested instruction in writing wherein the jury would have been advised that the state relied upon circumstantial evidence, and that the statement of the district attorney to the effect that the case was not one of circumstantial evidence was a misstatement of the law and should not be considered by the jury. The objections were overruled, and the court declined to give the requested instruction. The opinion is expressed that the learned trial judge fell into error in declining to withdraw the remarks. The argument of the district attorney was calculated to nullify the charge of the court applicable to circumstantial evidence. In Rodriquez v. State, 100 Tex. Cr. R. 11, 271 S. W. 380, 383, on motion for rehearing, Judge Lattimore used language as follows: “Manifestly it would be erroneous for the trial court to give an instruction to the jury, and in the customary language tell them they are to receive the law from the court which is herein given them, and then the state’s attorney be permitted to assault any part of the charge and tell the jury that it is not the law, and the court knows it is not the law and did not intend for them to be governed thereby. * * * The court may not give verbal charges to the jury nor may he so sanction statements as to the law of the case made by the district attorney as in effect to make his approval thereof nullify charges already given. If this was a case on circumstantial evidence, as instructed by the court, the assault committed by the district attorney should not have been allowed. We think this conduct of the district attorney and of the learned trial judge such as to necessitate a reversal of this case.”

In submitting appellant’s affirmative defense, the court instructed the jury, in substance, that if they believed that a man by the name of Little placed the whisky in appellant’s house without appellant’s knowledge or permission, and that appellant did not know that said whisky was in said house at the time the officers found the same, they should acquit appellant. The doctrine of reasonable doubt was applied to this charge. Appellant timely objected to the charge on the ground, among others, that it required the jury to believe that he did not have knowledge that the whisky was in the house at the time the officers made the search before they would be authorized to acquit him. Under the facts presented by the record, we are of the opinion that the exception was well taken. It was appellant’s theory, given support in the testimony, that the whisky was placed in the house by Little without his knowledge or consent. If, upon returning home, he discovered the whisky and knew it was in the house when the officers made the search, it would not necessarily follow that his knowledge of such fact would inculpate him, provided he had exercised no personal care, control, and management of said liquor. In other words, the mere fact that appellant may have learned, when he reached home, that the whisky was in his house did not render him culpable. However, we do not predicate a reversal upon this matter.

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.


author: LATTIMORE, J.'

text:
    GREEN v. STATE.
    No. 13918.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    J. S. Stallings, of Claude, and W. P. Nix, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.'

Conviction for robbery, punishment, twenty-two years in the penitentiary.

There are two bills of exception in this record, one of which complains of the action of the trial court in overruling appellant’s challenge for cause to juror Pafford. Erom the recitals in the bill, it appears that appellant’s peremptory challenges were exhausted at a time when special talesmen were brought before the court for the purpose of selecting the twelfth and last juror. Mr. Pafford stated to the court on his voir dire examination that he had heard some discussion as to the manner and circumstances of the alleged robbery, but that he had no opinion as to the guilt or innocence of the appellant, and believed himself competent' to try the case upon the law and the evidence. The action of the trial court in overruling the challenge for cause seems in line with numer-out authorities that might be cited. What the juror had heard is not shown to have been from any witnesses but from hearsay. The other bill presents substantially the same complaint, setting out more in detail and at length what Mr. Pafford had heard. Said bill also reflects the fact that whatever opinion the juror may have had was formed wholly from hearsay, and that he affirmed under oath that he could lay this aside and try the case according to the law and the evidence. We see no reason to believe the action of the court an abuse of his discretion:

Appellant asked several special charges, which were given, and some of which were refused, but there is no complaint of the refusal of any charges preserved by separate bills of exception or noted in such manner as that we can consider same. There are a number of exceptions to the court’s charge, but, in the absence of a statement of facts, it is impossible for us to appraise the complaints made. Practically all of the complaints appearing are of matters the propriety of which would depend upon the existence of facts, testimony regarding which would have to appear in the record.

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


author: LATTIMORE, J.

text:
    COON v. STATE.
    No. 13771.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    Seale & Denman and Adams & McAlister, all of Nacogdoches, for appellant..
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing a still and equipment for manufacturing intoxicating liquor; punishment; two years in the penitentiary.

Prom the state’s standpoint, the testimony showed that appellant was seen at a still near the Attoyac river. One witness Said he saw him disconnecting some parts of the still. The defense was an • alibi. There are other questions raised which we do not deem it necessary to discuss, in view of our disposition of the appeal.

Bill of exceptions No. 2 shows that upon the trial, and while appellant was testifying, and at a time when he had not put his general reputation in issue, the district attorney asked appellant, on cross-examination, if he did not have the reputation, of being the best whisky maker in San Augustine county. The question was objected to, for the reason that his reputation had not been put in issue, and for the further reason that said question placed the defendant in the position of having to answer or object to same, either of which would prejudice him before the jury. The court overruled the exception to the question, and the bill shows that the court failed to instruct the jury not to consider the asking of such question,-and that to this action of the court exception was taken. The only qualification to the bill is that the question was not answered. ’’That such question was improper and hurtful is manifest. We cannot gauge the evil effect upon the jury of such improper question. The appellant was not given the lowest penalty. We 'think the cases cited in appellant’s brief authority for holding such action reversible error. Childress v. State, 92 Tex. Cr. R. 215, 241 S. W. 1029.; Harrison v. State, 102 Tex. Cr. R. 385, 278 S. W. 430; Hunter v. State, 113 Tex. Cr. R. 90, 18 S.W.(2d) 1084.

By another bill it is shown that the district attorney asked a state witness a question; that said question was objected to by the appellant, and the objection was sustained. The bill shows that the district attorney then said to defense counsel, in the presence of the jury: “Are'you still objecting to me asking him if he could be positive as to the time he was there?” this being the question the objection to which had just been sustained. The bill shows that appellant’s counsel replied that he was, whereupon the district attorney said in the presence of the jury: “I just want to get it before the jury. I just want the jury to know that the question was asked.” It would seem to be unnecessary to say that this procedure was calculated to injure the rights of the accused. To ask a question, and, when the objection thereto was sustained, to insist upon calling the jury’s attention to the fact that such question was asked, would not seem to be in any ease proper procedure.

By another bill complaint is made of the fact that the sheriff of the county was permitted to testify for the state that he knew what appellant’s truck was loaded with on the morning before appellant was found at the still in question, because he had been told by some one what the truck was loaded with. He was permitted to state what he saw on the truck. This was objected to as being hearsay testimony, and prejudicial to the rights of the accused. The bill is approved, with the qualification that the jury were instructed not to consider hearsay testimony. The rights of the defendant would appear to be better preserved by sustaining objections to hearsay testimony rather than admit it and afterward instruct the j.ury not to consider it.

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


text:
    CLARK v. STATE.
    No. 13882.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1931.
    Rehearing Denied Feb. 18, 1931.

      Rutledge Isaaeks and L. A. Dale, both of Pecos, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

The record contains four bills of exception, which will be noticed in reverse order.

The state’s attorney told the jury they should convict appellant because he had not explained his possession of a jar of whisky within the meaning of the prima facie evidence rule as set out in the court’s charge. He insisted that appellant had merely denied that he possessed any intoxicating liquor whatever. The argument was objected to as prejudicial because of the fact that appellant c-ould not explain possession of a kind of liquor which he denied having. We see no merit in appellant’s contention. He did attempt to explain his possession of a bottle of liquid; his explanation being that the liquid was not whisky but floor oil. In his charge the court told the jury that, if they believed that the liquid had by appellant at the time in question was floor oil, or if they had a reasonable doubt thereof, they should acquit. The state’s attorney has a right to assume for the purpose of argument that the state witnesses are telling the truth, in which event appellant was found in possession of a half-gallon jar of whisky. Evidently the state's attorney was arguing to the jury that appellant’s claim that the jar contained floor oil was not any such explanation as should result in his acquittal.

By another bill of exceptions complaint is made that the trial court erred in admitting testimony from the officers to the effect that, after appellant’s arrest, they followed appellant’s tracks around a building diagonally across the street from appellant’s store onto the back of said building, and that just inside the building and behind the door they found three half-gallon jars full of whisky. We regard this as pertinent testimony bearing upon the issue as to whether the liquid in possession of appellant when seen by the officers was in fact whisky. The officers testified that appellant left his store with a paper sack folded or doubled up in his hand, crossed the street diagonally, and went behind a vacant building; that in about two minutes he reappeared with something heavy in the sack, which sack he was holding by the top; that, as he crossed the street toward his store, they holloed at him and he broke and ran. One of the officers rán after appellant, who, according to the officer’s testimony, made a swing with the paper sack at a metal gaso-liné barrel sitting on the north edge of appellant’s back porch. The officer said when appellant made this swing the bottom of the paper sack gave way and the half-gallon jar full of liquid fell to the floor. He said appellant picked it up and broke it on the top of the gasoline barrel. Both he and the other officer examined the liquid that'was on top of the gasoline barrel and gave testimony that it was whisky. Appellant said he went after and got floor oil on his trip to the rear of the vacant building referred to. Appellant’s wife said she asked him to go and get floor oil on said occasion. It thus became a sharply contested issue as to whether he got floor oil or whisky. The officers testified that they followed appellant’s tracks to the door of said vacant building, and just inside same they found these half-gallon jars of whisky. The testimony was clearly admissible. The jar brought by appellant from behind said build, ing was a half-gallon jar.

By two bills of exception appellant complained of the admission of similar testimony given by the two officers as to what they saw and found by an examination of the liquid on the top of the gasoline barrel on his back porch. The objection is stated thus in each bill: “The defendant objected to that part of said testimony which states that there was whiskey in the rim of the gas barrel on the defendant’s back porch and which in any manner referred to the contents of said broken jar as having been whiskey.” The ground of the objection was that the officers had no search warrant, and no authority of law to be where they were or to do what they did on the occasion in question. Appellant has filed an ingenious brief, arguing at length the inadmissibility of this testimony. We find ourselves entirely unable to agree to the positions taken.

Appellant’s building had two rooms, in the front of which he had a store and in the rear room a residence; there being a porch on each end of said building. The building fronted west on a street. Officers watching the place saw appellant go to and fro between his store and cars which would drive up in front. They then observed him crossing the street in a northwesterly direction carrying a paper sack, as above set forth in considering another point. When the officers called to appellant, he ran with something in a paper sack, Officer Cummings following him. There was no inclosure around the building, and no showing that appellant owned or controlled any land other than that actually covered by the building. The gasoline barrel which figures in the transaction, was on the north side of the back porch, out in the open, without anything on it or around it. Apparently, and according to the testimony of Mr. Cummings, as appellant ran toward his back porch and when his actions were patently observable by nobody in 'the vicinity, he made a swing at the gasoline barrel with the sack, at which time the bottom of the paper sack parted and there appeared in full view of the officer a half-gallon jar of liquid. Appellant, according to Mr. Cummings, at this juncture picked up this half-gallon jar and broke it on the gasoline barrel. Mr. Cummings said he saw the liquid come out of the jar and fall on top of the gasoline barrel. He at once smelled whisky, and, by tasting and examining the liquid on top of the barrel, he was enabled to say that it was whisky. The other officer testified that he saw appellant swing the sack at the barrel, but he then went in the front door of the store and came back through both rooms out on to the porch where appellant and Mr. Cummings were. He there examined the liquid on top of the gasoline barrel and testified it was whisky. Mr. Cummings was not on appellant’s premises, nor in his house when he saw the latter flee after being hailed by the officers. He was not on appellant’s premises nor in his house when he saw appellant 'swing the jar at the barrel in question, nor when he saw the jar of liquor slip through the bottom of the sack and fall on the floor, nor when he saw appellant pick said jar up and break it on the top of the barrel. It would appear idle to argue that all this transpiring in plain sight of the officer, who had made no search of appellant’s premises, entered no house, broken no doors, that under circumstances like these the officer could not stop on the porch or examine and determine the character of the liquor on the rim of said barrel, but that he must stop, go away to some magistrate, make affidavit, get a search' warrant, return, to find that the liquid on top of the gasoline barrel- has been wiped away and that there was nothing for him to do to further ascertain its character. Such conclusion would be a travesty on the real purpose and the intent of the law requiring the making of a search warrant necessary' before searching the premises of another.

Appellant’s actions, coupled with the exposure of the jar and his breaking the same and its fumes pervading the air, would furnish ample ground for a reasonable belief on the part of the officer that appellant was violating the law both by his transportation as well as his possession of intoxicating liquor, and the right of arrest on the part of the officer, and the sequent right of further search, fully existed. An offense has occurred within the view of an officer when his senses afford him knowledge thereof. United States, v. Borkowski (D. C.) 268 F. 408; Elrod v. Moss (C. C. A.) 278 F. 123; Lambert v. U. S. (C. C. A.) 282 F. 413. If an officer is apprised by any of his senses that a crime such as this is being committed in his presence or view, he is justified in arresting without warrant. Douglass v. State, 152 Ga. 379, 110 S. E. 168; Montford v. Com., 196 Ky. 780, 244 S. W. 293; Hughes v. State, 145 Tenn. 544, 238 S. W. 588, 20 A. L. R. 639. In Hodge v. State, 107 Tex. Cr. R. 579, 298 S. W. 573, it is held that, where officers saw through an open window in appellant’s barn men drinking beer under circumstances justifying a reasonable belief that appellant was committing a felony, this authorized his arrest without warrant, and made legal a search of said barn. In Moore v. State, 107 Tex. Cr. R. 24, 294 S. W. 550, an opinion by Presiding Judge Morrow, we held arrest without warrant authorized when the sheriff saw the accused put a quart bottle in a paper sack and walk out on the street with same in his possession. In Wilkes v. State, 105 Tex. Cr. R. 430, 289 S. W. 44, we held that, where officers saw the appellant through a crack in a smokehouse engaged in making whisky, and they went in and arrested him and his conviction followed, the action of the officers was justifiable. See, also, Rice v. State, 113 Tex. Cr. R. 596, 21 S.W.(2d) 1057, where officers saw through a window appellant engaged in the commission of a felony.

Being unable to agree with the contentions made by appellant in any of his complaints of procedure, and also believing the evidence to fully justify the conviction, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

By motion in arrest of judgment in connection with his motion for new trial, appellant attacked the indictment. It averred that appellant had in his possession for the purpose of sale intoxicating liquor “in a quantity in excess of one quart.” It is appellant’s contention that the quoted words in the indictment described an offense not known to. the law; hence rendered the indictment bad. There was no necessity of incorporating in the indictment the words quoted, but their presence would not render the indictment vicious. They might be disregarded altogether. Their presence in no way detracted from the averments which did charge an offense.

The other matters urged in appellant’s motion had our most careful attention on original submission. We find no good reason to change our views regarding them.

The motion is overruled.


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

text:
    BASS v. STATE.
    No. 13954.
    Court of Criminal Appeals of Texas
    Dec. 3, 1930.
    Appeal Reinstated Feb. 4, 1931.
    Alonzo Turner, of Borger, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, felony theft; the penalty, five years in the penitentiary.

The record in this case fails to contain a notice of appeal to this court. Without such, we are without jurisdiction.

The appeal is dismissed.

PER CURIAM.

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

HAWKINS, J., absent.

On Motion to Reinstate Appeal.

MORROW, P. J.

It appears that notice of appeal was given. The appeal is therefore reinstated.

To warrant consideration, the statement of facts must bear the certificate of the trial judge. See article 760, C. C. P. In the document relied upon in the present instance ■there is no such certificate. Appellant’s counsel has made an affidavit stating what purports to be the facts. The rule for the preparation and authentication of a statement of facts is embraced in the Revised Civil Statutes 1925, vol. 1, title 42, chap. 9, pp. 593-597, and article 760, C. C. P. To warrant the consideration of a statement of facts a substantial compliance with the statutory demands is imperative. See Yernon’s Ann. Tex. O. O. P. 1925, vol. 3, p. 83, note 6. The court certifies that no request was presented to have the court stenographer prepare a statement of facts without cost to the accused.

There are two bills of exceptions. Bill No. 2 complains of the failure of the court to instruct the jury to find a verdict of not guilty for the reason that the evidence was purely circumstantial and insufficient to warrant a conviction. In the absence of the evidence brought up for review, the merits of the bill cannot be ascertained.

Bill No. 2 complains of an indirect reference by state’s counsel to the failure of the accused to testify. The bill, as prepared, fails to show that he was not a witness in his own behalf. Such omission has been held fatal to the bill. See Quinney v. State, 86 Tex. Cr. R. 358, 216 S. W. 882. Certainly it is so in the absence of a statement of facts. However, in the bill as qualified, the court states that the remarks were specifically invited by those made by the appellant’s attorney.

Finding no error, the judgment is affirmed.


text:
    YOUNG v. STATE.
    No. 13706.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    L. C. Counts, of Olney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of a still for the purpose of manufacturing intoxicating liquor ; the punishment, confinement in the penitentiary for one and one-half years.

This case was reversed on a former appeal for the failure of the court to submit the law of circumstantial evidence. Young v. State (Tex. Cr. App.) 24 S.W.(2d) 829. The testimony adduced on the present trial was substantially the same as that found in the record on the former appeal. A statement of the evidence is necessary, in view of the fact that we have reached the conclusion that appellant’s first application for a continuance should have been granted. We content ourselves with quoting the statement made by Judge Lattimore on the former appeal, as follows: “The testimony shows that two officers went to a point on the premises occupied by appellant, and, when within a short distance of where they found a still, they heard talking and chopping of wood. They went in that direction, and, according to the sheriff, when they reached the place, appellant and a negro were sitting down near a still under which a fire was burning and in which was mash, etc. The sheriff testified that appellant and the negro were doing nothing except sitting there. Appellant made some remark about having an invalid wife. The sheriff also testified that appellant informed him that he and said negro were occupied in building and repairing a fence some little distance away, and that he had heard noises and came up to see what it was, and saw a man.run off from the spot where he found the still. The Officer testified that appellant told him he then called the negro to come and see what he had found, and when the negro came they examined the still, and the negro was quite anxious to get some of the product, and appellant thought he would wait and see if there was any whisky made by the still, as he had an invalid wife and would take some • of it to her. Appellant testified in corroboration of the statement made by him as detailed by the sheriff. He said when he reached the spot where the still was he saw a man run off, that he called the negro, and, when the negro came, they had the conversation which he had narrated to the officer, and that they sat down by the still to await developments. He further testified that they were still sitting at the same place when the officers came up and arrested him. He de^ nied any connection with the still, and' affirmed that he offered to take the sheriff with him, when discovered at the still, down to the place where he had left his axe, to show the sheriff he was in fact building a fence down there, but the officer declined to go. This fact was also testified to by the sheriff.”

Bill of exception No. 1 relates to the action of the trial court in overruling appellant’s first application for a continuance. Gene Campbell, the negro who was with appellant at the time the officers arrested him, was also arrested and thereafter indicted for the same offense for which appellant was placed on trial. When appellant’s case was called for trial he filed his application for a severance, requesting that the negro be first tried. Upon presentation of the application, the court announced that it would be granted, but, before an order was entered, the case against the negro was dismissed upon the motion of the district attorney. Appellant immediately had a subpoena issued for the negro and placed it in the hands of the sheriff of the county for service. Although the absent witness resided in the county of the prosecution, and such fact was properly averred in-the application, it appears that the sheriff of said county was unable to find the witness, his return being to the effect that the witness was out of the county. At the time the subpoena was issued, the witness was under bond to appear for trial in his own case. It is further shown in the application that the witness would testify, if present, that, while he and appellant were building and repairing a fence, they saw some smoke about 100 or 150 yards away; that going in the direction of the smoke they came upon a still and saw a man running away; that they sat down. and had been there only a few minutes when the officers approached. Without further setting out the averments of the application, it is observed that they show that the absent witness would give testimony in corroboration of appellant’s statement of the transaction. In other words, the absent testimony was material and was in consonance with appellant’s testimony, and contradicted the state’s case. The testimony heard on the motion for new trial was to the effect that Gene Campbell, the absent witness, was making records for the Brunswick Phonograph Company, and at the time was probably in San Antonio, although appellant had been unable to locate him; that the witness’ wife permanently resided in the county of the prosecution, where she and the witness had lived for several years; that the witness was expected to return to his home in a few days. It was further shown that, due to the absence of the witness, appellant was unable to secure his affidavit-showing that he would testify to the facts referred to in the application for a continuance.

We deem the diligence sufficient. Under the terms of the statute, the absent witness could not have been introduced as a witness for appellant while he was under indictment, as one under indictment for the same offense cannot testify for the appellant. Article 711, C. C. P.; Boss v. State, 102 Tex. Cr. R. 364, 277 S. W. 667. As soon as the state dismissed the case against Gene Campbell, appellant made a proper application for process, and had a subpoena placed in the hands of the sheriff of the county where the witness lived. He did everything he could reasonably be expected to do in an effort to secure the presence of the witness. Touching the materiality of the absent testimony, it was exculpatory and directly contradictory of the inculpatory facts relied upon by the state. The absent witness was alone in a position to support appellant’s affirmative defense. We are impressed with the conviction, not merely that'the appellant might possibly have been prejudiced in his rights by the ruling, but that it is reasonably probable that, if the absent testimony had been before the jury, a verdict more favorable to the appellant would have resulted. Texas Jurisprudence, vol. 9, page 873; Branch’s Annotated Penal Code, Sec. 338; Rumbo v. State, 28 Tex. App. 30, 11 S. W. 6S0; Hull v. State (Tex. Cr. App.) 47 S. W. 472; Dewberry v. State (Tex. Cr. App.) 74 S. W. 307; Satterwhite v.. State, 112 Tex. Cr. R. 574, 17 S.W.(2d) 823. The opinion is expressed that the learned trial judge fell into error in overruling the application.

The indictment contained several counts. Although appellant had, on a former trial, been convicted of possessing a still for the purpose of manufacturing intoxicating liquor and acquitted of the other counts in the indictment, upon the present trial the court submitted all of the counts, advising the jury, in the event they convicted appellant, to specify the count upon which they found him guilty. This was error. The court should have submitted only the count upon which appellant had theretofore been convicted. In view of the fact that the jury found appellant guilty on the same count he had theretofore been convicted under, it might be that the error is harmless. However, we do not decide the question, but suggest that, if another trial be had, the counts upon which appellant has heretofore been acquitted should not be submitted in the charge of the court.

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.