author: CHRISTIAN, J. LATTIMORE, J.

text:
    WHARTON v. STATE.
    No. 13847.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    Rehearing Denied April 22, 1931.
    Bush & Parten, of Franklin, for appellant.
    Frank A. Woods, Sp. Pros, and T. D. Tyson, Co. Atty., both of Franklin, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

Appellant killed T. D. Boatright by shooting him with a pistol. The homicide occurred near the store of Felix Martinez. Some time prior to the homicide, appellant and deceased had had a quarrel, the details of which we do not set out. The testimony of the state was, in substance, as follows: Appellant and deceased were standing in front of Martinez’ place of business engaged in conversation. Appellant had a pistol in his shirt bosom. Upon meeting deceased, appellant attempted to renew the quarrel with him. Deceased told appellant that he did not feel like talking to him about the matter. Appellant cursed deceased, and deceased struck him with his ‘fist. Appellant drew his pistol from his shirt bosom, and deceased turned and ran toward Martinez’ store. Appellant fired one shot at deceased, and pursued him into the store. Deceased fell to the floor, and appellant fired several shots at him, one of the shots taking effect.

Appellant testified that deceased cursed him and struck him in the face with his fist. He testified further that deceased made a motion ■with his right hand as if to draw a pistol, and that, believing deceased was going to kill him, he drew liis pistol and shot deceased. He denied that he cursed deceased or did anything to provoke the attack deceased made upon him. He said that his mind was agitated at the time he fired the fatal shot.

Biils of exception Nos. 1, 2, 3, and 10 relate to the action of the court in permitting medical experts to describe the effects of the wound inflicted on deceased. It appears that deceased lingered for several weeks, and that from the time he received the wound until his death he was completely paralyzed as a direct and immediate result of the wound. The physicians testified that the paralysis developed a bed sore, and, further, that deceased was unable to discharge his urine voluntarily and naturally. The bills recite that appellant objected to the testimony touching the description of the wound and the condition of deceased during the time he was confined in the hospital, on the ground that it was immaterial, irrelevant, prejudicial, inflammatory, and shed no light upon any is-t sue of the case, but merely emphasized deceased’s suffering. We are unable to determine from the bills of exception whether the fact that deceased was paralyzed and developed a bed sore shed any light on the issues to be determined by the jury. It is merely recited as a ground of objection that the testimony was irrelevant, immaterial, and shed no light on any issue in the case. The bills fail to set out anything that would enable us to determine that the objections were well taken. The mere statement of a ground of objection is not a certificate on the part of the trial judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Branch’s Annotated Penal Code, § 209; Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569. It is the general rule that a physician who has examined and described the wound may express an opinion as to the probable cause, nature, and effect of'the wound, and the consequences thereof, without violating the rules of evidence. Windham v. State, 93 Tex. Cr. R. 477, 248 S. W. 51, and authorities cited.

As disclosed by bill of .exception No. 7, when appellant followed deceased into the store of Felix Martinez and emptied his pistol at him, Martinez said to appellant: “Please don’t shoot any more. The man is down.” Appellant objected to proof of this statement on the ground that it was made by a bystander, and inadmissible for any purpose. It is the rule that if a statement of a third person is part of the transaction, and illustrates the feelings, motives, and acts of the principal actors, proof of same is admissible as part of the res gestae. Wade v. State, 98 Tex. Cr. R. 27, 263 S. W. 589. We think the statement res gestae, and admissible under the rule stated.

Many bills of exception relate to questions propounded by the county attorney on cross-examination of certain named witnesses who had testified for appellant that his general reputation as being peaceable and law-abiding was good. It is the rule that a witness to the good character of the accused may be asked upon cross-examination whether he had heard rumors of particular and specific charges or acts of accused inconsistent with the character he was called to prove, not to establish the truth of such charges, but to test his credibility and enable the jury to weigh his evidence. Townsley v. State, 103 Tex. Cr. R. 508, 281 S. W. 1054. A-ppellant objected to these questions as follows: ‘‘Defendant then and there timely objected to these questions being asked and such matter being gone into and made his objections to the court before same were asked and inquired about, for the reasons such testimony was wholly inadmissible, and not confined to the general reputation of the defendant, was highly prejudicial and inflammatory to defendant’s rights, and because same were not confined to such acts and misconduct on the part of the defendant for which legal charges, if any, might have been filed against the defendant, or which might have involved moral turpitude, and because such inquiries were about imaginary and separate transactions from the offense for which defendant was on trial, and such questions conveyed to the minds of the jury'the idea that such alleged assaults were true and the county attorney had heard of same.” In most instances the character witnesses were asked if they had heard rumors of appellant having made an assault upon a named person at a particular time and place. It is true that it was not shown that the transactions inquired about had resulted in charges having been filed. Whether or not charges had been filed was immaterial. We state this ,in view of a recital in the bills of exception to the effect that the appellant had not been legally charged with an offense growing out of the transactions inquired about. There is nothing in the bills of exception to support the objection that the charges were “imaginary.”

Bill of exception No. 20 presents the following occurrence: Joe Fostpr, a witness for appellant, had testified that appellant’s general reputation for being peaceable and law-abiding was good. The county attorney asked the witness on cross-examination the following question: “How many people did you ever hear of Mr. Lee Wharton (appellant) being implicated in killing prior to this homicide?” Appellant objected to the form of the question, and the county attorney withdrew it. 'Appellant contends that the withdrawal of the question failed to cure the error. There is nothing in the bill of exception to show that the question was not asked in good faith. It may have been too general in failing to direct the attention of the witness to rumors of particular and specific charges. If the witness had heard a rumor to the effect that appellant had killed another person, it was proper for the state to elicit such fact from him. Townsley v. State, supra. Bills of exception ■ Nos. 14 and 22 present a question similar to that found in the foregoing bill.

One of the bills of exception shows that the trial court permitted a witness for the state to testify that about 35 or 45 minutes after the fatal difficulty he placed appellant under arrest and took him to his home; that in the presence of the witness appellant stated ‘to his wife, “Now mama I have done killed him and I don’t want to worry you about it because I have got plenty of friends.” The bill discloses that the appellant was nervous and excited. Appellant objected to proof of the statement on the ground that he was under arrest and that the circumstances showed it was not res gestee. We deem it unnecessary to decide whether the statement was admissible as res gestee. If not admissible as such, we are unable to see how it harmed appellant. The fact that appellant shot deceased was un-controverted. Moreover, he introduced his ' wife as a witness in his own behalf and elicited from her substantially the same testimony. She testified that appellant said: “Mama I • am in trouble but don’t worry, I have lots of ' friends.” She denied, however, that appellant ' stated that he had killed deceased. However, the fact that appellant killed deceased was not only uncontro.verted, but also came to the jury from the lips of appellant himself.

The record in this case is voluminous. We have not undertaken to discuss each bill of exception. However, we have carefully examined every contention made by appellant. The opinion is expressed that reversible error is not presented.

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.

On Motion for Rehearing.

LATTIMORE, J.

The rule is both sound and reasonable that complaints in bills of exception in murder cases of the reception of testimony as to thp bad condition of the body and organs generally of the deceased at any time between the shooting and his death must bring forward something more informative than that such testimony was admitted over objection that same was immaterial, irrelevant, and prejudicial. The trial court did not agree to the soundness of -such complaint when he overruled same. In Thompson v. State, 90 Tex. Cr. R. 21, 234 S. W. 401, 405, we said: “A bill of exceptions, so framed as to compel this court to search the statement of facts in order to find out what is therein'referred to and meant, is ordinarily held by us insufficient and defective.”

This court $lways presumes correctness in the rulings of the trial courts until the contrary is demonstrated. In this case we would not only have to go to other parts of the record to supplement bills of exception 1, 2, 3, and 10, but would have to read all the facts and sift them only in the light of such broad objections, before we could pass on same. This we are not required to do. It would be reasonable on the trial of one charged with murder, when the record shows a shooting on September 7th and death on October 26th following, that issues might arise upon which either the state or the defense could legitimately call for testimony as to the condition of the body and organs of the injured party, or his wounds, at any time between the shooting and death. We' call appellant’s attention to the case of Simpson v. State, 97 Tex. Cr. R. 57, 263 S. W. 273, in which testimony somewhat similar to that here complained of was held admissible.

Appellant’s theory of the case was self-defense. As rebutting this, and also as part of the res gestae, it was permissible to show appellant followed the deceased into the store of Martinez and there shot him as he lay on the floor with his hands upraised, and that before he fired the last shot Martinez said to appellant not to shoot any more, the man was down. Mr. Branch cites cases in section 87 of his Annotated P. C. upholding the admissibility of the statements of third parties as res gestse, when same illustrate the feelings, motives, and acts of the principal actors. See Humphrey v. State, 47 Tex. Cr. R. 262, 83 S. W. 187.

Bill of exception 14 fails to show what, if any, answer was made by the witness to whom same was propounded. Eor aught we know he may have answered in the negative, and the question presents in its mere form no such hurtful matter as calls for a reversal. If the objection be to the testimony and not to the form of the question, it should appear from the bill not only that the question was asked, but also that it was answered and how. Alexander v. State, 82 Tex. Cr. R. 431, 199 S. W. 292; Jackson v. State, 28 Tex. App. 143, 12 S. W. 701; Rodgers v. State, 34 Tex. Cr. R. 612, 31 S. W. 650.

The opposite party has the right, under our practice, in cross-examining witnesses as to. good character, to ask with reference to specific instances which reflect unfavorably on the trait involved. See section 184, Branch’s Annotated P. C.; Forrester v. State, 38 Tex. Cr. R. 245, 42 S. W. 400; Stull v. State, 47 Tex. Cr. R. 547, 84 S. W. 1059. We are not prepared to say that under this rule it would not be permissible to ask a witness in a murder case, who has testified to the good general reputation of the accused as a peaceable law-abiding citizen, if he has not heard that the accused had been implicated in other murder charges. In no event would we hold that the mere asking of such question, and its withdrawal upon objection, would establish that a hurtful and improper question had been purposely asked by the state.

Relative to the statement of appellant claimed by the state to have been made to his wife when he first saw her after the shooting, but while under arrest, we note that appellant testified as to his own mental condition between the time of the shooting and when he macíe bond, as follows; “I was suffering and hurting and nervous.” Again, when asked if he was laboring under pain and excitement during that time, he said, “Xes, I will leave it to you,” evidently referring to the prosecuting attorney shown by the testimony to have been present during said time. Under this record we fail to see any error in the disposition in our former opinion of appellant’s objection to testimony as to what he said to his wife.

Paragraph 5 of the court’s charge set forth the usual and customary definition of malice aforethought. This was excepted to for its failure to tell the jury that sudden anger, rage, resentment, fear, or terror, in the mind of the accused at the time of the homicide, would be a sufficient provocation to excuse or justify the accused in his conduct at the time charged in the indictment, and would also be sufficient to show that the defendant acted without malice aforethought. If we comprehend this complaint, it seems without; merit. Such a charge as suggested would clearly be on the weight of the evidence. Gatlin v. State, 113 Tex. Cr. R. 247, 20 S.W.(2d), 431. It is the duty of trial courts under our present murder statute to let in testimony'as to all relevant facts and . circumstances surrounding the killing, and all such facts and circumstances going to show the condition of. the mind of the accused at the time, .etc. which may be considered by the jury in determining the punishment to be assessed. In thé instant case apparently all such facts and circumstances were admitted in evidence, and the court told the jury in his charge, after defining malice aforethought, that, unless frbm all the facts and circumstances in evidence, before them they believed beyond a reasonable doubt that the accused was actuated by malice aforethought, they could not assess a punishment of more than five years. This we believe to be the character of charge applicable to the use to be made by the jury of. such facts, etc., as is contemplated by the statute.

We fear appellant overlooked, in his criticism of the court’s charge on apparent danger,' the statement in same as follows: “Or if at said time it reasonably appeared to the dé-fendant, viewed from his standpoint alone, that said Boatright had made, was making, or was about to make an attack upon him,” etc. Clearly this part of the court’s charge brings this case within the rule laid down in the cases cited in appellant’s motion. See Carlile v. State, 112 Tex. 554, 18 S.W.(2d) 163; Id., 90 Tex. Cr. R. 1, 232 S. W. 822. As we understand the charge, the court did tell the jury that, if appellant believed, viewed from his standpoint alone, that the deceased was about to make an attack upon him, causing him to fear for his life or serious bodily injury, he would have the right to defend himself.

We have again examined the record with reference to the sufficiency of the testimony to justify the jury in finding appellant guilty of murder with malice aforethought, and are unable to bring ourselves to believe said record deficient in this particular. We have reviewed the other complaints made in appellant’s motion, and are of opinion that none of them call for favorable action on the part of this court.

The motion for rehearing will be overruled.


source: Caselaw Access Project

author: CHRISTIAN, J.

license: Public Domain

text:
    SHIELD v. STATE.
    No. 13974.
    Court of Criminal Appeals of Texas.
    April 8, 1931.

      J. C. Darroch, Lee McCartney, and Conner Scott, all of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, death.

Appellant and his wife, .Opal Mae Shield, had been married for several years. They had two small children, who were living with their mother at the time of the homicide. Some time prior to the homicide appellant’s wife had left him. Later, the parties adjusted their differences and lived together for a while. About four months prior to the homicide they again separated, the children going with their mother. The day before the homicide appellant and Weldon Lucas went in an automobile from the place where appellant was working to Brownwood, a distance of Approximately 150 miles. Upon reaching Brownwood appellant bought 10 or 12, (soft-nosed) cartridges for his rifle. Taking from the rifle the cartridges that were already in it, he loaded it with the (soft-nosed) cartridges. Leaving Brownwood, he and his companion drove to the town in which his (appellant’s) wife and children were living. Just before reaching this town appellant’s coffipanion got out of the car and appellant drove on to the home of his wife. Appellant’s wife was sitting on the porch holding a little child in her lap. Seeing appellant take his gun from the back of the automobile, she put the child ■down. As. she did this appellant raised the gun and fired. The bullet passed through the ’body of deceased in the region of the heart. She caught hold of a post and held herself up until appellant fired a second shot. The second shot entered her back; resulting in instant death. After shooting, his wife appellant called to her sister to bring him a quilt which he placed over his wife’s body. His ■father-in-law approached from across the street and appellant told him to go back. He failed to obey the command and appellant shot and killed him. The mother-in-law of appellant began to scream, and appellant killed her. He then got in his automobile and drove out of town where he met his traveling companion. Going on to Coleman, appellant surrendered to the sheriff. The state also offered testimony touching threats on the jpart of appellant to kill his wife.

Appellant did not testify. Insanity was the sole defense. On this issue testimony was offered to show that appellant’s father had been insane for some years prior to his death. At one time said father was tried for insanity, but not convicted. Witnesses testified that he had suffered from insane delusions and hallucinations. These witnesses testified that appellant resembled his father. Several witnesses stated that appellant had been in a melancholy frame of mind since his wife had left him. They said they noticed a distinct change in his demeanor. A number of wit- ' nesses who had known appellant intimately and seen and talked to him expressed the opinion that he was insane. Answering hypothetical questions, two physicians expressed the opinion that appellant’s father had been insane, and that appellant was also suffering from insanity.

In rebuttal the state offered several witnesses who testified that, in their opinion, appellant was sane. Also the state offered testimony of physicians touching the sanity of appellant’s father, and of appellant. Based upon hypothetical questions, these witnesses expressed the opinion that appellant was sane, and that his father had not suffered from insanity.

Bill of exception No. 3 is concerned with the action of the court in overruling appellant’s first application for a continuance. It is certified, in the bill that appellant had used due diligence in having process issued for Dr. Hayes, G. T. Harrison, Paul Twigman, John McCarty, and Jake Atkinson. Subpoenas had been served on Dr! Hayes and G. T. Harrison, but not on the witnesses Twigman, McCarty, and Atkinson. According to the qualification appended to the bill of exception, Dr. Hayes was old and feeble, and not able to be present in court, and it was not likely that he would ever be able to attend court. Paul Twigman was a transient person whose residence was not known, and there wasi no probability of his being found. It was averred in the application that Dr. Hayes would testify that appellant’s father was insane, and, further, that the witness would testify as to the mental condition of appellant. It was alleged that G. T. Harrison would testify that appellant’s father was insane. As to the witness Atkinson, it was alleged in the application, in substance, that said witness would testify that appellant had talked to him about his domestic troubles, and that in his opinion appellant was insane. Looking further to the application it appears that it was alleged that the witness Twigman would testify that appellant “was not normal in many of his acts just previous to the crime.” There were aver-ments as to intimate association of the non-expert witnesses with appellant, it appearing therefrom that Twigman, Atkinson, and Harrison had worked with appellant, talked to and observed him for several weeks prior to the homicide. We find nothing in the application as to the testimony expected from the witness McCarty.

It was incumbent upon appellant to set out the facts expected to be proved by the witness McCarty in such manner as to show the relevancy and materiality of his testimony. This he failed to do, there being nothing in the application to show what facts appellant expected to prove by the witness. It necessarily follows that, in so far as the application was based on the absence of the witness McCarty, it was defective. Martin v. State, 32 Tex. Cr. R. 441, 24 S. W. 512; Hutcherson v. State, 62 Tex. Cr. R. 1, 136 S. W. 53.

The qualification appended to the bill of exception affirmatively shows that there was no reasonable expectation of procuring the testimony at a subsequent term of the witnesses Dr. Hayes and Paul Twigman. Hence there was no abuse of discretion on the part of the trial judge in overruling the application, in so far as it related to the absence of these witnesses. Bocknight v. State, 87 Tex. Cr. R. 428, 222 S. W. 259; Sinclair v. State, 34 Tex. Cr. R. 453, 30 S. W. 1070; Roquemore v. State, 59 Tex. Cr. R. 568, 129 S. W. 1120; Vernon’s Tex. Crim. Statutes, vol. 1, page 455, note 31.

In his amended motion for new trial appellant attached the affidavit of J. C. Edwards wherein it was stated that the witness Atkinson had told him that he knew a great deal about the domestic difficulties between appellant and his wife; that if called upon to testify he would be compelled to testify in favor of appellant; that he knew too much about the facts and was leaving for parts unknown in order to evade process. It was further averred that the witness had left the county of his residence and had not since been seen. The affidavit of the witness Harrison was not attached to the amended' motion, and no excuse offered for failing to show by the affidavit of the witness that he would testify to the facts averred in the application for a continuance. As to the witness Atkinson, we fail to discern upon what facts a reasonable expectation of procuring his testimony at a subsequent term could be based. He was purposely evading the process of the court, and no person knew where he might be found. See Bocknight v. State, supra. If the trial judge was in error in overruling the application for a continuance, it does not follow that the motion for a new trial should have been granted, in so far as it was based upon the refusal of the continuance. The general rule is stated by Mr. Branch in his Annotated Texas Penal Code, § 319, as follows: “It is not in every case, however, where the absent testimony is material and probably true, that the appellate court will revise the ruling of the trial judge in. denying a continuance and a new trial to defendant. It is only in a case where, from the evidence adduced on the trial, the appellate court is impressed with the conviction, not merely that the defendant might possibly have been prejudiced in his rights by such ruling, but that it was reasonably probable that if the absent testimony had been before the jury a verdict more favorable to the defendant would have resulted.” See Stolleis v. State (Tex. Cr. App.) 35 S.W.(2d) 158.

Numerous witnesses testified that, in their opinion, appellant was insane. These witnesses had known appellant, observed his conduct, and been intimately associated with him. Two physicians, in answer to hypothetical questions propounded to them by appellant’s counsel, expressed the opinion that appellant was insane. The state met the issue by introducing witnesses holding a contrary opinion. Giving recognition to the fact that this court has been more liberal in applying the rule of “diligence” to procure testimony upon the issue of insanity than in cases not involving such issue, we find nothing in the decisions that would deprive the trial court of discretion in passing upon a motion for new trial to determine, whether, in view of all the evidence heard upon the trial, it was reasonably probable that, if the absent testimony had been before the jury, a verdict more favorable to the appellant would have resulted. It is the rule that, if diligence is shown, and the absent testimony appear material and probably true and is of such character as that a different result might be produced thereby on another trial, a new trial should be granted. Tubb v. State, 109 Tex. Cr. R. 458, 5 S. W.(2d) 150; White v. State, 236 S. W. 745, 90 Tex. Cr. R. 584. In the present case, the affidavits of the absent witnesses were not attached to the motion for new trial. In the absence of such affidavits, the judicial discretion rested with the trial judge in determining, in passing on the motion for new trial, whether or not the absent testimony was probably true in view of all the evidence heard during the trial. White v. State, supra ; Tubb v. State, supra. We are confirmed in our view, after an examination of the testimony heard upon the trial, that the learned trial judge was well within his discretion in refusing, a new trial. It does not occur to us that it was at all reasonably probable that the absent testimony, if it had been before the jury, would have brought about a more favorable verdict. See Stolleis v. State, supra.

Bill of exception No. 1 presents the following occurrence: P. E. McGulley testified that he sold appellant 10 or 12 soft-nosed cartridges. The state’s testimony showed that these cartridges were used by appellant in committing the homicide. Over objection timely interposed by appellant, the state was permitted to prove by the witness that the cartridges lie sold appellant were of a peculiar mechanism in that they would explode when striking an object and make a larger hole than an ordinary steel jacket cartridge. Appellant’s chief objection was that there was no issue as to the character of wound inflicted, and that the testimony of the witness was irrelevant, immaterial, and calculated to inflame the minds of the jury against appellant. It was the theory of the state, given support in the testimony, that appellant made preparation to kill his wife, and that he inflicted the wounds on her with the deliberate purpose of killing her. The motive attributed to appellant arose out of the domestic difficulties between appellant and deceased. It was appellant’s theory that he was insane and incapable of acting deliberately and with his malice aforethought. The testimony touching the nature of the cartridges used by appellant in the slaying illustrated appellant’s state of mind shortly prior to and at the time of the homicide. It supported the state’s theory of preparation, and tended to show malice. This being one of the main issues of the case, the opinion is expressed that the learned trial judge was correct in his ruling. Arcos v. State (Tex. Cr. App.) 29 S.W.(2d) 395.

Bill of exception No. 4 recites that B. T. James, a witness in behalf of appellant, had testified that he had noticed a change in the disposition of appellant, he having been acquainted with him practically all of his life. The witness was then asked'by appellant’s counsel to state whether or not he thought appellant was in his normal mind. Upon objection by the state the witness was not permitted to answer the question. It is recited in the bill that the witness would have answered that he did not think that appellant was in his normal state of mind. If the question was proper, the testimony given by the witness carried to the jury substantially the same information as would the expression of the opinion appellant sought to elicit. The witness testified, in substance, that he had seen appellant about a month before the homicide and had noticed that he did not talk like he usually did. He said that on one occasion shortly before the homicide he had gone to appellant for the purpose of assessing his taxes, and that appellant had advised him that he would not give him his assessment. Touching this incident, the witness said: “I thought he was off some way and I went home. He seemed to be in a depressed condition; he sat with his head down and had nothing to say. He did not have anything to say to me, and usually he was talkative when he would be around me. There appeared to be a difference 'in his disposition than formerly. I noticed a change in him; but I could not tell you what the cause was.” If the jury had believed the testimony of the witness, the conclusion would have been inescapable that appellant was not in his normal mind.

We learn from bill of exception No. 5 that Grady Windham, a witness for appellant, had testified that he had known appellant for about 15 years, and, further, that on an occasion shortly before the homicide he saw appellant “humped down against a building in Trickham with his head down.” After having so testified, appellant’s counsel asked the witness: “How did he impress you?” On objection by the state the witness was not permitted to answer. It is recited in the bill of exception that he would have answered, if permitted, that appellant had the air and attitude of a man who was very much cast down and dejected. There seems to have been no controversy over the fact that appellant had been troubled about his domestic relations. Some of the witnesses for the state testified that he seemed worried after his wife left. Many witnesses for appellant testified' that he was worried and dejected. If the question was proper, the refusal of the court to permit the witness to answer it could not, in our opinion, have resulted in injury to appellant. A careful analysis of the facts leads us to the conclusion that the testimony sought from the witness would not have materially added to that already before the jury relative to the condition of appellant’s mind. See Roebuck v. State, 113 Tex. Cr. R. 112, 18 S.W.(2d) 643.

Bills of exception Nos. 6 and 7 relate to hypothetical questions propounded by the state to expert witnesses. These witnesses had testified in answer to hypothetical questions propounded by appellant’s counsel that in their opinion appellant and his father were insane. The state also propounded hypothetical questions in response to which it was sought to have the same witnesses answer that appellant and his father were sane. Appellant objected to the questions on the ground that they were not supported by the. evidence. It might be that the questions did not contain all of the evidence touching the acts illustrating the mental condition of appellant and his father. We find nothing in the bills of exception other than the ground of objection, which would indicate that the statements embraced in the questions were not supported by the evidence. The mere statement of a ground of objection in a bill of exception is not a certificate "on the part of the trial judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569. In view of the fact that' the extreme penalty was assessed, we have examined the statement of facts for the purpose of determining whether state’s counsel assumed facts not in evidence. Without under- • taking to set out the evidence supporting the questions propounded, tlie opinion of tlie witnesses seems to have been elicited upon a hypothesis reasonably consistent with the evidence. If the hypothesis was meagerly presented by the district attorney, it was appellant’s right to fully present it. In his Annotated Penal Oode, § 31, Mr. Branch states the rule as follows: “Each side has a right to an opinion from the expert witness upon any hypothesis reasonably consistent with the evidence, and if meagerly presented on one side, it may be fully presented on the other, being within the control of the court, whose duty, it is to see that the examination is fairly and reasonably conducted. In putting hypothetical questions, counsel may assume the facts in accordance with his theory of things, and it is not essential that he state all the facts to the witness as they have been proved.” In support of the text are cited Lovelady v. State, 14 Tex. App. 560; Leache v. State, 22 Tex. App. 307, 3 S. W. 539, 58 Am. Rep. 638; Shirley v. State, 37 Tex. Cr. R. 475, 36 S. W. 267, and many other precedents.

It appears from bill of exception No. 9 that the state invoked the rule. State’s witness Nat Shields was in the courtroom during the progress of the trial. Thereafter he was called to the witness stand by the state, and testified that appellant had threatened to kill deceased. He gave no testimony touching the question of appellant’s sanity. The bill of exception is qualified as follows: “The witness Nat Shields is very hard of hearing and likely knew very little as to what •the testimony had been. The state’s attorney did not know that this witness would be a material witness and did not have him sworn but he was sworn and put under the rule after the state’s attorney discovered he wanted to use him.” 'A wide discretion is vested in- the trial judge in. regard to the application and extent of the application of the “rule.” The exercise of this discretion will not be revised on appeal except in clear cases of abuse. Section 344, Branch’s Annotated Texas Penal Code; Blackwell v. State, 29 Tex. App. 194, 15 S. W. 597. In section 344, Branch’s Annotated Penal Code of Texas, the rule is further stated as follows: “The admissibility of witnesses who have violated the rule, or who have not been placed under the rule is a matter addressed to the sound discretion of the court, and, until the contrary appears, it will be presumed on appeal that such discretion was properly exercised.” See Rambo v. State (Tex. Cr. App.) 69 S. W. 163. It was uncon-troverted that appellant killed deceased. Moreover, the fact that he had threatened to kill her was not disputed. The sole defense was insanity. It is not shown in the bill of exception or in the record that the witness heard any other witness testify on the point to which he was called to testify. Where a witness has been in court while other witnesses testified, or by some omission has not been placed under the rule, ordinarily the trial court may permit him to testify where the other witnesses did not testify on the same point to which he is called to testify. Branch’s Annotated Penal Code, section 344; Cooper v. State, 72 Tex. Cr. R. 250, 161 S. W. 1096; Cook v. State, 30 Tex. App. 607, 18 S. W. 412. We find no abuse' of discretion on the part of the trial court in permitting the witness to testify.

In his closing argument, as shown by bill of exception No. 2, the district attorney used language as follows: “I have served as district attorney in this judicial district for the past 24 years, and never, in the history of this 'judicial district nor in the history of' Brown County has there ever been a crime so atrocious as this one.”

Appellant timely and properly objected to the argument and requested the court to instruct the jury not to consider it. The objection was overruled. That the crime was atrocious is apparent from the record. If it was improper for tlie district attorney to express the opinion that it was the most atrocious crime that had ever been committed in his district, it does not follow that the expression of such opinion contributed to appellant’s conviction or to the assessment of the death penalty. In determining whether the effect of an improper argument is of such nature as to be obviously hurtful and prejudicial, the facts and surroundings of the particular case must be looked to. We quote from the opinion on motion for rehearing in the case of. Silver v. State, 110 Tex. Cr. R. 512, 8 S.W.(2d) 144, 148, 60 A. L. R. 290, as follows: “Another thing that must be borne in mind is that the facts and surroundings of the particular case should be looked to in determining the effect of an argument complained of. The same language under a certain state of facts.might be highly prejudicial, and not so regarded under other circumstances. This is illustrated in Todd v. State, 93 Tex. Cr. R. 553, 248 S. W. 695; Coates v. State, 98 Tex. Cr. R. 314, 265 S. W. 891; Vineyard v. State, 96 Tex. Cr. R. 401, 257 S. W. 548.”

Appellant has cited us no ease, and we know of none under facts at all similar to those before us in which it has been held that remarks of the nature under consideration called for a reversal. Every man intelligent enough to serve on a jury would know that the facts reflected by this record stamp the crime as atrocious. In accepting the state’s theory the jury were fully warranted in assessing the extreme penalty. We are unable to see how the remarks could have influenced the jury to reject the defense of insanity. Nor are we able to believe that any reasonable man qualified to serve as a juror would permit an opinion of the nature under consideration to cause 'him to assess the dosth penalty. To hold otherwise would- be to say that juries are not to tie credited with the exercise of judgment and discretion. Giving application to the principles controlling, the opinion is expressed that the argument could not have prejudiced appellant’s rights.

In defining insanity the court concluded the charge as follows: “On the other hand if you believe from the evidence that the defendant was able to distinguish right from wrong in regard to what he was doing, and knew and understood the nature and quality of the act he was doing, you will find him guilty even though you may believe his mind was not altogether sound or normal.”

Appellant timely and properly objected to this charge as being on the weight of the evidence and as being calculated to lead the jury to believe that they might convict him of murder with malice aforethought, even though they found him to be insane. We are unable to reach the conclusion that the charge was on the weight of the evidence. It appears to embrace the test for determining whether appellant should be held accountable for the act charged against him. If appellant knew or was able to distinguish the difference between right, and wrong as to his act, under the evidence presented in this record, he was guilty of murder, insanity being the sole defense. In form 930, Willson’s Texas Criminal Forms (4th Ed.) in setting forth an instruction on insanity, the following proposition is stated: “Although a man may be laboring under partial insanity, if he still understands the nature'and character of his act and its consequence, if he has a knowledge that it is wrong and criminal, and mind sufficient to apply that knowledge to his own case, and to know that if he does the act he will do wrong and receive punishment, such partial insanity is not sufficient to exempt him from responsibility for his criminal acts.” This form has been approved in many of the decisions of this court. The statement in the charge under consideration, in our opinion, is substantially the same as that contained in the form to which reference has been made.

We do not believe that the charge was calculated to lead the jury to believe that they should convict appellant of murder with malice aforethought in the event they believed him insane. The court expressly advised the jury that no act done in a state of insanity could be held punishable as an offense. He gave the test for determining whether appellant was sane or insane and followed the approved form laid down in Wilson s Texas; Criminal Forms (4th Ed.)

In his amended motion for new trial appellant set up newly discovered evidence. It appears that there was no diligence used to secure the testimony claimed to have been newly discovered. It is the rule that, in order to warrant a new trial on the ground of newly discovered testimony, it is incumbent upon the accused to satisfy the court that the new testimony came to his knowledge since the trial, and that it was not known beforehand, and it must be such as reasonable diligence could not have secured at the former-trial. Branch’s Annotated Texas Penal Code, § 192; Fisher v. State, 30 Tex. App. 502, 18 S. W. 90. In view of the fact that the death penalty was assessed, we have considered the-affidavit attached to the motion. This affidavit is to the effect that the witness worked with appellant for 24 days before the homicide ; that he slept with appellant during -such time; that appellant would not go to sleep until after 3 o’clock in the morning, and’ would get up about daylight; that he talked', principally about his wife; that in the opinion of the witness appellant was insane. We-think it is clear, when considered in the light of the record, that the testimony claimed to be-newly discovered would 'not likely change the-result if a new trial should be. granted. As a general rule testimony which would have been, merely cumulative of that adduced on the trial affords no ground for granting a new trial, when it is claimed that such testimony is-newly discovered.' Branch’s Annotated Penal-Code, § 203; Turner v. State, 37 Tex. Cr. R.. 451, 36 S. W. 87. If the rule should be relaxed, it is observed that many witnesses who-had known appellant for years, and who had been Intimately associated with him, expressed the opinion that he was insane.. Moreover, two physicians, in answering hypothetical questions, declared that in their opinion appellant was insane.

A careful examination of appellant’s contentions leads us to the conclusion that reversible error is not presented.

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: CALHOUN, J. LATTIMORE, J.

text:
    McROBERSON v. STATE.
    No. 13887.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    Rehearing Denied April 29, 1931.
    Johnson & Millwee, of Colorado, Tex., for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Conviction is for the murder of W. L. (Bo) Morgan, with the minimum punishment of two years in the penitentiary assessed.

The state’s evidence shows that both the appellant and deceased were negroes. Deceased had just been released from jail a few hours before he was killed. The deceased went to a negro barber shop to get a hair cut. While the deceased was seated in the barber chair, the appellant came through said shop, and went out, and in a few minutes came back, while the deceased was still in said chair and while the barber was still cutting his hair, and began firing at the deceased. The) first shot went wild and struck a bystander. The appellant continued to shoot the deceased, and, when deceased was struck and fell to the floor, he continued to shoot into his body as it lay on the floor, and killed the deceased.

It was appellant’s contention that some five or six weeks prior to the homicida a difficulty arose between him and the deceased over a dispute as to the loan of some money, and that on this! occasion the deceased- attacked the appellant with a knife, inflicting several wounds on his person; that as a result thereof the appellant was confined to bed for a number of days, and that the wounds did not heal for a long period of time; that the deceased threatened to kill the appellant if he ever had him arrested for this offense; and that also various threats against appellant were in evidence, some of which were shown to have been communicated to the appellant prior to the homicide. It was appellant’s contention, that he did not know the deceased was in the barber shop at the time he went in there, and that, as he approached the deceased, he saw him making demonstrations with his hands as he drew them from the apron which was around his neck, and that upon such demonstrations he fired in self-defense.

The ease was submitted to the jury on the law of self-defense, and the court also charged on the law of threats.

By bill of exception No. 1 complaint is made of the court’s charge in submitting the law of self-defense; the complaint being that the court charged on actual danger in connection with the charge on apparent danger, and that the charge on actual danger was not- called for by the evidence, and that a charge on actual- danger or real danger was prejudicial to the appellant, and was calculated to confuse the jury. The fact that the court might have charged on actual danger in connection with the charge on apparent ■ danger or the demonstrations as shown by the evidence of appellant on the part of deceased was a matter that inured entirely to the benefit of the appellant, and could not in any manner prejudice his rights. We think that the testimony of the appellant called for a charge on actual as well as apparent danger, but, if not, the charge was more favorable to appellant than it would otherwise have been; notwithstanding the fact that the appellant may have claimed that he only fired because of the demonstrations or from apparent danger. We do not believe that the appellant could have been in any manner prejudiced by the charge on real danger. Because the charge given was not required will not necessarily require the reversal of a conviction, where it appears to be harmless or inures to the benefit of accused. Surrell v. State, 29 Tex. App. 321, 15 S. W. 816; Travelstead v. State, 105 Tex. Cr. R. 101, 287 S. W. 53; Neuvar v. State, 72 Tex. Cr. R. 410, 163 S. W. 58.

Complaint is made of the charge on threats by bill of exception. No. 2. As we view appellant’s contention here, it is that the court should have charged on the law of uncommunicated threats, and that the charge as given was not sufficient to cover the charge on uncommunicated threats. The law does not require the court to charge on uncom-municated threats. Dunne v. State, 98 Tex. Cr. R. 7, 263 S. W. 608, 609; Emmons v. State, 100 Tex. Cr. R. 264, 273 S. W. 253. The court gave the appellant the full and complete benefit of all the evidence on his rights under the law of threats, and properly applied them to the facts.

By bill of exception No. 5! complaint is made of the charge on malice. While it is true that the trial court’s charge defining malice aforethought was not strictly in accordance with the usual approved charges, and should not be followed, and conceding that the definition of malice aforethought was not strictly correct, there does not seem the slightest probability that such incorrect definition could have contributed to the size of the verdict, and apparently the case was not disposed of by the jury on the issue of malice, because the appellant received the minimum penalty of two years in this case. Therefore, if there was any error in the charge oh' •malice, it was rendered harmless.

By bill of exception No. 6 complaint is made of the failure of the court to charge on successive shots; that is, that, if the first shot was justified, it was immaterial as to how many shots were fired subsequently. Appellant’s rights under the court’s charge were in no manner restricted as to the first shot or any shot. In addition thereto, the court, at the request of the appellant, gave the following special instruction: “As a part of the law of this case, and to be considered by you along with the main charge of the court, I give you the following: If you believe from the evidence under the foregoing charges of this court, in this cause, as the same is applied therein to the law of self-defense, that the defendant George McRob-erson, under all the facts and circumstances, was justified in firing first shot at deceased, then the defendant had the right to continue to shoot so long as danger, real or apparent, considered from- the defendant’s standpoint, continued to exist.”

'While the testimony is not clear as to just what shots killed the deceased, the special instruction, in our opinion, cured whatever error there might have been in the court’s main charge.

By bill of exception No. 7, complaint is made of the action of the court in permitting the appellant’s witness, Dr. J. P. French, on cross-examination by the state, over objection of the appellant, to testify as follows: “The defendant’s wounds did not heal so rapidly. No. That fact as to whether it was caused by the wounds themselves and by the fact that the defendant had syphilis. Well, I just surmised that- was true, there was no blood test made and no active symptoms, but I did give him some shots for syphilis. I did diagnose his failure to effect a cure as being attributable to the fact that I believed he had syphilis, yes, without a blood test I thought so.”

Said bill also complains of said witness being allowed over appellant’s objection on recross-examination by the state to further testify as follows: “After he got a reaction from the shots, the wounds healed. There was no evidence of the wounds healing until after that.”

The appellant had put said witness upon the stand for the evident purpose of proving, not only the nature of the wounds inflicted upon the appellant by deceased, but also the length of time that the appellant was confined to his bed by reason thereof, and also how long it took said wounds to heal. The •appellant had already proved by an eyewitness the transaction between the appellant ;and deceased at the time he was cut. The .appellant had injected into the case by the testimony of the witness Dr. French the-■question of the time which the appellant was •confined in bed and the time required for ■said wounds to hoal for the obvious purpose of showing the seriousness of the wounds -claimed to have been inflicted by the deceased upon the appellant, and it was' therefore very ■pertinent and material to the state to be able •to show that the reason that they did not heal was because of the fact that the appellant was afflicted with syphilis, rather than ¡because of the wounds themselves. It was mot error to admit evidence respecting a matter which the accused injected into the case .and concerning which he had voluntarily placed said evidence before the jury. Onstott v. State, 75 Tex. Cr. R. 72, 170 S. W. 301.

By bill of exception No. 8 complaint is made of the action of the trial court in refusing to permit the appellant to prove by •one of the state’s eyewitnesses to the homicide that prior thereto he was present when the deceased had beaten another negro up with a 45 and cut him with a knife. No predicate was laid as to the time, circumstance, or otherwise that would authorize this testimony to be admissible. Neither is there anything shown in the bill that the appellant knew anything of the transaction before the homicide. Proof of specific acts of violence •on the part of deceased is not admissible if there is no evidence that the appellant knew •of these matters prior to the homicide. Branch’s P. C. § 2094; Harper v. State, 75 Tex. Cr. R. 124, 170 S. W. 721, 723; Echols v. State, 75 Tex. Cr. R. 369, 170 S. W. 786, 789; Patterson v. State (Tex. Cr. App.) 56 S. W. 59.

Bills of exception Nos. 3 and 4, directed at the charge of the court, are deemed to be without merit and not necessary to be discussed.

No reversible error appearing in the rec•ord, 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.

On Motion for Rehearing.

LATTIMORE, J.

In his well-prepared motion, appellant re■news complaint of the definition of malice .aforethought as given in the charge. It seems to us that in giving to the jury, in substance, what was formerly a definition of • express malice aforethought, the trial court erred in favor of appellant, and placed an undue burden on the state, and that, appellant having been found guilty and his punishment fixed at two years, thereby indicating that the jury believed him to have been without malice at the time of such homicide, we have no doubt that our disposition of this complaint was correct in the original opinion.

The fact that deceased, prior to the fatal difficulty, had cut appellant, and the serious nature and extent of the wounds then inflicted, and that- appellant suffered many days therefrom, was proven by appellant as original defensive testimony. Evidently to show, in; so far as it might, that appellant’s suffering was not alone from the cuts then inflicted, and that the length of time same took to heal was not because of the extent or nature of the wounds inflicted, we think it proper for the doctor, who gave evidence for the appellant, to be asked on cross-examination and to testify that appellant suffered from these unhealed wounds until, after obtaining a history of his case, said doctor treated him for syphilis, and that thereafter the wounds healed.

Not being able to agree with appellant’s contentions, the motion for rehearing will ‘be overruled.


author: HAWKINS, J.

text:
    CONNER v. STATE.
    No. 14153.
    Court of Criminal Appeals of Texas.
    April 15, 1931.
    J. Robert Diles, of Conroe, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for transportation of intoxicating liquor; punishment being one year in the Penitentiai'y-

The only question arises on the sufficiency °£ the evidence, which is vigorously chal-ienged.

It appears from the evidence that complaint had been made to the constable that whisky was coming into what is called in the record “Crogan Mill.” On the night of September 13, 1929, the constable had gone there to investigate the matter. He discovered that much drinking was 'going on. About 9:30 at night he saw appellant sitting under the steering wheel of what the officer described as an “old Model A Ford car with no top, an old ragged looking'Ford.” When the officer walked up there was in plain view on the seat beside appellant six pint bottles of whisky. In the back seat under an old quilt was an automatic pistol and a half pint of whisky. When the constable told appellant he would have to arrest him, appellant said to the officer, “It is not my ■car, it don’t belong to me.” In connection with the constable’s recital of what appellant told him, the officer made the following, statement: “The fact is, I saw him (referring to appellant) figuring on swiping some of the whisky.” Appellant told the officer ■ who he was and where he lived, and was released from custody. There were a large number of negroes about the car, presumably mill hands, and, before the officer could get the car and whisky away, about half of the bottles had been slipped out of the car. The car was taken to the constable’s house, and he still had it at the time of the trial, which was some fourteen months later. Several state’s' witnesses testified that on the day preceding the night in question they had seen appellant driving a car which they described at a model T Ford, but which in general appearance, as having no top and being dilapidated, resembled the one in which appellant was found sitting. One of the witnesses said he would know the car if he should see it again. Although the ear had been in the constable’s possession fourteen months, it does not appear that this witness had ever been shown the car with a view of having it identified as the one which appellant was seen driving. The last time appellant was seen with the car described as a model T Ford was at 5:30 in the afternoon. He was then about two miles from the mill, with the car headed in that direction ; he was repairing a blow-out in one of the casings at the time. This was four hours before he was seen sitting in a car at the mill. No witness claims to have seen any whisky in the car at a time when appellant was driving it. No witness claims to have seen him drive a car to the point where the whisky was discovered in a ear. He certainly did not drive it away; the constable took it away and still had it. There is no evidence in the record as to the license number on the car, or ’the result of efforts, if any were made, to trace thereby its ownership. The ownership of the pistol is likewise shrouded in mystery. If it be conceded that the jury might have reached the conclusion that the car appellant was seen driving was the same one in which he was found at the mill, the evidence fails to show that appellant had transported the whisky. From •the general surroundings described by the officer, the inference was just as reasonable that appellant had gone to the mill after whisky as that he had taken it there. In our opinion the evidence does not measure up to the requirement of the law relative to establishing by circumstantial evidence the guilt of appellant of transporting whisky, which was the offense of which he was convicted. Cases in point are Davis v. State, 99 Tex. Cr. R. 349, 269 S. W. 1114; Kyle V. State, 99 Tex. Cr. R. 554, 270 S. W. 1020; Meyers v. State, 102 Tex. Cr. R. 615, 279 S. W. 460. The last-cited case is in point of fact very similar to the one under consideration.

.The judgment is reversed, and the cause remanded.


author: LATTIMORE, J. HAWKINS, J.

text:
    WEAVER v. STATE.
    No. 13651.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.
    Rehearing Denied April 29, 1981.

      Alton B. Chandler and Guinn & Guinn, all of Rusk, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

Appellant and his brother, C. H., were together in a car when they were arrested at or about 3 a. m. on the road between Rusk and Reklaw and thirty half-gallon jars of whisky found in their car. The officers had no search warrant. Appellant, according to one officer, was driving the car.' We think it entirely competent on the issue of probable cause for the officer to testify that they had information that appellant and his brother were engaged in transporting intoxicating liquor between Rusk and Reklaw, back and forth. If there had been any request that testimony of the fact of their receipt of such information be heard by the court out of the presence of the jury, in order that he might primarily determine the admissibility of testimony of the finding of whisky in the appellant’s car, such request should, and doubtless would, have been granted, but we find nothing showing such request; nor do we find in any bill of exceptions that objection was made to such testimony on the ground that it was such matter as was proper for the court only to hear out of the presence of the jury. We think appellant fails to see the distinction between this case and those of Webster v. State (Tex. Cr. App.) 23 S.W.(2d) 1118, and Weddle v. State, 112 Tex. Cr. R. 250, 16 S.W.(2d) 244. Webster got more than the minimum penalty, and in his case there was no controversy of the sufficiency of the facts to show probable cause. Both these points vitally differentiated the Webster Case, supra, from that now before us. In Weddle v. State, supra, the searching sheriff said he found in Weddle’s car a half gallon of whisky. Weddle testified in his own behalf and admitted said fact. The state further proved by the sheriff that Deputy Sheriff White told him that he heard appellant tell Parker that he had three gallons of whisky out on the Crews road. This was offered before Weddle took the stand, as part of the state’s showing of probable cause. When the state offered this testimony — as reference to the original record in the Weddle Case reveals — its hearing before the jury was objected to, and the court was asked to retire the jury and hear it out of their presence, which he did, and, after same was so heard by the court, appellant renewed his objection, which was overruled, and all such testimony was presented to, and heard by, the jury. We held it materially hurtful for the jury to hear or have before them for their consideration the hearsay testimony regarding'the three gallons of whisky out on the Crews road. Testimony that officers had received’ information that one accused of transporting intoxicating liquor was engaged in such transportation is admissible as shedding light on the issue of probable cause, but primarily is for the court, has often been held by us, as in the Weddle Case, supra. Unless under some peculiar facts it becomes an issue for1 the jury, we think it proper to be heard only by the court. We have set out the matters at some length in order that it may be clear that the case before us is not controlled by, nor similar to, the Webster and Weddle Cases, supra.

We think the application for continuance properly refused. The case was postponed on January 20, 1930, to February 20th, and again postponed February 24th. The application for continuance was thus a subsequent application. It failed to allege that the absent testimony could not be procured from any other source. McKinney v. State, 8 Tex. App. 626; Goode v. State, 57 Tex. Cr. R. 220, 123 S. W. 597. No diligence was shown as to the absent witnesses. The indictment was filed herein in January, and subpoena for De-vaney was made returnable January 20th, at which time the casé was postponed to February 20th, and then again postponed. There is no showing that Devaney was present at any of these dates, or that attachment was ever asked or issued for him. No subpoena for Francis, the other absent witness, was asked until five days before the date of trial.

Bills of exception Nos. 3, 4, and 7 present the complaint hereinabove first discussed.

Two officers searched appellant’s car. Bills of exception Nos. 5 and 8 bring forward the alleged error of the court below in allowing these officers to answer the question: “When you stopped them; what did you find?” The officers detailed the finding of the whisky in question. They had no search warrant and no warrant of arrest, and their testimony was objected to for these reasons, and also that there was no probable cause shown. In addition to the fact that these officers had information that appellant and his brother were engaged in transporting liquor over the very road on which they were traveling at 3 a. m. when stopped and their car searched, the officers testified to the following facts, viz.: That said road ran through a creek bottom, and, as four of them were passing over said road near said creek earlier during the night in question, they saw a car sitting on the roadside not far from the bridge over said creek, the occupant of which car whistled to them as they passed. Coming hack presently, the officers discovered who the man was in said car, and two of them took him in their car on to Rusk, leaving two officers in the car of the said man near the bridge. These two officers left were those who searched appellant’s car. They said that not far from 3 aJ m. a car came from the direction of Rusk, which was occupied, as discovered by them by the aid of its light, containing appellant and his brother. When it approached the creek, its horn was sounded twice, and, no answer being made, appellant drove on to Reklaw. Later he and his brother came back, and, as they drew near, they turned their car out to the standing car, and appellant’s brother called out, “Gome on out of there Red,” and the officers came out, drew their pistols, and ordered appellant and his brother to get out of the car. One of the officers said, as he approached the car with his flash-light, he could see jars in the bottom of the car, which upon investigation were found to contain whisky. One of them or both testified that appellant’s brother asked them if they would take the stuff and let them go. We think these facts sufficient to amount to probable cause, and that the objections made were without merit. Brasselton v. State, 112 Tex. Cr. R. 615, 18 S.W.(2d) 168; Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762; Kirk v. State, 111 Tex. Cr. R. 388, 13 S.W.(2d) 106; Elatt v. State, 111 Tex. Cr. R. 482, 14 S.W. (2d) 278; Tendia v. State, 111 Tex. Cr. R. 627, 13 S.W.(2d) 849.

None of the other bills of exception appear to present matters calling for discussion, and the judgment of the trial court will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

. Appellant has filed a lengthy motion for rehearing, questioning the correctness of the conclusion reached in our original opinion as to the existence of probable cause for the officers to search appellant’s car, in the absence of a search warrant. This has necessitated a re-examination of the statement of facts and the bills of exceptions, which we have carefully done. We are confirmed in the conclusion heretofore expressed that the information which the officers had in advance with reference to appellant and his brother transporting liquor, in connection with their conduct on the night of the search, constituted probable cause, authorizing the search. It would be useless to again review the evidence in that regard. It is set out at considerable length in the original opinion.

We have' also examined the other contentions which are reiterated in appellant’s motion, and believe they were all properly disposed of in our former opinion.

The motion for rehearing is overruled.


text:
    BOATWRIGHT v. STATE.
    No. 14109.
    Court of Criminal Appeals of Texas.
    April 8, 1931.
    J. H. Martin, Clarence Parker, and Virgil R. Parker, all of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

Appellant was convicted of a violation of the lottery law, and his punishment fixed at a fine of $100.

Appellant maintained in his place of business an advertoshare game board. Upon tbe face of this board appeared a regular standard checkerboard. Directions accompanying tbe board read as follows: “This board presents distinct set-ups of checker games partly played out. It calls for varying degrees of skill in playing any one of these set-ups ⅛0 a finish. These problems may he solved by a greater or lesser number of moves but the solution with the lesser number of moves would be considered the better solution. The games are to be worked out by one person only, always playing the black to win against the white. The merchant holds the key to the better solutions and he may offer a prize or prizes for any or all solutions, fixing his own conditions as to the best, quickest, neatest, etc., solution of any and all problems. Customers may take the problem home and work it out there, each presenting his solution upon completion for competition with other solutions so presented, under such terms and conditions as the merchant may impose as to the shortest solution, shortest time, neatest record, etc. The name of the set-up to be worked is obtained by punching it out of one of the holes in the board. This is done to prevent one from playing only one game in which he or she may have become an expert and in this way take an advantage over others competing for a prize offered by the merchant. There are an equal number of all problems on the board: For example, there are 6 problems on the 600 hole board, each problem numbering from 1 to 100. In each hole there is a slip of paper having a name and a number upon it. The name is the name of one of the checker problems listed on the board and the number is used for the identification of solutions. Since one may become skilled in all the games presented, the merchant may exclude him from the right to compete for any and all prizes or may permit him to compete with others under such handicap as will tend to equalize the game among those who are in competition for the prize or prizes. Such handicap must, however, be placed in advance of payment of the entry fee into the competition.”

The checkerboard is like any ordinary standard checkerboard in appearance, size, color, and general make, except that the black squares are numbered from 1 to 32. The numbering is for the purpose of making the different set-ups and keeping check on the number of moves of the player. It is seen from the directions above quoted that there are six separate problems. These problems are named as follows: - -

Polly —< "Black 10-11-16; King 9. White 20-24-28; King 4.

Clara — Black 3; Kings 2-8. White 10-20⅝; King 22.

Julia — Black 10-14; Kings 16-19. White 17-29; Kings 13-21.

Flora — Black 9-14; Kings 1-2. White 8-15; Kings 4r-22.

Alice — Black 3-6-22-25. White 17-29; Kings 4-13.

Nancy — Black, Kings 5-21-30-32. Whi e 22; Kings 8-11-24.

After each name the numbers upon which the checkers are to be placed are designated. There are a number of holes in the board covered with a thin seal. In each hole there is a small slip of paper containing the name of one of the problems the customer is to solve. There are no blanks in any of the holes, each containing the name of some problem to be solved. The customer pays 5 cents as an entrance fee, punches the seal of a hole, and withdraws a piece of paper upon which is written the problem he is to play. Playing alone, he endeavors to solve this problem. For example, if the problem is named “Polly,” he places the black and white checkers on the board according to the directions given under the name “Polly.” Each problem is an ending of a game of checkers which has been partly played. The player moves both colors — the black checkers to be moved first. If the player is able to move the black checkers in such a way that they'win over the white, he solves the problem. Appellant offers a box of candy of the value of $1.50 for the best solution of each problem shown on the board. For example, only those drawing the name “Polly” contest for tbe prize offered for the solution of that problem. After the set-up on the checkerboard, the rules and principles governing regular checker games are observed. If several players are working at the same problem, the winner is determined by the smallest number of moves used in making tbe black checkers, free the board of white checkers. The game is over when all the white checkers have been taken off the board by the use of the black checkers. Those drawing the-problems bearing the same name may contest for the prize. Except for the first move, which is a black checker, all other moves of either black or white checkers are made entirely upon the initiative of the particular player. Appellant has a secret code containing the correct solution of each problem on the board. The solution of the particular problem depends upon the skill of the player; it being possible for the black checkers to win over the white in each of the problems provided for.

Appellant contends that the evidence is insufficient to bring the game within the inhibition of article 654, Penal Code, which provides: “If any person shall establish a lottery or dispose of any estate, real or personal, by lottery, he shall be fined not less than one hundred nor more than one thousand dollars; or if any person shall sell, offer for sale or keep for sale any ticket; or part ticket in any lottery, he shall be fined not less than ten nor more than fifty dollars.”

Any scheme, for the distribntio'n of prizes by chance, under our statute, is a lottery. Queen v. State, 93 Tex. Cr. R. 173, 246 S. W. 384; Stanger v. State, 107 Tex. Cr. R. 574, 298 S. W. 906. The phrase “game of chance” is defined in 27 Corpus Juris, at page 968, as follows: “It is a game determined entirely or in part by lot or mere luck, and in which judgment, practice, skill or adroitness have honestly no office at all, or are thwarted by chance; a game in which hazard entirely predominates.”

Without approving in its entirety the foregoing definition when considered in connection with our statute denouncing lotteries, it is observed that the success of the player in the game under consideration depends upon practice, experience, or skill. Other than the ordinary chance or contingency which is involved in practically every human endeavor, the element of chance is not present. The prize is drawn as a reward for the skill of the player, and not by chance. The predominant element in the .game is one of skill. There is no more resemblance to a. lottery in the game than there is the operation of the knife rack described in McRae v. State, 46 Tex. Or. R. 489, 81 S. W. 741. In that case, in holding the game not within the inhibition of the ■statute denouncing lotteries, Judge Davidson said: “The evidence discloses that it was an ordinary knife rack, which consisted of a sloping board with knives stuck in the board and arranged so that rings could be thrown and lodged upon the knives, and when the player was fortunate enough to throw one of these rings around a knife, or catch it on a knife, the knife became his property. These knives were, in the main, •of a cheap sort, and the rings were sold at a nominal sum — 72 for one dollar, 3 rings for 5 cents, 7 for 10 cents, and 18 for 25 cents. This offense does not come within the definition of lotteries defined by our statute, nor of any other definition of lottery of which we are aware. A lottery is commonly understood as a ‘scheme for the distribution of prizes by lot or chance, especially a gaming scheme in which one or more tickets bearing particular numbers draw prizes and the rest of the tickets are blank.’ There were no tickets distributed under the scheme as shown in the testimony, but rings were sold, and the thrower of the rings took chances as to whether he could inclose one of the knives by one of the rings so thrown, and the success of the pitcher depended upon his practice, experience, or skill. We do not believe it was a lottery.”

The device involved in the case under consideration was held not violative of statutes substantially the same as ours in the following eases: Johnson v. McDonald, 132 Or. 622, 287 P. 220, 221; D’Orio v. Jacobs, 151 Wash. 297, 275 P. 563;. D’Orio v. Startup Candy Oo. (Supreme Court of Utah) 266 P. 1037, 60 A. D. R. 338. The county court for British Columbia sitting at Vancouver, B. C., in D’Orio v. Leigh .and Cuthbertson, Limited, according to the report contained in Western Weekly Reports, 1929, vol. 1, p. 122, held the identical game involved here to be one of skill and not within the inhibition of the statute prohibiting games of chance. We quote from Johnson v. McDonald, supra, as follows:

“It will be seen from the directions that the prize is drawn, not by chance, but as a reward for the skill of the person claiming the prize. If there is any element, of chance at all about the device, it is in the drawing of the problem. Any problem drawn requires the solution of the game of checkers presented by that particular problem. Prom the directions given with the Advertoshare problem checkerboards we learn ’ that the problem is the completion of a game of checkers that has been partially played. The device was invented by a famous checker player. So far as it is humanly possible, the several problems are of equal difficulty. No distribution of prizes is made by chance or lot. Gambling does not have any place in the game as it is intended to be played. The prizes offered are trivial, and do not offer any inducement for one to purchase an opportunity to play the game.

“There is no more resemblance to a lottery in fhe scheme than there is.in a game of billiards or of cards where such games are played in a public place and charges are made for the privilege of using the billiard tables or card tables. The predominant ele-, ment in the game is one of skill. 'The game would not appeal to any one who did not like to play checkers. There is no apparent likelihood at all that t;he game, if played as designed, would cultivate a spirit of gambling.”

Being of the opinion that the checker game described by the witnesses was one of skill, and not of chance, it becomes our duty to order 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.


author: LATTIMORE, J.

text:
    DEADWILEY v. STATE.
    No. 14168.
    Court of Criminal Appeals of Texas.
    April 15, 1931.
    W. S. Birge and O. Ellis, both of Amarillo, 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.

Officers found whisky in appellant’s home. He testified that he was ill' and had made the intoxicating liquor for his own use as medicine under the advice of a physician. He introduced a doctor who testified that he had fold appellant that the use of whisky would b'e good for the stomach trouble from which he judged appellant to be suffering. Appellant testified at great length, being vigorously cross-examined by the state’s attorney.

Appellant’s chief complaint appears in his second bill of exceptions. Said bill sets out that in his closing argument for the state the following was said by the state’s attorney to the jury: “Why Gentlemen of the Jury, of course the defendant made a pretty good witness; he ought to because he has been in’ the toils of the law so much he has gained lots of experience in testifying and has gotten to be an expert witness.”

Objection was made on the ground that this was inflammatory, prejudicial to the rights of defendant, that the district attorney was giving testimony to the jury illegally which could not have been admitted, and that such argument was not supported by or based on any evidence adduced on the witness stand, there being no testimony that defendant had ever been arrested, or tried for any offense, or that he had ever given testimony in any case, and no evidence that he was an experienced or expert witness. The court was asked' to instruct the jury not to consider the argument, but declined to do so. The bill states further in this connection that there was no evidence in the case that appellant had ever been in the toils of the law, or had ever been tried for any offense, or had given testimony in his own or any other behalf, or that he was an experienced or expert witness. It was stated that appellant testified that he had never been indicted or tried for any offense, that he had put his reputation in evidence, and had adduced two witnesses who testified that it was good, and that the state in no way controverted this testimony. The bill is qualified by the trial judge, who said that he was occupied with some other matter, and was in doubt as to what was actually said, but that he had inquired, and from what was said by the state’s attorney and the defendant’s attorney the court was of opinion that said state’s attorney had substantially said what was claimed in the bill, and that the court was of opinion that this character of argument was justifiable- because there was testimony showing that appellant’s place had been searched probably illegally for equipment and liquor. The court further certifies that.he supposed the assistant district attorney meant that “this experience of having had his place raided so many times would probably aid him in experience, in court so that it would help him to make d good witness.” The court also sets out what the district attorney claimed he said, but without the certificate of the court that this was in fact what was said. In what the district attorney claimed he said appears the following: “The evidence clearly showed that the defendant was the most expert witness who had testified in the case because ‘ho had been in the toils of the law so often that he naturally makes a good witness.’ ”

In our opinion such argument was not only clearly unjustified by the fact that officers had on some occasions theretofore illegally raided and searched appellant’s premises, but also from the. certificate of the court that there was no evidence that appellant had ever been indicted for any offense or tried for such, or that he was ,an experienced or expert witness, or that he had ever been in the toils of the law. Clearly, the state’s attorney was allowed to thus contradict and reflect upon appellant, who had testified that he had never been indicted and had never testified in a case, by the unsworn assertion of the state’s attorney. This court has said that. if the state’s attorney desires to testify, he should take the witness stand. Walker v. State, 84 Tex. Cr. R. 136, 206 S. W. 96. This court has said that the state’s attorney should not go out of the record and without foundation make statements tending to show that the accused had been convicted of other offenses, or that his reputation is bad, or that what he has said is false. Harrison v. State, 102 Tex. Cr. R. 385, 278 S. W. 430; Carr v. State, 110 Tex. Cr. R. 644, 10 S.W.(2d) 719. Many other authorities might he cited. We think the argument of the state’s attorney uncalled for and unsupported by the testimony, and of a character to prejudice the rights of the accused before the jury and, because of their coming from a trusted and highly thought of officer of the court, it is impossible for us to estimate the effect of such argument in bringing to the jury belief that the explanation given by the appellant of his possession of the liquor was untrue.

The matters complained of in bills of exception Nos. 1 and 3 will not occur upon another trial.

The judgment will be reversed, and the cause remanded.


author: CALHOUN, J.

text:
    LOPEZ v. STATE.
    No. 14282.
    Court of Criminal Appeals of Texas.
    April 22, 1931.
    George P. Brown, of Edinburg, and L. J. Polk, o-f Pharr, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, murder; penalty, ninety-nine years in the penitentiary.

The record is.before this court without either statement of facts or bills 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:
    CORNUTT v. STATE.
    No. 14122.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    Rehearing Granted and Appeal Dismissed April 22, 1931.
    Motion for rehearing granted, opinion of affirmance set aside, and appeal ordered dismissed. '
    Will R. Saunders, of Pampa, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

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

No statement of facts is brought to this court.

The only tangible thing found in the record which would ordinarily form a basis for action by this court is appellant’s objections to the charge of the court. All of such objections turned upon a claim that certain instructions were not justified by the evidence. Manifestly it is impossible for the court to appraise such objections in the absence of the statement of facts.

The judgment is affirmed.

On Motion for Rehearing.

In- his motion for rehearing appellant challenges the jurisdiction of this court, predicating it upon a claim that no sentence was ever pronounced against appellant, and that, while the minutes of the court below show a sentence which was brought forward in the transcript, yet that in truth and in fact no sentence was ever pronounced. It is so well settled that in the absence of a sentence this court is without jurisdiction there is no necessity to cite particular cases. Many are collated in the notes under section 20, Texas Jurisprudence, vol. 4.

“The court of criminal appeals shall have power, upon affidavit or otherwise, to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction.” Constitution of Texas, art. 5, § 5. Under the foregoing provision of the Constitution this court is not confined to the record in determining a contention that it is without jurisdiction. See section 130, vol. 4, Texas Jurisprudence, and cases cited thereunder; among them being Vance v. State, 34 Tex. Cr. R. 395, 30 S. W. 792; Ex parte Cole, 14 Tex. App. 579.

Section 327, vol. 4, Texas Jurisprudence, reads as follows: “The appellate court is bound by, and must take the record as it finds it, and, as a rule, it cannot consider matters not shown by the record. The record may not be contradicted, impeached, changed or amended by ex parte affidavits, except where the jurisdiction of the appellate court is involved.”

Attached to appellant’s motion for rehearing is a copy of the trial court’s docket relating to appellant’s case upon which there is no notation regarding the pronouncing of a sentence. Also there is attached the affidavit of the clerk which states that-the transcript in appellant’s case' was made at the direction of the trial judge; that the purported sentence found therein was copied from the minutes of the court: “ * '* * but that in truth and in fact this affiant does not know whether sentence was ever imposed upon the-said Luke Cornutt by‘the Court; that this af-fiant was not in the courtroom'at the time sentence, if any, was imposed, and affiant does not know of his own personal knowledge whether sentence was imposed upon the said Luke Cornutt by the Court. Affiant further says that no sentence was ever written up and filed with the papers in said cause, and that the only reason that said sentence was placed upon the minutes was that he just naturally supposed that in as much as the defendant had been tried and convicted, .the Court did impose sentence, but that he does not know of his own personal knowledge whether sentence was imposed.”

Also attached to the motion is the certificate of the sheriff of the county, who says, “To the best of my knowledge Judge Pickens did not sentence Luke Cornutt in district Court.” There is also attached the affidavits of appellant and his wife; also those of W. J. Skaggs and W. A. Powers, sureties on appellant’s recognizance; also the affidavits of Tom Lawson, Tom L. Shelton, C. E. Goold, Mrs. C. E. Goold, and John Beverly. The affidavits of the nine last designated parties state that they were in the courtroom when appellant was brought in to have his motion for new trial acted on and that they remained there until he was released on recognizance, and that no sentence was ever passed upon him. The only controverting affidavit is filed by the trial judge, stating that he is positive that he did pronounce sentence on appellant and has a distinct personal recollection thereof. He states facts which came to his knowledge regarding one of the sureties on appellant’s recognizance which would doubtless impress him regarding the recognizance, but which are not especially pertinent on the issue of passing sentence.

It is álways embarrassing for this court to be called upon to determine a matter such as is here presented. We are quite certain that whatever disagreement has arisen as to1 the sentence resulted from an honest difference in recollection as. to the transaction. The great number of affidavits supporting the claim that no sentence was pronounced against appellant raises such serious doubt, about the matter that wé feel it should be r&solved in favor of appellant’s contention. Appellant may be sentenced under the provisions of article 772, C. O. B., upon the return of the mandate from this court.

The motion for rehearing is granted, the opinion of affirmance is set aside, and the appeal is ordered dismissed.


author: •CALHOUN, J.

text:
    OWENS v. STATE.
    No. 14304.
    Court of Criminal Appeals of Texas.
    April 22, 1931.
    W. A. Hogan, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   •CALHOUN, J.

Offense, failure to support and maintain child; penalty, six months in the county jail.

The record is before this court without either statement of facts or bills 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.


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

text:
    ANDERSON v. STATE.
    No. 14136.
    Court of Criminal Appeals of Texas.
    April 8, 1931.
    Rehearing Denied May 6, 1931.
    Sam K. Wasaff, of Midland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The possession of intoxicating liquor for the purpose of sale is the offense; penalty assessed at confinement in the penitentiary for a period of one year.

. Upon a search of the appellant, the sheriff found four bottles of whisky. The bottles and their contents were introduced in evidence.

The appellant testified in his own behalf, in substance, as follows: He worked at a filling station where the sheriff took from his possession four bottles of whisky which were in the lining of his coat. He had purchased the whisky early that morning for his own use and not for sale. The total quantity on hand at the time of the arrest was less than a quart. Appellant did, not know the name of the man from whom he purchased the whisky, but described him as a tall slim black-headed fellow.

At the time of the appellant’s arrest, the officers had a Warrant which had been issued upon a complaint filed by a person named Jack Woolsey, charging the appellant with the sale of whisky. Woolsey was in jail some four or five months for theft, and the day after he was released he turned in a number of complaints against persons for selling whisky. The sheriff could not say whether Woolsey had been furnished money for use in entrapping whisky sellers or not.

The appellant testified that he had never sold whisky to Jack Woolsey or any one else; that when he was arrested upon the warrant mentioned was the only time he had ever been charged with selling whisky; that the man from whom he bought the whisky was a total stranger, and had about a gallon of whisky in a jar which was carried under his arm. The seller of the whisky claimed to have been in jail and said that he was in need of money. Appellant claimed that h.e paid ip5 for the liquor, and intended to take it to his home.

The indictment is regular. We find no bills of exception complaining of the rulings of the court upon the rejection or admission of evidence; nor are there any exceptions to the manner in which the court instructed the jury. In fact, there is nothing presented for review save the contention of the appellant that there should be a reversal for the reason that he was entrapped into the purchase of the liquor by an agent of the enforcement officers and cites various precedents upon the subject of evidence secured through a detective who aided in committing the crime. The subject has been discussed by this court on many occasions, among them Guyer v. State, 37 Tex. Cr. R. 489, 36 S. W. 450; Berry v. State, 111 Tex. Cr. R. 281, 12 S.W.(2d) 581. This court has never commended the practice mentioned, but has been constrained, in .deference to the verdict, to support convictions upon testimony of the character mentioned. In the present instance, however, we fail to perceive any tangible evidence supporting the appellant’s theory mentioned.

Finding no errors presented for review and perceiving none of a fundamental nature, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

We have re-examined the statement of facts in response to the motion for rehearing, and find no occasion to change the conclusion heretofore announced.

The motion for rehearing is overruled. •