author: NORVELL, Justice.

text:
    Ernest M. POENISCH, Jr., et al., Petitioners, v. Mamie QUARNSTROM, Respondent.
    No. A-8903.
    Supreme Court of Texas.
    Oct. 31, 1962.

      Fischer, Wood, Burney & Nesbitt, James R. Harris, Corpus Christi, for petitioners.
    E. T. Yates, Brownsville, for respondent.
   NORVELL, Justice.

This is an action of trespass to try title and for partition arising from a complicated factual situation. The legal question involved relates generally to the question of notice to co-tenants and notice to owners of property after the rendition of a judgment against persons remaining in possession, and the effect that such notice or lack thereof has upon the running of the ten-year real property statute of limitations, Article 5512, Vernon’s Ann.Civ.Stats. A judgment generally favorable to the defendant, Mamie Quarnstrom, also known as Marie Ottman Quarnstrom, the limitation claimant, has been affirmed by the Court of Tex.Civil Appeals, 353 S.W.2d 474.

On April 10, 1926 an agreed judgment was rendered by the District Court of Cameron County in Cause No. 1973, styled New York and Brownsville Improvement Company, Ltd., et al. v. Frank J. Ottman, et al. By this judgment, New York and Brownsville Improvement Company, Ltd., et al. recovered title and possession to a tract of land 65 feet by 100 feet out of Lots 11 and 12 of Block T of the Original Town of Brownsville. This tract is generally referred to as the rear (or north) 65 feet of Lots 11 and 12. The judgment recites that the description is intended to cover a tract of land fronting 65 ft. on Eleventh St. and 100 feet on the alley dividing Block T. The judgment also awarded to Lucia Ottman, Frank Ottman, (Jr.) Edward Ottman and Marie Ottman Quarnstrom (respondent here), the widow and children, respectively, of Frank Ottman, deceased, and to the in-tervenors, W. H. and Hortense Ward (the attorneys for the Ottmans) the title and possession in and to a tract of land 55 feet by 100 feet out of said Lots 11 and 12 in Block T of the City of Brownsville. This tract fronts 100 feet on St. Charles Street and extends back to the alley running through said Block T and is generally referred to as the front (or south) 55 feet of Lots 11 and 12.

While some complaint is made as to this judgment, no defect is pointed out which would render the same void or ineffective as to the parties to the suit. It was rendered by a district court having jurisdiction of the parties and the subject matter and hence must be treated as valid and binding. Clayton v. Hurt, 88 Tex. 595, 32 S.W. 876. The circumstance that the judgment was not signed by the parties or their attorneys constitutes no objection to its binding effect.

Subject to the question of the validity of the 1926 judgment mentioned (which we hold to be valid) and the effect of a certain redemption certificate issued in 1952, hereinafter mentioned, the parties agreed that the record title to the property was vested as follows:

“The front 55 feet of Lots 11 and 12.
“Ernest M. Poenisch, Jr. — an undivided one-half interest in Lot 11.
“Rose Marilyn Hall — an undivided one-half interest in both Lots 11 and 12.
“Mamie Quarnstrom — an undivided one-half interest in Lot 12.”
“Rear 65 feet of Lots 11 and 12.
“Ernest M. Poenisch, Jr., — an undivided uAe interest.
“Lulu George, Mary Helen Ammann and J. C. George, Jr. — an undivided ⅜2 interest, (each having an undivided ⅜6 interest).
“Mary ICatheryne Whitelaw — an undivided ½2 interest.
“Mamie Quarnstrom — an undivided one-fourth interest.”

By the judgment of the trial court, the defendant, Mamie Quarnstrom, on her plea of limitation, was awarded judgment for the front 55 feet of Lot 12 and the rear 65 feet of Lots 11 and 12. She was also awarded judgment for a one-half interest in the front 55 feet of Lot 11, the other one-half interest being awarded to Ernest M. Poenisch, Jr.

This judgment was predicated upon the trial court’s implied finding that Mamie Quarnstrom had perfected title to all of Lots 11 and 12 under the ten-year statute. Article 5510. The award of an undivided one-half interest in the front 55 feet of Lot 11 to Ernest M. Poenisch, Jr. was based upon a tax lien foreclosure under which Poenisch acquired the interest asserted by Mamie Quarnstrom in and to the front 55 feet of Lot 11.

Insofar as the front 55 feet of Lots 11 and 12 are concerned, the dispute is primarily between the plaintiff, Rose Marilyn Hall and the defendant, Mamie Quarnstrom. W. H. Ward and Hortense Ward were attorneys at law and represented the Ottman-Quarnstrom interests in the litigation which culminated in the 1926 judgment. They intervened in the suit and their interest was set aside to them with the Ottman interest in the front 55 feet of Lots 11 and 12. They had a power of attorney which entitled them to a one-half interest in the recovery. After the entry of the 1926 judgment the Ottmans held a one-half interest in the front 55 feet of Lots 11 and 12 while W. H. Ward and Hortense Ward owned the other one half. Mamie Quarn-strom eventually acquired all the Ottman interest in and to this portion of the two lots while Rose Marilyn Hall succeeded to the Ward interest. We thus have a tenant in common situation to which the rule stated by this Court in Phillipson v. Flynn (1892), 83 Tex. 580, 19 S.W. 136, and reaffirmed in Southern Pine Lumber Co. v. Hart (1960), 161 Tex. 357, 340 S.W.2d 775 has application. In the opinion rendered in the first case mentioned, this Court said:

“The possession of a co-tenant or tenant in common will be presumed to be in right of the common title. He will not be permitted to claim the protection of the statute of limitations unless it clearly appears that he has repudiated the title of his co-tenant and is holding adversely to it. Possession and payment of taxes on the property do not constitute the assertion of an adverse right. There must be something more. Alexander v. Kennedy, 19 Tex. 488, 496. The acts relied upon by the tenants in common in showing an ouster of his co-tenants, and the assertion of an adverse claim, should be more certain and unequivocal in character than would be necessary in ordinary cases where there is no privity of estate between the parties claiming the property. And in order to affect the co-tenants with this adverse holding, notice of such fact must be brought home to them, either by information to that effect, given by the tenant in common asserting the adverse right, or by such acts of unequivocal notoriety in the assertion of such adverse and hostile claim that they will be presumed to have notice of such adverse right. Moody v. Butler, 63 Tex. 210; Wood, Lim. Act. § 266.”

Similar statements of the rule may be found in the numerous reported opinions. In Condra v. Grogan Mfg. Co., 149 Tex. 380, 233 S.W.2d 565, this Court held that while the possession of premises was sufficient to satisfy the requirements of the statutes as against those having actual notice of an adverse claim (and all holding under them), it was not sufficient to satisfy the statute as to tenants in common having no notice of such claim. Writing for the Court, Mr. Justice Smedley said:

“A different question of limitation is presented as to the interest that was inherited by Mrs. Davenport from her husband, W. J. Smith, and their child. She was not a party to the agreement of partition and neither she nor her heirs, who were her husband, A. Davenport, and their two children, are shown to have had actual knowledge that the Condras were claiming the 49.5 acre tract adversely to them. This being true, the possession of the Condras did not become adverse to Mrs. Davenport and her heirs unless the acts of the Condras in the assertion of adverse claim were of such unequivocal notoriety as to charge the Davenports with notice. Phillipson v. Flynn, 83 Tex. 580, 19 S.W. 136; Stiles v. Hawkins, Tex.Com.App., 207 S.W. 89; Moore v. Knight, 127 Tex. 610, 94 S.W.2d 1137; Republic Production Co. v. Lee, 132 Tex. 254, 121 S.W.2d 973; Bruni v. Vidaurri, 140 Tex. 138, 147, 166 S.W.2d 81; 1 Am.Jur. pp. 822-824, Sec. 53; There has been much elaboration of this rule in the above cited authorities and in other cases. One of the most thorough statements of it appears in Republic Production Co. v. Lee, 132 Tex. 254, 121 S.W.2d 973. The foregoing and other authorities show that possession of a cotenant will be presumed to be in his right as cotenant and that acts relied upon to establish an ouster of his cotenants and to start the running of limitation against them must be of such unequivocal nature and so distinctly hostile to their rights that the intention to disseize is clear and unmistakable.”

While the defendant made no specific reference to the statement of facts as supporting the contention, it is asserted that Mamie Quarnstrom told Mrs. Hortense Ward that she would not accept the 1926 judgment. Our search of the statement of facts discloses the following:

“Q: Well, didn’t you say a minute ago that you did acknowledge to them that they (W. H. and Hortense Ward) owned a half ? A: But now you made it plain. You said agree, and I did not agree on that.
“Q: If you acknowledged it, you acknowledged it to them that they owned one-half of Lots 11 and 12, the front of 11 and 12? A: But I did not agree to what they had done.
“Q: You didn’t agree to what they did? A: Yes, what they did.
“Q: But you did acknowledge that they owned one-half by virtue of the judgment that was entered; is that right ? A: We had to do that in order to give them the power of attorney. That is all.
“Q: All right, now, but your statement is now that you did not agree with what they did? A: No, I did not agree.
“Q: All right. But as far as the judgment was concerned, you agreed that they owned one-half of the front 55 feet of 11 and 12 under the judgment? A: Only because of that, because they had the power of attorney to do it. To do it, that is all.”

Further in the course of her testimony, Mrs. Quarnstrom testified that after the judgment had been rendered Mrs. Ward told the witness and her mother about the judgment and that she told Mrs. Ward, “That I didn’t agree to what she had done.”

This testimony falls far short of meeting the test laid down by the cases above cited. At most it expressed disagreement and dissatisfaction with the action taken by the Wards in settling the case; There was no direct repudiation of the judgment and refusal to abide therewith. No action was taken to discharge the Wards as attorneys and no action taken to set the judgment aside. A mere statement that one does not agree with what his attorney has done cannot be construed as notice of a repudiation of the attorney’s rights in the property which had been acquired under a contract and thereafter confirmed by a judgment.

The only other reference in defendant’s brief to any other transaction or event between Mrs. Quarnstrom and the Wards or Mrs. Hall was an asserted attempt by Mrs. Hall to sell her interest in the property to Mrs. Quarnstrom which took place in 1957 approximately two years before the suit was filed. This incident could have no bearing upon notice in connection with the ten-year statute.

In view of the rule that possession of one cotenant will be presumed to be in his right as a cotenant, we hold that in legal contemplation there was no evidence that either the Wards or Mrs. Hall were put on notice of the hostility of Mrs. Quarn-strom’s claim in and to the front 55 feet of Lots 11 and 12. Judgment should have been rendered in accordance with the stipulation relating to the record title.

As to the rear 65 feet of Lots 11 and 12, we have a similar situation. One of the plaintiffs in the suit which resulted in the 1926 judgment was Mary Kingsbury Forto, who was awarded an undivided ⅛ interest in the tract. She died in 1930 and the interest passed to the Missionary Society of the Oblate Fathers of Texas. This interest eventually passed to Mrs. Quarnstrom in 1950. It thus appears that from and after 1926 Mrs. Quarnstrom and those under which she claims were either holding over after a judgment had divested them of title, or were holding as owners of an undivided interest in the property, that is, as tenants in common with the petitioners. Sweeten v. Park, 154 Tex. 266, 276 S.W.2d 794, affirming Park v. Sweeten, Tex.Civ.App., 270 S.W.2d 687; Green v. Vance, 158 Tex. 550, 314 S.W.2d 794.

As to possession of the rear 65 feet of Lots 11 and 12, the evidence relating thereto shows at most an intermittent and almost casual use by Mrs. Quarnstrom until about five years before this suit was filed when she commenced using it for an automobile parking lot and leasing it for such purpose. From 1926 to about 1932, Mrs. Quarnstrom had a chicken coop on the back lot, but there were no other buildings thereon from 1926 to 1942. A one-room house was moved on the tract about 1942 and rented intermittently until 1956. There was evidently a substantial break in the continuity of possession from 1932 to 1942. Hardy v. Bumpstead, Tex.Com.App., 41 S.W.2d 226, 76 A.L.R. 1488. The evidence falls far short of that required to carry notice of an adverse claim to actual owners situated as were the petitioners here. Nor is the evidence of possession and the use of the property sufficient in law to carry with it the inference of a repudiation of cotenancy and the petitioner’s rights in the property under the theory “of unequivocal notoriety as distinguished from actual notice of repudiation” as was the case in Vasquez v. Meaders, 156 Tex. 28, 291 S.W.2d 926.

It is asserted by respondent that she is entitled to recover title to the disputed property because in 1952 she redeemed all of Lot 12 and the rear 65 feet of Lot 11, Block T of the Original Town of Brownsville from certain tax lien foreclosure sales made to Ernest Poenisch, Jr. in 1950 to satisfy claims of the State of Texas, Cameron County, the Brownsville Navigation District and the Brownsville Independent School District. The redemption certificate mentions two tax suits, Nos. 26115 and 26116 on the docket of the District Court of Cameron County. (As above mentioned, there was a tax lien foreclosure sale covering an interest in the front 55 feet of Lot 11, but this interest was not redeemed from the tax sale.)

The redemption certificate issued by the Tax Assessor and Collector of Cameron County recited that Mamie Quarn-strom had made an affidavit claiming “partial ownership of all of Lot 12 and the rear 65 feet of Lot 11.” The general rule is that when a cotenant redeems property from a tax foreclosure sale, such action is considered as being for the benefit of all co-owners. Bush v. Bush, Tex.Civ.App., 275 S.W. 1096, no wr. hist., 14 Am.Jur. 123, Cotenancy § 54. There is nothing shown here that would prevent the general rule from being applied. The redemption of the property could at most give rise to some claim for contribution which is hereinafter noticed.

We sustain petitioner’s assertion that there is no evidence of probative force supporting the finding that respondent had matured a title by limitation to Lot 12 and the rear 65 feet of Lot 11 in Block T, of the Original Town of Brownsville.

The judgments of the District Court and the Court of Civil Appeals are reversed and this cause remanded to the trial court with directions to enter judgment recognizing title to be vested in the following persons in and to the following undivided interests, viz.:

—ll/16ths in the rear 65' of Lots 11 and 12; and 1/2 in the front 55' of Lot 11.
“(b) Petitioner Rose Marilyn Hall
—1/2 in the front 55' of Lots 11 and 12.
“(c) Petitioners Lula George, Mary Helen Ammann and J. C. George, Jr.
—l/96th each in the rear 65' of Lots 11 and 12.
“(d) Petitioner Mary Kathryne Whitelaw
—l/32nd in the rear 65' of Lots 11 and 12.
“(e) Respondent Mamie Quarnstrom
—1/2 in the front 55' of Lot 12; and 1/4 in the rear 65' of Lots 11 and 12.”

The District Court will partition the lands here involved between the respective owners. If the Court should find that the property is not partible in kind, the District Court will order the premises sold and the proceeds of such sale paid over to the parties in proportion to their respective undivided interests.

The trial court in its judgment will take into account the tender by petitioners (as plaintiffs in the district court) of $4,030.66 conditioned upon the recovery of the interests in and to the property claimed by petitioner-plaintiffs. This tender was based upon the redemption of a substantial portion of the property by Mamie Quarnstrom from the tax lien foreclosure sale heretofore mentioned. The trial court will also consider such other matters as may be authorized by law.

If the property be ordered sold, the man-er and details of selling the lands here involved, either in one or more tracts, are to be controlled by the sound discretion of the court and determined by the judgment entered. The Court may recognize such agreements as to details as may be made by the parties to this suit.

Judgments of the lower courts reversed and the cause remanded to the District Court with instructions.


source: Caselaw Access Project

author: DICE, Commissioner. WOODLEY, Presiding Judge. MORRISON, Judge

license: Public Domain

text:
    Benny Joe BENEDICT, Appellant, v. The STATE of Texas, Appellee.
    No. 34699.
    Court of Criminal Appeals of Texas.
    June 13, 1962.
    Rehearing Denied Oct. 31, 1962.
    James H. Martin, Robert C. Benavides, Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., George Milner, Phil Burleson, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary; the punishment, enhanced by two prior convictions for felonies less than capital, life imprisonment.

No statement of facts of the evidence adduced upon the main trial on the issue of appellant’s guilt accompanies the record and appellant’s sole contention on appeal is that the court erred in overruling his plea of former jeopardy.

The indictment under which appellant stands convicted charged the burglary of a house occupied and controlled by Robert Ward Gehm and alleged that the offense was committed on or about the 14th day of June, 1961. Paragraphs #2 and #3 alleged two prior convictions, in the years 1954 and 1956, for the offenses of breaking and entering a motor vehicle, being felonies less than capital.

Appellant filed a plea of former jeopardy to paragraphs #2 and #3 of the indictment and alleged as grounds therefor that he had been put to trial on May 1, 1961, in the same court in an entirely different burglary case in which the same two prior convictions were alleged in the indictment and after the jury had failed to agree in the case they were discharged by the court without appellant’s consent and before they had been kept together for such time as to render it ■altogether improbable that they could agree.

We need not pass upon the question as to whether the court erred in discharging the jury in the prior case, as the use of the two prior convictions in that case which resulted in a mistrial did not prevent their use in the present case for the purpose of enhancement of the punishment.

While it is the rule in this state that prior convictions may not be used more than once to enhance punishment, in Johnson v. State, 158 Tex.Cr.R. 154, 253 S.W.2d 1006, it was held that a prior conviction must be “successfully” used before it can no longer be used for enhancement. In the Johnson case the prior convictions alleged for enhancement were used in a prior case where the conviction was reversed on appeal. In holding that the convictions could be used in a subsequent case, it was pointed out that by reason of the reversal the prior convictions had not been successfully used.

In Mooring v. State, 158 Tex.Cr.R. 434, 256 S.W.2d 97, it was held that where prior convictions were alleged and proven to enhance the punishment in a case which resulted in an acquittal, it did not constitute a successful use of the prior convictions so as to prevent their being used in a subsequent case for the. same purpose, and that ■the doctrine of double jeopardy did not apply.

The two prior convictions alleged in the instant case, not having been successfully used in the prior. case against appellant, were available to enhance punishment herein.

The judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

Appellant’s punishment was enhanced under Art. 63 P.C. by two prior convictions for felonies less than capital.

The indictment alleges both of these prior convictions to have been for the offense of “Breaking and entering a motor vehicle.”

There being no statement of facts, we are not apprised of the contents or form of the indictments.

In his motion for rehearing appellant, for the first time, challenges the validity of the prior convictions contending that the statute under which the prosecutions for “Breaking and entering a motor vehicle” were had is void for indefiniteness and uncertainty.

The statute in question is Art. 1404b P.C.

.The statute was enacted in 1951 (Acts 52nd Legislature p. 447). It was amended in 1955 (Acts 54th Legislature p. 351). The amended statute was in effect on the date the indictment alleged the second conviction was had.

Art. 1404b P.C. standing alone might well be vulnerable to the attack made upon it. This would be equally true of Art. 1389 and 1390 P.C. which define the offense of burglary. Neither statute stands alone however.

The Le.-islature, in enacting Art. 1404b' providing ⅞ punishment for the entry by breaking of a vehicle for the purpose of •committing a felony or misdemeanor, made such statute a part of said Chapter 6, Title 17 of the Penal Code, in the following language :

‘‘Be it enacted by the Legislature of the State of Texas: Section 1. That Chapter 6, Title 17 of the Penal Code of the State of Texas, 1925, be and the same is hereby amended by adding a new Article to be known as Article 1404b to read as follows * *

Chapter 6 Title 17 of the Penal Code includes Art. 1406 P.C. which provides in part that the definitions, rules and explanation of terms in the preceding chapter are applicable to such terms in Chapter 6.

It follows that the statute here in question, like Articles 1389 and 1390 defining burglary, are to be construed in the light of other provisions of Chapter 5 and 6 of Title 17 of the Penal Code, including Arts. 1392 and 1393 defining “entry” and 1394 defining “breaking”.

So construing Art. 1404b P.C. before and after its amendment in 1955, we overrule appellant’s contention that the statute is void.

In Musick v. State, 121 Tex.Cr.R. 616, 51 S.W.2d 715, relied upon by appellant, the statute held to be void was Art. 1426a enacted in 1929 (Acts 41st Legislature p. 62) providing a punishment for the fraudulent taking of cotton or cotton seed, or both, of the value of less than $50, the punishment being different from that for theft of property under Art. 1422 P.C. Judge Morrow, speaking for the Court in Musick’s case, supra, stated:

“Neither in the name of the offense nor in its elements can the statute be identified as one under which a prosecution for theft can be maintained.”

The essential elements of the offense of burglary are a breaking and an entry. These elements are clearly embraced in the statute under consideration. While the essential element of lack of consent, as required by Art. 1392, Vernon’s Ann.P.C., is lacking in this statute, Art. 1404b, this essential element is supplied by Art. 1406, which does give effect and make applicable the provisions of Art. 1392. It is obvious to us that we do here have under consideration a burglary statute, which was not apparent in Musick, supra.

Appellant’s motion for rehearing is overruled.

MORRISON, Judge

(concurring).

I concur in the affirmance of this conviction which upholds the constitutionality of Article 1404b, V.A.P.C. Appellant’s complaint is that the statute both before and after its amendment did not require that the entry be made without the consent of the person in charge of such vehicle. Reliance is had upon Musick v. State, 121 Tex.Cr.R. 616, 51 S.W.2d 715, which holds that “the definition of larceny which omits ‘without the consent of the owner’ is now universally conceded to be defective” and that a theft statute which omits such an element is inoperative as such.

I am aware of no constitutional or statutory requirement which would render the Legislature powerless to enact a penal statute which falls within a certain category of crime without making each element of that crime, as it is elsewhere denounced in the statutes or as it was known at common law, an essential element of such new act. In order to come within the purview of Article 6, the failure to include such element must render the statute so indefinite or of such doubtful construction that it might not be understood. This is not, as I see it, the case before us here.

If Musick, supra, and Brunson v. State, 123 Tex.Cr.R. 342, 58 S.W.2d 1099, are to be construed as contrary to the result here reached, I would overrule the same.


author: WOODLEY, Presiding Judge.

text:
    Alvin WALKER, Appellant, v. The STATE of Texas, Appellee.
    No. 34876.
    Court of Criminal Appeals of Texas.
    Oct. 24, 1962.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is Burglary; the punishment, 2 years.

No statement of facts accompanies the record.

The proceedings are regular except for the form of the Judgment and Sentence which recite the offense as “Burglary and Repetition of Offense”.

The court did not submit to the jury the question of enhancement of punishment by reason of the prior conviction alleged.

The Judgment and Sentence are reformed so as to recite that appellant was adjudged guilty of Burglary and was sentenced for that offense.

As reformed, the judgment is affirmed.


author: McDonald, judge.

text:
    M. A. BOBO, Appellant, v. The STATE of Texas, Appellee.
    No. 34727.
    Court of Criminal Appeals of Texas.
    Oct. 24, 1962.

      James E. Faulkner, Coldsprings, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is receiving and concealing stolen property over the value of $50; the punishment, five years.

The state’s testimony reflects that Mrs. Mabel Cummings was the president of Ur-bana Sand and Gravel Company, the corporation being the owner of the store that was broken into without her consent. Mrs. Cummings had actual custody of the building. It was her testimony that the actual cash market value of the shotgun shells taken was $63.

The state’s testimony, adduced from the two accomplice witnesses, Nations and Matthews, reflects that they did break into the store belonging to Mrs. Cummings and took therefrom numerous items, including shotgun shells and cigarettes. These two witnesses did, by their testimony, fully implicate appellant. It was shown by Nations’ testimony that he went with appellant to Houston, where appellant said he was going to sell the shells.

Thomas L. Ford, a state’s witness, testified that he lived in Houston and operated a fish market; that he knew the appellant, had known him for three years. When asked if he had ever done business with appellant before, the witness Ford replied: “Only bought some rabbits from him.” This witness further related that appellant brought some shotgun shells and cigarettes to his place of business some time during August, 1961. State’s counsel then inquired:' Q. “All right. Take a look in that box there, Thomas.” The record reflects that the witness complied. Q. “Can you identify those?” A. “As much as I saw of it, I did. I didn’t check on it, but I saw them.” When asked what happened to those shotgun shells, the witness replied that the deputy sheriff picked them up; that he was a Harris County deputy sheriff. Upon cross-examination, this witness was asked: Q. “You wouldn’t have any earthly way in the world of knowing those shells from shells on the shelf of any store in this town, would you, they don’t look any different to you, do they?” A. “Well, I had no occasion to check them that close.” When the witness was asked: “and you don’t know whether those are the same shells or not, do you?,” he replied: A. “I know they were the same type of shells.” In response to a question as to whether or not the appellant sold him the shotgun shells and cigarettes that he left there, the witness stated: “He — No, not direct.” He said: “No, sir,” when asked if any money passed hands. This witness also testified that appellant did not tell him that the shells were stolen and that no one told him to hide the shells and that they were not hidden.

The state then adduced testimony from Lewis Woodruff, the sheriff of San Jacinto County, as follows: Q. “All right. Sheriff, I am going to ask you to examine these boxes of shells.” (The witness complied.) Q. “Have you ever seen those before?” A. “I have.” Q. “Where did you see them?” A. “In Chief Frazier’s office in the sheriff’s office in Houston.” Q. “You got these shells from the Harris County Sheriff’s office?” A. “I did.” The witness further related that the shells had been in his possession since that time. The shells were then admitted into evidence and marked State’s Exhibit No. 1.

We think that appellant’s contention that the evidence is insufficient to corroborate the testimony of the two accomplices, Nations and Matthews, has merit. We have carefully reviewed and considered all of the testimony adduced and have set forth above all of the pertinent testimony that the state offered. Ford’s testimony did not establish that appellant knew the shells were stolen. In fact, it indicated that such was not the case because appellant made no suggestion to Ford that he conceal the shells nor did he intimate to him that they had been stolen. Ford made no effort to conceal the shells which were delivered to him even if they had been shown to be those which were stolen. While it is true that Mrs. Cummings did identify the shells as the ones taken from her store, she did not in anywise connect the appellant with the transaction. Ford never positively identified the shells. He was not asked if they were the same shells brought to him at his fish market by the appellant. At best, he said that they were the same type of shells.

The state failed to show that the shells acquired by the Sheriff of San Ja-cinto County from the sheriff’s office in Houston were the same ones taken by a Harris County deputy sheriff from Ford’s fish market. We fail to find any evidence to corroborate the testimony of the accomplices that appellant knew that the property was stolen. This is essential in order to sustain a conviction for this offense. Sanders v. State, 144 Tex.Cr.R. 526, 164 S.W.2d 685, and cases there cited. See also Stuart v. State, 137 Tex.Cr.R. 456, 132 S.W.2d 119; Whatley v. State, 135 Tex.Cr.R. 432, 120 S.W.2d 1055; Hagan v. State, 132 Tex.Cr.R. 338, 104 S.W.2d 857; Marquez v. State, 126 Tex.Cr.R. 132, 70 S.W.2d 426; and 24 Tex.Jur.2d, Evidence, 694.

We also observe that the testimony of the witness Mrs. Cummings pertaining to the cash market value of the shells in San Jacinto County is lacking in some essential requisites and that on another trial of this cause the knowledge and competency of this witness to testify to these facts should be more fully developed.

For the reasons stated, the cause is reversed and remanded for another trial.


author: DICE, Commissioner.

text:
    O. W. TIPPS, Appellant, v. The STATE of Texas, Appellee.
    No. 34920.
    Court of Criminal Appeals of Texas.
    Oct. 31, 1962.
    Clyde Elliott, Jr., Canton, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

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

Trial was before the court without the intervention of a jury.

The record is similar to that in Thomas v. State, Tex.Crim.App., 361 S.W.2d 392, an appeal from Van Zandt County, this day decided, and shows that the information was not presented upon a complaint then in existence, as required by Art. 415, Vernon’s Ann.C.C.P.

For such reason and under the authorities cited in our opinion reversing the conviction in the Thomas case, the information is invalid.

The judgment is reversed and the cause is remanded.

Opinion approved by the court.


author: MORRISON, Judge. WOODLEY, Presiding Judge.

text:
    Albert WECHSLER, Appellant, v. The STATE of Texas, Appellee.
    No. 34633.
    Court of Criminal Appeals of Texas.
    June 27, 1962.
    On Motion for Rehearing Oct. 31, 1962.

      Nicholas & Barrera, Roy R. Barrera, San Antonio, for appellant.
    Charles J. Lieck, Jr., Criminal Dist. Atty., Jack Paul Leon, Asst. Criminal Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is false swearing; the punishment, 2 years.

During the course of a murder trial in San Antonio, it was discovered that defense attorneys, among them one Abe San Miguel, had in their files certain photostatic copies of statements of witnesses which were a part of the State’s file in the case. Following this, each employee of the district attorney’s office, including appellant (who was an investigator employed by such department), upon being called upon by their superior, made an affidavit stating that they had not delivered the statements of the witnesses in the murder case to any unauthorized person, and particularly not to Mr. Abe San Miguel. This affidavit of appellant forms the basis of this prosecution. In order to show that appellant executed the affidavit, the State called Emma Anderson, the notary public who administered the oath to appellant, and assistant district attorney Gittinger, who witnessed the making of the affidavit by appellant. In order to show that such affidavit was false, the State called the following witnesses:

Assistant district attorney Benavides testified that during the trial of the murder case he saw certain photostatic copies on the counsel table in front of Abe San Miguel, that he recognized the signature of two employees of his department, and very soon thereafter one of defense counsel marked one of such statements for identification and attempted to use the same to impeach a State’s witness then on the stand. At this-juncture, an inquiry was conducted; the prosecutors took the statements of their witnesses out of the possession of defense counsel, and defense counsel were questioned as to how they had acquired possession thereof. One counsel declined to answer on the grounds that his answer might incriminate him, and Abe San Miguel was very vague in this explanation as to how the statements had come into his possession ; he denied that they were his and did not recall when he had first seen the statements but did admit having seen them prior to the trial.

Abe San Miguel testified that sometime prior to the trial of the murder case he asked appellant if he could procure the State’s file containing the statements of their witnesses, that appellant agreed to make the same available to him, and that when they were delivered to him he had photostatic copies of the same made and returned the originals to appellant. He stated that after the trial of the murder case and after the incident above referred tO' had received wide publicity, he, in company with an attorney he had employed to represent him, approached Mr. Charles Lieck, the district attorney, and secured from him a promise not to prosecute whoever the culprit might be if he (the culprit) would come forward, identify himself and be discharged from further employment with the district attorney’s office. He stated that after securing such assurance he talked to appellant, who agreed to admit his dereliction in duty, and that he delivered to his lawyer the sum of $1,000 to be delivered to appellant in the event Mr. Lieck did in fact discharge him.

Sometime after appellant admitted his complicity to his superior and had been discharged, the grievance committee for the State Bar of Texas began to inquire into the professional conduct of Mr. San Miguel, and appellant appeared before them as a witness and again related how at Mr. San Miguel’s suggestion he had delivered to him the State’s file in the murder case. Two members of that committee testified in the instant trial.

Following this, appellant was indicted for the instant offense. The above will serve as a historical development of the case, and further facts will be discussed in connection with appellant’s contentions on appeal.

Appellant contends that the court erred in overruling his motion for continuance because the court called up a case against appellant out of its numerical order. This contention, though often asserted, has been put to rest by this Court in Sowers v. State, 157 Tex.Cr.R. 345, 248 S.W.2d 949, and the cases there cited. We observe that no abuse of discretion has here been shown.

He next contends that the court erred in declining to permit him to examine the jury panel individually and outside the hearing of each other. This contention is without authority to support it in non-capital cases where no injury is shown. Bartlett v. State, 123 Tex.Cr.R. 464, 59 S.W.2d 157, and Lacy v. State, 168 Tex.Cr.R. 220, 325 S.W.2d 392.

In this connection, it is contended that the court erred in refusing to quash the panel after one of the members made a statement during the course of her examination. There appears in the record before us a separate document denominated “Portion of Voir Dire Examination,” but the same has not been approved by the court or counsel and cannot be considered. This question is therefore not before us for review.

The next contention requires a more extended discussion. As stated, in order to prove the execution of the affidavit in question, the State called Emma Anderson, who testified that she had been an employee of the district attorney’s office and a notary-public for a number of years, that she renewed her bond as a notary every two years, and that appellant swore to the affidavit in her presence. When a question was raised as to Anderson’s qualification as a notary, the certificate of the Secretary of State evidencing such fact was introduced. During the course of her cross-examination, Anderson stated that in order to qualify as a notary she had, according to her best recollection, taken her oath and bond to the office of a surety company where she had executed the same in the presence of another notary, but the court excluded her testimony as to how she had executed her oath and bond in prior years. Appellant called Mary S. Burt, whose name appeared on Anderson’s bond and oath, and she testified, in the absence of the jury for the purpose of perfecting appellant’s bill of exception, that she had no independent recollection of having sworn Anderson. Counsel then attempted to question her as to the general practice of the bonding company where she worked and whether or not they usually received the bonds in the mail already signed. The court sustained the State’s objection to general practice and required the witness to limit her testimony to the particular transaction in question, but did permit the witness to testify that it was possible such had occurred in Anderson’s case.

is not contended that Anderson was shown to have any complicity in the making of the false affidavit by appellant, and we conclude that the evidence is suffi-suffito show that the witness Anderson was a de facto notary public, if not de jure, and that the court did not err in curtailing the cross-examination of the witness Burt nor in refusing to permit appellant to develop Burt’s testimony before the jury. See Woodson v. State, 24 Tex.Cr.R. 153, 6 S.W. 184, and De Lucenay v. State, Tex.Cr.App., 68 S.W. 796. In this connection, it is to be observed that at appellant’s request and out of an abundance of caution the court instructed the jury to acquit appellant if they found that Emma Anderson was not a notary public.

Appellant next contends that the court erred as a matter of law in permitting the two members of the grievance committee to testify as to the admissions made by appellant before said committee. During the course of the trial, the district attorney made certain statements and explanations of his conduct which were considered by the court to be under oath. This was developed in the absence of the jury for the purpose of perfecting a bill, at the conclusion of which the court stated that he found that a fact issue had been raised. We have, however, searched this record and have not found where such testimony was ever offered for the jury’s consideration. This being the case, we are confronted with the sole question of whether or not appellant’s statements to the grievance committee were inadmissible as a matter of law. He contends that such statements were not fully and voluntarily made because of the prior promise of the district attorney not to prosecute for false swearing if the guilty person would admit his identity and be discharged, which promises were communicated to appellant, and the further fact that at a later date when the grievance committee met and invited appellant to appear before them appellant told District Attorney Lieck of such invitation and Lieck advised him to go ahead and tell the committee the truth.

At this juncture, it should be noted that appellant did not testify, and we must rely upon the testimony set forth above to show that as a matter of" law he was induced t'o make the admissions before the committee.

In Stewart v. State, 124 Tex.Cr.R. 632, 64 S.W.2d 782, the accused was told by a Ranger at some time during his interrogation that if he told the truth he (the Ranger) would ask the prosecutor to recommend to the jury a life sentence instead of death. Appellant did not testify that such promise operated as an inducement which caused him to confess at a later date to the district attorney at Corsicana. This Court, speaking through Judge Hawkins, said that we would not hold as a matter of law that such confession, in the absence of appellant’s testimony on the issue, was induced by the earlier promise of the Ranger.

In the case at bar, appellant asks that we hold, without the aid of appellant’s testimony, that the promise made during the district attorney’s investigation in which he said that he would not initiate prosecution against appellant carried over and was operating on appellant’s mind when some two months later he appeared before the grievance committee. This we are not prepared to do. It should be borne in mind that at no time .prior to his appearance before the committee was appellant ever in custody, and the sole question before us is whether appellant was induced to make the admissions against interest to the grievance committee. We have concluded that the record before us here fails to establish affirmatively that such was the case.

Appellant’s last contention is that the evidence is insufficient to support the conviction under Article 723, Vernon’s Ann.C.C. P., because of the conflicts in the testimony of the witness San Miguel which prevent his being a credible witness. Plowever reprehensible may have been San Miguel’s actions in the premises, there is no evidence which would show that he was in any way connected with the making of the false affidavit which forms the basis of this prosecution. His testimony was strongly corroborated by the extra judicial admissions of appellant to the grievance committee.

The court instructed the jury to acquit if they found that San Miguel was not a credible person or was an accomplice to the offense of false swearing.

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

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

Upon further consideration we have concluded that the appellant’s admissions in the nature of a confession before the Grievance Committee should have been excluded as involuntary.

Appellant made the same admissions of guilt to the district attorney under promise that he would not be prosecuted.

The trial judge correctly held that without the approval of the court the district attorney had no authority to- grant immunity to the appellant. See Washburn v. State, 164 Tex.Cr.R. 448, 299 S.W.2d 706.

The trial court also correctly excluded testimony as to admissions or statements made by appellant to the district attorney, holding same inadmissible as having been induced by promises of the district attorney. Cook v. State, 32 Tex.Cr.R. 27, 22 S.W. 23; Womack v. State, 16 Tex.App. 178; Neeley v. State, 27 Tex.App. 324, 11 S.W. 376; Clayton v. State, 31 Tex.Cr.R. 489, 21 S.W. 255.

The confession statute is not applicable, appellant not being in custody at either time. However, it would appear that the prior admission or confession having been induced by promise of the district attorney and thereby rendered involuntary and inadmissible, the presumption is that the same force which produced such confession was still in motion at the time of the subsequent confession. Cavazos v. State, 143 Tex.Cr.R. 564, 160 S.W.2d 260; Abston v. State, 136 Tex.Cr.R. 152, 123 S.W.2d 902; Thompson v. State, 124 Tex.Cr.R. 440, 63 S.W.2d 849.

We find no evidence in the record from which the court or the jury could have found that when appellant testified before the Grievance Committee he was no longer relying upon the district attorney’s promise that he would not be prosecuted.

On the other hand, it appears that the appellant advised the district attorney that he had been called to go before the Grievance Committee and was told to tell them the truth and that he did tell the truth as to providing the documents.

Appellant’s motion for rehearing is granted, the affirmance is set aside and the judgment is reversed and the cause remanded.


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    Bert Meron ROBERTSON, Appellant, v. The STATE of Texas, Appellee.
    No. 34885.
    Court of Criminal Appeals of Texas.
    Oct. 31, 1962.

      Schenk & Wesbrooks by Perry Wes-brooks, Wichita Falls, for appellant.
    Donald E. Short, County Atty., Glynn R. Purtle and Ray Gene Smith, Asst. County Attys., Wichita Falls, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving a motor vehicle upon a public highway while intoxicated; the punishment, 3 days in jail and a fine of $50.

The issue of appellant’s state of sobriety was sharply contested.

The arresting officer, Patrolman Ralph Briscoe, pursued appellant who passed his radar at a speed of some 70 miles per hour, but turned off the highway before reaching the Patrolmen McWhorter and Benson, who were working with him. He expressed the opinion that appellant was intoxicated and to the facts upon which he based his opinion.

Patrolmen McWhorter and Benson, who first observed appellant while he was in the patrol car, were the other witnesses who expressed the opinion that appellant was intoxicated.

Patrolman Benson testified that the alcoholic smell on appellant’s breath was strong; his eyes were bloodshot, “redish eyes”; his tongue seemed to be a little thick; that he had many times observed persons who were intoxicated and that he would say that appellant was intoxicated at the time he saw him.

On cross-examination Patrolman Benson testified that he formed his opinion that appellant was intoxicated from observing that he had glassy eyes, together with the smell of alcohol on his breath “and the statement that Patrolman Briscoe made about his driving”. He denied that when he got to the jail, either he or Mr. McWhorter in his presence, told appellant “that he didn’t appear to be very intoxicated.”

The appellant, testifying in his own behalf, admitted that he was driving at a speed of some 70 miles per hour, and that he turned off the highway trying “to avoid a ticket”. He testified “I definitely wasn’t intoxicated” on the day in question.

On the examination of appellant by his attorney he was asked and answered (referring to Patrolman Benson)

“Q. Did he say anything to you at the time when he brought you in to the Jail?.
“A. Yes, sir.
“Q. What did he say?
“A. Well, we had a conversation coming on in, and he made the remark that he couldn’t see that I was drunk, but it was too late now.”

The state’s objection that it was hearsay was sustained and, upon motion of the attorney for the state, the court instructed the jury to disregard both the question and answer.

The court was in error in striking the question and answer, the testimony being admissible as impeachment of the testimony of the Patrolman Benson. Spinks v. State, 157 Tex.Cr.R. 612, 252 S.W.2d 159; Sanders v. State, 54 Tex.Cr.R. 101, 112 S.W. 68, 22 L.R.A.,N.S., 243.

The trial court was also in error in denying appellant the privilege of inspecting a previous statement of the witness Patrolman Briscoe, after he had testified on direct examination, for use in cross-examination and possible impeachment of said witness. Gaskin v. State, Tex.Cr.App., 353 S.W.2d 467; Pruitt v. State, Tex.Cr.App., 355 S.W.2d 528; Martinez v. State, Tex.Cr.App., 354 S.W.2d 936. Upon another trial demand similarly made should he complied with.

The judgment is reversed and the cause remanded.


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    Charlie Lee CLAYTON, Appellant, v. The STATE of Texas, Appellee.
    No. 34748.
    Court of Criminal Appeals of Texas.
    Oct. 3, 1962.
    Rehearing Denied Nov. 14, 1962.

      Miller & Miller, by Tom M. Miller, Graham, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is murder without malice (Art. 802c Vernon’s Ann.P.C.); the punishment, 3 years.

The indictment alleged that appellant was intoxicated and, while driving a motor vehicle on a public highway in such condition, through mistake and accident, killed D. W. Fletcher by then and there driving said automobile into and causing it to co-lide with a motor vehicle driven by said D. W. Fletcher thereby causing his death.

The evidence shows that D. W. Fletcher met his death as the result of a collision between the pickup truck he was driving on a gravel road and the automobile driven by appellant, traveling in the opposite direction.

The state’s evidence was to the effect that the collision occurred about 4 o’clock P.M., while the vehicle the deceased was driving was on his right hand side of the road. Appellant and his witness put the point of impact upon his right hand side of the road.

According to the state’s evidence, appellant was driving at a high rate of speed just prior to the collision. The testimony of appellant and his companion was to the effect thát he was driving at a speed of about 35 miles per hour, and that the Fletcher car suddenly turned into his car.

A gin bottle (fifth) was found in appellant’s car practically empty. Appellant and his companion testified that they purchased two bottles (fifths) of gin before noon and drank half of one bottle before they ate. Appellant denied that he was intoxicated.

There: was evidence to the effect that shortly before the accident appellant was drinking from a cup at a Drive-In in Graham and was staggering. Glenn Smith was with appellant. One of them said that the cups contained gin.

Dr. V. O. Rosser, Jr., who observed appellant at the hospital shortly after the accident, testified that appellant was intoxicated at that time.

It would serve no useful purpose to set out other testimony found in the record, or to discuss the several conflicts and discrepancies found therein. Suffice it to say that the jury resolved the issues in favor of the state and rejected appellant’s request for suspension of sentence, and the defensive issues raised by his testimony and that of his witnesses.

Appellant’s first claim of error is the court’s refusal to submit to the jury the following requested charge:

“You are charged that if D. W. Fletcher turned his pickup truck to his left or toward a driveway on his left in front of - the approaching automohile of the defendant in such manner that the intoxication or being under the influence of intoxicating liquor by the Defendant, if he was intoxicated or under the influence of intoxicating liquor, that the same did not contribute or was not a causal factor of the collision, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict ‘not guilty’. In other words, if you believe that D. W. Fletcher turned his pickup truck to its left for any reason in front of the approaching automobile of the defendant in such a manner that an ordinary sober person, driving the direction this defendant was driving and at the same exact time and place and manner in which this defendant was driving, would have collided with said! car, or if you have a reasonable doubt thereof, you will find the defendant not . guilty.” - ,

The court, in Paragraph 10 of his charge, instructed the jury “ * * * the defendant would not be guilty if the said-defendant’s motor vehicle was at said time and place operated in the manner it should he operated by one not intoxicated

In Paragraph 11 the charge required the jury to find and believe in order to convict that appellant being intoxicated “ * * * caused the collision, if any, or contributed to the same, or was a causal factor in causing the death of the said D. W. Fletcher * * * ”

In Paragraph 12 the court instructed the jury to acquit if they entertained a reasonable doubt as to whether the motor vehicle driven by appellant * * * was being operated in the manner that it should he operated by one not intoxicated * * * or that such intoxication * * * caused or contributed to the collision in question * * ⅛ »

Paragraph 14 of the court’s charge instructed the jury to find the defendant not guilty if they believed or had reasonable doubt that the pickup driven by D. W. Fletcher was caused by Fletcher to run into and collide with the automobile being driven by appellant.

The charge given adequately instructed the jury upon the necessity of proof of a causal connection between appellant’s intoxication and the collision and resulting death of the deceased.

next complains of the court’s failure to submit his requested charge No. 2, instructing the jury to ac-acunless they believed beyond a reason-reasondoubt that appellant drove his auto-autointo the vehicle being driven by the deceased.

The court’s charge, in Paragrah 7, required the jury to find beyond a reasonable doubt, in order to convict, that appellant killed the deceased by driving his automobile into and causing it to collide with an automobile driven'by the decéased, ahd the jury was instructed in the same paragraph to acquit if they did not. so believe or if they had reasonable doubt thereof.

Appellant’s third claim of error relates to the court’s failure to submit his requested charge No. 3, instructing the jury to acquit unless they found and believed beyond a reasonable doubt that appellant was intoxicated at the time of the collision. The jury was instructed to this effect in Paragraph 8 of the charge as well as in Paragraph 7.

The court’s charge adequately submitted the issue of whether appellant was intoxicated and the court did not err in refusing other requested charges relating to such issue.

Mrs. R. K. Hamilton, a state witness, testified that she saw an automobile traveling in a southerly direction on the gravel road from her home. “It was traveling so fast that I thought to myself, he will never make that turn at the bottom.” She further testified that she heard the collision. “I didn’t actually see a collision. There was so much dust. I knew there had been a collision from the noise. * * * I thought the car had just turned over. I was not aware that it had hit another car * *

“Q. As far as it being the same car that you saw pass you up there you don’t know except what someone else told you, is that right? A. No, I know it was the same car. I could see it all the way down the hill.
“Q. But you didn’t go down there, is that correct?
“A. No, I didn’t. * * *
“Q. Well, how did you know of your knowledge that it was the same car, if you didn’t go down there, unless someone told you ?
“A. Well, as I said, there was no other car that it could have been. No other car came by.”

The foregoing testimony was before the jury without objection, as was Mrs. Hamilton’s testimony that she knew that the car that passed her house was the one that collided with the other car. There was no motion to withdraw such testimony.

Appellant complains that the court refused his request that the jury be instructed not to consider a portion of Mrs. Hamilton’s testimony if they found and believed it “was based upon what is commonly called hearsay, or what someone else told her.”

We do not understand that there was a fact issue in this regard for the jury. If appellant desired to have the witness’ statement which he regarded as hearsay withdrawn, he should have objected to its admission or moved the court to withdraw it at the time. James v. State, Tex.Cr.App., 335 S.W.2d 603. The court did not err in refusing the requested charge.

Appellant also sought to have the jury instructed npt to consider the testimony of the state’s witness Morris Fife. Fife testified to having seen appellant near a creek crossing, drinking.

The basis for this special requested charge was that the testimony of Fife was contradictory to that of other witnesses, including the appellant.

We are aware of no authority sustaining this claim of error.

We have considered all of appellant’s requested charges which the court refused and find no error in the trial court’s rulings in regard thereto.

Appellant’s complaint that the jury considered other evidence after they retired to consider their verdict is not sustained. The motion for new trial is not supported by affidavit of one in position to know the facts. Valdez v. State, 157 Tex.Cr.R. 363, 248 S.W.2d 744. The evidence adduced at the hearing on the motion for new trial is not brought before us in a separate statement of facts, as required by statute. Art. 759a, § 6, Vernon’s Ann.C.C.P.; Selvidge v. State, Tex.Cr.App., 345 S.W.2d 523, and cases there cited.

Be this as it may, the “rumors referred to by Mr. Neal” regarding appellant’s previous record were before the jury during the trial, as a part of the cross-examination of appellant’s character witnesses. The question of whether the cross-examination was proper is not before us, the questions being asked and answered without objection.

The judgment is affirmed.


author: BELCHER, Commissioner. MORRISON, Judge

text:
    Elmer Edward HUDSON, Appellant, v. The STATE of Texas, Appellee.
    No. 34794.
    Court of Criminal Appeals of Texas.
    Oct. 31, 1962.

      Ivan Irwin, Sr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Phil Burleson and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

Upon a plea of not guilty before the court without a jury, the appellant was convicted of the illegal possession of amphetamine; the punishment, a fine of $100.

Officer Wages testified that he observed the appellant staggering as he walked along a sidewalk adjoining a public street, and from six to ten feet away he called for the appellant to “wait”; that no odor of alcohol was detected on the appellant, but the appellant’s speech was incoherent, “and he was hopped up.” Upon a search, Officer Wages testified that he found 27 pills in a container in the right pants pocket of the appellant and about one-half that number in his left pants pocket.

A chemist testified that an analysis made by him of the pills revealed that they contained amphetamine.

The appellant, while testifying in his own behalf, admitted that the pills were in his pants pocket at the time in question and had been in his possession for about three days, but that he had no idea that the pills contained amphetamine.

Appellant’s sole contention is that his arrest was illegal and therefore the search of his person and the seizure of the property and its admission into evidence was error.

It is not necessary to appraise appellant’s contention because appellant is not in a position to complain of the state’s introduction of evidence of hiS possession of the pills when appellant admitted while testifying that he had possession of the pills. Salinas v. State, 159 Tex.Cr.R. 619, 266 S.W.2d 388; Rao v. State, 160 Tex.Cr.R. 416, 271 S.W.2d 426; MacKenna v. State, 164 Tex.Cr.R. 623, 301 S.W.2d 657; Cortez v. State, 165 Tex.Cr.R. 320, 306 S.W.2d 713; 5 Tex.Jur.2d, Sec. 446, pp. 707-708.

The judgment is affirmed.

Opinion approved by the Court.

MORRISON, Judge

(concurring).

I concur in the affirmance of this conviction because the officer testified that at the time he searched appellant he was of the opinion that appellant was “drunk” in a public place. This authorized the arrest and the search incident thereto.


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    S. M. GAINES, Appellant, v. The STATE of Texas, Appellee.
    No. 34880.
    Court of Criminal Appeals of Texas.
    Oct. 24, 1962.

      John B. McDonald, Palestine, Charles W. Tessmer, Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted of unlawfully transporting an alcoholic beverage in a dry area, with two prior convictions for offenses of like character alleged for the purpose of enhancement, and his punishment was assessed at six months’ confinement in jail and a fine of $500.

A prior appeal from the conviction to this court was dismissed for want of jurisdiction, because no final judgment had been entered of record. See: Gaines v. State, Tex.Cr.App., 353 S.W.2d 34.

This is an appeal from the subsequent entry of judgment nunc pro tunc in the cause.

The record reflects that the information was not presented by the prosecuting attorney but was in the form of an affidavit by the affiant, who signed the complaint.

Art. 414, Vernon’s Ann.C.C.P., prescribes the requisites of an information and in subdivision 3 provides “That it appear to have been presented by the proper officer.”

It is well settled in this state that an information which does not appear to have been presented by the prosecuting attorney is fatally defective and insufficient. Sams v. State, 143 Tex.Cr.R. 588, 160 S.W.2d 265, and Walton v. State, 162 Tex.Cr.R. 262, 284 S.W.2d 373. For such reason, the information in the .instant case is insufficient.

Our state’s attorney before this court so concedes, and confesses error.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


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    Henry Clyde SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 34833.
    Court of Criminal Appeals of Texas.
    Oct. 31, 1962.

      No attorney of record on appeal for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Jon N. Hughes, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is statutory rape; the punishment, 5 years.

The sole question presented is the sufficiency of the evidence to sustain the conviction.

Appellant, the father of the 14 year old girl named in the indictment, made a statement which was reduced to writing and was introduced in evidence at the trial as a voluntary confession.

In his confession appellant stated that he had sexual intercourse with the girl first when she was eleven years old, and many times thereafter. He stated that the last time he had intercourse with her was in his bedroom, a week or so before, while his wife was in the hospital.

The girl named in the indictment testified that she was 14 years old and that she was living with her father and that her mother was in the hospital on the date alleged in the indictment, but she denied that he had sexual relations with her at that time. She testified that she had had intercourse with someone, but denied that her father was the first one, or that he ever had sexual intercourse with her.

Dr. McCallum, a state’s witness, testified that he examined the girl named and that her vagina would admit two fingers; the hymen was not there and that hers was more than likely, but not necessarily, a marital type vagina.

Appellant, testifying in his own behalf, admitted making the statement but said it was not true and that he had never had sexual relations with his daughter.

A confession alone is not sufficient. It must be corroborated by proof of the corpus delicti. Duncan v. State, 109 Tex.Cr.R. 668, 7 S.W.2d 79; East v. State, 146 Tex.Cr.R. 396, 175 S.W.2d 603; Cokely v. State, 87 Tex.Cr.R. 256, 220 S.W. 1099; Marsh v. State, 170 Tex.Cr.R. 512, 342 S.W.2d 435.

The rule is that where the corpus delicti is proved, that is when the evidence shows that a crime has been committed by someone, the defendant’s identity as the criminal may rest alone upon his confession. Bradshaw v. State, 49 Tex.Cr.R. 165, 94 S.W. 223; Kincaid v. State, 131 Tex.Cr.R. 101, 97 S.W.2d 175; Mayfield v. State, 92 Tex.Cr.R. 532, 244 S.W. 819; Gallegos v. State, 49 Tex.Cr.R. 115, 90 S.W. 492; Sullivan v. State, 40 Tex.Cr.R. 633, 51 S.W. 375.

The state’s position appears to be that the corpus delicti was proved sufficiently by the testimony showing that the 14 year old girl had had sexual intercourse with someone, and that this evidence aided by and together with appellant’s confession is sufficient to sustain the conviction.

Aside from the confession of the appellant we find no evidence that he or any other person had sexual intercourse with the 14 year old girl at the time or the place described in the appellant’s confession or “on or about” the date alleged in the indictment, or at any other time within the period of limitation which is one year prior to the return of the indictment.

In East v. State, supra, the Court held that an affirmance of the conviction for embezzlement could have been predicated upon Mills v. State, 123 Tex.Cr.R. 395, 59 S.W.2d 147, but for the fact that the state failed to show by corroborating evidence that the money was appropriated within the period of limitation.

In Bradshaw v. State, supra, and Austin v. State, 51 Tex.Cr.R. 327, 101 S.W. 1162, there was evidence showing the commission of the offense charged within the period of limitation.

There being no proof of the corpus de-licti and the uncorroborated confession of the appellant being insufficient as a matter of law, the evidence is insufficient to sustain the conviction.

The judgment is reversed and the cause remanded.


text:
    Pauline Cochrum THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 34919.
    Court of Criminal Appeals of Texas.
    Oct. 31, 1962.
    Clyde Elliott, Jr., Canton, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

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

Trial was before the court without the intervention of a jury.

Motion was made by appellant to dismiss the information on the ground that no complaint was in existence when the information was presented, which motion was by the court overruled.

The record reflects that the information was presented on December 28, 1961, and that the complaint upon which it was purported to be based was not sworn to until the following day.

It follows that the information was not presented upon a complaint then in existence and is therefore invalid. Art. 415, Vernon’s Ann.C.C.P.; Baker v. State, 159 Tex.Cr.R. 491, 265 S.W.2d 600; and Billingslea v. State, 160 Tex.Cr.R. 244, 268 S.W.2d 668.

The judgment is reversed and the cause is remanded.

Opinion approved by the court.


author: MORRISON, Judge.

text:
    Henry GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 34927.
    Court of Criminal Appeals of Texas.
    Oct. 31, 1962.
    Webb, Schulz & Stokes, by Richard M. Price, San Angelo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, 5 years.

Two groups of three Latin American men each met at a park near the city of San Angelo for the purpose of singing, guitar playing and beer drinking. This was followed by wrestling among themselves-in a spirit of fun until deceased threw appellant to the ground. According to the State’s witnesses, this occurred several times, and then appellant got up, struck deceased and continued to chase him around the automobiles. The witness Lopez testified that when he attempted to intercede appellant cut him on the shoulder. Appellant and deceased went down a small hill out of sight of the other witnesses, and shortly thereafter appellant returned, stated that he “had cut him,” got in his automobile, and departed the scene. The two witnesses who remained found deceased lying in a ravine “cut in the head and his stomach.” An ambulance arrived, and deceased was carried to the hospital, where he died from wounds inflicted by a sharp instrument. After leaving the altercation at the park, appellant went to the home of his estranged wife’s parents and cut the screen door when he was refused admittance. The parents called the police, and, while they were subduing- appellant, he threw his knife away. Upon the arrival of the police, they found a knife near the scene. No knife was found in the park around the scene where the body was found.

Appellant’s witness Carillo testified that after appellant and deceased had “rassled” awhile they got mad, that deceased in his flight from appellant attempted to use the witness Carillo as a shield but that he was able to extricate himself from deceased’s grasp and the pursuit continued on down the hill with the fight still in progress. He stated that he saw no knife in the hands of deceased but that he did see appellant’s knife as they were driving from the park into the city.

None of the witnesses saw a knife in the hands of either party at the park because of darkness.

Appellant’s father, his wife, and a family friend, the jailer, testified that appellant had certain cuts and scratches about his body when they saw him shortly after the occasion in question.

Appellant, testifying in his own behalf, stated that deceased was mad at him because he was separated from his wife who was a relative of deceased; that after deceased threw him to the ground he saw him go over to one of his companions and saw the companion “pass” something to him; so he went to his automobile, got his knife, and struck at deceased after deceased had injured him. He denied that he cut Lopez and denied that the knife found by the police near his wife’s parents’ home was his.

The jury resolved the issue of self defense submitted to them in the court’s charge against appellant, and we find the evidence sufficient to sustain their verdict.

Appellant attempted to exclude the testimony of the witnesses Mrs. Ojeda and Mrs. Hernandez. The court properly instructed counsel to proceed with the interrogation of the witnesses and make his objections during the course of such examination. We find no formal or informal bills of exception to any question propounded to or answers made by such witnesses, and hence no error is before us for review. In Gentry v. State, 105 Tex.Cr.R. 629, 290 S.W. 543, this Court said:

“* * * the proper time to oppose the introduction of the testimony which the accused deems inadmissible against him is when it is offered. If proffered, testimony against him be admitted over his objection, he can invoke a review of the action of the court by preserving a record of the matter in a bill of exceptions. In the present case there seems to have been no exception to the introduction of the testimony. The action of the court in failing to sustain the preliminary motion raises no question for review.”

We find in the transcript certain “Exceptions and Objections to the Court’s Charge,” but there is no showing in this record that the same were ever presented to the court or acted upon by him. In the absence of such a showing, we are without authority to pass upon any questions sought to be raised thereby. McCown v. State, Tex.Cr.App., 338 S.W.2d 732, and Whitby v. State, 155 Tex.Cr.R. 192, 233 S.W.2d 141. At the time the knife which was found by the officer was offered in evidence, objection was made on the ground that it was not shown to be the one used in the homicide. While it is true that no witness could identify the knife used in the park, appellant was shown to have said that he cut the deceased, he was shown to have a knife in his possession on the way from the park into the city and was shown to have cut the screen after he got to the house of his wife’s parents, and then throw a knife away near where it was found by the police. In Chavira v. State, Tex.Cr.App., 319 S.W.2d 115, we said:

“The rule is well settled that in prosecutions for homicide"the- weapon with whicb the crime was committed, or alleged to have been committed, is admissible in evidence. The lack of positive identification of the weapon affects its weight as evidence rather than its admissibility. Wilson v. State, 163 Tex.Cr.R. 202, 289 S.W.2d 597."

Finding no reversible error, the judgment of the trial court is affirmed.


text:
    George WASHINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 34823.
    Court of Criminal Appeals of Texas.
    Oct. 10, 1962.
    Rehearing Denied Nov. 14, 1962.
    No attorney' on appeal. . '
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

Appellant pleaded guilty and was convicted of felony theft. He was sentenced to a term of not less than 2 nor more than 10 years, and was granted probation.

After being on probation for more than one-third of the ten year term, the trial judge reduced the sentence of from 2 to 10 years to not less than 2 years or more than 3 years, and on the same day, after hearing, found that appellant had violated the terms of his probation and ordered same revoked. The appeal is from the order revoking probation.

No statement of facts accompanies the record, and the proceedings appear to be regular.

The judgment is affirmed.


text:
    Estil Harlan FISCHER, Appellant, v. The STATE of Texas, Appellee.
    No. 34714.
    Court of Criminal Appeals of Texas.
    Oct. 3, 1962.
    Rehearing Denied Nov. 14, 1962.

      Louis W. Woosley, Dallas, for appellant.
    Henry Wade, Dist. Atty., Bill Watts, Pat McDowell and Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 1295, Vernon’s Ann, P.C., for sending an anonymous letter; the punishment, one month in jail and a fine of $250.

The state’s testimony shows that the prosecuting witness and her two women companions lived in a house located across the street from appellant’s residence. On the evening of December 28, 1960, after the prosecuting witness, who was employed at a Veterans Administration Hospital, and her two companions returned home from work, one of the women went to the mail box around 6 p. m., and found a letter marked “ ‘personal’ ” and addressed “ ‘To the one who is the head.’ ” The letter was opened and its contents noted by the three women. The letter read:

“Dear neighbor: This may be a peculiar way of doing things but then we live in peculiar times, dont we. I have never met you but I am one of your neighbors. Recently I heard something I would like to tell you if I can sometime. But I also have another request that I wish you would grant. I hope this note gets in the right hands One of you, I believe, is a former teacher and Veteran employee, that is the one to whom I am writing. My other request is perhaps peculiar but I want you to love me sexually and you take the part of the man and let me be the woman (I am a man) If you will do this for me would you leave your front porch light on as an O K signal Wed and Thurs evening Thurs in case you don’t get this in time for Wed. I’ll try to drop around between 8 and 9 if I can get away. Please be careful though as we have ‘spying’ neighbors. I hope you will see me. Thanks. If the light is not on I’ll take for granted that you do not want me.”
(Signed) “Doc”
“(Better destroy this note thoroughly.)”

After the three read the letter, the police were called. They came to the house, and, after talking to the women, left with the letter. The women left the front porch light on, and around 8 p. m. appellant came to the door, rang the door bell, and when asked by the prosecuting witness who he was, answered “ T am Doc.’ ” Upon being asked where he lived, appellant answered “ ‘Across the street * * *. Aren’t you going to let me in ?’ ” Soon thereafter the police arrived upon the scene and apprehended appellant in the driveway after he stated to them, “ T am the one that wrote the letter.’ ”

Appellant’s voluntary statement made to Officer Campbell after his arrest was introduced in evidence by the state. In the statement, appellant admitted having written the letter in question and placing it in the mail box at the home of the prosecuting witness.

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

Appellant complains of the court’s action in overruling his motion to quash the information on the ground that it did not charge an offense because the language contained in the letter did not reflect on the chastity, virtue, and good character of the prosecuting witness and for the further reason that the allegation in the information that appellant did “send and cause to be sent” the anonymous letter was insufficient to allege the manner and means by which the offense was committed.

While the motion to quash was not timely made, being filed and presented after selection of the jury and after appellant entered his plea of not guilty, we have considered the grounds urged by appellant and find the allegations of the information sufficient to charge an offense.

The letter in question requested sexual intercourse, which clearly reflected upon the virtue of the prosecuting witness. Belle v. State, 102 Tex.Cr.R. 561, 278 S.W. 842.

The allegation in the information that appellant did “send and cause to be sent” the anonymous letter was in the language of the statute, Art. 1295, supra, and sufficient to allege the manner and means by which the offense was committed. Bradfield v. State, 73 Tex.Cr.R. 353, 166 S.W. 734.

Appellant next complains of the admission of the letter in evidence over the objection of a variance because the letter contained more words, phrases, and language than the quoted phrases in the information. We find no error in admitting the letter in evidence, as the quoted phrases set out in the information were exactly as contained in the letter. The burden was upon the state to prove that the letter was written and sent. In making such proof, the entire letter was admissible, although it was not necessary to set out the letter in its entirety in the information. Bradfield v. State, supra.

Complaint is made to the court’s action in permitting two of the officers to testify as to the statement made by appellant on the occasion of his arrest. The record ' reflects 'that at thehime appellant made the statement to the officers he was not under arrest. There was no error in admitting the testimony;

Complaint-is further made to the admission of appellant’s confession in evidence over his objection that the proper predicate had not been laid. It is appellant’s contention that he was not identified by Officer Campbell, to whom the confession was made, as the person who made it.

While Officer Campbell was unable to identify appellant at the trial as the person who gave the statement, he testified, positively, that the defendant Estil Harlan Fischer, was the person who gave the statement to him. The proof shows that it was the appellant who was taken to Officer Campbell’s office on the night of his arrest and is sufficient to show that it was he who gave the written statement to the officer.

Appellant’s remaining complaint is to certain jury argument of state’s counsel. The bill of exception as prepared by appellant and presented to the court alleges that counsel stated “ ‘They have made no defense to this.’ ”

The court in his qualification of the bill, to which appellant made no exception, refused to certify that such statement was made but did certify that state’s counsel in his opening argument stated; “ ‘In this kind of case, there is no defense except,’ ” at which time a defense objection was overruled and counsel continued in the following manner:

" ‘There is no defense in this kind of a case except that he didn’t write the letter.’ ”

We are unable to agree with appellant that the statement certified by the court as having been made by state’s counsel may be reasonably construed as a reference to his failure to testify. No reversible error is presented by the bill.

The judgment is affirmed.

Opinion approved by the Court.


author: BELCHER, Commissioner.

text:
    L. C. CHAPPEL, Appellant, v. The STATE of Texas, Appellee.
    No. 34902.
    Court of Criminal Appeals of Texas.
    Oct. 31, 1962.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

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

M. M. Abramson, the owner of a salvage company, testified that on February 28, 1961, seven grease traps were taken from his possession without his permission or consent. The owner of an Iron Works Company testified that on March 1, 1961, he bought seven grease traps from appellant who delivered them to his company. A peace officer testified that he investigated the loss of the grease traps and found them at the Iron Works Company and they were properly identified by the owner. An accomplice related the facts of the taking of the grease traps and their sale to the Iron Works Company. The owner of a wholesale nlumbing company testified that the greáse traps had a market value ó-f more than $50.

The appellant did not testify but called one witness who testified only- about appellant’s employment.

The evidence is sufficient to sustain the conviction. There are no formal bills of exception or objections to the court’s charge. The informal bills in the statement of facts have been examined and do not reflect error.

The judgment is affirmed.

Opinion approved by the court.


author: McDONALD, Chief Justice.

text:
    CAPITAN BOWLING CENTER, INC., et al., Appellants, v. BOWLING SALES COMPANY, Appellee.
    No. 4041.
    Court of Civil Appeals of Texas. Waco.
    Oct. 11, 1962.
    Rehearing Denied Nov. 1, 1962.
    Tobolowsky, Hartt, Schlinger & Blalock, Grover Hartt, Jr., Dallas, for appellants.
    Storey, Armstrong & Steger Paul S. Adams, Jr., and Robert M. Martin, Jr., Dallas, for appellee.
   McDONALD, Chief Justice.

Plaintiff (appellee) Bowling Sales Company, instituted this suit against 5 Bowling Centers (which though separate corporations, were all commonly owned), on sworn accounts based on 5 written contracts (each identical with the 5 Bowling Centers), covering purchase of “Strike A Lite” bowling equipment by the defendants.

Defendants plead that plaintiff’s manager agreed in writing that if the defendants were not “completely satisfied” with the equipment or its operation during a term of 6 months, that they could rescind the contract and have the equipment picked up by plaintiff and that “all moneys paid in will he refunded.” Defendants further plead that plaintiff falsely represented that the "Strike A Lite” equipment would increase business; that the equipment was defective; and that within 6 months defendants rescinded. Defendants, by cross action, sought judgment against plaintiff for the moneys paid by defendants to plaintiff on the equipment.

Trial was to a jury which, in answer to Issue 1, submitted, found:

“The statements and representations contained in the letter of April 1, 1960 were not with respect to material matters. (Unanswered were issues inquiring if defendants relied on such statements, and whether same induced defendants to sign the contracts for the equipment).”

The Trial Court entered judgment for plaintiff against defendants for the unpaid balances due under the purchase contracts (plus attorneys’ fees), and denied defendants any recovery on their counterclaim.

Defendants appeal, contending among other things, that the jury’s answer to Issue 1 is against the great weight and preponderance of the evidence.

The record reflects that on March 8, 1960, plaintiff and defendants entered into written contracts by which plaintiff sold to defendants certain “Strike A Lite” bowling equipment for stipulated prices. The contracts recite that they constitute the “entire agreement” between the parties, and that the equipment is “not being sold on trial.”

The record further contains an agreement in writing, dated April 1, 1960, but which the evidence reflects was entered into on the same date that the sales contracts were executed. Such agreement reads:

“It is also agreed that if (defendants) * * *, are not completely satisfied with the Strike A Lite equipment or its operation during a term of 6 months from the date of this letter, by notifying (plaintiff), the equipment will be picked up (from defendants) and all moneys paid in will be refunded.”

Such latter agreement was signed by defendants’ President and plaintiff’s District Manager for New Mexico and Texas.

It is undisputed that defendants became dissatisfied with the equipment, and within the 6 months period notified plaintiff to pick up the equipment and make refund of the payments made. Plaintiff refused, and filed the instant case.

It is our view that such letter, if executed subsequently (as it shows on its face) constitutes a modification of the original contract (which the parties had a right to do); and it is our further view that, if such letter was executed contemporaneously with the printed agreement, that such letter was a part of the contract of the parties. We are also of the view that the representations in the letter that plaintiff would pick up the equipment and refund defendants’ money, if defendants were dissatisfied within 6 months, was certainly with reference to material matters. We think that the jury’s finding that such representations were not with respect to material matters, is against the great weight and preponderance of the evidence.

Defendants’ point in this regard is sustained, and the judgment appealed from is reversed, and the cause remanded. In view of another trial, we point out, that in our view, the cause was tried and submitted upon an erroneous theory; therefore all parties are accorded opportunity to file amended pleadings if they so desire. Reversed and remanded.