author: CALVERT, Chief Justice.

text:
    STATE of Texas, Petitioner, v. STATE MUTUAL LIFE ASSURANCE COMPANY OF AMERICA, Respondent.
    No. A-8417.
    Supreme Court of Texas.
    Jan. 17, 1962.
    Rehearing Denied Feb. 21, 1962.

      Will Wilson, Atty. Gen., Fred B. Wer-kenthin and C. Dean Davis, Assts. Atty. Gen., for petitioner.
    Dan Moody, Austin, Webster Atwell, Dallas, for respondent.
   CALVERT, Chief Justice.

Suit is by The State of Texas to cancel the license or certificate of authority of respondent to do business in this state. Cancellation is sought because of alleged violation of Sec. 4, Art. 3.50, Texas Insurance Code, V.A.T.S., in the making of contracts of insurance, unauthorized by Art. 3.50, “covering a group in this State”.

The trial court ordered all permits, certificates of authority, etc. heretofore issued to respondent cancelled, but further provided in its judgment that the order of cancellation should not issue if, “after thirty (30) days from the date” the judgment became final, or, in case of appeal, thirty days after mandate of affirmance was received from the appellate court, respondent should cancel and withdraw “all present coverage of group life insurance extended to Texas citizens who are members of the National Association of Securities Dealers”. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment that the State take nothing by its suit. 345 S.W.2d 325.

State Mutual is a Massachusetts corporation with its home office in that state. It writes all standard forms of ordinary and group life, individual and group accident and health, and other types of insurance contracts. It has held a permit or certificate of authority to do business in this State since 1935, and since that time has engaged in the business in this State of selling contracts of life insurance, health and accident insurance, and annuities through agents maintained in this State. The National Association of Securities Dealers is incorporated under the laws of Delaware, as a national securities association. It has offices in Delaware and Washington, D. C. As of November 30, 1958 it was comprised of 3870 member firms in 49 states and the District of Columbia, with 192 member firms in Texas.

In 1948 National Association of Securities Dealers and certain named individuals, as Trustees, executed a Declaration of Trust by the terms of which an insurance trust was created for the purpose of effecting and administering a plan of group insurance, submitted and proposed by respondent, for NASD’s member firms and their employees. The Trustees mailed applications for group life insurance and group accident and health insurance from NASD’s office in Delaware to State Mutual’s office in Massachusetts, where the applications were accepted and group policies were issued and mailed to the Trustees in Delaware. Twenty-five Texas member firms of NASD have applied for and received coverage under the group policies for their firm members and their employees. The group policies were, and are, valid under the laws of both Massachusetts and Delaware. They would not have been valid in Texas had they been executed and delivered in this State because Art. 3.50 does not authorize group insurance for members and employees of members of a trade association.

Under the provisions of Section 1, Art. 3.50, Texas Insurance Code, group insurance may be written in Texas for only four groups: 1. For employers with, and insuring, 10 or more employees. 2. For labor unions insuring their members. 3. For independent school districts and other agencies, departments, etc., of the State government insuring their employees. 4. For creditors insuring their debtors. This court has held expressly that contracts insuring the employees of members of trade associations are unauthorized. Board of Ins. Com’rs v. Great Southern Life Ins. Co., 150 Tex. 258, 239 S.W.2d 803.

But it is the contention of State Mutual that although the Texas statute may prohibit the execution or delivery in Texas of contracts of insurance covering trade association groups in Texas, the statute does not prohibit the coverage of trade association groups in Texas by contracts of insur-anee executed and delivered in states where that type of group insurance is legal. This contention is negated by the plain and unambiguous language of Sec. 4, Art. 3.50. The section reads:

“Except as may he provided in this article, it shall be unlawful to make a contract of life insurance covering a group in this State, and the license to do business in Texas of any company making a contract of life insurance covering a group in this State except as may be provided in this article may be forfeited by a suit brought for that purpose by the Attorney General of the State of Texas at the request of the Board of Insurance Commissioners.”

Moreover, to sustain State Mutual’s contention would be to destroy the effectiveness of Art. 3.50 and to make a mockery of its purpose and intent. It is not suggested that State Mutual and NASD undertook to evade the requirements of Art. 3.50 by selecting states where insurance contracts covering trade association groups are lawful as the situs of their principal contractual activities. Obviously they did not do so. But the necessary net effect of sustaining the contention would be to send all parties wishing to effect non-conforming group coverage in Texas scurrying for states for contract execution where the contract would be lawful and valid. We reject respondent’s contention and hold that Sec. 4 of Art. 3.50 authorizes cancellation of the license to do business in Texas of any company which executes and delivers anywhere a contract of insurance covering an unauthorized group in Texas, irrespective of the validity of the contract where executed and delivered.

Respondent asserts that construction and application of Art. 3.50 to the facts before us so as to authorize cancellation of its permit to do business in Texas violates the due process, full faith and credit, and commerce clauses of the United States Constitution. That contention must be rejected. Pertinent to our consideration of the contention in addition to Art. 3.50 is that part of Art. 21.43, Texas Insurance Code which reads:

“The provisions of this code are conditions upon which foreign insurance corporations shall be permitted to do business within this State, and any such foreign corporation engaged in issuing contracts or policies within this State shall be held to have assented thereto as a condition precedent to its right to engage in such business within this State”.

The problem posed is as to the power of The State of Texas to condition State Mutual’s right to continue to do business in Texas on its cancellation of coverage as to groups in Texas of group insurance policies which are not authorized by Art. 3.50. With the problem thus stated it seems in order to observe that such cases as Allgeyer v. State of Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832; New York Life Ins. Co. v. Head, 234 U.S. 149, 34 S.Ct. 897, 58 L.Ed. 1259; St. Louis Cotton Compress Co. v. State of Arkansas, 260 U.S. 346, 43 S.Ct. 125, 67 L.Ed. 297; Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U.S. 143, 54 S.Ct. 634, 78 L.Ed. 1178; Boseman v. Connecticut Gen. Life Ins. Co., 301 U.S. 196, 57 S.Ct. 686, 81 L.Ed. 1036, and State Board of Ins. v. Todd Shipyards Corp., Tex.Civ.App., 340 S.W.2d 339, writ refused, n. r. e., with per curiam opinion, Tex., 343 S.W.2d 241, certiorari granted, 368 U.S. 810, 82 S.Ct. 40, 7 L.Ed.2d 20, cited by State Mutual, and Metropolitan Life Ins. Co. v. Wann, 130 Tex. 400, 109 S.W.2d 470, 115 A.L.R. 1301, International Brotherhood of Boilermakers, etc., v. Huval, 140 Tex. 21, 166 S.W.2d 107, and Watson v. Employers Liability Assur. Corp., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74, cited by the State, are not strictly apposite. None of them are cases which call into question the power of a state to refuse to grant a local permit to do business to a foreign insurer, or to cancel a granted permit, because of violation of, or failure or refusal to comply with, local regulations. These and other like decisions hear only indirectly on the problem before us. They are only important in determining what local regulations as applied to foreign insurance contracts impinge upon constitutional rights, and are relevant to the problem here, if at all, only because the granting or continuance of a local permit to do business may not be conditioned on compliance with unconstitutional regulations or on surrender of constitutional rights. Allgeyer v. State of Louisiana; St. Louis Cotton Compress Co. v. State of Arkansas and State Board of Ins. v. Todd Shipyards Corp. each involved an effort by a state to enforce a penalty or a tax in the nature of a penalty against a local citizen or corporation for making a contract of insurance in another state with a foreign insurer not having a local permit to do business. All of the other cited cases involved efforts in suits on foreign contracts of insurance to enforce local statutory rights of the insured which, if enforced, would have had the effect of modifying contractual rights of the insurer which were valid in the state where the contract was made or was to be performed.

Somewhat more directly related to the problem as we have stated it are Osborn v. Ozlin, 310 U.S. 53, 60 S.Ct. 758, 84 L.Ed. 1074, and Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 63 S.Ct. 602, 87 L.Ed. 777, cited by the State. Osborn v. Ozlin was a suit to enjoin the enforcement of penalties, including revocation of the license of a corporation to do business in Virginia, because of failure to comply with statutes regulating the writing of certain types of insurance and the payment of commissions to agents in Virginia. Hoopeston Canning Co. v. Cullen was a declaratory judgment suit in which foreign reciprocal insurance companies sought a declaration that they were not required to comply with certain New York regulatory statutes as a condition to their right to do business in that state. In each of the cases the power of the state to require compliance with the local regulations as a condition to the right to do business in the state was upheld.

The specific problem confronting us has been considered by the Supreme Court of the United States in a number of cases. From them we may conclude, as did the Court in State of Washington ex rel. Bond & Goodwin & Tucker v. Superior Court, etc., 289 U.S. 361, 53 S.Ct. 624, 77 L.Ed. 1256, 89 A.L.R. 653, that a state may condition the right of a foreign corporation to do business in the state on compliance with, and agreement to, all reasonable regulations. This is the sense of the concise and logical concurring opinion of Mr. Justice Frankfurter in Watson v. Employers Liability Assur. Corp., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74. The right may not be conditioned, of course, upon compliance with regulations which are repugnant to the Constitution of the United States, Power Manufacturing Co. v. Saunders, 274 U.S. 490, 47 S.Ct. 678, 71 L.Ed. 1165, and Wheeling Steel Corp. v. Glander, 337 U.S. 562, 69 S.Ct. 1291, 93 L.Ed. 1544 (Statutes denying equal protection of the laws in violation of the Fourteenth Amendment through unreasonable and arbitrary discrimination in favor of domestic corporations), or with those which require the surrender of constitutional rights. Terral v. Burke Construction Co., 257 U.S. 529, 42 S.Ct. 188, 66 L.Ed. 352 (The right to litigate in Federal Courts); Fidelity & Deposit Co. of Maryland v. Tafoya, 270 U.S. 426, 46 S.Ct. 331, 70 L.Ed. 664 (The right to pay commissions to agents outside of the state for services rendered outside of the state); Hanover Fire Ins. Co. v. Harding, 272 U.S. 494, 47 S.Ct. 179, 71 L.Ed. 372 (The right to refuse to pay an unconstitutional tax).

The Supreme Court of the United States has consistently recognized the right of the states to regulate the insurance industry in its operations affecting the public welfare, both before and since passage of the McCarran Act, 15 U.S.C.A. §§ 1011-1015. This is manifest from Osborn v. Ozlin, 310 U.S. 53, 60 S.Ct. 758, 84 L.Ed. 1074; Hoop-eston Canning Co. v. Cullen, 318 U.S. 313, 63 S.Ct. 602, 87 L.Ed. 777; Watson v. Employers Liability Assur. Corp., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74; Robertson v. People of State of California, 328 U.S. 440, 66 S.Ct. 1160, 90 L.Ed. 1366; Travelers Health Ass’n v. Commonwealth of Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154; California State Auto. Ass’n Inter-Ins. Bureau v. Maloney, 341 U.S. 105, 71 S.Ct. 601, 95 L.Ed. 788; Federal Trade Com. v. National Cas. Co., 357 U.S. 560, 78 S.Ct. 1260, 2 L.Ed.2d 1540, and a host of other cases. Indeed, the Congress has expressly recognized the right, as limited by Supreme Court decisions, by passage of the Mc-Carran Act. In speaking of that Act and its purpose in Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 66 S.Ct. 1142, 90 L.Ed. 1342, 164 A.L.R. 476, 494, the Court said:

“Obviously Congress’ purpose was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance. This was done in two ways. One was by removing obstructions which might be thought to flow from its own power, whether dormant or exercised, except as otherwise expressly provided in the Act itself or in future legislation. The other was by declaring expressly and affirmatively that continued state regulation and taxation of this business is in the public interest and that the business and all who engage in it ‘shall be subject to’ the laws of the several states in these respects.
“Moreover, in taking this action Congress must have had full knowledge of the nation-wide existence of state systems of regulation and taxation; of the fact that they differ greatly in the scope and character of the regulations imposed and of the taxes exacted; and of the further fact that many, if not all, include features which, to some extent, have not been applied generally to other interstate business. Congress could not have been unacquainted with these facts and its purpose was evidently to throw the whole weight of its power behind the state systems, notwithstanding these variations.”

The writing of group insurance is a comparatively new but rapidly expanding form of underwriting in the field of life and health and accident insurance. Its cost is low and its appeal is great. As is pointed out in Board of Ins. Com’rs of Texas v. Great Southern Life Ins. Co., 150 Tex. 258, 239 S.W.2d 803, 808, whereas the Legislature of this state moved into the field of individual life insurance contracts with regulations as early as 1909, it did not recognize an existing necessity for regulation of the writing of group insurance until 1931. It was in that year that Art. 4764a, Vernon’s Ann.Tex.Civ.St., the forerunner of Art. 3.50, Texas Insurance Code, was enacted. See Acts 42d Leg., Reg. Ses., Ch. 101, p. 172. The power of the Legislature to regulate group underwriting is not in question here, but the problem considered necessarily raises the question of the power of the Legislature to exclude members of trade associations and their employees from the groups made eligible for group insurance in this state. For, as we view the matter, if, and only if, the Legislature was without constitutional power to exclude them from the eligible groups is the cancellation of Respondent’s permit a denial of due process or a violation of the full faith and credit clause of the Constitution.

While ordinarily there are only two parties to a contract of group insurance, it affects the interests of four parties — the insurer, the employer, labor union, creditor, trade association or other contracting party, the insured and the beneficiary. Rivers v. State Capital Life Ins. Co., 245 N.C. 461, 96 S.E.2d 431, 68 A.L.R.2d 205. The manner in which it affects the interests of the insured and the beneficiary is no less vital than the manner in which it affects the interests of the contracting parties. It “is not indemnity insurance for the benefit of the employer, but insurance upon the life of the employee for his personal benefit and the protection of those depending’ upon him, * * 29A Am. Jur. 834, § 1758. More often than not the nature of the coverage and its continued existence bears importantly upon the insured’s decision of whether to purchase or to keep in force other insurance to protect those closest to him against debt and hardship. Under the rule followed in many jurisdictions a group policy may be can-celled without the consent of the insured, and in some even without notice to him. 29A Am.Jur. 856, § 1783 ; 68 A.L.R.2d 249. By the time of cancellation the insured may have become uninsurable, or at the very least the premium he must pay for an individual contract will have increased. Often the insured pays a part of the premium on the group policy. Rarely will he have an opportunity to examine the master policy personally, and neither will he have its intricate and complicated coverages, exclusions and exceptions explained by a local agent in whom, as a friend or neighbor, he has confidence and upon whose judgment as to the type of coverage best meeting his needs he would normally rely. All of these factors also weigh heavily upon the interests of the beneficiary.

It is not pure speculation to say that usually the beneficiary and the insured are residents of the same state. The state of residence of the insured and beneficiary thus has the interests of two of the four parties affected by the contract to protect. The manner in which the state seeks by regulations to protect their interests should not be confined within narrow boundaries-by strict limitations merely because the group insurance contract is made or is to be performed in another state. This is the sense of the statement made, by the Supreme Court of the United States in Travelers Health Ass’n v. Commonwealth of Virginia, 339 U.S. 643, 647-648, 70 S.Ct. 927, 929, 94 L.Ed. 1154, 1161, when it said:

“In Osborn v. Ozlin, 310 U.S. 53, 62, 60 S.Ct. 758, 761, 84 L.Ed. 1074 [1077], we recognized that a state has a legitimate interest in all insurance policies protecting its residents against risks, an interest which the state can protect even though the ‘state action may have repercussions beyond state lines * * *.’ And in Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 316, 63 S.Ct. 602, 604, 605, 87 L.Ed. 777 [781], 145 A.L.R. 1113, we rejected the contention, based on the Benn case [Minnesota Commercial Men’s Ass’n v. Benn, 261 U.S. 140, 43 S.Ct. 293, 67 L.Ed. 573] among others, that a state’s power to regulate ’must be determined by a ‘conceptualistic discussion of theories of the place of contracting or of performance.’ Instead we accorded ‘great weight’ to the ‘consequences’ of the contractual obligations in the state where the insured resided and the ‘degree of interest’ that state had in seeing that those obligations were faithfully carried out.”

Not all states will view the problems of the affected parties alike. As indicated by the quotation from Prudential Ins. Co. v. Benjamin, supra, the nature of regulations may be expected to vary somewhat from state to state. Usually there is sound basis for variation. In this state, for example, if the premium contribution made by a married insured is from ordinary income, one half of the contribution is the property of the spouse, and if the spouse is the beneficiary, he or she has a two-fold interest in the policy. This is not true in most other states.

Much of what is said here was in our thinking when we sustained the constitutionality of Art. 4764a (Art. 3.50) in Great Southern in the face of a charge that it denied equal protection of the law in violation of the Fourteenth Amendment by authorizing group insurance for members of labor unions while denying it to employee of members of trade associations. Our holding in that case was predicated on the right of the Legislature to limit the writing of group insurance to situations where there was “a close relationship and an affinity of interests” between those making up the insured group and the person or agency contracting with the insurer for the insurance.

We do not believe, and are not prepared to say, that the Legislature of this state was without constitutional power to exclude trade association members and their employees from the groups made eligible for group insurance. There is not the same need for loyalty from the insured that exists on the part of the employer or labor union groups and the corresponding obligation for obtaining and retaining the best coverage available at the lowest cost does not exist. Therefore, Art. 3.50 is not repugnant to the equal protection clause of the Constitution of the United States. And inasmuch as the statute represents a reasonable exercise of the power of the state to protect the vital interests of its citizens, respondent has no constitutional right to violate it. It follows that conditioning the right of respondent to continue to do business in this state upon cancellation of its group coverage of NASD members and employees in this state violates neither the due process nor the full faith and credit provisions of the Constitution. The State of Texas does not seek by enforcement of Sec. 4 of Art. 3.50 to prohibit respondent from keeping in force the group insurance contract it made with the Trustees, nor does it seek to invalidate that contract or to modify any of its terms. It does not even seek to deny respondent the right to apply the coverage of the contract to residents of Texas. It seeks only to take away from a foreign insurance corporation what is finally and essentially a privilege if it insists upon applying the contract, which would be unlawful if made in this state, to residents of the state. This does not deny full faith and credit to the laws of the state where the contract was made.

Respondent’s contention that conditioning its right to continue to do business in this state on cancellation of the coverage of the group in this state imposes an undue burden on interstate commerce may be disposed of in short order. Foreign and domestic insurers alike are prohibited from writing group insurance covering trade association members and employees; Art. 3.50 admits of no discrimination against respondent. Only 192 of the 3870 member firms of NASD are Texas firms; of 7989 lives covered by the group policy only 198 are Texas lives; and the insurance coverage of Texas lives is only $1,427,500 of a total coverage under the policy of $87,885,-600 in the United States. Impact of cancellation of the Texas coverage on interstate commerce is minuscule. The statute being constitutional and not unreasonable, its impact on interstate commerce is authorized by the McCarran Act.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.

      . The court surely meant within rather than after; otherwise there would be no limitation of time.

      . Since tlie trial court’s judgment was entered and was reversed by the Court of Civil Appeals, the Legislature has amended Art. 3.50 to authorize group insurance for trade association members and their employees with the limitation that “(f) No policy may be issued * * * (ii) to insure employees of any employer which is not located in this state, unless the majority of the employers whose employees are to be insured are located in this state ⅜ * Acts 1961, 57th Leg., p. 563, Ch. 263, § 1.
      The parties were requested to file written statements indicating their opinions as to whether and to what extent the amendment affects the issues or the rights of the parties in this ease. They have complied and are agreed that nei-tber is substantially affected. Accordingly, we treat the case as though the amendment had not been enacted, but we are not to be understood as agreeing or disagreeing with the view of the parties.
      The amendment raises these questions which may be relevant but which we do not decide: Is the limitation constitutional and valid? If it is not, can the remainder of the amendment be valid? If it is, could the court permit a judgment cancelling respondent’s permit, but not yet final, to stand when the judgment is conditioned on the cancellation by respondent of group coverage now authorized in this state but unauthorized when written? These questions and any others raised by the amendment are put aside.


source: Caselaw Access Project

author: MORRISON, Judge. McDonald, judge. WOODLEY, Presiding Judge.

license: Public Domain

text:
    Johnie Elden SAUNDERS, Appellant, v. STATE of Texas, Appellee.
    No. 33814.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1961.
    Rehearing Denied Jan. 31, 1962.

      McCarthy, Carnahan, Fields & Haynes, Amarillo (George S. McCarthy, Amarillo, one of Counsel on Appeal Only), Moisés V. Vela, Harlingen, for appellant.
    F. T. Graham, Cr. Dist. Atty., Joel William Ellis, Asst. Cr. Dist. Atty., Brownsville, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated as a second offender; the punishment, two years in jail.

In view of our disposition of this case, a recitation of the facts will not be necessary.

Bill of exception No. 1 reflects that while highway patrolman Stone was testifying he was asked by the prosecutor, “Did you offer to give (the appellant) any kind of a blood test?” to which the witness replied, “Yes, sir.” No evidence of the results of a blood test was introduced. We are called upon to decide whether or not this got before the jury the inadmissible evidence that appellant had been offered a blood test and refused to take it.

We have been furnished able briefs by both the State and appellant in which all of the cases on the subject have been discussed. We have concluded that the two principal cases which require distinction are Sublett v. State, 158 Tex.Cr.R. 627, 258 S.W.2d 336 (relied upon by the State), and Jordan v. State, 163 Tex.Cr.R. 287, 290 S.W.2d 666 (relied upon by appellant). In Sublett, the officer was asked if at the time he had accused under arrest he had in his possession an intoximeter test. The question does not appear to have been answered. The fact that the officer may or may not have had such a test in his possession in nowise informed the jury that such a test was offered to appellant and that he refused to take it.

In Jordan, on the other hand, the officer volunteered the information that he had offered the blood test to the accused and that he had not answered when such offer was made.

We have concluded that the rule in Jordan is here controlling and that reversible error is reflected by that which has been set out above. See also Brown v. State, 165 Tex.Cr.R. 535, 309 S.W.2d 452.

The judgment is reversed and the cause remanded.

ON STATE’S MOTION FOR REHEARING

McDonald, judge.

The State has directed our attention to a quoted holding in Bumpass v. State, 160 Tex.Cr.R. 423, 271 S.W.2d 953, wherein the arresting officer was asked what he did with the defendant after he was arrested, and the officer answered: "Well, I started into town with him and asked him if he wanted a blood test.” The opinion continues:

“After considerable discussion between counsel and the bench, * * * objection was sustained, and the jury were instructed not to consider that portion of the answer which related to a blood test. This alone would not reflect reversible error. Sublett v. State, [158 Tex.Cr.R. 627] 258 S.W.2d 336.”

We do not feel that the above excerpt from the opinion in Bumpass, supra, is any more than dicta. It did not control the disposition of the case. The case was reversed for the reasons stated in the opinion. It is authority only for the rule that the conduct set forth therein constitutes reversible error.

We are not here dealing with a case of a witness giving an unresponsive answer and relying solely upon that ground for reversal. We are here confronted with a prosecutor propounding a direct question and receiving an affirmative reply, and therefore deliberately getting before the jury information which he knew, or should have known, was inadmissible.

Remaining convinced that the case was correctly disposed of in the original opinion, the State’s motion for rehearing is overruled.

WOODLEY, Presiding Judge.

(Dissenting on State’s Motion for Rehearing).

Sublett v. State, 158 Tex.Cr.R. 627, 258 S.W.2d 336, was cited in support of the quoted holding in Bumpass v. State, supra. The holding appears to be a correct one, and I find no reason why it should not be applied here. If it is not to be followed, the holding mentioned should be specifically overruled. Otherwise, the state’s motion for rehearing should be granted.


author: McDonald, judge.

text:
    Loydell MOTEN, Appellant, v. The STATE of Texas, Appellee.
    No. 34182.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1962.
    Robert B. Billings (on appeal only) Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., William F. Tucker, Frank Watts, Phil Burleson, Assts. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is theft from the person, with two prior felony convictions alleged for enhancement; the punishment, life.

The State’s evidence shows that Alice Crawford, the complaining witness, had gone out to the State Fair of Texas with some children on Colored Day at the Fair; that she was walking in the fair grounds when appellant, whom she did not know, came up to her and put his arm around her shoulders and called her “mama”; that he continued to hold her and talk with her as they walked along for a short distance; that after appellant left her she found that her billfold and the money therein were missing from her purse; that she called to the children who were with her; that one of the children, a niece, saw appellant and another man looking in the injured party’s billfold; that the niece ran toward appellant and yelled for him to wait, hut appellant ran around a building, with the niece following; that appellant ran inside the building and into the women’s restroom; that the niece called a police officer who, after being informed what appellant had done, followed appellant into the restroom, where the officer saw appellant attempting to get into one of the water closets. Appellant was taken into custody by the officer. Appellant had no money on him, nor did he have the billfold on him. The testimony further shows that the niece took some officers to where appellant had been seen standing and talking with the other man exchanging money, and there found the billfold and charge-a-plate belonging to the complaining witness.

Appellant’s two prior convictions were properly proved by records from the courts in which the convictions were sustained; the identity of appellant as being the same individual currently on trial was established by testimony of two assistant district attorneys who were present at the former trials; testimony adduced by the State also showed the prior convictions to be for felonies less than capital.

The appellant testified in his own behalf and denied taking the billfold from Alice Crawford. He denied that he hugged her, and only admitted speaking to her. Appellant admitted only that he went into the ladies’ restroom by mistake. He admitted the two former convictions and that he was the same individual.

The jury rejected appellant’s version of the transaction and adopted the State’s theory. We find the evidence sufficient to sustain the verdict.

No formal bills of exception were filed, nor does the record contain any informal bills of exception.

No objections nor exceptions were taken to the court’s charge.

By brief and oral argument, appellant contends that the court erred in not charging upon circumstantial evidence. He further contends that the facts presented are insufficient to sustain a conviction upon circumstantial evidence. We think the evidence adduced by the State was so cogent and of such a direct nature as not to warrant a charge on circumstantial evidence. We find no error in the charge as submitted by the trial court.

Appellant also contends that the State failed to prove that the prior felonies were less than capital, that the State failed to prove that the appellant was the same person convicted in one of the prior cases. We find no merit in either of these contentions. They are both overruled.

The judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Tom O. TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 33880.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1962.

      Kolander, Moser & Templeton, J. M. Kolander, Amarillo, of counsel, for appellant.
    Frank J. Baughman, Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

Our prior opinion and order of affirmance is withdrawn.

Appellant was indicted for robbery, the indictment alleging that he took two dollars from Charles Don Nichols on or about February 8, 1961.

The indictment was returned February 15, 1961, and on the following day appellant waived a jury and, joined by his court appointed counsel, waived the 10 days allowed by statute to prepare for trial. Appellant gave his age as 17, pleaded guilty and testified that the allegations of the indictment were true, and the trial judge found him guilty and assessed his punishment at 8 years.

On the same day, appellant filed application for probation stating that he had never before been convicted of a felony and said application was granted and the imposition of sentence was suspended.

Among the conditions of probation were that he: (1) commit no offense against the laws of this or any other state or the United States, and (9) make restitution as and when directed by the probation officer and pay all costs of this proceeding.

On April 11, 1961, motion was filed by the District Attorney to revoke probation, alleging that appellant failed to comply with the conditions of his probation in that:

“(1) Defendant was arrested on April 6, 1961, by the police and charged with breaking into a beer truck and stealing 12 cases of beer, which he admits.
“(2) Has paid no part of his court costs as instructed by the court.”

Hearing was had on the day the motion was filed and the appellant admitted the allegations of the motion were true. The court revoked probation and sentenced appellant to a term of not less than 5 nor more than 8 years in the penitentiary.

On April 24, 1961, motion for new trial was filed and on May 3, 1961, evidence was presented and heard in connection with which it was shown that appellant had been adjudged to be a delinquent child in the Court of Domestic Relations in Potter County on December 30, 1959, the court finding in his judgment that appellant was born on November 12, 1944. Also, a certified copy of the birth certificate of appellant was produced and made a part of the record. The certification of the attending physician is shown to have been filed with the local registrar in Madison County, Alabama, on November 3, 1944, and gives the date of birth as October 7, 1944.

The trial judge refused to grant leave to appellant to file the motion for new trial but heard the evidence, at the conclusion of which he stated that he was of the opinion that he had no authority to grant permission to file the motion for new trial after 10 days had elapsed and overruled it. Appellant excepted and gave notice of appeal.

All of the foregoing occurred at the same term of court hence the conviction as well as the revocation of probation is before us for review.

The trial court was in error in holding that he was without authority to grant leave to file the motion for new trial or to grant such motion. Art. 755, Vernon’s Ann.'C.C.P., which provides that a motion for new trial shall be filed within 10 days, further provides that for good cause shown the time for filing or amending may be extended by the court. Atkinson v. State, 164 Tex.Cr.R. 421, 299 S.W.2d 951.

The trial court’s finding that appellant was in fact 17 years of age at the time of his trial cannot be sustained in view of the evidence mentioned. However, the state correctly contends that the court was not bound to set aside the conviction upon a showing after the trial and after probation had been granted and revoked, that appellant was of juvenile age and not 17, as he represented to the court at his trial. Ex parte Huddleston, 149 Tex.Cr.R. 388, 389, 194 S.W.2d 401; Ex parte Munoz, 152 Tex.Cr.R. 413, 415, 209 S.W.2d 767; Rice v. State, 137 Tex.Cr.R. 21, 127 S.W.2d 889; Valdez v. State, 98 Tex.Cr.R. 166, 265 S.W. 161; and Fifer v. State, 90 Tex.Cr.R. 282, 234 S.W. 409.

Our review of a court’s action in revoking probation is limited to the question of whether an abuse of discretion is shown.

The facts upon which the trial court revoked appellant’s probation are shown by his admission that the allegations of the motion to revoke were true. One of these allegations was that he was arrested on April 6, 1961, by the police and charged with breaking into a beer truck and stealing 12 cases of bear. Whether this violation was committed before or after probation was granted is not shown. It is only shown that he was arrested for such during the term of his probation.

The other allegation which appellant admitted was that he had paid no part of his court costs as instructed by the court. There is an absence of any showing as to appellant’s ability to make such payment or that his failure was wilful.

Assuming that the theft of the beer was committed during the term of probation, it is not clear that the trial judge would have exercised his discretion and revoked appellant’s probation had he known at the time that appellant while of juvenile age could not ordinarily be convicted of a criminal offense by reason of such breaking and theft. It is also not clear that the trial judge would not have reconsidered and set aside his order revoking probation when it was shown at the hearing on appellant’s motion for new trial that he had even then not arrived at the age of 17, had he not been of the opinion that he was without authority to do so.

In view of the facts stated and the circumstances, we have concluded that the order revoking the probation which had been granted to appellant should be reversed and set aside.

The judgment finding appellant guilty of robbery and assessing his punishment at 8 years in the penitentiary, and suspending'the imposition of sentence, is affirmed.

The order revoking probation is reversed and remanded.


author: McDonald, judge. DICE, Commissioner.

text:
    Cecil Lester BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 33781.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1961.
    Rehearing Denied Jan. 31, 1962.
    Peter P. Cheswick, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Erwin G. Ernst, Asst. Dist. Attys , Houston, and Leon B. Douglas, State' ⅜ Atty., Austin, for the State.
   McDonald, judge.

Rape is the offense; the punishment, death.

The State’s testimony reflects that the complaining witness, Dora Ybarra, 28 years of age and the mother of four children, was employed as a waitress at a cafe. She finished her work at 11:30 P.M. and went to another nearby cafe to eat and meet her estranged husband. Soon thereafter, her husband had an argument with another woman and went out on the street, where he engaged in a fight with some men who beat him and drug him into a car and drove away. The witness went out into the street, screaming and hollering at the other men to leave her husband alone. After they drove away, she started to walk to her home which was about two and a half blocks from that point. As she was walking in the direction of her home, a white car stopped and a Negro man came up behind her. She said that she tried to get away and that she hollered. At this time, the Negro, assisted by another Negro, slapped her in the face, grabbed her by the hair and pushed her inside of the automobile. She said that it was the appellant Brown who first got out of the car and that he was the one who hit her in the mouth and grabbed her by the hair. They then dragged her into the car, took her purse and removed its contents. After driving several blocks, the appellant tried to force her to have sexual intercourse with him in the car but was unsuccessful. The car was then driven .to a place close to the railroad tracks, in the same general area, and she was taken into the high weeds and grass close to the tracks. Her clothing had been ripped from her body. The appellant Brown prevailed over his companions, after they had quarreled to see which would be the first to have intercourse with her. The appellant struck her in the mouth with some brass knuckles which he had in his hand, and she was kicked by his companions. The other Negroes held her hands and feet while the appellant had intercourse with her. She related that after all of the Negro boys present had intercourse with her, she seemed to lose consciousness. Upon regaining consciousness and finding herself alone after the attack, she made her way nude to the home of Gertie Crumeby, a Negro woman. She was allowed to bathe at Gertie Crume-by’s house and was given some clothing to wear. The police were called, and she was then removed to the hospital. Later, at a police line-up, she identified the appellant as being one of those who attacked her. The witness identified her clothing which had been torn from her body and also a religious medallion she had been wearing and which had been torn from her neck at the time she was attacked. These items had been found where the offense occurred. She also identified a picture which had been in her purse. She further identified a scrap of paper upon which was a telephone number of a friend of hers. This scrap of paper had been recovered from the car in which it was admitted the appellant and his companions had been riding earlier in the evening.

The witness Amelia Frances Gomez testified that she lived at a hotel. The hotel was close to the cafe where Dora Ybarra’s husband had had an argument with the woman and where the unknown men had beat him and placed him in an automobile and driven away. This witness stated that she and the proprietor of the hotel where she lived heard a woman screaming and went out into the street in front of the hotel, where she observed the events about which she testified. She further testified that after the car drove away with Dora Ybarra’s husband she saw Dora Ybarra walking down the street and saw a car pull up beside her. She saw the appellant, assisted by another Negro, get out of the car and grab the complaining witness by the hair and drag her into the automobile and drive away. She positively identified the appellant, and further related that she identified him in the police line-up the day following the attack. Upon cross-examination by defense counsel concerning why she had not reported the event, and as to whether such an occurrence was common, she stated that “in Fifth Ward everything happens out there.”

Appearing as a witness, Gertie Crumeby testified that Dora Ybarra came to her house in the early morning hours in a naked condition. She said that Dora Ybarra told her that she had been raped by ten Negroes. She had Dora Ybarra bathe the blood from herself, gave her some clothes and called the police.

Eddie James Cumbo, Jr., testified that the appellant had borrowed his car on the night the offense occurred, that at the time he last saw them the appellant and his three co-indictees and Earnest Murphy were together. The appellant was to return the automobile the same night, but he did not do so and the witness did not obtain possession of it until several days later.

Earnest Murphy testified that the appellant and his three co-indictees took him to his home early in the evening before the time the offense was committed. He also testified that his home was about nine blocks from the place where the appellant and his companions forced Dora Ybarra into the car.

The State introduced the voluntary statement of the appellant made the afternoon following the commission of the offense. In the statement, the appellant relates that he was driving around Houston in an automobile with certain companions, and that:

“When we pulled up to the stop sign, there was a Mexican woman and a couple of Mexican men fighting in front of the cafe. There was a black Buick pulled up near the cafe. I started to drive on, but everybody started hollering ‘Turn, man, turn.’ I turned to the right and when I got back in front of the apartment house on the corner of McKee and Conti, the two Mexican men were in the black Buick and the Mexican woman was in the street, and the men were trying to drag the woman into the car. She broke loose and started running down the sidéwalk in front of the apartment house towards the next corner, Providence. Busby told me to stop the car and let him out so he could catch her. I stopped and Busby got out and I circled around the same block again. When I got back to McKee and Providence, I could see Busby and the Mexican woman on down across McKee in about the middle of the block. Busby had the woman by the arm, and when I drove up they both got in the front seat with the Mexican woman in the front seat between me and Busby. Glynn and Pickens were in the back seat.
“After I picked up Busby and the woman, I circled the block and got back on Lyons and drove on down to West Street and turned left. I drove a few blocks on West and then turned off to the right and got back about one-half block from some railroad tracks and the car went dead. We sat there for a few minutes and a car came by and gave us- a push. We drove on down and turned back to the right and then Busby told me to stop. I stopped and Busby and the Mexican woman got out and went in front of the car. The woman laid down and Busby tried to have intercourse with her, but he said he couldn’t. Then Pickens got on her and had intercourse with her, and after he finished Glynn got on her and had intercourse with her, and after he finished I got on her and had intercourse with her.
“After I had finished, Pickens and Glynn left, and Busby said he was going to try again, he took the Mexican woman off in the weeds next to a railroad track. I was trying to push the car, but I couldn’t push it by myself so I hollered to Busby to come help. Busby didn’t come on right then, but in a few minutes he came over to the car and told me he had got his licks off. I never did see the Mexican woman after that.”

The appellant testified in his own behalf. He told of driving around the City of Houston to various places with his companions earlier in the evening preceding the time of the offense. He further related that after all of his companions had gotten out of the car and he was driving alone, that a Mexican woman hollered at him to stop and to wait a minute, and that he stopped and let her get into the car. He testified that he-tried to take her where she directed him but that his car stalled, and that she told him she could walk the rest of the way. He also said that he did not see her after that time. He would not positively say whether or not the complaining witness, Dora Ybarra, was the woman that he picked up. He said that he did not have intercourse nor did he rape the Mexican woman to whom he gave a ride in the car. The appellant repudiated the confession made to the police officers, and he said that he gave the police officers a statement because they were going to beat him.

Four police officers with the City of Houston police department testified as to their part in the investigation of this offense, including the finding in the automobile in which it was shown that the appellant and his companions had been riding a piece of paper which had come from the purse of Dora Ybarra. The officer who took the voluntary statement from the appellant rebutted the testimony of the appellant that he was induced to make the statement through threats or force.

Dr. Curtis- McGinley, a Doctor of Medicine, testified that he examined Dora Ybarra the morning following the attack upon her. He found blood under her chin, a bruise inside her mouth on the upper lip and a deep cut inside the mouth on the lower lip, and a bruise about the left eye. He found numerous scratches on her entire back and buttocks, and an oral impression on her right breast that had the appearance of teeth marks. He found scratches inside her vagina, and a microscopic examination of a smear from the vagina revealed one non-motil sperm.

We find the evidence is abundantly sufficient to support the verdict of the jury. The court’s charge was full and complete and gave the appellant every right to which he was entitled. There were no objections or exceptions made to the court’s charge, and no requested charge was presented.

Appellant in his brief, and by two formal bills of exception, relies upon three grounds for reversal:

1. That the complaining witness, Dora Ybarra, was not sworn prior to testifying in the trial of this case. This contention is raised by affidavit attached to appellant’s Motion for New Trial.

2. He contends that Dora Ybarra was not the name of the complaining witness as alleged in the indictment, and that she was not known by that name. He also raises this contention by an affidavit, attached to appellant’s Motion for New Trial, in which the injured party swore that her name was Olivia Ybarra or Olivia Galviz but not Dora Ybarra as alleged in the indictment.

3. That the argument of the State’s attorney was improper and constituted reversible error.

We observe that the original Motion for New Trial was filed January 27, 1961, the amended Motion for New Trial was filed on February 15, 1961, the court granting leave to file this amended Motion for New Trial and setting a hearing on it for March 3, 1961. The amended Motion for New Trial was heard on March 10, 1961, the date set by the trial court. Although the trial judge heard the amended Motion for New Trial on the twenty-sixth day after it was filed, it is our opinion that the amended Motion for New Trial had already been overruled by operation of law on March 8, 1961, and that it was not properly before the trial court, nor is it before this Court for review. In Brinkley v. State, Tex.Cr.App., 320 S.W.2d 855, 856, we held:

“With the possible exception of Atkinson v. State, [164 Tex.Cr.R. 421, 299 S.W.2d 951] the decisions of this Court under Art. 755, V.A.C.C.P. are to the effect that the motion for new trial or amended motion for new trial is overruled by operation of law at the expiration of the period of twenty days within which the statute requires it to be determined by the court.”

We do observe, nevertheless, on account of the gravity of the case here presented, that if the matters complained of by appellant in his amended Motion for New Trial were properly before us for review, they would present no error. The record shows that the witness, Dora Ybarra, was duly sworn, prior to testifying; thus, this contention would be without merit.

During the trial of the case, all witnesses and attorneys referred to the complaining witness as Dora Ybarra. There was not the slightest suggestion that that was not her name. When the complaining witness went to Gertie Crumeby’s house immediately following the commission of the offense, she told Gertie Crumeby that her name was Dora Ybarra. The investigating police officers knew her only by that name. She was treated by the doctor at the hospital under the name of Dora Ybarra. The grand jury knew her by that name. The complaining witness, herself, testified upon the trial that her name was Dora Ybarra. There is not one shred of evidence in the ■statement of facts that the complaining witness was known by any name other than Dora Ybarra. We express the view that while this issue was not properly raised, if it was raised at all, all of the evidence shows that the name of the complaining witness :at the time of the offense was Dora Ybarra, and such name was properly alleged under the provisions of Article 401, Vernon’s Ann. C.C.P. Appellant’s formal bill of exception No. 2, by which he attempted to preserve this error, was refused and qualified by the trial court, to which the appellant formally ■excepted and did not file a bystanders’ bill. 'Therefore, nothing is presented by this bill for the Court to review. Wortham v. State, Tex.Cr.App., 333 S.W.2d 158.

We next turn our attention to appellant’s contention that the argument of State’s counsel was reversible error. The .appellant did not request that the arguments of counsel be transcribed by the court reporter, and no statement of facts containing the argument of either the appellant’s counsel or the State’s counsel is filed in this Court. The appellant has attempted to preserve this matter by filing a formal bill of exception, which is formal bill of exception No. 1. This formal bill of exception presented by the appellant was refused for the reasons given by the trial court and qualified as shown by the record. The appellant did not accept the court’s qualification of his formal bill of exception but formally excepted to the qualification. A bystanders’ bill was filed by the appellant, the complete body and substance of which, omitting the formal parts, reads as follows:

“The assistant district attorney argued to the jury that ‘the dead of World War I and II did not die in vain. They died to make sure of democracy; they died to give everybody freedom. Their deaths demand that you give this man death in the chair for the thing he did in this case.
“Whereupon the attorney for Cecil L. Brown, defendant, objected to the Judge because such statement was prejudicial and inflammatory. The Judge simply stated that ‘Stay in the record’ and refused to tell the jury not to pay any attention to the argument, as requested by the counsel for the defendant.
“This argument was not invited by the defendant since his counsel had not argued before the jury any matter touching the ‘dead of Wars No. I or II,’ or any war argument at all.
“Some of the jurors appeared to be very much interested in this argument.”

This bystanders’ bill is in no way controverted by the State, inasmuch as it appears from the record that the bystanders’ bill was filed on the 15th day following the court’s qualification of the appellant’s formal bill of exception. The bystanders’ bill is therefore before the Court for its consideration.

1. The appellant did not object to the ruling of the trial court, and certainly he did not except to an adverse ruling of the trial court showing dissatisfaction of the court’s ruling. It is necessary that a formal bill make such a showing. Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816, 820; Hampton v. State, 157 Tex.Cr.R. 244, 248 S.W.2d 488, 489; Page v. State, 104 Tex.Cr.R. 63, 281 S.W. 871; and Pounds v. State, 128 Tex.Cr.R. 519, 81 S.W.2d 698, 700-701.

2. The bill does not show how, or in what manner, the argument was improper. In Pombo v. State, 102 Tex.Cr.R. 599, 279 S.W. 263, it was said:

“Bill of exceptions No. 5, complaining of the argument of state’s attorney, does not present any facts showing how or in what manner said argument was improper. The rules in regard to hills of exception are well understood, and it is always held that the hill must contain sufficient facts to manifest the error complained of in order that this court be not compelled to search the statement of facts or the record otherwise to ascertain if the matter complained of in a bill of exceptions he sound.
“Finding no error in the record, the judgment will he affirmed.”

It is difficult to understand how the argument could have influenced the jury in this case. This Court has held that language which may be objectionable may be so illogical, fanciful or extravagant as to require a conclusion that it could not have influenced the jury in arriving at their verdict. Coats v. State, 98 Tex.Cr.R. 314, 265 S.W. 891; Bryan v. State, 157 Tex.Cr.R. 592, 252 S.W.2d 184; Cross v. State, 129 Tex.Cr.R. 526, 89 S.W.2d 217, 219; and Stalcup v. State, 130 Tex.Cr.R. 119, 92 S.W.2d 443, 445.

In Coats v. State, supra [98 Tex.Cr.R. 314, 265 S.W. 892], it was said:

“Another bill complains of the argument of the district attorney. From it we quote:
“ ‘Gentlemen, if you should fail to convict this defendant, the Statute of Liberty would hang her head in shame; you had as well tear down the courthouse and plant the ground upon which it stands in a corn patch so they could use it, and manufacture liquor and serve it to the public; the sheriff of this, county had as well surrender his commission, because his acts will be for naught.’
“Though this flight of imagination, may not with propriety be cited as a model of eloquence nor an example of' logic, it cannot be assumed that the verdict of the jury was responsive to-the extravagant statement of counsel rather than to the facts adduced upon, the trial. In the reviewing court, the verdict having the sanction of the trial court and the evidence heard are important elements in estimating the effect of remarks of counsel which, though improper, are not obviously harmful.”

We do not feel that the argument complained of reflects reversible error. Appellant’s, contention is overruled.

We have carefully considered all of the-informal bills of exception and find no merit, in any of them.

The judgment of the trial court is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant again urges as reversible-error that the prosecutrix was not sworn as-a witness in the case. As pointed out in our original opinion, the record reflects that the witness was duly sworn and the question-was first raised by appellant in his motion-for new trial. It is the rule that after a verdict has been given, it is too late to com■plain for the first time, that a witness was not sworn. 1 Branch’s Ann.P.C.2d Ed.,. sec. 370, p. 392; Spriggs v. State, 163 Tex.Cr.R. 167, 289 S.W.2d 272.

While the issue as to the name of the prosecutrix was not properly raised by appellant, we have again reviewed the record and remain convinced that her name, alleged in the indictment as Dora Ybarra, was shown to be the name by which she was known and no variance exists between the pleading and proof with reference to her name.

We have also again considered appellant’s complaint to the argument of State’s counsel and find no reversible error therein.

The motion for rehearing is overruled.

Opinion approved by the Court.


text:
    Bennie Joe BUSBY, Appellant, v. The STATE of Texas, Appellee.
    No. 34046.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1961.
    Rehearing Denied Jan. 31, 1962.
    Peter P. Cheswick, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is rape; the punishment, life imprisonment in the penitentiary.

This is a companion case with that of Brown, No. 33,781, 353 S.W.2d 425, by this Court, wherein the facts are fully set forth and to which reference is here made.

We shall however point out that the testimony shows that the complaining witness identified the appellant in this case as the one who had “kicked me where I had my operation and also the one that bit my breast.” This same witness identified the appellant as one of the co-indictees who raped her. The appellant did not make a confession, as was done in the companion case of Brown, supra, nor did he testify in his own behalf as Brown did.

There were no formal bills of exception filed in this case. The charge of the court, which was full and complete and included a charge on principals, in our opinion protected all of the rights of the appellant. No exceptions or objections were taken to the court’s charge. There are approximately ten informal bills of exception contained in the statement of facts. We have carefully considered all of them. We only deem it necessary to discuss one.

Appellant makes the contention that the complaining witness’s name was not Dora Ybarra. He contends that she was not known by the name Dora Ybarra as was alleged in the indictment, resulting in a fatal' variance between the indictment and the evidence in regard to her name.

Appellant made this same contention in the companion case of Brown. However, in Brown, he did not raise this proposition until the Motion for New Trial. Here, he raised it by an informal hill during the trial of this case on its merits. We shall not here restate the testimony from the statement of facts pertaining to this contention. It is clear to us that we correctly disposed of this proposition in Brown’s case, and we here adopt the same reasoning and authorities there cited as the basis for now holding this contention without merit. We think the evidence was more than adequate to show that the complaining witness here assumed the name of Dora Ybarra. The provisions of Article 401, Vernon’s Ann.C.C.P., and the early case of Williams v. State, 13 Tex.App. 285, 288-289, support our holding. Appellant’s contention is overruled.

We find the evidence amply sufficient to support the judgment.

Finding no. reversible error, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant reurges his contention that there was a fatal variance between the allegation in the indictment and proof as to the name of the prosecutrix. While the prosecutrix testified upon the trial that her name was not Dora Ybarra, as alleged in the indictment, hut that it was Olivia Ybarra, the evidence shows that she used the name Dora Ybarra in making her outcry of the rape and reporting it to the police. The three police officers who irf-vestigated the case and testified upon the trial knew the prosecutrix by the name of Dora Ybarra. In his motion for instructed verdict, appellant referred to the prosecutrix as “Olivia Ybarra alias Dora Ybarra.” The prosecutrix being known by two names, it was sufficient to state either in the indictment, Art. 401, supra.

The motion for rehearing is overruled.

Opinion approved by the Court.


author: BELCHER, Commissioner.

text:
    Loren Wright BLACKMORE, Appellant, v. The STATE of Texas, Appellee.
    No. 34281.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1962.

      J. B. Maguire, Jr., Pampa, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, 3 days in jail and a fine of $50.

The testimony shows that a truck driven by the appellant was weaving from side to side as he drove it along a public highway, and that he drove it off of the paved portion onto the shoulder where it became stuck in the mud. As the appellant was trying to get it out of the mud, three officers arrived. Two officers testified that after appellant got out of the truck, he had trouble walking and talking, and that they smelled the odor of alcohol. They expressed the opinion that he was intoxicated.

Proof was offered that appellant gave his written consent to take a blood test; that a physician removed the blood specimen, and that an analysis showed that it contained .24 per cent of alcohol by weight. The testimony further showed that such a concentration of alcohol in the blood was indicative of intoxication.

The appellant did not testify but called his wife who testified that an officer told her that if the appellant would take a blood test he would be released from jail. Another officer told appellant the same thing about the test. He took the test, and then went home.

There are no formal bills of exception.

It is insisted that the trial court erred in refusing his motions for a continuance on the grounds that his attorney did not have time to prepare for trial and because of the absence of witnesses. No affidavit of any absent witness was attached to the motion for new trial, and no testimony was offered in support of the motion. No error is presented. Art. 760e, Vernon’s Ann.C.C.P.; Massoletti v. State, 165 Tex.Cr.R. 120, 303 S.W.2d 412.

Complaint is made of the refusal of the court to charge the jury on the involuntary character of appellant’s consent to take the blood test.

No objection was made when the written waiver of consent to take the test was introduced in evidence; and no objection was made to the evidence showing the results of an analysis thereof. In the absence of any objection to the introduction of evidence showing his consent or the results of the test, the refusal of the requested charge was not error. Dominguez v. State, 161 Tex.Cr.R. 124, 275 S.W.2d 677; Atkinson v. State, 157 Tex.Cr.R. 556, 251 S.W.2d 401.

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

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Jessie FERNANDEZ, Appellant, also known as Jesus Fernandez, Jr., v. The STATE of Texas, Appellee.
    No. 33726.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.
    Wicks & Wicks, Ralls, E. A. Blair (on appeal only), Lubbock, for appellant.
    George E. Gilkerson, Dist. Atty., James L. Bass, Jr., Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Our prior opinion is withdrawn and the following substituted therefor.

The conviction is for murder; the punishment, life imprisonment.

The State’s evidence shows that on Saturday night, March 12, 1960, appellant and the deceased attended a dance at the Analla Dance Hall in Lorenzo in Crosby County. Around 11 P.M., appellant and the deceased became engaged in a fight in which others present participated. In the fight the deceased received a knife wound which caused his death. Witnesses testified that during the fight they saw an open knife in the appellant’s hand and observed appellant “swing” at the deceased and “backing him up” with the knife. Appellant was arrested between 1 and 1:30 A.M. and taken to the courthouse at Crosbyton, where he was questioned by Sheriff Alvie Ratheal. At such time, appellant denied being in the fight and at 3 A.M., he was placed in jail with his brother, Joe Fernandez and Henry Garza, who had also been arrested in connection with the killing. The next morning, (Sunday) March 13th, appellant was again questioned by the sheriff for approximately fifteen minutes and at such time admitted having been in the fight and told the sheriff of the whereabouts of a knife which he had in the fight. Upon information furnished by appellant, Sheriff Ratheal went to appellant’s home and recovered a single four inch blade knife with blood on the blade. The following day, (Monday) March 14th, appellant and his brother, Joe Fernandez and Henry Garza, were taken, shortly after noon, to Lubbock where appellant consented to take a lie detector test. Thereafter, upon further questioning, appellant made and signed a written statement to Sheriff Ratheal around 5 P.M., in which he admitted participating in the fight and cutting the deceased with his knife. The confession was introduced in evidence as State’s Exhibit No. 10, over appellant’s objection.

Testifying as a witness in his own behalf, appellant admitted participating in the fight on the night in question, but denied that he cut the deceased or any person with his knife. Appellant repudiated his written confession made to Sheriff Ratheal; denied that he was warned before making the same; denied that he told the officers he cut the deceased and testified that while being questioned, he asked for a drink of water and was told that he could have a drink when the confession was completed. He further testified that at such time he was scared and was told that if he did not confess to the killing he would be sent to the electric chair. Sheriff Ratheal and the other two witnesses present at the time appellant made the confession, denied in substance that he was threatened or denied a drink of water.

Appellant predicates his appeal upon six formal bills of exception, which we shall discuss in numerical order.

By bill of exception No. 1, appellant contends that the court erred in admitting his written confession in evidence because it was not shown that he was warned by the person to whom it was made. The confession states and the record reflects that the confession was made to Sheriff Ratheal. The confession recites that appellant was, “ * * * first being duly warned by Alvie Ratheal, the person to whom this statement is made * * * ” The only other persons present at the time appellant made the confession were Special Investigator Earl Bartley of the District Attorney’s Office at Lubbock and Polygraph Operator Tom Barnes. Sheriff Ratheal testified that prior to appellant giving and signing the statement: “We advised him that if he made any statement it could be used in evidence against him, and that he didn’t have to make any statement at all unless he chose.” Appellant admitted that the statement was read to him. While the witness, Earl Bartley, testified that he gave the warning to appellant, the record is sufficient to show that Sheriff Ratheal also gave appellant the warning. Castillio v. State, 158 Tex.Cr.R. 644, 259 S.W.2d 569. No reversible error is reflected by the bill.

By bill of exception No. 2, appellant insists that the court erred in failing to order appellant’s name stated in the indictment changed to that suggested by him as required by Art. 496, Vernon’s Ann.C.C.P. The record reflects that appellant was indicted under the name of Jessie Fernandez. Upon arraignment, appellant suggested to the court that he bore a different name than that stated in the indictment and that his true and real name was Jesus Fernandez, Jr. Thereupon, the order of arraignment in the cause was changed to show the appellant’s name to be Jesus Fernandez, Jr. The court’s judgment and sentence in the cause refers to appellant as “Jessie Fernandez, also known as Jesus Fernandez, Jr.” Appellant, while testifying as a witness in the case, testified that his name was Jessie Fernandez, Jr. and also signed his written "confession by such name. There was proof from other witnesses that appellant was knowti by the name of Jessie Fernandez. Under the record, it appears that appellant went under two names, “Jesus Fernandez, Jr.” and “Jessie Fernandez, Jr.” In the early case of Hornsby v. State, 91 Tex.Cr.R. 166, 237 S.W. 940, it was held that where the accused has two names, or has actually gone- under two names, the provisions of Art. 496, supra, do not apply. The court’s failure to order the name of appellant changed in the indictment does not present error.

Bill of exception No. 3 presents appellant’s objection to the court’s charge because it did not instruct the jury that the State was bound by certain exculpatory statements contained in appellant’s written confession which the State introduced in evidence. In his confession, appellant stated that he knew he cut 'me deceased, “ * * * but I did not intend to kill him * * Appellant relies upon the rule that where the State introduces in evidence a confession which contains exculpatory statements, it is ordinarily incumbent upon the court to instruct the jury that the exculpatory statements are regarded as true unless disproved. While such is the rule in this State, it is subject to certain exceptions. One exception to the rule is that if the State does not rely for a conviction alone upon the confession, but introduces evidence in rebuttal of the same, it is not error to refuse to instruct the jury with reference to exculpatory statements. 1 Branch’s Ann. P.C.2d Ed., par. 95, p. 103-106; Tyler v. State, 121 Tex.Cr.R. 25, 53 S.W.2d 64. In the instant case the State did not rely alone upon appellant’s confession to connect him with the crime, but called witnesses who testified that at the killing they saw appellant striking at the deceased with a knife. No reversible error is reflected by the bill.

Bill of exception No. 4 presents appellant’s contention that his confession was not freely and voluntarily made and under the facts was inadmissible as a matter of law.

Appellant relies upon the case of Prince v. State, 155 Tex.Cr.R. 108, 231 S.W.2d 419, where a confession was held by this Court to have been obtained under circumstances such as to constitute a denial of due process and render it inadmissible as a matter of law.

The Prince case is distinguishable from the case at bar because in that case the accused was taken, during his interrogation, to the scene of the crime before making the confession.

We find no undisputed facts which would render appellant’s confession inadmissible as a matter of law.

While Sheriff Ratheal testified that on the night of the killing, he grabbed appellant by the collar and told him to tell the truth, such would not render appellant’s confession, given two days later with no intervening physical force exerted upon him, inadmissible as a matter of law.

The failure to take appellant forthwith before a magistrate, does not in itself vitiate the confession. Williams v. State, 166 Tex.Cr.R. 368, 314 S.W.2d 308.

The fact that appellant was given a lie detector test prior to making the confession did not render the same inadmissible. Gasway v. State, 157 Tex.Cr.R. 647, 248 S.W.2d 942; Webb v. State, 163 Tex.Cr.R. 392, 291 S.W.2d 331 and Collins v. State, Tex.Cr.App., No. 33,514, 352 S.W.2d 841.

Appellant was not denied the right to confer with counsel and made no request that a lawyer be called. When asked by Sheriff Ratheal who was his lawyer, appellant replied: “Well, you find out the best way you can.” We observe that there is no evidence that appellant made a request to see any of his relatives or that any came to see him and were turned away.

The disputed issue as to the voluntary nature of appellant’s confession was properly subniitted to the jury and the court did not err in admitting the confession in evidence.

By bill of exception No. 5, appellant ■complains of the court’s action in permitting the State to show that Henry Garza, one of the other suspects in the case, also took a lie detector test. The record does not disclose the results of the lie detector test which was given to Garza. Proof that Garza took such a test does not call for a reversal of the conviction.

Appellant’s remaining bill of exception No. 6 complains of the court’s action in admitting in evidence a photograph taken of appellant shortly after his arrest, which showed that at such time he had a goatee, long hair and sideburns, whereas at the time of trial, appellant was clean shaven and ihad short hair. While we fail to see the materiality of such photograph, the admission of same in evidence would not, under the facts presented, warrant a reversal of the conviction.

We find the evidence sufficient to support the conviction and no reversible error appears.

Accordingly, the State's Motion for Rehearing is granted; our prior opinion, reversing and remanding the judgment of conviction, is set aside and the judgment is now affirmed.

Opinion approved by the Court.


text:
    Marvin C. HOLLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 34091.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.
    No attorney for appellant of record on appeal.

      Frank Briscoe, Dist. Atty., Carl E. F. Dally, Frank B. Davis, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for felony theft; the punishment, two years.

S. W. Coplin testified that on Saturday, April 22, a railway freight car was placed beside his business containing sacks of potatoes which he opened, inspected, and accepted; that the car contained 100 lb. sacks of No. 1 Grade, Everbest Brand of Russet potatoes of the market value of $6.65 per sack. The following day, when the potatoes were unloaded, it was ascertained that 22 of the sacks of potatoes had been taken from the car since it was inspected the day before. Coplin testified that he had the care, control, and management of the potatoes since his acceptance of them, and that he did not give anyone his consent to take the 22 sacks of potatoes.

The testimony further shows that on Saturday night, the appellant telephoned the manager of a store and offered to sell him No. 1 Grade potatoes for $4 per sack for delivery the next day, which offer was accepted. The appellant delivered twenty 100 lb. sacks of No. 1 Grade Everbest Brand of potatoes to said store on Sunday. The manager paid him $4 per sack and the appellant gave him a receipt. These twenty sacks were recovered and returned to Cop-lin. The other two sacks were recovered from another store.

Officer Melvin testified that appellant told him that he purchased the 22 sacks of potatoes from a Mexican that he did not know at a market near Airline Drive, and that he got no receipt.

The Witness Coplin testified that he had not handled this brand of potatoes before or since this occasion and was unable to find anyone in Houston who had dealt in them. Officer Melvin testified that he went to the market near Airline Drive on two occasions and was unable to determine that such a sale as the appellant described had taken place.

The appellant did not testify or offer any evidence.

There are no formal bills of exception. No objections were made to the court’s charge, and no requested charges were presented.

The court charged on the law applicable to circumstantial evidence, and the accused’s explanation of recently stolen property.

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

Opinion approved by the Court.


text:
    Ex Parte James M. BUSHNELL.
    No. 33970.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.

      Petitioner represented himself.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The following order dated August 29, 1961, will suffice as explanation of this ha-beas corpus proceeding.

“The mandate of the Supreme Court of the United States, in its Cause No. 561 styled Bushnell v. Ellis, 366 U.S. 418, 81 S.Ct. 1356, 6 L.Ed.2d 386, directs this Court to grant Petitioner James M. Bushnell a hearing upon his petition for writ of ha-beas corpus denied by this Court without written order on January 15, 1960, which, together with the motion for rehearing denied by this Court on February 16, 1960, appears in the ‘Transcript of Record’ in said Cause No. 561 in the Supreme Court of the United States.

“The application attacks as void the conviction in a jury trial in the 128th District Court of Orange County, Texas, on June 20, 1944, which resulted in a sentence of not less than 5 years nor more than 35 years for robbery, a non-capital felony. The Petitioner is now serving said sentence.

“The conviction is claimed to be void because violative of the 6th and 14th Amendments to the Constitution of the United States, and presents the question: ‘Whether due process of law was violated as guaranteed by the 14th Amendment to the Constitution of the United States in that Petitioner was forced to trial, in a Texas State Court for a serious charge of robbery * * * a criminal offense, without the Court appointing counsel to represent him and protect his rights, and Petitioner being an indigent person with a sixth grade education, not being familiar with, or skilled, nor trained, in the science of law, and unable to defend himself adequately in any court room for any charge.'

“Also in the application reference is made to the 6th Amendment relating to the right ‘to have the assistance of counsel.’

“ ‘The petition for rehearing’ seeking to have this Court set aside its order of January 15, 1960, and grant the petition for habeas corpus, alleges further that a confession was admitted in evidence against him which was ‘extracted by coercion and duress’ during a period of illegal detention. The motion for rehearing also alleged that the Petitioner was never taken before a magistrate as required by Art. 217 Vernon’s Ann.C.C.P.

“There also appears as a part of the ‘Transcript of Record’ a ‘Statement of Facts’ purportedly prepared and certified by the court reporter for the 128th Judicial District of Texas. This Statement of Facts has not before been brought to the attention of this Court. It apparently was prepared long after the application and petition for rehearing had been denied without filing by this Court, and after the Supreme Court had taken jurisdiction of the matter. The Statement of Facts does not appear to have been agreed to by counsel or approved by the trial judge, as required by the statutes of Texas. Art. 759a V.A.C.C.P. It is brought to the attention of this Court for the first time in the transcript filed in the Supreme Court.

“A number of petitions for habeas corpus have been presented to this Court by the petitioner. One, sworn to by him on February 4, 1954, contains the allegation that at his trial he entered a plea of not guilty, and thereafter ‘took no part in the proceedings, he asked no questions and made no attempt to conduct any defense — because he did not know how.’

“Contrary to this averment, the Statement of Facts appearing in the Transcript of the Record in the Supreme Court contains a number of questions propounded by the defendant, and testimony given by him.

“The 1954 application sworn to by petitioner also contains the averment ‘The complaining witness, who was the only eye witness, called by the prosecution, freely admitted that he never saw his assailant and that he could not identify relator.’

“According to the Statement of Facts shown in the Transcript filed in the Supreme Court, the complaining witness Myers positively identified the defendant on trial as the man who assaulted and beat him with a pistol, cursed him; threatened to ‘shoot a bullet through my brain,’ and took his money and other personal property.

“Application to file the 1954 petition was denied by written order on February 15, 1954.

“Subsequent applications sworn to by the petitioner on November 30, 1957; December 31, 1958 and June 16, 1959, and the petition which the Supreme Court has directed this Court to hear, sworn to on January 5, 1960, re-urge the contention that the trial judge’s failure to provide counsel resulted in the denial of his constitutional rights under the 14th and 6th Amendments to the Constitution of the United States. In none of these applications, do we find any reference to or complaint regarding the confession introduced.

“In the petition sworn to January 5, 1960, upon which we are directed to grant a hearing, it is averred that at the time of his trial the petitioner ‘was 22 years of age’ and had only a sixth grade education. His brief states that he was in fact 25 years old at the time and suggests that the age shown in the petition was ‘apparently a typographical error’.

“We notice that his application sworn to in 1954 states that at the time of his trial he ‘was 20 years of age, without schooling and with less than average intelligence for a person of his age.’

“The first reference to the confession is found in the petition for rehearing sworn to January 22, 1961, and presented to this Court after all of the petitions mentioned had been denied. The petition for rehearing contains the following allegation relating to the confession:

“ ‘Petitioner has brought himself within the rule by allegations in the petition alleging that Petitioner was mentally incompetent to present a defense to the serious offense with which he was charged — to come further within the rule, a confession taken during a period of illegal detention, and such confession being extracted by coercion and duress at the hands of Orange County officers, such confession was admitted in evidence by the State of Texas at the trial of Petitioner. Further, Petitioner was never taken before a magistrate as is required by Art. 217 V.A.C.C.P., and as injury arising therefrom, said confession was extracted by physical abuse of Petitioner, such abuse being administered by the Orange County police officers. Further, Petitioner was arrested without a warrant for the offense of drunk driving and upon being placed in jail Petitioner was questioned about the robbery of one gambler of Orange County, Texas. Petitioner denied any knowledge of any robbery, and the injured party was called upon to identify Petitioner. Upon a face to face meeting of Petitioner and the injured party, Petitioner could not be positively identified, thereupon, the physical abuse was imposed upon Petitioner, and thus the confession, used as evidence by the State of Texas, was extracted from Petitioner.

“ ‘Therefore, had Petitioner been afforded the constitutional right of assistance to counsel he could have presented the following defenses: Arrest without a warrant for the offense charged; no positive identification; a valid objection could have been ■made tc the admission of the confession as evidence, as such confession being taken during a period of illegal detention; force and physical abuse being imposed by police authorities to extract such confession; not being at the scene of the crime. All of the above mentioned defenses, in order to be properly presented, would most certainly require the assistance of counsel. Petitioner is now squarely within the rule that requires appointment of counsel in non-capital cases.’

“The Honorable James N. Neff, presently Judge of the 128th Judicial District of Texas, is requested to grant and conduct a hearing giving the Petitioner full opportunity to prove his allegations relating to the confession and his claim that the court’s refusal or failure to appoint defense counsel deprived the petitioner of due process of law.

“To this end, Judge Neff will, by bench warrant or otherwise, provide for the petitioner’s presence at a hearing; appoint counsel to represent him at the hearing should he be without counsel; and order process issued for witnesses.

“For the convenience of the Court and of the petitioner and counsel, the original applications presented to this Court by petitioner; the ‘Transcript of the Record’ and the briefs presented to the Supreme Court of the United States, together with the mandate of that Court, accompany this request. At the conclusion of the hearing, these documents and records will be returned to this Court, together with a statement of the facts developed as provided by Art. 119 V.A.C.C.P.

“Woodley, Presiding Judge.”

Pursuant to said order, hearing was had before District Judge Neff on September 29, 1961, he having on September 8, 1961 appointed Honorable Emmett Wilburn to represent the petitioner.

A statement of the facts adduced at the hearing is before us which includes the stipulation that the statement of facts included in the Transcript of the Record that was before the Supreme Court of the United States is the best record available.

From the evidence adduced at the hearing before Judge Neff, it is fair to say that these facts are undisputed:

The petitioner herein was tried for the non-capital offense of Robbery without counsel, and was found guilty and assessed a term of 35 years in the penitentiary. He is now serving an indeterminate sentence of not less than 5 nor more than 35 years, sentence having been pronounced June 20, 1944.

The Texas Statutes did not, at the time in question, require the trial judge to appoint counsel for an indigent accused in a non-capital robbery case. The Statute has since been amended. (Art. 494 V.A.C.C.P.)

Petitioner testified that he was 25 years old on June 20, 1944; had only a first grade education — never got out of the first grade; worked as a roughneck in the oil fields.

Clyde (Hop) Williamson, who was Constable of Precinct 4 of Orange County in 1944, and at the time of the hearing, and I. W. Thompson, Deputy Sheriff in 1944, who had since retired, and Harry Christian who was with said officers at the time, each denied that petitioner was abused, assaulted or mistreated as he testified he was, by Mr. Thompson and Mr. Williamson.

The confession was not shown by the undisputed evidence to have been extracted by physical abuse or otherwise unlawfully obtained. It was admissible and could be used against him, under the testimony of the officers.

The question resolves itself into whether under these facts, considering the age and education of the petitioner, the complexity of the proceedings and the seriousness of the offense charged, he was deprived of due process of law by the trial judge’s refusal or failure to appoint counsel to defend him. We think not.

We are persuaded that if the Supreme Court held to such view petitioner’s conviction would have been set aside. Instead, this Court was instructed to grant petitioner a hearing upon his petition. This having been done, petitioner has failed to sustain his allegation that his confession was unlawfully obtained and should have been excluded.

The relief prayed for is denied.


author: DICE, Judge. MORRISON, Judge.

text:
    Kary Curtis KIMBLE, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 33973.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1961.
    Rehearing Denied Feb. 7, 1962.
    William H. Scott, Jr., Ellis F. Morris, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F, Dally, Frank Puckett, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Judge.

The offense is unlawfully carrying a pistol; the punishment, 30 days in jail.

The State’s evidence shows that on the night in question Deputy Sheriffs Davis and Smolensky went to a night club and cafe to make a routine check. When they entered, appellant and a girl companion were seated at a table. After the officers had received information from a reliable source that appellant was carrying a pistol, they saw him reach under the table, pull out a “shiny-object” and drop it into the girl’s purse which was on a chair beside her. Shortly thereafter, appellant and the girl left the club. The officers followed and when they got outside detained them. Upon being asked, appellant told the officers that he did not have a pistol. A search of his person did not disclose that he was carrying one. The officers then had the girl empty her purse upon the hood of a car. This disclosed that her purse contained a pistol. Thereupon, the girl began crying and stated that she did not know the pistol was in her purse. Appellant then stated, “Why don’t you officers let her go; she didn’t have anything to do with it. I put the gun in her purse.” Appellant further stated to the officers that the pistol belonged to his mother and that he was carrying it because some boys were after him. After the pistol was discovered appellant was arrested by the officers.

Appellant did not testify or offer any evidence in his behalf.

Appellant predicates his appeal upon two claimed errors.

He first contends that the court committed reversible error in permitting Officer Davis to testify that he and his fellow officer had received information from a reliable source that appellant was carrying a pistol, over the objection that the same was hearsay. In the instant case evidence of the appellant’s oral statement and confession to the officers that he was carrying the pistol was before the jury without objection. In view of appellant’s oral confession of guilt, the admission of such hearsay evidence would not call for a reversal of the conviction. Killingsworth v. State, 165 Tex.Cr.R. 286, 306 S.W.2d 715.

Appellant next insists that the evidence is insufficient to support the conviction because his statement was wholly uncorroborated by any admissible evidence. With such contention we do not agree. The testimony of Officer Davis that he observed appellant place the “shiny object” in the girl’s purse and proof that shortly thereafter the pistol was found in her purse together with the other facts and circumstances, excluding the hearsay information received by the officers, is sufficient to corroborate appellant’s confession that he was carrying the pistol under the rule stated in Kugadt v. State, 38 Tex.Cr.R. 681, 44 S.W. 989. See also, Fruechte v. State, 166 Tex.Cr.R. 496, 316 S.W.2d 418.

The judgment is affirmed.

Opinion approved by the court.

On Motion for Rehearing

MORRISON, Judge.

Appellant takes issue with that portion of our original opinion in which we stated that appellant was not arrested until after the pistol was discovered. Regardless of when the arrest occurred, the statements made by appellant were made at the scene, were a part of the transaction and were admissible as part of the res gestae. In Clifton v. State, 156 Tex.Cr.R. 655, 246 S.W.2d 201, we pointed out that the res gestae rule was superior to and could not be limited by the rules relating to admissions after arrest.

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


text:
    Marvin BELL, Appellant, v. The STATE of Texas, Appellee.
    No. 34134.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1962.
    Florence, Garrison & Holt, by Lowell C. Holt, Gilmer, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is possession of whiskey in a dry area for the purpose of sale; the punishment, a fine of $1,000.00 and confinement in jail for six months.

The disposition hereof makes a statement of the facts unnecessary.

Appellant objected to the failure of the trial court to define the term “prima facie evidence” in the charge to the jury.

Where the State relies upon the prima, facie evidence statute to show that intoxicants were possessed for the purpose of sale, as it did herein, the definition of “prima facie evidence” should be given in the charge. Whitaker v. State, 164 Tex.Cr.R. 264, 298 S.W.2d 600; Seay v. State, 134 Tex.Cr.R. 255, 115 S.W.2d 418; and Floeck v. State, 34 Tex.Cr.R. 314, 30 S.W. 794.

The judgment is reversed, and the cause is remanded.