author: CHRISTIAN, J.

text:
    BLOCKER v. STATE.
    No. 14002.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    L. R. Pearson, of Ranger, and Frank Jud-. kins, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is transporting intoxicating liquor ; the punishment, confinement in the penitentiary for one year.

An officer followed an automobile occupied by Henry Hatcher, Frank Giles, and appellant. Appellant was riding on the front seat with Hatcher, who was driving the car. When the car stopped the officer searched it, with the result that two half-gallon jars of whisky were found in a paper sack near the feet of appellant and Platcher.

Appellant testified that he did not know the whisky was in the car; that Hatcher got out of the car, saying he wanted to see a man; that later a man came to the car and placed a paper sack in it; that Hatcher did not tell him (appellant) what was in the sack; that during the time they were driving the automobile he did not know that the sack contained jars of whisky; that he did not know there was any whisky in the car until the officer made the search; that he had no interest in the whisky.

Bill of exception No. 13 presents the following occurrence: About‘five or ten minutes after the search of the car and arrest of appellant and his companions, Henry Hatcher stated to the jailor, in appellant’s presence, that the whisky the officers discovered in the automobile'belonged to him, and that appellant had nothing to do with said whisky. Appellant placed the jailor on the stand, and offered to prove by him that Hatcher made the statement to him, it being certified in the bill of exception that the witness would have testified that Hatcher made such statement. It is further certified in the bill that appellant contended that the testimony was admissible as part of the res geste, but that the court held that the declaration of .Hatch-er was inadmissible because of -the fact that he had been convicted of the same offense for which appellant was on trial and was, therefore, not a competent witness for appellant.

The declarations were res gestee. Copeland v. State, 94 Tex. Cr. R. 112, 249 S.W. 495. In Copeland’s Oase, Drew Copeland, the appellant’s brother, stated -to the officers at the time he and the appellant were found in the vicinity of a still that the still and whisky belonged to 'him, and that the appellant was a hired hand and had nothing to do with the still and whisky. In holding the statement admissible in behalf of appellant, - Judge Lattimore, speaking for the court, said: “If doubt existed as to whether Drew Copeland was a party to this transaction, which we do not think can exist as we understand this record, still it has been often lield that, if statements of third parties are part of the transaction, and go to illustrate the feelings, motives, and acts of the principal actors, proof of same is admissible as part of the res gestae.”

The declaration being res geste, the fact that the declarant would have been incompetent to testify in behalf of appellant would not prevent appellant from proving the declaration by witnesses who had heard it -made. In Neely v. State, 56 S. W. 625, 626, this court said: “The fact that deceased would have been incompetent to testify, on account vof a previous conviction for felony, would not exclude his declarations made as a part and parcel of.the res gestae. In other words, the incompetency of one as a witness does not prevent that person’s declaration at the time of the killing from being introduced as a part and parcel of the transaction.” It has been held.that the res geste statements of the wife against the husband are admissible. Cook v. State, 22 Tex. App. 511, 3 S. W. 740. The res geste statements of one under arrest, though not warned, are admissible. Powers v. State, 69 Tex. Cr. R. 214, 152 S. W. 909. See also Jones v. State, 111 Tex. Cr. R. 172, 11 SW.(2d) 798; Flores v. State (Tex. Cr. App.) 79 S. W. 808.

Appellant’s defensive theory and explanation of the situation, supported by his testimony, was that the whisky belonged to Hatcher and that he (appellant) did not know it was in the car until the officer discovered it. The rejected declaration tended to support this theory. Hence we are constrained to hold that its erroneous rejection demands a reversal.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


source: Caselaw Access Project

author: CALHOUN, J. .LATTIMORE, J.

license: Public Domain

text:
    SIMMONS v. STATE.
    No. 13971.
    Court of Criminal Appeals of Texas.
    April 29, 1931.
    State’s Rehearing Denied June 24, 1931.
    W. T. Simmons and A. J. Clendenen, both of Fort .Worth, and Lloyd & Lloyd, of Alice, for appellant.
    Fred Blundell, Dist. Atty., of Lockhart, J. Lee Dittert, Asst. Dist. Atty., of Bellville, J. W. Ragsdale, of Victoria, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is murder; the punishment being confinement in the penitentiary for fifty years.

This case has been before this court twice already. The opinion upon the first appeal will be found reported in 109 Tex. Cr. R. 157, 3 S.W.(2d) 449, and the second appeal in 113 Tex. Cr. R. 53, 19 S.W.(2d) 44. The evidence is set out in sufficient detail in the former opinions. It is admitted that upon the present trial the evidence was substantially the same as that upon the two former trials,, with the exception that the state offered a couple of witnesses who testified that there had been statements made by deceased of unfriendly feeling towards appellant, and the further additional evidence from a witness by the name of Crow, who had not testified upon either of the former trials. It is concerning him and his testimony that the incidents related and complained of in bills of exception three and four occurred.

S. E. Hunt, who was the sheriff of San Patricio county, was used by. appellant as a witness, and gave testimony material to the defense. Bill of exception No. 3 reflects that, upon cross-examination of Hunt, the following testimony was elicited from Hunt: “it is not so that Dave Crow, who was my deputy sheriff at the time of the commission of this homicide, reported to me that he was working on this case, and had been back trailing the back trail from the scene of the homicide to the Coleman Ranch and indicated to me that he had discovered certain things; he did not do that. And I did not then tell him to lay off of it, I did not tell him to lay off of it, that I was working on that case myself, and had all the testimony I wanted. I had no such conversation with him. No such conversation as that took place between me and any human being on earth at any time. There was a conversation between Mr. Crow and me regarding this.”

Appellant had made no inquiry of Sheriff Hunt or any other witness regarding the matters mentioned in the foregoing excerpt from Hunt’s testimony. There appears to be no merit in appellant’s objection to this testimony, as it was an inquiry touching the bias or interest of the Witness Hunt regarding the case upon trial, and apparently was the px-ed-icate for the impeachment of the witness regarding a pertinent matter.

The witness Crow had not been used by the state in developing its ease in chief. After appellant had rested, and after the foregoing predicate had been laid in cross-examination of Sheriff Hunt, the state called Crow to the witness stand, who testified, in substance, that Hunt had telephoned him some time before daylight on the morning after the shooting and requested him to come up, and that in response to the telephone call, he went to the scene of the homicide and made some investigation. He related circumstances which, if true, raised an issue that the homicide did not occur at the ranch gate, but some distance therefrom on a creek. Crow further testified that when he first saw Sheriff Hunt, after making this investigation, he undertook to tell him of the discoveries he had made, but that Hunt said he had all the evidence he wanted, and that Crow could go on home; that he was through. It will be perceived that the testimony of the witness Crow, if true, placed the sheriff before the jury in the light of declining to permit Crow to give him the information which he claimed to have, and was calculated to discount the effect of Hunt’s testimony before the jury. In rebuttal, appellant called Sheriff Hunt, and offered to prove by him his version of the conversation between him and Crow, and, upon objection from the state, his explanation of the conversation was excluded. If permitted, Sheriff Hunt would have testified that he did not call Crow over the telephone, but that two days after the homicide Crow was in the sheriff’s office, and that the sheriff asked him to go to the Coleman ranch and talk to -Manuel, and ascertain from him if the parties present at the time of the homicide were out there'at the ranch the night it occurred; that a day or two later Crow came back and told the sheriff that he could not get through the ranch the night before, because the gap was up, but that a day or two. later he did go to the ranch but did not see Manuel, but that Manuel’s wife had said the parties were there the night of the homicide; that Hunt then told Crow another party had already been down there and ascertained the same fact; that this was the only conversation that he ever had with Crow regarding the matter, and that he at no time declined to receive from Crow any information regarding the homicide, or his claimed discoveries.

We think the court fell into error in declining to permit Sheriff Hunt to.explain his version of the conversation between him and the witness Crow. When asked in regard to the matter, Hunt had denied the conversation as claimed by the state, but admitted that a conversation had occurred; after being placed in the unfortunate light left by Crow’s version of the conversation, he should have been permitted to give his own version of it.

In Cain v. State, 68 Tex. Cr. R. 507, 153 S. W. 147, 152, Reynolds, a state witness, was impeached by a defense witness, and over objection from the defendant Reynolds was permitted to explain what had transpired. It was contended by the defendant in that ease {as does the State in this)-that such explanation could not be made, and was improper. This court, in passing upon the matter, said: “The court did not commit any error in permitting the witness Reynolds to testify as he did,” and cites in support thereof Barber v. State (Tex. Cr. App.) 69 S. W. 515; Turner v. State (Tex. Cr. App.) 51 S. W. 366, 367, and other eases. Continuing, the court said: “It would certainly be a harsh rule that would permit either side to ask a witness if he had not made a certain statement to a certain party, when the witness would deny it, and then, when such impeaching witness would state that he had so testified, to refuse to permit the witness sought to be impeached to make a statement of what he did then say, although it was different from what the impeaching witness claimed he did say. It is not only just and fair to the witness that he should be permitted to State what he did say, but certainly the truth of the matter could not be arrived at, unless he was permitted to state what he did say to the impeaching witness.”

The same holding of this court will be found in Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 742, 743. See, also, Kemper v. State, 63 Tex. Cr. R. 1, 138 S. W. 1025.

We are constrained to conclude that the refusal 'of the trial court to permit the explanation from the sheriff of what was said, and what transpired between him and the witness* Grow, reflects a ruling of the.trial court which may have been prejudicial to appellant, and which calls for a reversal of the judgment.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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

On Motion for Rehearing.

.LATTIMORE, J.

The sheriff of any county may .well be regarded as one of its chief law enforcement officers, and his testimony, pro or con, is given much weight by juries, and in a sense this is especially true when he appears as a witness to material facts favorable to the defense. There could be no doubt of the weight and importance to this appellant of the defensive testimony of Sheriff I-Iunt. He was cross-examined by the state while a witness for appellant, and asked about a matter which not only was impeaching, to the extent of being a contradiction of a witness, but which also was of such character as to affect his fidelity and integrity as an officer of the law, who should know neither friend nor foe in the discharge of his duty; and the questions asked, if affirmatively answered, would have effectually destroyed the whole testimony of this witness, would have shown him to be an officer who for a friend would suppress search for truth, and who would interpose his authority over subordinates to prevent their disclosure or discovery of facts helpful to the state and hurtful to his friend, the accused. Denying the exact matters laid in the predicate for impeachment, the sheriff admitted one or more conversations with the witness Crow, his deputy at the time of the alleged homicide. When Crow was called to testify in rebuttal by the state, he not only affirmed the matters asked in regard to-the conversations said by him to have been had with Mr. Hunt, but testified in detail to most damaging facts not appearing in either of the two records of this case on former appeals. This placed Crow in the -attitude not only of impeaching and discrediting Sheriff Hunt, but as furnishing to the state new and most material testimony directly bearing on the question of where and under what circumstances this killing took place. Crow said he knew these facts, and undertook to tell them to Mr. Hunt immediately after the homicide; started to tell them to Hunt, but was told by Hunt that he had hll he needed, and for witness to go home.

Appellant offered Mr. Hunt in rebuttal, and tried to show by him all that was said between him and Crow, and, as appears, to state what he knew which might shed light on. Crow’s testimony thus brought before the jury. Mr. Hunt should have been allowed to testify. The gravity of reversals is great, but that of injustice is greater. Mr. Branch succinctly states, upon the authority of many cases cited in' section 94 of his annotated P. C., that the defendant or any other witness is •entitled to explain any fact tending to create a distrust of his integrity or truthfulness. We think this proposition sound and applicable.

The state’s motion for ’ rehearing is overruled.


author: HAWKINS, J.

text:
    TAYLOR v. STATE.
    No. 14492.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    A. L. Curtis, of Belton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for transporting intoxicating liquor, punishment being one year in the penitentiary.

The record is before this court without bills of exception or statement of facts. In this conditipn nothing is presented for review.

The judgment is affirmed.


text:
    JONES v. STATE.
    No. 14544.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    Stewart & Ratliff, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

The record is before us without a statement of facts or bills of 'exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

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


text:
    RODRIGUEZ v. STATE.
    No. 14446.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    M. O. Nelson, of Aransas Pass, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale; punishment being one year in the penitentiary.

The record is before this court without statement of facts or bills of exception. In' this condition, nothing is presented for review.

The judgment is affirmed.


author: CALHOUN, J.

text:
    McKAY v. STATE.
    No. 14537.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    T. J. Ramey, of Sulphur Springs, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, cattle theft; punishment, two years in the penitentiary.

The record is before this court without either statement of facts or any bill of exception, and nothing is presented for review.

The judgment is affirmed.

PER CURIAM.

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


text:
    JACKSON v. STATE.
    No. 14415.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    J. Everett Cline, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is theft; tlie punishment, a fine of twenty-five dollars and confinement in jail for thirty days.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

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


author: LATTIMORE, J.

text:
    THORNTON v. STATE.
    No. 14007.
    Court of Criminal Appeals of Texas.
    June 26, 1931.
    Butler, Price <& Maynor, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for manufacturing intoxicating liquor; punishment, one year in the penitentiary.

Upon information received, officers went to a point in the woods on a branch about one-half or three quarters of a mile from appellant’s house at night, and there saw several parties engaged in the manufacture of whis-ky. Some shots were fired by the parties at the still, and the officers closed in upon them, capturing one old man named Hawkman, but the others escaped. There were barrels of mash, a steel drum or barrel making whisky over a fire, and several gallons of the finished product. The officers started at once to appel-' lant’s house. On their way they found tracks in a field leading to appellant’s house. .As they approached the house, they saw a light which went out before they got to same. This was after midnight. They found appellant awake, and an examination of his clothes showed that both his outer and under gar-meats were wet and muddy, as were MS shoes. The clothes of his grown son, who was in the same house, were much in the same condition.

We have no doubt of the admissibility of the testimony of the witness Jeff us to the effect that Hawkman said, in the presence and hearing of appellant, and at a place down in' the woods on a branch where there were various wooden and iron barrels,'“We are going to make some whisky.” The court charged on the law of principals. That there were no other persons present, except appellant, Hawkman, and the witness, appears. What was said by Hawkman in the presence and hearing of appellant was sufficient to call for a denial by him, and, in the absence of a denial, might be binding upon him.

The indictment in this case contained four counts, one charging possession for the purpose of sale of intoxicating liquors. During the trial, the state introduced the testimony of several witnesses who testified that at different times during three years next prior to the return of the indictment herein they had obtained from appellant intoxicating liquor. None of this testimony tended to show that the obtaining of this liquor was near either in time or ifiaee to the transaction involved in the raid of the officers. At the close of the testimony, the state was asked to elect and did elect to prosecute upon the charge of manufacturing intoxicating liquor. Thereupon, appellant moved the court to exclude from the jury all testimony relative to sales of such liquor, which motions were- refused, and the refusal brought forward by proper bills of exception. We are inclined to think, upon the facts in this ease, that the action of the trial judge in this matter was erroneous. See Gothard v. State, 99 Tex. Cr. R. 452, 270 S. W. 177; Johnson v. State, 98 Tex. Cr. R. 417, 206 S. W. 155. Unless the separate transactions testified to by the witnesses, who claimed to have bought aád otherwise obtained liquor from appellant, were close enough within themselves to shed some legitimate light upon the question as to his manufacture of the intoxicating liquor found by the officers at the time of their raid, it would seem but fair to at least withdraw from the jury as far as could be done by striking out such evidence, all testimony regarding the sales of liquor at other times and places not shown to be reasonably near the alleged manufacture. The defense of appellant was that of an alibi, he claiming that on the night in question and for some days prior thereto he had been confined to his house and bed by illness, and that he was not down at the still on the night of the raid. In this he was corroborated by his wife and son and another witness. We are not able to appraise the possible evil effect upon appellant’s case by leaving with the jury for their consideration and discussion his commission of separate, independent felonies involved in the sales testified to by said witnesses. Same might have been of sufficient weight to have turned the scales against him in their consideration of his defense of alibi. No witness could identify appellant at the still on the night of the raid.

There is complaint in another bill of exception of the refusal of the court to allow a witness for the state to answer a question as to whether he knew his own general reputation for truth and veracity in the community in which he lived. The bill shows that the state’s objection to this question was sustained. The bill does not sufficiently show what would have been the answer of the witness if he had been permitted to answer. We think in a case where a question such as this is asked, and if there be any probability that the witpess might himself for some reason or purpose be willing to testify that his own general reputation in the community is bad, it would be well for the bill to show that the jury were retired, and the matter investigated before the court. The question is somewhat novel, and the injurious effect to the cause of appellant would appear to be very slight from the refusal of the court to permit such practice, but the above is said in view of a reversal of the judgment, and in the event such question be asked upon another trial.

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


text:
    DAVIS v. STATE.
    No. 14047.
    Court of Criminal Appeals of Texas.
    June 26, 1931.

      Scott, Casey & Hall, of Marshall, Warren & Warren, of Tyler, G. L. Florence, of Pitts-burg, and C. E. Florence, of Gilmer, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for 10 years.

This is the third appeal. Former appeals are reported in 100 Tex. Cr. R. 220, 272 S. W. page 478, and 108 Tex. Cr. R. 524, 1 S.W.(2d) page 641. The present conviction was had in Smith county upon a change of venue from Harrison county.

The state relied upon the testimony of the wife of V. A. Harris, deceased, who testified that just prior to the homicide she and her husband were picking cotton; that they went to the house to get some water, and that her husband returned to the field by way of a road, while she went back through a field; that before she reached the place where she and her husband had been picking cotton she heard gun shots in the direction of the road, and heard her husband hollering; that she ran to the road and found her husband lying-in the road on his face; that he was dead; •that there were some woods immediately south of the point where her husband was lying, which extended back 100 or 200 yards up a hill; that when she reached her husband she saw appellant with a gun running away in the woods;- that when she first saw appellant she was 15 or 20 steps from him. As a motive for the killing, the state offered testimony to the effect that deceased and his wife had been before the grand jury of Up-shur county, and testified that they had seen intoxicating liquor in appellant’s, home.

Appellant and several of his witnesses testified that appellant was a quarter of a mile away from the scene 6f the homicide at the time of the shooting, engaged in picking cotton.

Without setting forth the circumstances warranting the conclusion that appellant knew that the wife of deceased had .seen whisky in appellant’s home, and that thereafter deceased and his wife appeared before the grand jury and testified to such fact, the opinion is expressed that the testimony was properly received in evidence. It fairly tended to raise an inference in favor of the existence of a motive on the part of appellant to kill deceased. In reaching the conclusion that the evidence was admissible, we have taken note of the rule that made it incumbent upon the state to show that appellant was aware of the action of deceased and his wife in going before the grand jury and testifying against him. See De Leon v. State, 08 Tex. Cr. R. 625, 155 S. W. 247. We think the state showed circumstantially that appellant knew at the time of the homicide that the wife of deceased had seen whisky in his home, and that she and her husband had appeared before the grand jury to testify concerning the matter.

It appears from bill óf exception No. 12. that appellant’s witness Williams had given testimony material to appellant’s defense. Upon cross-examination, the state elicited from the witness that he had been indicted in the district court of Upshur county in 1921 for the offense of transporting intoxicating liquor. Upon redirect examination, appellant’s counsel undertook to have the witness explain the circumstances surrounding his indictment. The witness would have testified, in substance, that the prosecuting witness in the case.was a drug addict, and was thereafter adjudged to be insane; that shortly prior to the return of the indictment the prosecuting witness in the liquor ease and witness Williams had had a personal difficulty growing out of the fact that witness Williams had been required to pay a security debt for the prosecuting witness; that there was nothing to the case. It appears that the witness had not been tried. The court sustained the state’s objection, and refused to permit the witness to explain the charge, holding that appellant’s counsel could go no further than to show by the witness that the case had been dismissed. The learned tidal judge fell into error. We quote the language of Judge Lattimore in Miller v. State, 106 Tex. Cr. R. 636, 294 S. W. 582, 583, as follows:

“It has been the uniform rule, since the days when the Supreme Court had appellate jurisdiction of criminal cases in Texas, that a witness has the right to explain any fact brought out against him by the other party which tends to create distrust of the truthfulness or integrity of the witness. State v. Ezell & Ivey, 41 Tex. 38; Kunde v. State, 22 Tex. App. 98, 3 S. W. 325 ; Bruce v. State, 31 Tex. Cr. R. 594, 21 S. W. 681. The general principle thus announced is believed to be the same as that here involved. In Tippett v. State, 37 Tex. Cr. R. 191, 39 S. W. 120, we seem to have first spoken directly on the point involved. A witness was shown in that case to be under indictment for theft. We said in our opinion that on re-examination by the party introducing him the witness should . have been allowed to state that he was a bona Me purchaser of the alleged stolen cattle, and that he hád not stolen them. In Cowart v. State, 71 Tex. Cr. R. 116, 158 S. W. 809, we said that, if the state proved that the accused had been indicted for embezzlement, he had the right to explain, at least in a general way to show the cases amounted to nothing, and that he was never tried or convicted upon them, and that they were dismissed. We also said: ‘He might not go into details of the transactions.’ The state relies in the motion before us on what is said in the Cow-art Case, supra, and the Howard Case, 53 Tex. Cr. R. 378, 111 S. W. 1038. We think the Howard Case not in point, but clearly distinguishable. In that case the witness proved to be under indictment, was not asked about such fact or to make any explanation, but the accused placed on the witness stand the attorney who represented the witness referred to, and offered to prove by the attorney that he had investigated the charges against his client, and that there was no-foundation for such charges. This testimony was rejected, and we correctly upheld its rejection. In the Tippett Case, supra, the doctrine of the instant case is announced, not so much in detail, but substantially, for, if one against whom it has been shown that he is under indictment may testify he did not steal the property in question, but bought it and paid for it in good faith, the Rubicon is crossed, and the domain of detail is invaded. In the Cowart Case, supra, we are at some loss to know just what the great judge writing the opinion meant when he said therein, if one had been asked if he was under indictment, and admitted it, that he might explain in a general way and show that the case amounted to nothing, and might show that the case had been dismissed or never tried. We are constrained to believe that, if the attention of the judge of this court writing that opinion had been foc-used on this exact point, and the decision in the Tippett Case, supra, had been brought before him, as well as those cases announcing the general principle above referred to, he probably would not have used the expression in the opinion -which is relied on by the state here, but would have expressed, himself, as was his wont, with vigorous clarity, and in accord with the doctrine of the recent cases. How could one explain, even in a general way, so that the explanation would have any weight or be of value, without some details?
‘•There is a difference between the rule in civil cases and in criminal cases in this state in regard to admitting testimony that one has been charged with crime ds affecting the credibility of the person so charged, as a witness in court. The practice in criminal eases allows such proof. Manifestly, when one has been so charged, and the case against him has subsequently been dismissed or an acquittal had, the question of the reflective force of proof of the fact that he had been charged merely might be doubtful. If either party knew in advance — and the very fact of asking such question would afford ground for presumption of such knowledge — that the charge against the witness has been dismissed, or that he has been acquitted, it would seem to be fair for such party to ask of the witness if he has not been so charged, under peril of having the party thus attacked make his statement that he was not guilty, or make such explanation as he reasonably desires in connection therewith. Upon the testimony of such attacked witness, however, we think the matter should rest, and that other witnesses might not be called on the issue, as was attempted in the Howard Case, supra. To us this rule seems fair. Even if one who admits that he has been convicted attempts to make some explanation in mitigation or refutation of the reflection resulting from such proof, and the attacking party be denied the right to introduce testimony controverting this issue, it still seems the attacking party would have, the best of the argument. We are unable to agree with the state’s contention in this regard.”

See, also, Anderson v. State, 113 Tex. Cr. R. 450, 21 S.W.(2d) 499.

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

PER CURIAM.

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


author: MORROW, P. J.

text:
    Ex parte MAY.
    No. 14582.
    Court of Criminal Appeals of Texas.
    June 26, 1931.

      Prank H. Rawlings, of Port Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

This is an original application for a writ of habeas corpus.

It is claimed that Barney May is illegally restrained under a warrant issued by virtue pf a complaint charging in terms a violation of one of the provisions, namely, section 3 (c) of the Acts of the 42nd Legislature, Regular Session (chapter 282 [Vernon’s Ann. P. 0. art. 827a, Kubd. c]), embraced in House Bill No. 336; that his restraint is illegal for the reason that the act of the Legislature in question is not in force as a statute of the state due to the fact that ninety days have not elapsed since the adjournment of the Legislature at which the act was passed, said bill, in its enactment, not having received the requisite vote to bring it into immediate operation under the provisions1 of article 3, §i 39, of the Constitution of this state, which reads as follows: “No law passed by the legislature, except the general appropriation - act, shall take effect or go into force until ninety days after the adjournment of the session at which it .was enacted, unless in case of an emergency, which emergency must bo expressed in a preamble or in the body of the act, the legislature shall, by a vote of two-tliirds of all the members elected to each house otherwise direct; said vote to be taken by yeas and nays, and entered upon the journals.”

•Article 3, § 32, reads thus: “No bill shall have the force of a law until it has been read on three several days in each house; and free discussion allowed thereon; but in case of imperative public necessity (which necessity shall be stated in a preamble, or in the body of the bill), four-fifths of the house, in which the bill may be pending, may suspend this rule, the yeas and nays being taken on the question of suspension, and entered upon the journals.”

The legislative practice, in compliance with article 3, § 32, supra, is as follows: A bill is introduced and read by its caption. It is then referred to a committee. This is the first reading. Upon the committee’s report the bill is read and by a vote passed to engrossment. ' This is the second reading. Thereafter, by a vote, it is passed to the third reading, which term, as used, is synonymous with final passage. After passing to the third reading in the house in which the bill originates, it is sent to the other branch of the Legislature, apd there goes through the same process as above described. A bill in either branch may be amended, but before the bill becomes a law the amendments must have the sanction of both branches of the Legislature. The term “final passage” of a bill, as found in some of the decisions and possibly in some of the Constitutions of other states, is not mentioned in the articles of our Constitution quoted above.

House Bill No. 33G was passed upon the third reading in the ffouse. On its passage in the Senate, a number of amendments were adopted making material and somewhat radical changes in the effect of the bill. The House declined to concur in the amendments. The bill, with said amendments, was referred to a Free Conference Committee, which committee, after consideration, reported to each branch of the Legislature the recommendation that Bill No. 336 do not pass, but that “the following substitute bill do pass in lieu thereof.” The committee’s substitute bill — • that is, the bill prepared by the Free Conference Committee — differed in many particulars from the bill as it passed out of each of the branches of the Legislature. The report of the Free Conference Committee carrying the substitute bill was adopted in the House upon a record vote of less than two-thirds majority of the elected members, and was adopted in the Senate by a viva voce vote without a record vote. It is understood to have been permissible under the rule after the procedure required by article 3, § 32 of the Constitution had been followed, for each branch of the Legislature to adopt the Free Conference Committee report in lieu of all former, measures as embracing the views of both the House and the Senate. It is conceived that, when the House and Senate adopted the Free Conference Committee report, the law would become effective ninety days after adjournment under article 3, § 39. of the Constitution, unless at the time, with the knowledge of the contents of the bill as it then stood, the House and Senate, by a record vote of each showing concurrence of two-thirds of all the members of each branch, directed otherwise.

In some of the text-books and decisions, it is stated that the precedents are in conflict touching the time at which a vote may be taken fixing the date at which a law may be effective. See Ruling Case Law, vol. 25, p. 881, § 129, and the following cases: State v. Crowe, 130 Ark. 272, 197 S. W. 4, L. R. A., 1918A, 567, Ann. Cas. 1914D, 460; Johnson v. Great Falls, 38 Mont. 369, 99 P. 1059, 16 Ann. Cas. 974. See, also, Cohn v. Kingsley, 5 Idaho, 416, 49 P. 985, 990, 38 L. R. A. 74; Norman v. Kentucky Board of Managers, 93 Ky. 537, 20 S. W. 901, 902, 18 L. R. A. 556.

In some of the decisions reference is made to other eases, but an examination of them reveals that they only incidentally touch the subject. The conflict of authority is more because of a diversity in facts and in the language of the controlling constitutional provisions. However, in the opinion of-the writer, the better reasoning is that given by the Supreme Court of Kentucky in the case to which reference is made above.

It is conceived that, while the terms of the bill when it passed the third reading might invoke a majority requisite to put it into immediate effect, it might be subsequently so changed before final passage as^ to bring about a different view in the minds of many of the ■members of the lawmaking body, as is illustrated in the present instance.

In this state there appears but one case dealing with the subject in hand, namely, Wilson v. Young County Hardware & Furniture Company, 262 S. W. 873, 875. In that ease, the Court of Civil Appeals stated that the majority rule was in favor of that applied in the Montana case above cited.

The Texas cage mentioned, however, cannot be regarded as conclusive authority upon the subject, for the reason that the decision of the question was admittedly not necessary to the disposition of the appeal. The inquiry was whether the passage of a certain law with reference to the transfer of cases was in effect under the emergency clause, and, after discussing the subject, the court, in the fourth and concluding paragraph, make the announcement showing that the question therein previously discussed was purely academic. We quote from said ease as follows: “Moreover, at the time the judgment against appellant was entered by the justice court of precinct No. 4 in Montague County, to wit, on September 19,1922, more than 90 days had elapsed since the adjournment' of the regular session of the Thirty-Seventh Legislature. Since the appellant was served with citation in garnishment of the suit filed in Young county, and since,, as we have before shown, the transfer of the case from the justice court of Young county to the justice court of Montague county carried with it the garnishment proceeding also, certainly no question can be raised that at the time of the judgment against appellant in Montague county the amendment to the statute was not in full force and effect.”

So far as we are aware, the present is the first occasion upon which this court has been called upon to decide a similar question, and the only instance in which the decision is essential to the disposition of such controversy. The question, therefore, is regarded, so far as this state is concerned, an open one.

The case of Norman v. Kentucky Board of Managers, supra, is one in which the question at issue arose. The Constitution of Kentucky contained a provision substantially like the one embraced in the Constitution of this state. An act originated in the Senate, and was passed upon by a yea and nay vote with the requisite majority. It went to the House of Representatives, and after amendment was passed with a like majority. It came back to the Senate, where concurrence was made in the amendments without a yea and nay vote and without the requisite majority of the members elected. The court said:

“The object of the section above cited was to have the assent of a majority of all the members elected to each house to all the provisions of the act, and that this should appear by á yea and nay vote entered upon its journal. If a bill, after passing one house in the proper manner, and then, after amendment, passing the other house in like manner, could come back to the house in which it originated, and be adopted by a majority of those voting, or a quorum, it would defeat this object, and render the section ineffectual.

“It is true it has been held that the ‘final passage’ of a bill means when it first passes the body, and not when it returns to it, after amendment, for adoption; and it is said that the constitutional provision'as to the number of votes, and the entry of the yea and nay vote on the journal, does not apply to amendments, or .the reports of conference committees. If so, then, np matter how material the change, a majority vote of a quorum may pass the bill. The words ‘final passage,-’ as used in our constitution, mean final passage. They do not mean some passage before the final one, but the last one. They do not mean .the passage of a part of a bill, or what is first introduced, and which may, by- reason of amendment, become the least important.”

A somewhat similar question arose in the case of Oohn v. Kingsley, supra, in which the court, holding a bill void for noncompliance with the constitutional requirements, quoted from Sutherland on Statutory Construction, § 79, as follows: “The efficiency of this con-stitutionhl remedy to cure the evil and mischief which has been pointed out depends on -judicial enforcement; on this constitutional injunction being regarded as mandatory, and compliance with it essential to the validity of legislation.”

In some of the decisions there are suggested many evils that might flow from an evasion of the provision of the Constitution in question, and reasons assigned for giving it adherence. A recital of them is pretermitted. ft ■seems enough to say that a reasonable and logical interpretation of the controlling provision of the Constitution of this state confers'upon the Legislature both the power, by a record vote with majority of two-thirds of the members of each house, to change the time within which an act of the Legislature may ordinarily become effective, and requires that they exercise such authority and power at the time when they become aware of the terms of the law as finally agreed upon. • Previous action upon a bill in its initial stages, before material and radical changes have been made, would not control.

The regular session of the Forty-Second Legislature adjourned on the 23d day of May, 1931. ' The arrest of the relator was made on the 22d day of June, 1931.

From what has been said, it follows .that it is the view of this court that the detention of the relator is upon a law which has not yet become effective, and that his arres); and detention are unauthorized. It is therefore ordered that he be discharged from custody.


author: LATTIMORE, J. HAWKINS, J.

text:
    BROOKS v. STATE.
    No. 13722.
    Court of Criminal Appeals of Texas.
    Nov. 19, 1930.
    Rehearing Granted June 26, 1931.
    Llewellyn & Henderson, of Marlin, for appellant.
    Lloyd W. Dayidson, State’s Atty., of Austin,, for the State.
   LATTIMORE, J.

Conviction for selling intoxicating liquor; punishment, two years in the penitentiary.

We find in the record three bills of exception. The first complains of the fact that the trial judge made the remark, when appellant’s attorney asked that the jury be drawn, that same would only cause delay. We are not able to agree with appellant’s counsel that the remark was harmful to that degree that it could affect the verdict; however, the bill of exceptions does .not show that the jury, or any member thereof, heard the remark.

Bill No. 2 complains that the appellant was not allowed to ask a witness, put on the stand by him for the purpose of impeaching state witness Walker, regarding the matters deemed of impeachment; the reason assigned by the trial court in his qualification being that the state witness when asked as to the matter admitted fully that he made the statement inquired about. We do not think there is any error in this matter. Where a witness was asked if he did not make a statement to a certain party and answered in the affirmative, we would not hold it erroneous for the court below to decline to take up more time and have another witness.repeat before the jury the same statement already testified to by the state witness. Walker v. State, 17 Tex. App. 31; Barnard v. State, 45 Tex. Cr. R. 71, 73 S. W. 957.

Bill No. 3 complains of argument of the county attorney to the effect that witness Walker no.t only had testified in court under the sanction of his oath that he got the whis-ky from the.defendant, but that he had come-before the grand jury on the 31st day of December, 1929, and testified to the same facts. The bill reflects the fact that the court'orally instructed the jury not to consider the remarks of the county attorney, and that no request was. made for a written instruction on the subject. We are not able to believe any prejudicial error is shown. The facts sufficiently support the verdict and judgment.

The judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

On more mature reflection we think the er- • ror committed by the prosecuting attorney in his argument demands a reversal. .

The prosecuting witness Walker had testified that he bought a pint of whisky from appellant about 1 or 2 o’clock on December 14th, that he only went to appellant’s house one time, and that William Chatham nor any one else went with him to appellant’s house a,t any time. When the officers first accosted Walker and inquired about the whisky, he told them he got it from Son Gilmore. Appellant testified that he was away from home on I)e-cember 14th from about 9 o’clock in the morning until about 5 o’clock in the afternoon ; that he never saw Walker until 8 or 9 o’clock that night, when he came to appel-’ lant’s house hunting whisky; that he told Walker he had none and did not know where he could get any. He denied making any sale to Walker. Appellant’s wife testified substantially as did he regarding Walker’s visit to the house on the night of December 14th. She also testified she had gone to Waco that day, leaving about 9 o’clock in the morning and did not return until about dark. The witness Chatham contradicted Walker, testifying that he went with Walker twice to appellant’s house on the day in question, the first time about 10 o’clock and the second time about 30 minutes later; that appellant was not at home at either time; that later witness saw Walker with some whisky but did not know where he got it. The issue of sale was thus closely drawn, and Walker’s contradictory statements were before the jury.

Bill of exception No. 3 shows that appellant’s attorney had argued to the jury that the witness Walker should not be believed because he first said he got the whisky from Son Gilmore. This was a legitimate argument and within the record. The county attorney in reply to that argument told .the jury that Walker had not only testified in court before them under the sanction of an oath that he got the whisky from appellant, but “that he had come before the grand jury on the 31st day of December and testified to the samé facts.” What .the witness had testified to before the grand jury was outside the record. It was not the statement of a ■conclusion from any facts in the record, but was an unsworn statement of the prosecuting .attorney as to a fact which had become most material to the state in the condition the case was then in.

We are of opinion the obvious harm was not cured by. the court withdrawing the .argument, and that appellant lost no right to'complain by failure to.ask written instructions to disregard the argument. The county .attorney had'gotten before the jury a fact not in evidence, the evil effect of which could not be cured by the court’s action. The case is very similar on its facts to those found in Pondelton v. State (Tex. Cr. App.).26 S.W.(2d) 240. See, also, Derrick v. State, 80 Tex. Cr. R. 10, 187 S. W. 759; Davis v. State (Tex. Cr. App.) 28 S.W.(2d) 168; Rosborough v. State, 93 Tex. Cr. R. 393, 248 S. W. 372, and cases therein cited. Stanchel v. State, 89 Tex. Cr. R. 358, 231 S. W. 120; Clancy v. State, 93 Tex. Cr. R. 380, 247 S. W. 865, 27 A. L. R. 857; Horn v. State, 106 Tex. Cr. R. 190, 292 S. W. 227. In Vineyard v. State, 96 Tex. Cr. R. 401, 257 S. W. 548, 550, the rule in regard to the matter was stated in the following languqge: “We think the only safe rule to be that this court should not hold an argument to be reversible error unless it is in extreme cases where the language complained of is manifestly improper, harmful, and prejudicial, or.where a mandatory provision of the statute is violated, or some new and harmful fact injected inlto the case. Stanchel v. State, 89 Tex. Cr. R. 358, 231 S. W. 120; Henderson v. State, 76 Tex. Cr. R. 66, 172 S. W. 793; Bowlin v. State, 93 Tex. Cr. R. 452, 248 S. W. 396.”

That the argument of the prosecuting attorney in the present case ’comes within the inhibition of the rule is unquestionable. If the county attorney thought the evidence given by Walker before the grand jury was admissible, he should have offered proof thereof in the proper way and not have injected the fact into the case through an argument.

The motion for rehearing is granted, the opinion of affirmance is set aside, and the judgment is reversed, and the cause remanded.


author: COBBS, J.

text:
    OGLESBY v. POTTS et al.
    No. 8624.
    Court of Civil Appeals of Texas. San Antonio.
    May 27, 1931.
    Rehearing Denied July 15, 1931.

      Crane & Hartwell, of Raymondville, for appellant.
    R. F. Robinson and B. S. Wright, both of Raymondville, for appellees.
   COBBS, J.

We adopt appellees’ statement of the case, as follows:

“Appellant sued appellees for partition of certain property, both' real and personal, situated in Willacy County, Texas, of the alleged and estimated value of Six Thousand, Three Hundred and Sixty ($6,36,0.00) Dollars, one-half of which appellant claimed belonged to the father of appellant and appellees, because of said property being community property.
“Appellees Mrs. Letha Pott's and husband, C. M. Potts, Kettie McNeill and husband, M. A. McNeill, answered by general demurrer and general denial, and answered further that appellee Letha Potts is the owner and in possession of all the property of which Mary Frances Oglesbay, her mother, was seized and possessed of at the time of her death; that she wqs and is the sole legatee and devisee of hér mother under a will executed by her mother, the said Mary Frances Oglesbay, which said will had been probated in the County Court of Willacy County, Texas; that the real property described in Plaintiff’s Original Petition was purchased by Mary Frances Oglesbay with money which she received as a gift from the estate of her mother; that the deed to said land was made to Mary Frances Oglesbay, and the said land continued to the date of her death to be the separate property and estate of the said Mary Frances Oglesbay; that all the property, both real and personal, which was owned, held, controlled or possessed by the said Mary Frances Oglesbay at the time of her death was her separate property, and that her husband, Peyton Z. Oglesbay, owned no interest therein prior to or at the date of his death; that all of said property had been devised to appellee Letha Potts by a will which has been duly probated in a court of competent jurisdiction, and which has never been contested.
“Upon a trial to the court without a jury judgment was rendered for the defendants; whereupon plaintiff excepted to the judgment of the court and gave notice of appeal to the Court of Civil Appeals for the Fourth Supreme Judicial District of Texas.”

This is largely a fact case, and we will therefore be bound by the judgment of the trial court. The court found that Mary Oglesby, the mother of appellant and appellee Letha Potts, owned the property herein in her own separate right a.t her death.

Now, then, in a case where the cause is tried by the court without a jury, and no findings of fact or conclusions of law made, the judgment upon any combination of supporting facts will stand. The evidence shows that the property and the money left by Mary Frances Oglesby at the time of her death was her separate property from money and property obtained by the estate of her mother, who died in 1898, and 22 acres of land valued at $50 per acre, given to Mary Frances Oglesby by her mother. The testimony shows that 40 acres of land in Willacy county, which Mary Oglesby left at her death, was purchased by her ins 1912, for $1,200, now alleged to be worth $3,200, by funds from her mother’s estate. She received $1,000 insurance from her husband, which she kept in her bank account. She made money from her Willacy county land from the time of her husband’s death, May 30,1921, to her death, December 23,1927. The inventory shows that the land, the Buick automobile, the cash in the bank, the interest in household furniture, the McNeil notes, and the note of E. P. Oglesby were the separate property of Mary Frances Oglesby, and shows no community property. The evidence in the record shows that all the property left by Mary Frances Oglesby at her death was her separate property.

The evidence tended to show $1,629.16 was deposited to the credit of Mary Frances Oglesby on October 29, 1917, and the court from the evidence was justified in finding that the sum of $3,100 left by Mrs. Mary Frances Oglesby at her death was her separate estate.

The testimony further showed she had received $350 from her mother’s estate, which she put in an 80-acre tract in 'Sumner county, Kan., together with some money which plaintiff’s father had inherited. There is no testimony that the sum of $1,100 .was invested in the lands which were bought in Kansas. The evidence shows that she made money, not over $500, selling butter and eggs.

Of course, the presumption of law is that the accumulation made during the married life is community property, and there is ample testimony that all the property left by the mother, and willed to Letha Potts, was the separate property of her mother. McCoy v. Mayer (Tex. Civ. App.) 21 S. W. 1015; Spalding v. Aldridge, 50 Tex. Civ. App. 230, 110 S. W. 560; Daniel v. De Ortiz (Tex. Civ. App.) 140 S. W. 486; Telephone & Telegraph Co. v. Thompson (Tex. Civ. App.) 142 S. W. 1000; Pennington v. Fleming (Tex. Civ. App.) 212 S. W. 303; Blewett v. Richardson Ind. School Dist. et al. (Tex. Civ. App.) 230 S. W. 255; Head v. Moore (Tex. Civ. App.) 232 S. W. 362; L. D. Powell Co. v. Lee (Tex. Civ. App.) 257 S. W. 308; Gardenhire v. Gardenhire (Tex. Civ. App.) 258 S. W. 1077; Heard v. Heard (Tex. Civ. App.) 272 S. W. 501.

Where there are no findings of fact filed, the trial judge being in a better position to weigh the testimony offered and determine the credibility of witnesses, his judgment Should stand. It seems that Mrs. Oglesby handled her own affairs and was capable to do so.

The property involved in this lawsuit consists of the Willacy county land, valued at $3,-200, a Buiek automobile, valued at $10, cash in bank in the sum of $3,100, a one-half interest in household furniture, valued at $50, and some notes which have not been proved to be of any value whatever. The preponderance of the testimony shows clearly that the land was purchased by the separate funds of Mary F. Oglesby ; both parties admit that the sum of $1,000 belonged to her as her separate' funds. Plaintiff. himself testified that Mrs. Oglesby handled the farm in Kansas for three years after Mr. Oglesby’s death, and did not think she made over $500.

Appellees contend and insist that the wife’s próperty may undergo changes and mutations, he sold, and the proceeds invested, resold, and reinvested, and yet preserve its separate character, so long as she can trace its funds belonging to her. ’ And it is well settled that the value due to an appreciated market, natural growth, increased size; and the like, remains hers, and does not become part of the community as increase of her property.

We have very carefully examined the record in this case, and find the same substantially supports the judgment of the trial court, which is affirmed.

SMITH, J., concurs in the result