author: WOODLEY, Judge.

text:
    Clifton JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 38343.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    Elbert V. Pollan, Charles A. Dickerson, Rosenberg, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is assault with intent to rape; the punishment, 50 years.

The indictment returned May 13, 1957, alleged that appellant, on or about the 21st day of January, A.D. 1957, did unlawfully make an assault upon the prosecutrix, a woman therein named, with the intent to commit the offense of rape upon her by then and there, without her consent, attempting by force, threats and fraud to have carnal knowledge of her.

On May 22, 1957, appellant waived a jury and pleaded guilty to the charge in the indictment and after hearing the evidence the trial judge entered judgment and pronounced sentence against him, his punishment having been assessed by the court at 50 years in the penitentiary. Appellant did not appeal.

On January 4, 1965, judgment was rendered in the District Court of the United States for the Eastern District of Texas upon the basis of the holdings of this Court in Bennett v. State, Tex.Cr.App., 382 S.W.2d 930, and Ex parte Gudel, Tex.Cr.App., 368 S.W.2d 775, granting the petition of the appellant herein for writ of habeas corpus and directing that he be promptly remanded to the custody of the Sheriff of Fort Bend County to answer the indictment herein, he to be fully accorded the provisions of Art. 494 of the Texas Code of Criminal Procedure on his retrial.

While we do not find in the record any order appointing counsel to defend appellant, the record does reveal that he was represented by counsel, both at his trial before the court on his plea of guilty; at his retrial before a jury on his plea of not guilty, and on this appeal.

The judgment and sentence on his plea of guilty before the court recite that appellant was adjudged to be guilty of the offense of “attempted rape.”

Appellant, having sought and obtained judgment in the Federal Court nullifying such conviction, is in no position to complain that he could not be retried under the same indictment for the offense therein charged.

The court, in his charge, instructed the jury to acquit appellant if they had a reasonable doubt as to whether he assaulted the prosecutrix and further instructed that even though the jury believed beyond a reasonable doubt that he did assault her, yet, if they had a reasonable doubt as to whether or not at the time he did so he had the specific intent to have carnal knowledge of her by force, without her consent and against her will, they would acquit appellant of the offense of assault with intent to rape. The court also charged the jury on aggravated assault.

The sufficiency of the evidence to sustain the jury’s finding that appellant assaulted the prosecutrix with the specific intent to have carnal knowledge of her by force and without her consent is challenged.

The statement of facts reveals that the prosecutrix was the wife of an assistant warden at Central State Farm; that appellant, a convict and a “trustee”, was a “house boy” in her home. He had access to the outside and was free to walk out of the house and around the yard.

The assistant warden returned to work after lunch, on the day named in the indictment, leaving his wife, the prosecutrix, alone with their five year old daughter. Appellant, having locked or latched the doors of the house on the inside, called to the prosecutrix from the end of the hall and told her that she was wanted at the front of the house. As she passed him in the hall appellant grabbed her and held her “very tightly against him” and held a butcher knife at her throat She started screaming and he momentarily loosened his hold upon her and she ran a few steps; he grabbed her again and held the knife to her throat again. Still screaming, she tried to go out a door but found it locked. Appellant grabbed her again and shoved her down on a divan several times. She continued to scream and appellant finally desisted and fled from the house, breaking the latched screen door through which he left.

Sitting in his car in front of the unit where convicts were confined, Warden Husband heard a woman screaming. He saw the prosecutrix and went to look for appellant and found him.

Appellant did not testify and offered no evidence.

While appellant said nothing during the attack, but merely made grunting sounds while holding her close in a manner she demonstrated before the jury, the evidence, including the latched doors which would prevent anyone from entering, and the absence of any restraint upon appellant leaving the house at will, is deemed sufficient to sustain the jury’s finding that appellant had the specific intent to have carnal knowledge of the prosecutrix by force and without her consent.

The judgment is affirmed.


source: Caselaw Access Project

author: BELCHER, Commissioner.

license: Public Domain

text:
    J. W. MULLINS, Appellant, v. The STATE of Texas, Appellee.
    No. 38550.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1965.
    Rehearing Denied Jan. 19, 1966.
    Dennis P. Ratliff, Haskell, Scarborough, Black, Tarpley & Scarborough, by Davis L. Scarborough, Abilene, for appellant.
    Roy Adkins, Dist. Atty., Haskell, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, fifteen years.

The testimony offered by the state reveals that after the appellant and Herman Lacey left a drive-in about 11:30 A.M. in appellant’s pickup, the appellant said, “Would you like to play a little?,” and Lacey answered, “Yeah, I guess so,” and the appellant replied, “Well, maybe we can find something,” and drove about three or four blocks and turned in the driveway at Hazel Newton’s house. Appellant stayed in the pickup while Lacey knocked on the front door. When no one answered he went to the rear door. When Hazel Newton answered he asked if she wanted to play a little and she slammed the door closed. Lacey returned to the pickup and said, “Let’s go,” and appellant replied, “No.” As the appellant started toward the front door, the deceased, who lived next door, came out of his house and told appellant that Hazel Newton was not at home. When appellant returned to the pickup Lacey said, “Well, I know she is, I just talked to her at the back door.” According to Lacey the appellant then asked the deceased why he lied to him, telling deceased that Lacey had just talked with Hazel Newton at the rear door. The deceased called appellant a “damned liar,” and the appellant said, “I will just whip you,” and he got out of his pickup and went over to the deceased. After a brief time the appellant lunged at the deceased, and the deceased hit him in the head with a brick.

Hazel Newton testified that she had known the appellant eight or nine years and that he frequently came to her house; that after Lacey left she heard the deceased say she was not at home because she had told him the day before that she would not be there; that she heard the appellant say: “What do you know about it? You don’t have a right to tell her what to do,” and appellant jumped out of his pickup, and went across her yard to the deceased’s house, and while deceased was on the walk and the appellant was on the north side of it the deceased said, “Johnny (appellant), put up your knife, put up your knife,” and Lacey went after the appellant and they soon left the scene. She further testified that about one month before this difficulty, the appellant told her that he was going to do away with the deceased and showed her a chain which he said he had for his neck.

Danny Stewart, age 11, who lived across the street testified that while the deceased was on his porch, the appellant went toward the porch, and shoved the deceased down, they began fighting, and the deceased bent over and appellant went back to the pickup.

It was stipulated that the deceased was cut by the appellant on the occasion in question with a knife.

Dr. Brooks, a physician, who performed the autopsy on the body of the deceased, testified that he suffered a cut wound five inches long in the lower part of the abdomen, and that in his opinion pulmonary infarct was the cause of death.

While testifying, the appellant admitted cutting the deceased one time with a knife but said he did it in self-defense. The appellant testified that after having several drinks of whiskey with his friends between 9 and 11:30 A.M., he was driving his pickup along a street accompanied by Herman Lacey, when Lacey asked him to drive in the driveway at Hazel Newton’s house and wait until he could see her. After stopping as asked, Lacey got no response at the front door. While Lacey went to the rear door, the deceased who lived next door, opened his front door and said, “She is not there, she left early this morning,” and appellant nodded his head. When Lacey returned he said Hazel Newton was there, that he talked with her, and the appellant, while seated in the pickup, said to the deceased who was at the door of his house, “Why do you want to lie to me for?,” and the deceased ran from his house saying, “You ——-—, I will kill you.” The deceased then grabbed three bricks, and hit the appellant in the head with the first one, missed when he threw the second, and with the third brick in his hand he ran toward the appellant, who drew his pocket knife and cut the deceased to keep him away; and that the cutting part of the blade was two and one-half inches long. After the appellant cut the deceased, the deceased struck at him again and then walked toward a neighbor’s house. The appellant testified that he never went over to deceased’s place, and he was never near the sidewalk that ran from deceased’s house to the street.

It is insisted that the state erred in introducing evidence of previous misconduct and of other offenses which the appellant was not charged with in this prosecution, and in doing so violated instructions of the court.

The formal bill reflects that the trial judge, prior to the reading of the indictment, announced in the presence of the attorneys for the state and the appellant that he would not permit any proof of prior sexual relations between the appellant and Hazel Newton. The bill further reflects that the state’s witness Lacey testified on direct examination that after passing some women the appellant asked him if he “would like to play a little,” and then Lacey was asked if appellant said in his presence “he knew where he could get some pretty good stuff,” which was not answered due to the sustaining of appellant’s objection that the witness Newton, when asked if appellant was a frequent visitor to her house, said he had been there three times a day “maybe two”; that Nellums, a neighbor, testified he had seen the, appellant at Newton’s house on more than one occasion; and another testified that appellant had been at Newton’s “off and on all time.” On cross-examination of appellant he was asked if he had not said where they could get some good stuff and also that “Miss Newton wasn’t any stranger to you?”

There is evidence in the record without objection of the circumstances surrounding the difficulty and the previous relationship of the parties. No proof was offered of any prior sex relations as the court had announced. In considering appellant’s contention in the light of the same or substantially the same evidence admitted without objection, no reversible error is shown.

It is contended that the state, in offering the trousers of the deceased into evidence, created a prejudice against the appellant and inflamed the minds of the jury, and such evidence warrants a reversal of this case.

No witness for the state testified to actually seeing a knife. No knife was introduced in evidence. The state never had possession at any time of the weapon used. The only description of the knife was from the testimony of the appellant. According to the testimony the trousers show a four inch cut in front below the waist band, that the metal zipper was severed, but there is no testimony of blood on them or of any repulsive condition. No reversible error is presented. Garza v. State, 159 Tex.Cr.R. 105, 261 S.W.2d 575. It is observed that after the trousers were introduced it was stipulated that the deceased was cut by the appellant with a knife. The stipulation was made after ten state witnesses had testified including three who were at the scene of the difficulty at the time it occurred.

The appellant contends that the evidence is insufficient to show that the knife was a deadly weapon, and also is insufficient to show an intent to kill.

The knife used was never exhibited at the. trial or introduced in evidence. The court instructed the jury that the knife in question was not a deadly weapon in itself; and that the law did not presume that appellant intended to kill the deceased by the use of the knife in question.

The facts and circumstances as above related in the summary of the facts are sufficient to warrant and support the finding of the jury that the appellant intended to kill the deceased by cutting him with a knife.

It is insisted that the evidence is insufficient to “establish as a matter of law, beyond a reasonable doubt, that the death of C. F. White (deceased) was due to the cutting in his abdomen.”

Immediately after the deceased was cut about 11:30 A.M., December 12, 1964, he approached a neighbor’s house seeking aid while holding a portion of his intestines in his hands which were protruding from his abdomen, and he was taken to the hospital.

Dr. Cadenhead testified that the deceased suffered an incision about five or six inches long and two or two and one-half inches deep in the abdomen; that the cut was through the abdominal cavity, through a portion of the bowel, and also cut the blood veins in the mesentery, and they repaired the little artery and sutured up his mesentery; that he progressed very well for about ten days, when according to the nurse he was doing fine at 6 A.M. and on seeing him an hour later at 7 A.M. he was dead. To determine the actual cause of his death, Dr. Cadenhead requested an autopsy.

Dr. Brooks testified that he performed an autopsy on the body of the deceased and expressed the opinion that pulmonary infarct was the immediate cause of death; that his examination revealed a recently repaired five inch wound in the mid-line of the lower portion of the abdomen; that a cut in the mesentery and a break in the bowel had been repaired; that he found a blood clot at a place in the venous vessels from which in his opinion the pulmonary embolus had originated; and that it was established that the clot did not develop where it was found, and that in his opinion the clot developed in the mesen-teric veins of the abdomen.

The evidence is sufficient to support the finding that, the cause of the death of the deceased was from a cutting with a knife inflicted by the appellant.

The appellant contends here as he alleged in his motion that the jury was guilty of misconduct which entitles him to a reversal on the ground that the jury speculated on the time appellant would have to serve and then assessed the punishment which they thought would accomplish that result. The four jurors who were called to testify in support of the motion refused to sign affidavits.

After finding the appellant guilty of murder with malice, the jury sent the trial judge a note asking how much time one would have to serve on a certain sentence. The judge declined to answer the question.

Juror Barbee testified that after concluding that the appellant would not have to serve the full fifteen years, and notwithstanding whether he would have to serve four or five years, his verdict would have been the same.

Juror Cox testified that he did not know how much time the appellant would have to serve, but he was of the opinion that he would not have to serve the full fifteen years on which they agreed.

Juror Glover testified that he knew there was a parole law but did not know the length of time that would have to be served on any certain sentence.

Juror Alvis, the foreman, testified that they did not know how much credit a person would get on a sentence: and when he started trying to figure, Juror Barbee, who had been holding out, said no use to figure “We will make it unanimous.”

The matters discussed by the jurors did not violate any statute and were not so obviously improper or incorrect as to call for a reversal.

No evidence was offered by the state on the hearing.

The trial court did not abuse its discretion in refusing the motion for a new trial.

The court charged the jury upon the law of murder with and without malice, aggravated assault, simple assault, and self-defense against real and apparent danger and the protection of his property, the pickup.

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

Opinion approved by the Court.


author: McDONALD, Presiding Judge.

text:
    Arnold C. RENDON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 38878.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    No attorney of record on appeal for appellant.
    James E. Barlow, Dist. Atty., Raymond A. Wietzel, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is assault with intent to rape; the punishment, 20 years.

Appellant was indicted for the offense of rape of a female under the age of 18 years. Upon motion of the State, the offense was reduced to the lesser included offense of assault with intent to rape. Appellant in open court while represented by counsel waived the right of trial by jury, and the case was tried before the court upon appellant’s plea of guilty.

The statement of facts reflects that appellant personally and by counsel waived the appearance, confrontation and cross-examination of witnesses Emilia Martinez, mother of the prosecutrix; Florence Martinez, the prosecutrix; and Hector Samani-ego, Deputy Medical Examiner of Bexar County. He stipulated that if these witnesses testified, each would testify in accordance with his respective sworn affidavit, which three affidavits were introduced into evidence without objection by appellant. Appellant further stipulated that he was the same person charged in the indictment, and that if the prosecutrix testified she would testify that she was not the wife of appellant and that the offense occurred in Bexar County.

Following is a summary of the facts, reflected by these affidavits and appellant’s stipulations, as well as testimony of the Bexar County Deputy Medical Examiner.

Mrs. Emilia Martinez, mother of the prosecutrix, met appellant and a companion at about noon on January 19, 1965, when the two offered her a ride as she was waiting for a bus. She accepted their invitation, and as they rode along, the conversation, in which Mrs. Martinez disclosed that she was separated from her husband, culminated with the suggestion by appellant that he and Mrs. Martinez “go for a ride that night.”

After picking up Mrs. Martinez at her home that evening, appellant drove out of the city and parked the automobile, and then attempted to make advances which were not appreciated by Mrs. Martinez. When he persisted, and she continued to resist, they mutually arrived at the conclusion that she should walk home.

Appellant then drove back to Mrs. Martinez’ home and picked up her 13 year old daughter Florence, the prosecutrix, who was persuaded to accompany appellant when he told her he was taking her to her mother. He drove to a bushy, deserted area, stopped the automobile, and proceeded to hug and kiss her. Then, in the words of the prosecutrix:

“I was wearing peddle pushers and he just held me and he took them off and he unbuttoned my shirt. Then he took off his pants and he forced me to lay down on the front seat of the car and he got on top of me and he put his private part into my private part. When he did this to me it hurt. This man did not hit me or anything, but he was very strong and he just forced me to do this thing. I was very frightened of the man.”
“While this man was on top of me, a car drove up and it was a police car. The man that I was with said for me to get out of the car and run. I didn’t know what else to do, so I got out of the car and ran behind some bushes. I was afraid to go back to the car, but the police saw me run into the bushes and they came and found me. I told the policeman what had happened.”

The police officer took the prosecutrix to be examined by the Deputy Medical Examiner, who testified that there was not evidence of violence or fresh tears, but that an examination of the prosecutrix’ vagina disclosed spermatozoa.

In view of the stipulations made by appellant, and in the absence of any objection to the admission into evidence of the sworn affidavits of the witnesses, these stipulations and affidavits were properly received into evidence. They adequately comply with Articles 11 and 12, Vernon’s Ann.C.C.P., and are sufficient to support appellant’s conviction. Griffith v. State, Tex.Cr.App., 391 S.W.2d 428.

The record submitted without brief by appellant contains no formal bills of exception, and there are no informal bills of exception in the statement of facts. Sentence was pronounced on May 13, 1965, and recites, as does the statement of facts, that appellant waived the statutory 10 days allowed for filing a motion for new trial. On May 24, appellant filed a motion for new trial which the trial court overruled on the theory that it was not timely filed. Under these circumstances, the trial court was not bound to consider appellant’s motion for new trial. Isaacs v. State, Tex.Cr.App., 391 S.W.2d 421.

There appearing no error in the record, the judgment is affirmed.


text:
    Billy Mack WALKER, Appellant, v. The STATE of Texas, Appellee.
    No. 38877.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    Norman Kinne, Mike Barclay, Dallas, for appellant.
    Henry Wade, Dist. Atty., Jim Miller, Jim Zimmermann and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is burglary; the punishment, twelve years confinement in the Texas Department of Corrections.

The facts in this case are virtually the same as those in Anderson v. State, Tex.Cr.App., 391 S.W.2d 54.

State’s witness, W. J. Cooper, testified that he owned Cooper’s Grocery Store in the City of Garland, Texas. The witness testified that this grocery store is a business house consisting of four walls, a ceiling, and capable of being locked, and that on June 19, 1964, the contents of said business house were his corporeal personal property; that he owned and occupied said business house, and that he did not give anyone permission to break into this store or to take anything therefrom. Mr. Cooper testified that among the things in his store was a safe, and that about 7:00 a. m. on the morning of June 20, 1964, he went to said store and found that there was a hole in the ceiling of said store and that the safe had been removed. Subsequently, Mr. Cooper went to the Garland Police Station where he saw and identified the safe that had been taken from his grocery store. Mr. Cooper testified that said safe contained around $6,058.00 in United States currency and that the knob to the safe had been knocked off.

The State called Gerald D. Husketch, Garland Police Department, who testified that at about 3:45 a. m., June 20, 1964, he was on routine patrol going North on Shiloh Road; that he had occasion to notice a car traveling South on Shiloh Road that had stopped and turned around and went back North on Shiloh with its lights off. He testified that he followed the car North on Shiloh to Beltline Road where the car turned onto Beltline; the car’s lights were turned on before reaching the intersection of Beltline Road, and the car had traveled approximately one fourth of a mile with its lights off. Officer Husketch testified that he signaled the car to stop with his red lights on Beltline Road, about 300 feet East of Jupiter Road. The record reveals that Officer Husketch stopped his vehicle behind the suspect car. At the time when Officer Husketch saw the car turn left on Beltline Road, he noticed two people in said car. The record reflects that after said vehicle was stopped, the driver-appellant got out and came back between the two vehicles where, upon Officer Husketch’s request, he handed Officer Husketch his driver’s license, which identified him. After examining the driver’s license, Officer Husketch walked up to the suspect vehicle and shined his flashlight inside the car and observed a white male lying in the back seat of the vehicle. He also observed a brown satchel on the back floorboard with two prybars protruding therefrom, and another white male lying in the front seat of said suspect vehicle. Officer Husketch testified that he saw two walkie-talkie radios underneath the subject seated in the back of the car. Officer Husketch then had the two passengers in the car get out, whereupon he searched the person of appellant and the two passengers for weapons. In such search, Officer Husketch found a padlock and a set of keys on the person of Jackie F. Anderson. Shortly thereafter, more police units arrived at the scene, and a complete search was made of the vehicle.

Officer Husketch testified that at the time when the appellant first got out of the car and presented his driver’s license that appellant was not free to go at that time, hence, technically was under arrest. Officer Husketch further testified that he stopped appellant’s automobile for driving without headlights. After the arrival of the other police units, the complete search revealed a floor safe located in the left rear floorboard of the vehicle, covered over with a coat; a Smith & Wesson revolver, a brown briefcase, a .38 caliber pistol was found under the left front seat, and the officers also found some dynamite blasting caps under the right front seat of the car. A 1964 license plate was found under the left front seat of the vehicle. The brown satchel bag was found to contain an electric drill, a brace, flashlight, brace and bit, vice grip pliers, chisels, two prybars, a screwdriver, drill bits, another screwdriver, and wire cutters.

Appellant was identified as the man that Officer Husketch saw driving the car.

Appellant and the other two subjects were subsequently taken to the Garland Police Station.

Officer Husketch stated he gave the operator of said suspect vehicle a traffic ticket for operating said vehicle without lights.

We find the evidence sufficient to sustain the jury’s verdict.

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

There are no formal bills of exception.

Appellant brings forward by numerous informal bills of exception his objections to various questions asked concerning the search of the automobile and the persons of appellant and his companions. Briefly stated, appellant predicates his appeal upon the premise that the search of the automobile which the appellant was driving and the seizure of property found in such search, was illegal and in violation of appellant’s rights under the Constitutions of the United States and the State of Texas. Appellant narrows his contention down to the case at bar and contends that the police authorities in this or any other state have no right to search an automobile solely as a search incidental only to an arrest for a traffic violation, such as driving without headlights.

Appellant cites and relies upon the case of Pruitt v. State, Tex.Cr.App., 389 S.W.2d 475, a case authored by the writer. In that case Pruitt was stopped by a patrolman to check his driver’s license. The driver’s license presented by Pruitt was valid. We said there: “A licensee is not under arrest during this examination period. It is only when he is without a valid license in his possession that he becomes a law-violator.” We held that the finding of a valid driver’s license “terminated the patrolman’s responsibility in this matter.” Pruitt was not arrested for any traffic violation, and the ensuing search was held to be illegal and not the incident of a lawful arrest.

Another distinguishing point is that Pruitt was doing nothing to attract the attention of the arresting officer, while here we have a case of an officer on routine patrol in a sparsely settled area who met an oncoming automobile which, at a point where the patrol car was or could be recognized as such, abruptly halted, turned around, cut off its lights and proceeded without lights in the direction from whence it came. The circumstances were sufficiently suspicious to require the officer to make inquiry. Anderson v. State, Tex.Cr.App., 391 S.W.2d 54 and cases there cited. Pruitt does not support appellant’s position.

We commend counsel for their diligence.

Finding no reversible error, the judgment is affirmed.


text:
    Charles Dewayne FULLER, Appellant, v. The STATE of Texas, Appellee.
    No. 38876.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    No attorney of record on appeal for appellant.
    Henry Wade, Dist. Atty., Jim Miller, Jim Zimmermann and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, fifty years.

This is a companion cause to Washington v. State, Tex.Cr.App., No.33,873, dated January 5, 1966, not yet reported.

Jean Carter, age 17, testified that she began dating Jackie Washington in 1962, and after her mother objected they continued, which was unknown to her mother, and their last date was August 26, but they talked by telephone about 4 P.M., August 29; that she first met the deceased about three weeks before his death August 30, and frequently dated him; that they were together Saturday night, August 29, and returned home about midnight, parking his car in the driveway; that after they ate, she and her mother were doing some housework while the deceased sat where he could be seen through the front door from the street; that about 2 A.M., August 30, they heard a noise and when the deceased went out on the porch he was shot; and they notified the police. The testimony of Jean’s mother corroborates that of Jean as to the circumstances immediately surrounding the shooting.

A next-door neighbor of the Carters, Ruby Bynum, testified that about 5 P.M., August 29, she saw Jackie Washington knock on the front door of the Carter house, slam the screen and go to the side door where he got no response and slammed it and returned to the front door where he repeated his acts, and as he was going to the side door again she spoke to him and he left the premises; that during this time he had an open knife in his hand; and that night she heard a shot and someone running, and then saw a man lying on Carters’ front porch.

The testimony further reveals that shortly after 11 P.M., August 29, Jackie Washington, in his car, began trying to locate a shotgun, and after several boys had Joined him they met the appellant who let him have his shotgun, and with seven in the car including the appellant they drove by the Carter home and saw the deceased who Washington said, had been “messing with him” in the house, and they parked nearby. Washington told the boys to hit the car in the driveway with some bricks and “when the guy came out he would get it.” Three of the boys threw bricks at the car and on returning to their car they heard a shot, and then Washington and appellant, who was carrying the gun, returned to the car. They soon separated with the appellant taking the gun with him.

In rebuttal the state introduced appellant’s written statement which reads in part as follows:

“Jackie drove by a house on Warren Street and we saw a ’64 car. Jackie said this was the stud’s car that was messing with his girl. Jackie parked by a alley close to this house. We all got out of the car except Lorenzo and Little Man. I stayed with Jackie, and Joe Nathan Lawrence, Charles Ellis and Carl went on a few feet ahead. These three were supposed to throw rocks at this stud’s car. They throwed the rocks and Jackie and me were behind some bushes. Jackie had given me the shotgun. A lady ran onto the porch, Jackie said, 'Don’t shoot, that’s the girl.’ Then I saw a man run out of the house to on the porch. That’s when I shot the gun one time. Jackie ran. I stood there because I heard the man holler. I got scared and ran back to the car. I put the shotgun up under the hood of Jackie’s car again and Lorenzo drove off.”

Testifying in his own behalf, the appellant stated that Jackie Washington said he wanted a shotgun to use to scare a man and he let him have his gun, and as they were passing a house Washington said he saw a man in the house watching television and they stopped nearby; that appellant told the three who got out of the car to hit the car in the driveway with some bricks, and “when he comes out I’m going to shoot the gun,” and after he told Washington about a defect in the gun he (Washington) handed the gun to him; that after the bricks were thrown a lady came out on the porch, the lights came on and he shot toward the steps of the house, someone hollered and they ran back to their car; that he intended to pull the trigger but thought he had the gun pointed toward the steps; and that he never saw a. man on the porch.

An independent finding was made by the court before the close of the evidence that the written statement of the appellant introduced in evidence by the state was voluntarily made.

The court charged the jury upon the law of principals and murder with and without malice, aggravated and simple assault, the voluntary nature of the confession and the suspension of sentence.

There are no formal bills of exception or objections to the court’s charge, and the informal bills have been considered and reveal no error.

The evidence sufficiently shows that the death of the deceased was caused by the gunshot wound; and the evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Kenneth Clyde VAN OSTRAND, Appellant, v. The STATE of Texas, Appellee.
    No. 38874.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    Dennis G. Brewer, James W. Deather-age, Irving, for appellant.
    Henry Wade, Dist. Atty., Curtis Glover, Donald Koons and W. John Allison, J'r., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is drunk driving; the punishment, 3 days in jail and a fine of $50.

The verdict of the jury which the trial court received and upon which the judgment of conviction was rendered recites that the jury found the defendant guilty as charged and fixed his punishment “at confinement in the county jail for Three -and by a fine of $50.00.”

The verdict assessed no definite punishment and for that reason is fatally defective. McCarty v. State, Tex.Cr.App., 317 S.W.2d 748; Slaughter v. State, 170 Tex.Cr.R. 16, 336 S.W.2d 944, and cases cited; Ex Parte Traxler, 147 Tex.Cr.R. 661, 184 S.W.2d 286, and cases cited.

The judgment is reversed and the cause remanded.


text:
    Albert MASKILL, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 38892.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    No attorney of record on appeal for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Charles E. Bonney and Jimmy R. James, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin for the State.
   BELCHER, Commissioner.

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

The state’s witness Clyde A. Moody, Sr., testified that when awakened about 11:30 P.M., he saw a man coming through his front yard going toward his garage at the rear of the house; that he alerted his son and got his shotgun, and his son went out the front, and as he turned on a flood light he heard a noise in the garage, and on running to the garage he saw a man under his car except for his feet protruding and ordered him out, and he identified the appellant at the trial as the man who was under his car; that appellant claimed he was looking for his dog and called his dog but he never saw any dog except his own. After Moody directed appellant to stand by the garage until the officers arrived, the appellant kept moving for a position to “jump” him or get his son between them, and then when appellant ran Moody pursued and shot him to prevent his escape. Shortly thereafter the officers arrived. Moody testified that after investigation he found that his rods and reels had been taken from their regular place in the garage, and were found beside the garage where they had fallen which was about twenty feet from the place they were kept; that the value of such property was in excess of fifty dollars and that he did not give the appellant or anyone his consent to take them. In appellant’s automobile, parked in front of the Moody home at the time in question, were found a tool box, a complete set of tools and a carburetor breather which Clyde Moody, Jr., identified as belonging to him, and he testified that this property had been taken from his automobile nearby without his consent.

Testifying in his own behalf, the appellant stated that he lived about three blocks from Moody, and was on his way home after going to get some coffee, when he saw his dog, and then began a search for the dog. During the search he walked by Moody’s house, calling his dog, and when the dog went to the rear of the garage he went in the garage and while looking under the car Moody came. The appellant denied seeing or moving any rods and reels; and also denied getting any tools, tool box or breather from another car which were found in his car in front of the house; and stated that he had no explanation for them being in his car.

The testimony of appellant’s wife corroborated his testimony as to the trip for coffee and his search for the dog.

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

Opinion approved by the Court.


text:
    Richard A. HELMUS, Appellant, v. The STATE of Texas, Appellee.
    No. 38728.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1965.
    Rehearing Denied Jan. 19, 1966.

      Blanchard, Clifford, Gilkerson & Smith, John J. C. O’Shea, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., J. H. Schuetzeberg, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Appellant was indicted for murder with malice; the indictment reads as follows:

“ * * * did then and there unlawfully and willfully and voluntarily with his malice aforethought kill Jeffrey Helmus by striking him with his hand, and the said Richard A. Helmus did then and there unlawfully and willfully and voluntarily with his malice aforethought kill Jeffrey Helmus in some manner and by some means, instrument or weapon to the Grand Jury unknown, against the peace and dignity of the state.”

Trial was had before a jury and the appellant was found guilty of the offense of aggravated assault, a lesser included offense of the charge in the indictment. Punishment was assessed at confinement in the county jail for two (2) years.

The sole contention urged by appellant is that the trial court erred in refusing to grant his motion to quash the indictment on the theory that it is fundamentally defective as it is repugnant because it contains allegations inconsistent with each other in the same count, all of which cannot be true.

Appellant cites us a definition of repug-nancy taken from the early case of Pisano v. State, 34 Tex.Cr.R. 63, 29 S.W. 42, but he did not oblige us with the holding in that case. We shall do so. In that case a motion was made to quash the indictment, because it charged no offense; because it was repugnant; and because it was duplicitous, and charged two separate and distinct offenses. The indictment contained two counts. The first alleged theft of four horses from Miguel de la Garza; the second charging theft of four horses from Reyes Pena. This court held:

“In order to constitute duplicity, two or more distinct felonies must be averred in the same count. In this indictment distinct offenses are apparently set out in different counts. This is the proper practice. If the evidence develops distinct transactions, the state should be required to elect upon which count the conviction would be asked. As to repugnancy, it may be stated, in a general way, to consist in pleading two inconsistent allegations in the same count. It does not apply to repugnancy •which of necessity exists between different counts in the same indictment. (Emphasis added.) The exceptions are not well taken.”

It may readily be observed that the definition taken out of context means one thing but read in proper context means another.

In his brief appellant cites and correctly quotes a definition of repugnancy taken from Brown v. State, 96 Tex.Cr.R. 409, 257 S.W. 891:

“An indictment is said to be ‘repugnant’ when in the same count it contains allegations inconsistent with each other, both of which cannot be true and there is no means of ascertaining from the face of the indictment which is meant.”

In the Brown case the appellant there advanced the theory that the indictment offended against the rule against repugnancy in that it alleged that appellant was the keeper of a gambling house, and also that he permitted the house kept to be used for the purpose of gaming, and that these are separate offenses denounced by statute. This Court then stated the above definition of repugnancy and further stated that “[a]n indictment is ‘duplicitous’ when in the same count two separate offenses are charged, or in which two or more phases of the same offense are charged, each carrying a different punishment.” Speaking through Presiding Judge Morrow, this Court held: “This indictment may be duplicitous, but we fail to perceive its repugnancy. That it was duplicitous did not render it subject to attack after verdict.”

Alexander v. State, 27 Tex.App. 94, 10 S.W. 764 also cited by appellant, was an appeal from a conviction for the offense of a fraudulent sale and disposition of mortgaged property. The indictment did not allege to whom appellant sold or disposed of the property, or that such person was unknown to the grand jury. This Court held, and we agree, that it is essential that the name of the person should be alleged or that it be alleged in the indictment that the name of such person was unknown to the grand jury, and such an omission was held to be a fatal defect. We can find no solace for appellant in this holding.

Burt v. State, 38 Tex.Cr.R. 397, 40 S.W. 1000, 39 L.R.A. 305, 330, opinion on rehearing reported in 43 S.W. 344, is a landmark case in our jurisprudence. The opinion was written by Presiding Judge Hurt in 1897. We quote:

“A number of methods, modes, and instruments were alleged to have been used in the perpetration of the crime. The indictment alleges that it was ‘by then and there striking, beating, and wounding the said Anna M. Burt upon her head and face, with a hatchet and some heavy instrument, a better description of which the grand jurors are unable to give, thereby fracturing the skull and the bones of the face of the said Anna M. Burt, and by then and there tying tightly around the throat and neek of said Anna M. Burt a handkerchief, thereby strangling and suffocating the said Anna M. Burt, and by then and there wrapping around the head and body of said Anna M. Burt a blanket, and securely tying same thereon with rope, and then and there throwing said Anna M. Burt, so wrapped and tied, in a cistern partially filled with water, sufficient to submerge the body of said Anna M. Burt.’ This indictment is correctly drawn. Where there is doubt about how the death was produced, it is well to put every means suggested by proof in the indictment; and, if proof be made of one of the means, it is unnecessary to prove them all. It is not necessary to cite any authority to sustain this proposition.”

In Medina v. State, Tex.Cr.App., 49 S.W. 380, the indictment charged that the death of deceased was occasioned by defendant beating her with a stick and a whip, and by starving her, and by hanging her with a rope. Judge Henderson, speaking for this Court, said: “[W]e believe the same was a good indictment, and under it, in our opinion, proof could be made of all the causes; and, if any one was proved, it would be sufficient, or, if all were proved, and together they cooperated to produce the death of deceased, this could be done.”

Succinctly stated, the effect of the language in the indictment in the case at bar, when fairly construed, is to allege jointly the use of the several means therein stated to produce the effect charged.

It is well settled from opinions in later cases that several means of killing may be alleged in the same count. Whiteside v. State, 111 Tex.Cr.R. 116, 12 S.W.2d 218. Stanley v. State, 120 Tex.Cr.R. 450, 48 S.W.2d 279, was a murder case with a three count indictment, charging that appellant with killing by hitting and striking, and beating with a gun; by hitting, striking and beating with a bottle; and by killing in some manner unknown to the grand jury. Also, see Gentry v. State, 172 Tex.Cr.R. 345, 356 S.W.2d 793.

The sufficiency of the evidence is not before us. We have no statement of facts.

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


text:
    Benito Gonzalez GONZALEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 38480.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.
    Rehearing Denied Jan. 19, 1966.
    Roger Butler, Robstown, Luther E. Jones, Jr., Corpus Christi, for appellant.
    R. L. Lattimore, Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is murder; the punishment, 50 years.

The indictment alleged that appellant did voluntarily and with malice aforethought kill Matías Lara by shooting him with a gun.

The sufficiency of the evidence is not challenged. It shows that appellant and one Canales entered a tavern about 10 P.M. and ordered some food. The decedent Lara also entered the tavern and ordered a beer. Lara complained that Canales was bothering him at his table and the proprietor, Garcia, told Canales to “stop bothering Mr. Lara.” Canales invited Lara outside, and the two went out where they engaged in mutual combat in which no weapons were involved. While this struggle was going on appellant came out of the tavern and shot Lara with a pistol. He then walked to his pickup truck with the pistol in his hand and drove off.

Appellant told the officers who arrested him that he was “the one that shot that man at the beer joint” and produced the pistol.

Lara died as the result of the gunshot wound.

The sole ground upon which reversal of the conviction is sought is: “The conviction is invalid under the Due Process Clause of the 14th Amendment of the Federal Constitution.”

This contention is raised for the first time by brief and argument in this Court. It is predicated upon the court’s definition of malice aforethought in his charge to the jury, to which no exceptions were reserved.

The court instructed the jury:

“ ‘Malice aforethought’ includes all those states of mind under which the killing of a person takes place without any cause which will in law justify, excuse, or extenuate the homicide. It is the doing of a wrongful act intentionally, without just cause or excuse. It is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.”

This Court has held that the second sentence in the court’s definition standing alone is wrong. Simmons v. State, 113 Tex.Cr.R. 53, 19 S.W.2d 44; Hayes v. State, 14 Tex.App. 330 (cited with approval in Swilley v. State, 114 Tex.Cr.R. 228, 25 S.W.2d 1098, 1101.)

The same authorities and many others approve the last sentence of the court’s instruction as a proper definition of malice aforethought, and support our holding that the comprehensive definition which the court gave as a whole adequately defines malice aforethought.

The court’s definition appears to be identical with that set out in 4 Branch’s Ann. P.C.2d, Sec. 2194.1, p. 542, which this Court found to fairly and adequately define malice aforethought as recently as Garcia v. State, 396 S.W.2d 123, decided November 3, 1965. See also Glenn v. State, 172 Tex.Cr.R. 513, 360 S.W.2d 146; Spencer v. State, 130 Tex.Cr.R. 644, 95 S.W.2d 445.

In the absence of an exception to the court’s charge, the claimed error therein is not before us for review.

We find no merit in the contention that the conviction is invalid under the Due Process Clause of the 14th Amendment to the Federal Constitution.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Grady JOHNSON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 38692.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1965.
    Rehearing Denied Jan. 19, 1966.

      Donald W. Cantwell, Dallas, for appellant.
    Henry Wade, Dist. Atty., C. M. Turling-ton, Malcolm Dade and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the unlawful possession of marihuana; the punishment, fifteen years.

The state’s evidence shows that on the night in question Officers Bliss and Williams saw the appellant walking on a public road in the city of Dallas. When they observed that he was “staggering and wobbling around,” they stopped the patrol car and went to him. After engaging appellant in conversation, in which he spoke in a “confused and slurred” manner, the officers formed the opinion that he was intoxicated and placed him under arrest. They then searched him and found some unsigned checks in his pocket which had been stamped with a check protector. Appellant was then carried to the city hall and, after being taken to the burglary, theft, and forgery sections, was taken to the jail on the fourth floor and turned over to the jail guard. Before assigning him to a cell, the guard proceeded to search appellant and, in the search, found a small cigarette in his watch pocket. After the guard, Hollman, laid the cigarette on the counter, appellant grabbed it and put it in his mouth. Hollman then seized appellant’s arms and Officers Bliss and Williams came to his aid. In the struggle with the officers and as Officer Williams choked appellant with both hands, the cigarette fell from his mouth to the floor.

Officer Williams then took possession of the cigarette, placed it in an envelope with markings of identification thereon, and delivered it to the identification bureau for analysis.

An examination of the vegetable material in the cigarette by Dr. Morton F. Mason, director the Dallas city-county criminal investigation laboratory, showed that it was marihuana.

As a witness in his own behalf, appellant testified that on the night in question he was wearing his brother’s trousers and did not know about the marihuana cigarette until the officer took it out of the watch pocket. He admitted trying to swallow the cigarette in an effort to dispose of it.

We find the evidence sufficient to sustain the conviction and overrule the contention that the evidence was obtained against the appellant as the result of an unlawful arrest and illegal search and seizure.

Appellant’s arrest without a warrant for being drunk in a public place was authorized. Rent v. State, 160 Tex.Cr.R. 326, 268 S.W.2d 674; Aaron v. State, 163 Tex.Cr.R. 635, 296 S.W.2d 264; Brunson v. State, 168 Tex.Cr.R. 113, 323 S.W.2d 597.

The arrest being lawful, the search of appellant’s person at the jail by the guard was lawful. Broussard v. State, 166 Tex.Cr.R. 224, 312 S.W.2d 664.

We do not agree that because of the force exerted by the officers upon appellant to recover the cigarette it was illegally obtained. The cigarette had been lawfully seized by the jail guard in the search of appellant’s person before any force was exerted by the officers, and tire force used by them was to prevent appellant from destroying or secreting the contraband. See: Espinoza v. United States, 5 Cir., 278 F.2d 802, certiorari denied 364 U.S. 827, 81 S.Ct. 65, 5 L.Ed.2d 55.

Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, under the facts, has no application to the case at bar, because in that case the officers illegally entered the apartment of the accused and carried him to a hospital, where a doctor forced an emetic solution through a tube into accused’s mouth, against his will, resulting in recovery of two capsules which he had swallowed.

We overrule appellant’s contention that the evidence fails to show that the substance examined by Dr. Mason was the substance taken from him. Appellant did not object to Dr. Mason’s testimony on this ground. The testimony of Officers Williams, Day, and Alexander shows the chain of custody of the cigarette obtained from appellant and that it was the one examined by Dr. Mason.

The judgment is affirmed.

Opinion approved by the Court.


text:
    John BLODGETT, Appellant, v. The STATE of Texas, Appellee.
    No. 38875.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    Jones & Rittenberry by Charles L. Rit-tenberry, Amarillo, for appellant.
    Dee D. Miller, Dist. Atty., John B. Reese, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary; the punishment, five years.

The indictment charged that the appellant did unlawfully, by force, break and enter a house occupied and controlled by Reid A. Bond with the intent to commit theft.

In response to a call from the operator of a burglar alarm service, officers went to the Bond Pharmacy on West 10th Street in Amarillo shortly after 5:09 a. m. When they arrived, the door to a doctor’s office at the rear of the building was ajar and a pane of glass was broken out of the door. The officers then went inside and found appellant in the building. Upon searching the building it was discovered that a door leading into the pharmacy had been forced open. A cash register in the pharmacy was open and the money missing. Some twenty-two bottles of pills had been removed from where they were kept in the pharmacy and, with the exception of a bottle of vitamins, were dispensing bottles the contents of which could be sold only by prescription. Some of the bottles contained “enatheta-mins” and barbiturates commonly known as “‘Redbirds’” and “‘Happy pills.”’ The bottles and some money were found on the floor in the doctor’s office.

Reid A. Bond, the owner of the pharmacy, testified that when he closed the business the evening before, the back door to the doctor’s clinic was closed, and that he did not give the appellant, or anyone else, permission to forcibly enter the premises.

Appellant did not testify but called one of the officers, who testified that when apprehended in the building appellant stated that he had entered through an open door.

Appellant’s sole contention on appeal is that the evidence is insufficient to support the conviction because the state failed to prove a lack of consent by the owner of the pharmacy to the taking of the property. Reliance is had upon certain decisions of this court in which it has been held that in a prosecution for burglary with the intent to commit theft, it is incumbent upon the state to prove a want of consent by the owner to the taking of the property and when the owner is a witness in the case and does not testify to his want of consent, such may not be inferred from the circumstances in evidence. See: Caddell v. State, 49 Tex.Cr.R. 133, 90 S.W. 1013; Moray v. State, 61 Tex.Cr.R. 547, 135 S.W. 569; Dillard v. State, 126 Tex.Cr.R. 292, 71 S.W.2d 529.

The state insists that the pharmacy owner’s testimony that he did not give appellant permission to enter the premises, together with the other circumstances, is sufficient to show his lack of consent to the taking of the property.

The relatively recent case of Gonzalez v. State, 162 Tex.Cr.R. 600, 288 S.W.2d 503, is relied, upon by the state in support of its contention.

In the Gonzalez case this court, in affirming a conviction for burglary, overruled a contention that the state had failed to prove the want of consent of the owner to the taking of the property when he testified that he had not given the accused permission to enter the building and that someone had broken in the place and stolen some money.

Later, in Stallworth v. State, 167 Tex.Cr.R. 19, 316 S.W.2d 417, this court, in reversing a conviction for burglary because of the state’s failure to prove lack of consent on the part of the owner to both the entry upon the premises and the subsequent taking of the property, made reference to the conclusion reached in Gonzalez v. State, supra, that the testimony of the owner of the premises that he did not give the accused permission to enter the building carried with, it a lack of consent to take anything therefrom.

It should be noted that in Stallworth, property was actually removed from the premises, while in the case at bar nothing ever left the building, which logically explains the failure of the prosecutor to inquire of the pharmacy owner relative to his lack of consent to the taking of the property.

We remain convinced of the soundness of the holding in Gonzalez v. State, supra, and find that the testimony of the owner of the pharmacy in the instant case that he did not give appellant permission to enter the premises, together with the surrounding circumstances, was sufficient to show his want of consent to the taking of any property therefrom.

The judgment is affirmed.

Opinion approved by the Court.


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

text:
    Dudley BRYANT, Appellant, v. The STATE of Texas, Appellee.
    No. 38374.
    Court of Criminal Appeals of Texas.
    Oct. 13, 1965.
    Rehearing Denied Dec. 1, 1965.
    Second Motion for Rehearing Denied Jan. 19, 1966.

      Cofer, Cofer & Hearne, Austin, James A. Moore, Houston, for appellant.
    Wallace T. Barber, Dist. Atty., San Marcos, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is felony theft; the punishment, six years confinement in the Texas Department of Corrections.

The testimony reveals that on the night of January 16-17, 1963, a four-wheel trailer containing 5600 pounds of feed was stolen from Mr. Ernest Ewald’s property in Caldwell County, Texas. On the morning of the 17th Mr. Ewald found the lock broken and the gate to his property open; the trailer and feed, the value of which was at least $250.00 were gone.

Dudley Bryant, the appellant, had leased certain property known as the Kruez place, and had an option to buy. He had a residential trailer house located there, and had livestock on the land.

Three days after Mr. Ewald first disco v-ered his property had been stolen, he was out on a Sunday drive with his family on a country road when he saw his trailer, clearly identifiable with his name marked on the side, sitting several hundred feet from the road behind some small bushes on the Kruez place. Mr. Ewald drove back into Lockhart and reported his discovery to Desmond Reed, Sheriff of Caldwell County, then accompanied the Sheriff to the location where the trailer had been seen. During the brief fifteen to twenty minutes since Ewald had seen the trailer, it had been moved and could not be seen from the road.

As Mr. Ewald and the Sheriff entered the gate to the Kruez place, the appellant came to meet them in a pickup and, in response to the Sheriff’s question as to the location of the trailer, replied that it was “sitting up on a hill,” and that they could get up there in the car. Intending to do so, the Sheriff and Ewald got in the Sheriff’s car, following appellant, who was driving ahead in his pickup. They had only gone a short distance when appellant suddenly turned off the road and drove off through the mesquite bushes. Sheriff Reed testified that it was impossible for him to follow the appellant, who was “driving about as fast as he could hold it * * * running over pretty good sized bushes.”

At this point the Sheriff and Ewald returned to the gate and called for assistance on the car radio. As soon as help arrived, Ewald and an officer went up the road in the direction the appellant had previously indicated. They found the trailer on a hill beside a dead tree, with brush piled inside it. The trailer had been saturated with some imflammable liquid, such as diesel or coal oil, and the front left corner was burning.

Sergeant Jim Riddles, Texas Ranger, testified that he talked with appellant several times after appellant had made bond and before his trial. The appellant gave the Ranger conflicting accounts as to his knowledge of the stolen property, first stating that he had not been at the Kruez place “from Sunday to Sunday” during the week the property was stolen. He later contradicted this story, saying he had gone to the Kruez place on the Thursday morning the property was found to be stolen. On one occasion he also told Sergeant Riddles that when the feed was brought to his place he suspected that it was stolen, and he supposed it had been placed there by some persons from Austin in repayment for favors he had granted them.

Appellant’s first contention is that this evidence is not sufficient to support the conviction because there was no evidence that he participated in the taking of the stolen property, or that he ever had possession of it.

The rule is well established that the unexplained poásession of property recently stolen is a sufficient circumstance to authorize a jury to convict for theft of the property. Stubblefield v. State, Tex.Cr.App., 372 S.W.2d 539; Foster v. State, 170 Tex.Cr.R. 61, 338 S.W.2d 458; see also, 55 Tex.Jur.2d 480, Sec. 214 and cases cited.

The case of Compton v. State, 148 Tex.Cr.R. 53, 184 S.W.2d 630, involved similar circumstances. The conviction there was for cattle theft, and the appellant, relying upon the same grounds as does appellant here, claimed the evidence was not sufficient to support the conviction. Cattle belonging to the Lee Ranch were found on a ranch partly owned and partly leased by Mrs. Compton. Her son, the defendant in that case, managed the ranch for his mother. A deputy Sheriff was trailing the stolen cattle when he discovered a calf lying in the bushes, too tired to stay on its feet. The deputy reported this to the Sheriff who went out to the Compton ranch to investigate this development and as he approached the place where the calf had been found, he saw the defendant riding in a trot toward the calf. Upon seeing the Sheriff, Compton turned and went back toward the Compton ranch house with the Sheriff. At the house, while the Sheriff was talking to another person, the defendant continued to ride around behind the house and "rode off in an easterly direction”, making no explanation for his leaving. He returned fifteen to twenty minutes later, his horse winded and sweaty. A witness testified that he had seen Compton driving six head of cattle at an unusual rate of speed, and that when Compton had seen the witness, he quickly changed direction and disappeared with the cattle. The cattle were found some time later in a pasture on the Compton ranch with a fresh Compton brand over the old Lee brand. This Court held that the evidence was sufficient to sustain a finding that the defendant was in possession of the property, and was guilty of the theft, saying:

“ * * * especially is this true where there are other circumstances which, taken in connection therewith, point to appellant’s guilt, such as the conduct of appellant relative to the bull calf, later identified as one of the stolen cattle, and appellant’s peculiar movements while this ranch was being searched by officers and others.” 184 S.W.2d 630, 634.

In the case before us, the circumstantial evidence is equally as damaging. Appellant was the lessee of the land upon which the stolen property was found, and he had living quarters and livestock there. The lessor testified that appellant was always there whenever he, the lessor, went by the Kruez place. When Ewald went after the Sheriff, the trailer was moved, and an attempt was made to destroy it by setting it afire. Appellant was the only person seen at the Kruez place around the time these events occurred. That appellant knew the trailer was on his land is undisputed; he told the Sheriff where it could be found.

The appellant correctly contends that even if the evidence was sufficient to show that he was in possession of the recently stolen property, no inference or presumption of guilt can arise from this fact unless that possession is unexplained, citing S Branch’s Ann.P.C. 96, Sec. 2650.

Appellant made no explanation when first confronted about the trailer by the Sheriff, and he disappeared shortly after telling where it could be found. The only explanation of his possession of the stolen property was made to Sergeant Riddles several days after the trailer was found at the Kruez place. He stated to the Ranger that he suspected the property to be stolen when it was brought to his ranch by “some characters out of Austin,” and that he supposed they left it for him in repayment for hospitality he had previously extended them. Other conflicting statements concerning his knowledge of the stolen property tended to reduce the credibility of this exculpatory statement. It was for the jury to determine if the appellant’s exonerating statement was reasonable and probably true, and the jury was not required to accept the explanation offered by the appellant. Corley v. State, 160 Tex.Cr.R. 504, 272 S.W.2d 354; Stephens v. State, Tex.Cr.App., 154 S.W. 996; 5 Branch’s Ann.P.C. 100, Sec. 2651 and cases cited.

The evidence of the unexplained possession of recently stolen property was sufficient to sustain a verdict of guilty, particularly when viewed in conjunction with appellant’s unusual behavior and sudden disappearance when the Sheriff and owner came to find the trailer.

The appellant objected to the charge of the court because it failed to include an instruction on exculpatory statements. The court instructed the jury that:

“If you believe from the evidence, or have a reasonable doubt thereof, that persons other than the defendant, who were acting without the defendant and out of the defendant’s presence, took the property in question from Ernest Ewald, then you shall acquit the defendant. * * *”

Under these circumstances, there was no error in refusing defendant’s requested instruction on exculpatory statements. Baker v. State, 130 Tex.Cr.R. 649, 95 S.W.2d 401; Hays v. State, 129 Tex.Cr.R. 156, 84 S.W.2d 1008; Dixon v. State, 128 Tex.Cr.R. 584, 83 S.W.2d 328; Tidwell v. State, 40 Tex.Cr.R. 38, 47 S.W. 466.

Appellant’s Formal Bill of Exception No. 2, as qualified, indicates that a witness for the State refreshed his memory prior to the trial by reading from a written transcript of his Grand Jury testimony. Appellant was given an opportunity to examine this transcript, which had been prepared from a recording made at the Grand Jury proceedings, and appellant’s counsel cross-examined the witness after this inspection. The District Attorney admitted that the document was not a verbatim transcription of the recording and that portions of the witness’ testimony may have been omitted. For this reason, counsel for the defendant requested the production of the recording from which the transcript was made, and that request was refused, as was appellant’s subsequent request to direct the District Attorney to produce the recording for incorporation into the record as part of appellant’s Bill of Exception. Appellant contends that this refusal deprives him of the opportunity to show injury as a result of the State’s failure to produce this recording, and he relies on the following cases: Sewell v. State, Tex.Cr.App., 367 S.W.2d 349; Pruitt v. State, 172 Tex.Cr.R. 187, 355 S.W.2d 528; Martinez v. State, 172 Tex.Cr.R. 186, 354 S.W.2d 936; and Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467.

Gaskin v. State, held that if the trial court refuses to require the production of a prior statement, the statement should be made a part of the record on appeal, in order that the defendant will not be deprived of the opportunity to show, if he can, that the trial judge abused his discretion in refusing to require the production of the statement. 353 S.W.2d 470. Each of the other three cases cited confirm this holding, with Sewell v. State, Tex.Cr.App., 367 S.W.2d 349, providing a comprehensive analysis of the rule and a review of prior decisions.

Each of these cases involves a factual situation wherein a witness, prior to trial, refreshed his memory by reading a statement previously made by him. That rule will not support appellant’s claim of error, for the recording of the Grand Jury proceedings was not used to refresh the memory of the witness, and the only document which was so used was produced for the appellant’s inspection and use in cross-examination.

We find no error in the trial court’s refusal to direct the District Attorney to produce the recording of the Grand Jury proceedings for incorporation into the record as part of appellant’s Bill of Exception.

The record reveals that during the argument of the State, District Attorney Barber was explaining the court’s charge to the jury. After discussing prior paragraphs, he stated:

“Paragraph six, I will just plain read to you. ‘You are further instructed in all criminal cases, the defendant has the right to take the witness stand and testify in his own behalf. * * *

at which point the prosecution was interrupted by objection of defense counsel. There followed a conference at the Judge’s bench, after which Mr. Barber resumed:

“I don’t remember just where I was. ‘You are further instructed in all criminal cases, the defendant has the right to take the witness stand and testify in his own behalf. * * *

at which point the defendant again objected, claiming that the reading of this part of the charge twice was repetitious. The court overruled the objection, and the District Attorney continued:

“I remember where I am now. ‘That his failure to take the witness stand and so testify shall not be commented upon, referred to or considered by you members of the jury for any purpose and you are so instructed.’ The next paragraph deals with * *

Appellant claims that the repeated reading of the first part of paragraph six of the charge constituted a comment on the failure of the defendant to testify in violation of Article 710, Vernon’s Ann.C.C.P.

A careful examination of the argument for the State reveals that the District Attorney was proceeding systematically through the charge, explaining and commenting on each paragraph. When he reached the instruction admonishing the jury that defendant’s failure to testify should not be considered as a circumstance against him, counsel was careful not to make any extraneous comment on that instruction, and chose to read the paragraph to the jury. He was interrupted in the middle of the paragraph, which consisted of only one sentence, and after a delay, resumed reading the instruction by returning to the beginning of the sentence. Under these circumstances, there was no comment by the prosecution on the defendant’s failure to testify.

Prior to trial, the defendant filed a motion to cause the State to first try two co-defendants, claiming that he needed their testimony as witnesses in his behalf and that he believed the State did not have sufficient evidence to convict the co-defendants. On the same day, the State moved to dismiss cases against both co-defendants, and the trial court, overruling appellant’s motion that the other defendants be tried first, granted the State’s motion to dismiss. The appellant’s first formal bill of exception contends that the trial court erred in depriving him of his right, under Article 651, Vernon’s Ann.C.C.P., to have made available the testimony of co-defendants separately indicted for an offense growing out of the same transaction. By dismissing the actions against appellant’s co-defendants, appellant argues, he was deprived of their unrestrained testimony. Because they are subject to renewed prosecution for this offense, they refuse to testify for fear of incriminating themselves.

The view of this Court was expressed in Bills v. State, 166 Tex.Cr.R. 28, 305 S.W.2d 614, where it was stated:

“The purpose of Art. 651, V.A.C.C.P., one of the severance statutes, is to make the testimony of a co-defendant available to the defendant separately indicted for an offense growing out of the same transaction, who alleges under oath that such evidence is material for his defense and that he believes that there is not sufficient evidence against said co-defendant to secure his conviction.
“When the testimony of the co-defendant is made available by the dismissal of all charges pending against him, and he is thus in position to testify the same as though no charges had ever been filed against him, the statute is satisfied.”

Article 577, Vernon’s Ann.C.C.P. provides authority for the dismissal of a criminal action at any time, provided consent of the court is granted. There was no error in the trial court’s refusal to try, or to acquit, the co-defendants in the case prior to appellant’s trial.

Appellant’s fifth bill of exception states that Sheriff Reed, a principal witness for the prosecution, also acted as a bailiff, and had custody of the jury during part of the trial, retiring the jury from the courtroom “more than once”, transporting them from the courthouse to their place of lodging on one occasion, and remaining there with them until relieved by one of his deputies. Appellant claims he has been denied due process of law, citing Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424, which held that the defendant in a state action had been denied the right to a fair trial by an impartial jury, when the two deputy sheriffs, who gave key testimony leading to defendant’s conviction for murder, had charge of the jury during the three-day trial and had fraternized with them outside the courtroom during performance of their duties.

The record reflects that no objection was made on either occasion when Sheriff Reed took the witness stand, nor did defendant object to the Sheriff’s having custody of the jury. There was no motion for mistrial or motion for new trial based on this complaint. As the error, if any, has not been preserved, we cannot pass on this question.

The appellant’s seventh point of error states that the trial court erred in failing, in its instructions to the jury, to apply the law of principals to the facts of this case, and also in failing to instruct the jury that the presence or participation of the defendant was an essential element of the State’s case.

The court’s charge in fact authorized a conviction only if appellant was the actual offender; that is, upon a jury finding that he actually stole the trailer and feed. Had the court in its charge applied the law of principals to the facts of the case, its effect would have been to authorize a conviction on a theory additional to that submitted by the court. Our conclusion was stated in Fine v. State, 125 Tex.Cr.R. 337, 68 S.W.2d 192:

“If it should be conceded that the issue of principals was raised and that the law of principals should have been applied to the facts, we deem the omission harmless, and, under the circumstances reflected by the record, express the opinion that, under the terms of article 666 C.C.P., we would not be warranted in ordering a reversal.” 68 S.W.2d 196.

The error, if any, in the trial court’s failure to apply the law of principals to the facts of the case was harmless. Garver v. State, 158 Tex.Cr.R. 585, 258 S.W.2d 812; Johns v. State, 129 Tex.Cr.R. 206, 86 S.W.2d 235; Fine v. State, 125 Tex.Cr.R. 337, 68 S.W.2d 192; Hicks v. State, 119 Tex.Cr.R. 252, 45 S.W.2d 626; and Durham v. State, 112 Tex.Cr.R. 395, 16 S.W.2d 1092.

Finding no reversible error, the judgment is affirmed.

MORRISON, Judge

(dissenting).

An issue'was raised during the trial as to what Ranger Riddles’ testimony had been before the Grand Jury. Appellant was furnished excerpts of such testimony which had been selected and prepared by the District Attorney, but his efforts to secure the entire testimony for incorporation into the record as a part of defendant’s bill of exception in order that this Court might determine whether or not he had been injured by being deprived of the same for the purpose of cross examination were foiled by ruling of the trial court. This is exactly the situation described in our opinion on rehearing in Sewell v. State, Tex.Cr.App., 367 S.W.2d 349, and should call for a reversal of this conviction.

I respectfully dissent.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant strenuously insists that the majority opinion affirming his conviction was erroneous in upholding the action of the trial court in refusing his request that the recording of the witness’s testimony before the grand jury be produced for his inspection and also for incorporation into the record as a part of his bill of exception on appeal.

The record has again been reviewed in the light of such contention, and the majority remain convinced that the rule stated in Gaskin v. State, supra, Sewell v. State, supra, and the other cases cited in the original opinion was met when appellant was furnished with the written transcript of that portion of the witness’s testimony before the grand jury from which he had refreshed his memory.

In this connection it should be noted that, under the decisions of this court, the state is not required to produce for inspection of the accused the testimony of witnesses before the grand jury. Hanes v. State, 170 Tex.Cr.R. 394, 341 S.W.2d 428; Nisbet v. State, 170 Tex.Cr.R. 1, 336 S.W.2d 142, certiorari denied, 363 U.S. 829 80 S.Ct. 1601, 4 L.Ed.2d 1524.

Nor does the rule announced in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.E.2d 1103, and subsequently superseded by the so-called Jencks Act, 18 U. S.C.A. § 3500, encompass grand jury testimony. Pittsburg Plate Glass v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323.

The contention is re-urged by appellant that he was denied due process of law as guaranteed by the Constitution of the United States, under the authority of Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424, because Sheriff Reed, who was a witness in the case, also acted as bailiff and had custody of the jury during part of the trial.

In our original opinion it was pointed out that appellant made no objection to the sheriff’s having custody of the jury and that error, if any, had not been preserved. In view of appellant’s claim of a denial of due process, we have examined the record and find no merit in such contention. The bill of exception, #5, which presents appellant’s claim as qualified by the trial court, which qualification was accepted by the appellant, certified that on one occasion, only, did the sheriff help transport the jury from the courthouse to the place of lodging and that at no time did the sheriff sleep or eat with the jury. Such facts distinguish this case from Turner v. State of Louisiana, supra, where the deputy sheriffs who were the tw,o principal prosecution witnesses were in continuous, intimate association with the jurors — • eating, conversing, and running errands for them during the three days’ trial.

The claim made by appellant in his motion for rehearing that certain evidence obtained under an invalid search warrant was admitted before the jury is not supported by the record. While testimony was presented to the court in the absence of the jury, relative to the issuance and execution of the search warrant, there was no testimony presented to the jury relative to the fruits of the search. The record further reflects that the jury was instructed not to consider any testimony of the witness Ewald relative to what he saw at the barn, which testimony was given prior to any question being raised as to the legality of the search warrant.

In stating the facts in our original opinion upon which the evidence was held sufficient to support the conviction, reference was made to certain testimony given by appellant’s lessor, Allred, to the effect that appellant was always present when the lessor went by the Kruez place. While, as pointed out in appellant’s motion for rehearing, this testimony was not given in the presence of the jury and therefore could not be considered, such fact does not render the evidence presented insufficient to sustain the judgment of conviction.

Remaining convinced that a proper disposition was made of the case on original submission, the motion for rehearing is overruled.

Opinion approved by the court.


author: MORRISON, Judge.

text:
    Richard Lee ASKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 39000.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.

      Bill Schlomann, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, three days in jail and a fine of $50.00.

No statement of facts or bills of exception accompany the record.

By brief appellant calls attention to that portion of the transcript which contains the verdict of the jury. The first verdict form returned by the jury read as follows:

“We, the Jury, find the Defendant ‘Not Guilty’.
Clifford E. Terry_ Foreman
We, the Jury, find the Defendant guilty as charged and assess his punishment at 3 days days in jail and $50.00 dollars fine.
Clifford E, Terry Foreman
Another form sheet was furnished the Jury, whose foreman then corrected the verdict, or put it in proper form.
The Jury was then polled and each juror in turn affirmed the verdict returned on the new verdict sheet.
6/9/65 Wallace C. Moore Judge

On the second corrected verdict form the jury found as follows:

“We, the Jury, find the defendant guilty as charged and assess his punishment at 3 days days in jail and 50.00 dollars fine.
Clifford E. Terry_ Foreman”

It is appellant’s contention that the above shows that Article 696, Vernon’s Ann.C.C.P. was not complied with in that it was not shown that the jury was sent back for further deliberation prior to reaching their last verdict. If this were true, it was incumbent upon appellant to bring this matter to our attention by proper bill of exception. We cannot accept allegations of fact made in his brief.

Appellant contends that the verdict is a nullity and relies upon Williams v. State, 118 Tex.Cr.R. 366, 42 S.W.2d 441, and Howell v. State, 120 Tex.Cr.R. 614, 47 S.W.2d 844. We do not agree. In each of those cases the court failed to do what the court in the instant case did do. An analogous situation to the case at bar was affirmed by this Court in West v. State, 170 Tex.Cr.R. 317, 340 S.W.2d 813, except that in West, the matter was presented in a bill of exception.

No reversible error appearing, the judgment is affirmed.


text:
    Leroy BEASLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 38826.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    Neal & Roye (on appeal only), Graham, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is aggravated assault; the punishment, six months in jail and a fine of $500.

The complaint sworn to on May 21, 1965, alleged that the assault was committed on or about the 19th day of March, 1965.

There is a fatal variance between the complaint and information in that the information alleges that the offense was committed on or about the 19th day of May, 1965. Harrison v. State, Tex.Cr.App., 297 S.W.2d 823, and cases cited; Wheat v. State, 172 Tex.Cr.R. 259, 356 S.W.2d 323, and cases cited.

The judgment is reversed and the cause remanded.


text:
    Melvin Lee DIXON, Appellant, v. The STATE of Texas, Appellee.
    No. 38869.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.

      M. S. Morgan, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is murder; the punishment, death.

The state’s evidence shows that the deceased, Marion Harlow, owned and operated Bubba’s Grocery Store at 2219 Chene-vert Street in the city of Houston. On the morning of March 26, 1964, the deceased was seen running from the store, around 10 a. m., in pursuit of a man who was shown by the evidence to he the appellant. While being pursued, appellant fired several shots with a .22 calibre pistol, one of the bullets striking the deceased in the chest and causing his death. After emptying the pistol, appellant fled from the scene, leaving the deceased lying face down on the sidewalk in front of another grocery store.

Later in the day, Officer H. M. Gray went to an address on Jackson Street, around 3 p. m., where Millie Johnson lived. When he arrived, Millie was sitting in an automobile, parked in a driveway, with a man by the name of Young. After she had invited Officer Gray inside the house, they went inside and she unlocked the door to the bedroom which she occupied. When they entered the bedroom, Officer Gray observed the appellant in a bed with the cover pulled up over him. After the officer asked appellant his name and he told him, appellant got out of the bed and, except for his shoes, was fully dressed. Officer Gray then observed a chair with the cushion raised, with something under the cushion which appeared to be a pistol. He proceeded to take from under the cushion a .25 automatic Browning pistol which the proof showed was a pistol that belonged to the deceased.

Appellant was thereupon arrested by Officer Gray and taken to the homicide office of the Houston police department.

Shortly after midnight, Detective I. W. Holmes went with the appellant and Millie Johnson to her residence on Jackson Street and from there to a house at 1830 Palm Street, then back to Millie’s house and returned to the homicide office at approximately 2 a. m. While at Millie’s house the detective found in a wastepaper basket, as the result of information furnished by appellant, six .22 calibre empty shells which appellant stated he had removed from the gun with which he had shot the man (deceased) at the grocery store. At 1830 Palm, the detective found under the house a .22 calibre pistol which appellant stated he had used to shoot the deceased. Some money ($16 in quarters and halves) and three watches were also found which appellant stated he had taken from the deceased when he robbed him at the grocery store. It was shown that the deceased had several watches at his store and one of the three watches recovered under the house was identified by his mother as belonging to him. It was further shown that a .22 calibre bullet recovered from the deceased’s body had been fired from the .22 calibre pistol found under the house on Palm Street, which appellant stated was the gun with which he shot the deceased.

At 2 a. m., appellant was returned to the homicide office and, after being duly warned by Detective J. L. Marquis, began making a written statement which was completed and signed by him at 4 a. m.

The statement was offered in evidence as state’s exhibit #20 but before it was admitted by the court a hearing was held in the absence of the jury on the question of its admissibility. In the hearing before the court in the jury’s absence, Detective Marquis testified that before the statement was made he gave appellant the statutory warning and that appellant was not threatened or intimidated in any way. He stated that appellant did not appear to be frightened when making the statement but appeared to be normal. The officer further testified that no request was made by appellant to consult with an attorney and nothing was said about his appearing before a magistrate.

Appellant did not testify or call any witnesses to testify on the issue.

At the conclusion of the hearing, the court made an independent finding, duly entered of record, that the confession was voluntarily made after due warning, and admitted the same in evidence over appellant’s objection that “* * * he was not taken before a magistrate * * * that he wasn’t given the opportunity to have an attorney * * * [and] * * * that it was taken under duress * *

The court further found that at the time of signing the confession appellant did not request a lawyer or seek the advice of counsel in any way. The question as to the voluntary nature of the confession was not submitted to the jury and no request was made by appellant that such an issue be submitted.

In the statement, appellant related that on the morning of the killing, he and two companions, Hubert Young and a boy by the name of Raymond, decided to rob the man at Bubba’s Grocery Store. It was agreed that appellant would go in the store because the deceased knew Hubert and Raymond. The three went to Millie Johnson’s and when they left to go to the grocery store appellant took with him the .22 calibre pistol. They arrived at the store around 8 a. m. and parked about a half block away so they could watch the store. After watching the store for some time, they returned to Millie’s house and changed cars. At 9 a. m., they drove back to the store and parked where they could watch people come in and out of the store. Raymond and another man by the name of Roy, who had joined them, made trips in the store and, finally, Raymond returned and said there was just one person in the store. Appellant stated that they then drove around the block and let him off at a corner. He went in the store and no one was inside except the deceased. He then pointed the pistol at the deceased and told him to open the cash register and give him the money. The deceased opened the register and appellant took the money. Appellant then locked the front door and made the deceased go to his living quarters in the rear. Appellant then searched the deceased, took a gun from his pocket, and also took three watches lying on a table. Appellant stated that at this time he heard someone at the front door and he pushed the deceased down on a bed and ran out the back door. He further related that after he ran out of the store he looked back and saw the deceased chasing him and when the deceased said “stop,” appellant started shooting, “shot six times.” Appellant stated that he ran to Millie’s house and put the gun he had taken from the deceased under a cushion in the chair. He then took the fired hulls out of the .22 pistol, put them in the trash can, and put the pistol in a chest of drawers. The money taken in the robbery, which amounted to $36, was counted. Appellant and Hubert took $10 each, and Hubert then took the remaining $16 and the watches and put them in an envelope, which he hid in the bathroom. Appellant admitted that the gun taken in the robbery was found by the officers in the room and that he showed them the six empty hulls in the garbage can. He further stated that the .22 calibre pistol, the money, and the watches found at the Palm Street address had been taken there by his companion Roy, after the shooting.

Appellant did not testify or call any witnesses in his behalf.

The evidence shows the ruthless killing of the deceased and is amply sufficient to sustain the jury’s verdict.

Appellant predicates his appeal upon the contention that the evidence introduced against him was illegally obtained by the officers and was therefore inadmissible under the provisions of Art. 727a, Vernon’s Ann.C.C.P. In support of such contention, he insists that his arrest without a warrant was unlawful and the subsequent search of the premises without a search warrant was illegal. He also contends that his rights were violated because he was not taken before a magistrate or given the privilege of obtaining an attorney.

We have carefully examined the record in the light of such contentions and perceive no reversible error. The evidence is undisputed that the officers’ entry into Millie Johnson’s room was upon her invitation. They were not trespassers on the premises. The pistol found by Officer Gray was seen under the cushion and was not recovered as the result of a search. It was introduced in evidence without objection. While Officer Gray was not questioned with reference to whether he arrested appellant without a warrant, the arrest, if without a warrant, was, under the facts, authorized. Art. 215, V.A.C.C.P.; Stickney v. State, 169 Tex.Cr.R. 533, 336 S.W.2d 133; Edmond v. State, 169 Tex.Cr.R. 637, 336 S.W.2d 946. The oral statements made by appellant, while under arrest, which led to the finding of the fruits of the crime and the implement with which appellant stated the crime was committed, were admissible as an oral confession under the provisions of Art. 727, V.A.C.C.P.; Edmond v. State, supra; Bingham v. State, 163 Tex.Cr.R. 352, 290 S.W.2d 915. Although the record does not affirmatively show that appellant was not taken before a magistrate, if in fact he was not, his confession would not be inadmissible in the absence of a showing of some causal connection between the delay and the making of the confession. Creswell v. State, Tex.Cr.App., 387 S.W.2d 887. There is no such showing in the present case.

The record affirmatively shows that no request was made by appellant to consult a lawyer prior to the making of his confession. This fact distinguishes the case from Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. See: Corry v. State, Tex.Cr.App., 390 S.W.2d 763; Miller v. State, Tex.Cr.App., 387 S.W.2d 401.

The cases cited by appellant have been carefully considered and are not here controlling, under the facts. Santos v. State, Tex.Cr.App., 389 S.W.2d 465, involved a defective search warrant. Robertson v. State, Tex.Cr.App., 375 S.W.2d 457, involved a search made by the officers after they had entered the accused’s apartment, upon his invitation, for the purpose of talking to him. In Barnes v. State, Tex.Cr.App., 390 S.W.2d 266, the search was incident to an arrest under an invalid warrant.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Ex parte Edgar HOLMES.
    No. 38747.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1965.
    Rehearing Denied Jan. 19, 1966.
    Weldon Holcomb, Tyler, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from an order issued in a habeas corpus proceeding remanding the appellant to custody for extradition to the state of Louisiana.

The disposition hereof makes a summary of the evidence introduced on the hearing unnecessary.

It is undisputed that the appellant timely and properly requested and made demand upon the state that he or his attorney be furnished with the copies of the instruments relied upon for his extradition; and that the state failed to furnish him or his attorney said instruments.

In considering a similar contention this court in Ex parte Tucker, 168 Tex.Cr.R. 286, 324 S.W.2d 853, said:

“The right of the appellant to copies of said instruments is a valuable right conferred by statute and it becomes mandatory upon demand. Art. 1008a, Sec. 3, supra; Ex parte Moore, 158 Tex.Cr.R. 407, 256 S.W.2d 103. Whether the necessary facts exist for the issuance of the extradition warrant, such as the fact that the accused is substantially charged with a crime by indictment or other accusatory pleading as provided by statute duly authenticated by the executive authority of the demanding state or that she is a fugitive from justice is a question of law which is subject to judicial inquiry on the hearing of an application for discharge under a writ of habeas corpus. Therefore, it is evident that such instruments are vitally essential in considering and determining the legality of his arrest. Art. 1008a, Secs. 3 and 10, supra; 19 Tex.Jur. 508, Sec. 19; Ex parte Anderson, 135 Tex.Cr.R. 291, 120 S.W.2d 259; Ex parte McMillan, 156 Tex.Cr.R. 355, 242 S.W.2d 384.”

The failure to furnish said copies of the instruments requires a reversal of the order of the trial court denying the relief prayed for.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


text:
    George WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 39001.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The conviction is for the felony offense of drunk driving; the punishment assessed by the jury, 3 years confinement in the penitentiary.

No statement of facts accompanies the record, in the absence of which the claimed errors in the court’s charge cannot be appraised.

The judgment orders appellant’s confinement in the penitentiary for not less than 1 day nor more than 3 years. It is reformed so as to comply with the jury’s verdict and to provide that he be confined in the penitentiary for a term of 3 years.

The sentence provides that appellant be confined in the penitentiary for a term of 3 years. It is reformed to comply with the indeterminate sentence statute, Art. 775 Vernon’s Ann.C.C.P., and to order appellant’s confinement in the penitentiary for a term of not less than 1 day nor more than 3 years.

As reformed, the judgment is affirmed.