author: CALHOUN, J. LATTIMORE, J.

text:
    DAVIS v. STATE.
    No. 13888.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    Rehearing Denied March 25, 1931.

      Jno. B. Bittler, C. P. Rogers, E. F. Duncan, and Tracy T. Smith, all of Big Spring, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Conviction for the possession of intoxicating liquor for the purpose of sale; penalty, one year in the penitentiary.

The evidence for the state shows that officers of Howard county, armed with a search warrant, on or about the 10th day of December, 1929, searched the house of the appellant, situated in Big Spring, Howard county, Tex.; that before going to said house they met the appellant, Davis, uptown; that they informed the appellant that they had a search warrant for his premises and wanted to search his place and wanted him to be present and go along with them. Appellant consented. The testimony further shows that when the officers got up on the porch of the appellant’s house that they heard glass breaking inside the house; that they immediately went back to where they could see the glass, the bathroom of the house, and there found the appellant’s wife and daughter, and two jars of whisky had been broken, and they also found eight half-gallon jars of whisky, which were setting on the floor of the bathroom. They were in a pasteboard case or box with some soiled clothes piled up in the corner also, and that the appellant was present at the house at the time the search was made. That when they came out of the house with the whisky, the appellant had left, but that he came in the next day and gave himself up.

Appellant contended that the whisky belonged to a man by the name of L. E. Johnson, that the said L. E. Johnson brought it there and had asked permission to leave it there, and that they did not know what was in the box when he first brought it there. The wife and daughter of appellant testified that the reason they were breaking Mr. Johnson’s whisky at the time the officers came was because they were afraid that they would be blamed for having said whisky on the premises.

The bills of exception in this ease show qualifications to each and every one by the trial judge, but as said qualifications were objected to by the appellant, the same cannot be considered in passing upon appellant’s bills of exception.

Bill of exception No. 1 complains of the action of the trial court in permitting the state’s attorney to file substitutes or copies of affidavit for search warrant and search warrant authorizing the search of appellant’s residence because there was no evidence introduced to the-effect that the copies or substitutes offered were exact and true copies of the original affidavit and search warrant. The only evidence being introduced was that of James Little, county attorney, who testified that said affidavit and search warrant were substantially true and correct copies. Said bill of exception shows that the appellant filed a motion in the trial court that there was no search warrant and affidavit on which same was based and moved the court that the state through the district attorney be ordered to forthwith file said' search warrant and affidavit if it was ever issued with the district clerk as the law directs, and that the appellant’s attorney be given time to inspect same before announcing ready for trial. It further shows that with the filing of said motion the court instructed the district attorney to file said affidavit and search warrant, and the district attorney replied that the same were lost and that he made a diligent search for same and that he thought they were, or had been, among his private papers, but he had been unable to find them, and requested the court that the state be permitted to substitute the affidavit and search warrant and the court permitted both to be substituted.

The appellant contends in his brief filed in this case that it may be true that the search warrant itself could be substituted the same as an information could be substituted in the county court, but that the affidavit upon which said search warrant was issued was illegally substituted, and therefore that the evidence introduced as to the whisky found in appellant’s home was illegal on account of there being no affidavit for search warrant supporting said evidence. Article 418, C. C. P., provides that when an indictment or information has been lost, mislaid, mutilated, or obliterated, the district or county attorney may suggest the fact to the court; and the same shall be entered upon the minutes of the court; and that in such ease another indictment or information may be substituted, upon the written statement of such attorney that it is substantially the same as that which has been lost, mislaid, mutilated, or obliterated. Said bill of exception shows also that James Eittle, the county attorney, testified that said affidavit and search warrant were substantially true and correct copies of the originals, which had been lost.

In the case of Bradburn v. State, 43 Tex. Cr. R. 309, 65 S. W. 519, the appellant complained that the state supplied the complaint upon which the prosecution was based which was alleged to have been lost. Appellant objected to this on the ground that there was no authority of law to supply complaints, and that the law only applied to the substitution of indictments and informations. The court in passing upon the question said:

“Article 470 [now article 418], Code Cr. Proc., only relates to indictments and infor-mations, saying nothing about affidavits or complaints; but the latter is a part of the information, being based thereon. However, article 1498 [now article 2289], Sayles’ Rev. Civ. St., provides for the substitution of lost records of all kinds, and, if other statutory authority were necessary, it could be found under said provisions. We hold that the substitution of the lost'complaint was proper practice.” Citing Huff v. State, 23 Tex. App. 291, 4 S. W. 890.

The appellant, by written motion having demanded that the search warrant and affidavit supporting it be filed, cannot complain of the substitution of the affidavit as well as the search warrant because of the fact that the search warrant must be based upon the affidavit and was therefore necessarily a part of the record. If the papers as substituted were not substantially the same as those which had been lost, it has not been shown or claimed. We hold that the action of the court as reflected by this bill was not erroneous under the facts.

By bill of exception No. 2 appellant complains of the court’s action in permitting the state’s witnesses to testify over the objection of appellant as to what they found in the residence of the appellant, for the reason that no affidavit for search warrant or search warrant had ever been produced in court except a substitute for each and that upon the face of the substituted affidavit it showed that the affidavit was made upon information' and belief. From the affidavit complained of it appears that it was sworn to by one Jess Slaughter and D. D. Dunn, and states that the affi-ants’ information is based on the fact that they have been informed by credible persons that the said John Davis is selling intoxicating liquors on and about the above-described premises and now has same in his possession thereon for the purpose of sale; and affiants believe this information and do solemnly swear that the said John Davis is selling intoxicating liquors on and about the above-described premises and now has same in his possession thereon for the purpose of sale.

The contention of appellant in substance is that the affidavit for search warrant to be valid must contain not only the information which would show probable cause, but that it must also disclose the source of the information. Such contention has been held adversely to the appellant by this court. In the case of Smith v. State (Tex. Cr. App.) 24 S.W.(2d) 1095, Presiding Judge Morrow in passing upon a like question in part stated:

“In Ruhmann’s Caso, 113 Tex. Cr. R. 527, 22 S.W.(2d) 1069, 1070, the most recent one published upon the subject, it was said: ‘If we understand appellant’s contention, it is that such averment states no fact, but gives only information which has reached the affi-ants, without naming the informant, and is only hearsay. * * ' We think this is a mistaken view. The definition of probable cause, as found in Landa v. Obert, 45 Tex. 539, which is approved in Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095, and is in substance the same as other definitions sanctioned by the courts and text-writers, reads as follows: “A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.” ’
“For further elaboration of the views of the court, reference is made to the report of the case last mentioned above. The' conclusion there stated may be thus summarized: One who swears that he has certain detailed and disclosed information which in fact he does not possess perjures himself. If the information detailed to the magistrate is sufficient, if true, to constitute probable cause, it is for him to determine whether he believes it to be true, and the issuance of the warrant (which implies the belief of the magistrate in the truth of the affiant’s statement) is supported by the affidavit.”

The affidavit for search warrant in this case is in substantial compliance with the above rule, and therefore appellant’s bill of exception No. 2 is not well taken.

Bill of exception No. 3 complains of the receiving in evidence of the testimony of the state’s witness that he knew the whisky found at the residence of appellant belonged to him on account of the way he looked when he arrested him and on account of appellant’s reputation, the objection being that, appellant’s reputation not being placed in issue, no predicate had been laid to prove his general reputation. This bill of exception fails to show questions in response to which it was given and fails to show who elicited it. Where a bill of exception complaining of-the admission of testimony wholly fails to show whether the testimony was elicited by the state or by the defendant, we are wholly unable to say whether or not its admission was error. This being the condition of appellant’s bill of exception No. 3. it presents no error for review. 4 Tex. ■Tur. § 210.

Bill of exception No. 4 complains of the ac-' tion of the district attorney, while making his closing argument to the jury, in using the following language:

“That he could have indicted both the wife and daughter of defendant but that he protected them and did not do so.”

Appellant then and there objected for the reason that same was highly inflammatory and prejudicial, in that the defendant’s wife and daughter were material witnesses for defendant and said statement by the district attorney had a tendency to discredit them as witnesses before the jury and requested the court to instruct the jury not to consider said argument, which the court failed to do. The court instructed the district attorney to stay within .the record, but did not instruct them not to consider same, to which action the appellant then and there excepted.

Bill of exception No. 5 complains of the action of the district attorney, while making his closing argument to the jury, in stating that the defendant sought to beat his case on technicalities which were discussed while the jury was out. Appellant excepted to said remarks and requested the court to instruct the jury not to consider same, and the court did so instruct the jury. Appellant further contends that although the court instructed the jury not to consider same, that it was of such harmful nature that its effect could not be withdrawn from the jury by the instruction of the court. We do not think that the language complained of showed such prejudice to the rights of the appellant, under all the facts and circumstances of this case, especially in view of the fact that the minimum penalty wds assessed.

In the case of Silver v. State, 110 Tex. Cr. R. 512, 8 S.W.(2d) 144, 148, 9 S.W.(2d) 358, 60 A. L. R. 290, in passing upon a motion for rehearing, Judge Hawkins speaking for the court stated in part as follows:

“Another thing that must be borne in mind is that the facts and surroundings of the particular case should be looked to in determining the effect of an argument complained of. The same language under a certain state of facts might be highly prejudicial, and not so regarded under other circumstances.”

No error being shown, the judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

We find upon re-examination of the record that the daughter of appellant, testifying for the defense, swore that the officers found upon the premises of appellant the same liquor, to the finding of which the officers testified. In such case we have uniformly held that even if there were defects in the search warrant or affidavit, same would be of no materiality. McLaughlin v. State, 109 Tex. Cr. R. 307, 4 S.W.(2d) 54. Hence the question of the substitution of the affidavit and search warrant would cut no figure.

The only ground of objection set up in bill of exception No. 3 was that defendant’s reputation had not been placed in issue, and that there was no evidence that he was a bootlegger, or had been arrested for an offense of any kind, and hence no predicate had been laid to prove appellant’s general reputation. There appears nowhere the slightest certification of the trial court as to the truth or merit of any of these objections. A bill in this condition brings before us nothing tangible. What we have just said applies also to appellant’s bill of exception No. 4. Eor aught that appears in the bill of exception, the record may abound with testimony showing that the prosecuting attorney actually prevented the indictment of appellant’s wife and daughter. Every bill of exception must manifest Its own error; that is, must set out sufficient facts and surrounding circumstances to the matter deemed objectionable, to apprise this court of the availability and sufficiency of such objection. Tbis was not done in tlie bill under consideration. What we have said also applies to bill of exception No. 5. In the absence of some showing in the bill, we cannot tell what basis there was in fact for the argument of the prosecuting attorney therein objected to.

The motion for rehearing will be overruled.


source: Caselaw Access Project

author: HAWKINS, J.

license: Public Domain

text:
    GEER v. STATE.
    No. 14254.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.,
   HAWKINS, J.

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

The record is here without a statement of facts or bills of exception. Nothing is presented for review..

The judgment is affirmed.


text:
    GEER v. STATE.
    No. 14255.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

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

The record is here without statement of facts or bills of exception. Nothing is presented for review.

The judgment is affirmed.


author: MORROW, P. J.

text:
    John GEER v. STATE.
    No. 14256.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The unlawful possession of equipment for the manufacture of intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for one year.

The indictment is regular. A plea of guilty .was entered. Eighty days from November 19, 1930, were allowed within which to prepare and file the statement of facts and bills of exception. Neither of these is found in the record. No error in the procedure has been pointed out or perceived.

The judgment is affirmed.


author: HAWKINS, J. LATTIMORE, J.

text:
    CUSTER v. STATE.
    No. 13352.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    Rehearing Denied March 18, 1931.

      J. Lee Cearley, of Cisco, for appellant.
    ⅛ Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale, punishment being three years in the penitentiary.

The main state’s witnesses were W. M. Miller, chief of police of the city of Cisco, and A. D. Bryan, a policeman of said city. Their evidence as to discovering whisky in appellant’s house was objected to upon the ground that it was obtained by the officers “forcibly” entering appellant’s private residence without a search warrant, and in violation of the Constitution and laws of this state and of the Constitution of the United States. We are of opinion that the question raised by the objection passes out of the case, on the facts. Miller and Bryan went to appellant’s house for the purpose of talking to one Oglesby whom they thought was there. Miller says he wished to talk to appellant also. It is expressly stated by Miller that they “did not go down there to search the residence” of appellant. There is no suggestion in the record that the officers had any knowledge or information that there w;as whisky in the house. When they got there Miller knocked on the front door. It was opened by Joe Custer, a brother of appellant. The two officers went in and while talking to Joe some unusual noise occurred in the house. Miller described it as a “lumbering around in the house”; Bryan said “it sounded like a cyclone it sounded like glass breaking.” What the officers did even after they heard the noise cannot be characterized as a search. The inference is fair that everybody in the house, save appellant, was moved by curiosity to discover what was causing the noise. Miller said, “Someone opened the middle door and I walked back into ,the kitchen and that whisky was poured all over the floor.” Appellant was standing there with a hatchet or hand axe in his hand amid the broken glass of six or seven jars which he had broken. When Miller discovered the situation he mopped up .half a gallon of whisky with a towel and wrung it out in a jar. Everybody seems to have been drawn to the kitchen ■ by the noise. Appellant’s wife was there. Joe Custer was there and Bryan was there when Miller discovered the situation, or came in immediately. When the noise occurred he went out of the front door, around the house, and came into the kitchen through an open screen door. We cannot regard these facts as showing an invasion of appellant’s house in violation of the mandates of the Constitution of this state (Const, art. 1, § 9) or of the United States (Const. Amend. 4). The officers were in no sense trespassers; they were in the house by permission of appellant’s brother, and without any purpose to search or pry into the appellant’s affairs. Upon hearing the disturbance, Miller, as any other person under similar circumstances would likely have done, walked through an open door into the kitchen where appellant was surrounded by broken containers and flowing whisky. The provisions of article 212, Code Cr. Proc. 1925, expressly authorize arrest without a warrant when a' felony is committed in the view of the arresting officer. Of course, this statute would not be operative if the officers had been trespassers, engaged in an unauthorized search. Upon the facts this case is more similar to those in Traylor v. State, 111 Tex. Cr. R. 58, 11 S.W.(2d) 318, than any other to which our attention is directed. The principle is recognized in Hall v. State, 109 Tex. Cr. R. 629, 6 S.W.(2d) 762; Steverson v. State, 109 Tex. Cr. R. 11, 2 S.W.(2d) 453; Greenwood v. State, 110 Tex. Cr. R. 478, 9 S.W.(2d) 352; Banks v. State, 112 Tex. Cr. R. 119, 14 S.W.(2d) 280; Hayes v. State (Tex. Cr. App.) 28 S.W.(2d) 556; Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

• There is no dispute in this record of any fact issue. The officers did not go to appellant’s house to make search thereof for anything. Their business there was for another purpose and with another party. After entering same, and after the occurrence of the crashing noise in- an adjoining room set out in the original opinion, each officer entered said adjoining room through an opened door, as testified to by each. What was then seen and smelled assured them that appellant was committing a felony in their view. Their duty was plain. They could not discharge the duty imposed by the situation otherwise than by arresting appellant and initiating proceedings against him. In his interesting ^ind able motion herein appellant cites Steverson v. State, 109 Tex. Cr. R. 11, 2 S.W.(2d) 453, 454. We quote from the opinion in that case: “If without unlawful acts on th.eir part things described in article 090, P. C., came to view of the officers, from which it was apparent that a felony was being committed in their, presence, then a seizure without a warrant of the things being used to violate the law would be authorized. Under proper circumstances, this course is authorized by article 690, P. O., article 212, O. O. P., and has been sanctioned under the decisions of this court and the Supreme Court of -the United States in many cases.” Authorities are cited. We think the acts of the officers, deemed by appellant to offend against our search and seizure laws in this case, to be strictly within the rule above laid down. We find nothing in any of the other cases cited in the motion holding a contrary view.

The motion for rehearing will be overruled.


author: LATTIMORE, J. MORROW, P. J.

text:
    TRAYLOR v. STATE.
    No. 13451.
    Court of Criminal Appeals of Texas.
    Dec. 10, 1930.
    Rehearing Denied March 25, 1931.
    Sturgeon & Sturgeon, of Paris, and S. E. Leslie, of Bonham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

When appellant’s motion for new trial was overruled, the court noted in his order that the “statutory time” for filing bills of exception-and statement of facts would be given. The statutory time for filing bills of exception is thirty days after the adjournment of the trial term. The trial term of the court below adjourned December 7th. All the bills of exception in this case were filed February 24th. Same were manifestly filed too late for consideration.

Officers searched appellant’s filling station and found five gallons of whisky and five gallons of beer inside the building and under the floor; there being a hole in the floor just over where the liquor was secreted. The floor was covered with linoleum. Appellant’s wife testified that she was sickly, and that the whisky was had by her for her own use as medicine. The state in rebuttal introduced a witness who testified that on the occasion of the search and after the liquor was found appellant’s wife said it was not hers. The state also introduced the father of appellant’s wife, who testified that for a year or more appellant’s wife had been staying at the home of witness much of the time, and had been staying there for quite -a while at the time the officers found the liquor in question. The evidence is sufficient to justify the jury’s verdict.

No error appearing, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

The offense was the possession of intoxicating liquor'for the purpose of sale. Jack Leonard and Tom Moore, deputy sheriffs, acting under a search warrant, discovered upon the premises of the appellant five gallons of whisky and five gallons of beer.

Por the appellant, his wife testified as follows: Her health was bad. She weighed only 62 pounds. She was affected with pellagra and was told by the doctors that she had lung trouble and kidney trouble, and had been advised by them to use whisky for. the maladies with which she was suffering. She was an invalid, and had lain in bed for a number of months. She had been treated by several doctors whom she named. From her testimony we quote: “Pr. Clyde Nevill has prescribed the use of whisky by me as a medicine and I have been using whisky as nourishment and -medicine for the last three years. The whisky that was found there was mine and I put it there.”

She ran a filling station, and had done so for some time. Her husband stayed there but little. Every year he made a crop on his 54-acre tract of land about ten miles south of town. He stayed in the country most of the time, though he came home some nights; and, when1 she was sick, he stayed with her several days at the time. He had no knowledge of the presence of the whisky. She-got the whisky on Sunday night, and the place was searched on Tuesday. She was unable to buy prescription whisky.

Dr. Nevill testified that he was a practicing physician and has known Mrs. Traylor for many years; that he treated her the last time about six weeks before the trial; that she had been his patient for about ten years; that she would have weak spells and was a very frail woman; that when he saw her several years ago he did not think she would live but a short time; that he recommended alcoholic drinks as a stimulant.

On the original hearing we followed the case of Logan v. State (Tex. Cr. App.) 27 S. W.(2d) 171, and declined to consider the bills of exception because filed more than thirty days after the adjournment of court. The statute upon the subject (Code Or. Proc. 1925, art. 760, subd. 5) reads thus: “When an appeal is taken * * * the defendant shall be entitled, with or without an order of court, to thirty days after the day of adjournment of court in which to prepare or cause to be prepared and 'filed a statement of facts and bills of exception.”

In the statute the trial judge is given the authority, upon application, to extend the several times for the preparation of statement of facts and bills of exception to a time not exceeding ninety days from the date of notice of appeal. See O. O. P. art. 760, subd. 5. Upon reconsidering the subject in the case of McCleary v. State (Tex. Cr. App.) 36 S.W.(2d) 166, the conclusion was reached and stated that, in the absence of some fact or circumstance appearing from .the record, a notation .such as was made' in this case, quoted above, will be regarded as allowing ninety days from the time of notice of appeal within which to prepare and file the statement of facts and bills of exception. This conclusion is impelled by the fact that otherwise construed the judge’s notation in the present instance that he granted the “statutory time” would mean nothing. The language chosen by the trial judge implies the extension to the appellant of a privilege which would not he accorded him in the absence- of some action by the trial court. Without any action of the trial court, the law, of its own force, gave the appellant thirty days within which -to file the documents mentioned. “Grant” means “to bestow; to confer.” The court was impotent to confer upon the appellant a right which perforce the statute was his. In McCleary’s Case, supra, -there was language -interpreting the meaning of the court’s words and making it clear that he had no intention of giving an extension of time beyond that which the statute, by its own force, conferred upon the accused.

The record contains a number of bills of exception. Some of them were prepared by the appellant and some by the court.

The complaint in bill No. 5 is that, on the day upon which the search of the premises was made, there was seen at the appellant’s place a. half gallon of whisky setting on a showcase, which whisky apparently belonged to Joe Thurman. The bill does not make clear that this was error. The court, in qualifying the.bill, states that the jury were told that there could be no conviction of the appellant "by reason of any of -the. whisky found on his premises save that which was the result of the search.

The court instructed the jury that, if the whisky found by the officers was bought by the wife of the appellant .and possessed by her or by the appellant for medicinal purposes, there should be a verdict of not guilty. The court also instructed the jury on the law of circumstantial evidence.'

The appellant requested a charge defining and limiting the prima facie evidence. The subject was fully covered in the main charge.

The question as to the sufficiency of the search warrant is not properly raised. The bill of exception fails to set out, either in substance or in detail, the affidavit for the search warrant or the warrant itself. The premises was not a private residence within the terms of article 691, P. C., but one used for the sale of merchandise as well as a residence. The only complaint made of the search warrant is that it was not in accord with article 691, P. 0. No description of the affidavit or warrant is given in .the bill.

The testimony of the officers obtained through the search was properly received.

The absence of specific testimony that the beer was intoxicating was immaterial. The court has judicial knowledge that beer is intoxicating. See Fulmer v. State (Tex. Cr. App.) 29 S.W.(2d) 789, and cases cited therein.

The action of the court in omitting from the charge on circumstantial evidence the words “and no other person” is, under the facts of the case, not deemed error. The charge given contained other tests of exclusion such as contained in Moore v. State, 39 Tex. Cr. R. 266, 46 S. W. 809. Moreover, there might have been a joint possession by the appellant and his wife, making them principal offenders.

The motion for rehearing is overruled.


text:
    MAYS v. STATE.
    No. 14050.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    Wander & Williamson, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Our state’s attorney prays for a dismissal of this appeal on the ground that the case originated in the. corporation court of the city of Houston, where appellant was convicted of “moral perversion” under an ordinance of said city defining such offense. An appeal was taken to the county court at law of Harris county where a trial de novo resulted in appellant’s conviction1 with the punishment assessed at a fine of $100.

Article 53, C. C. P. (1925) provides: “The Court of Criminal Appeals shall have appellate jurisdiction co-extensive with the limits of the State in all criminal cases. This article shall not be so construed as to embrace any ease which has been appealed from any inferior court to the county court or county court at law,- in which the fine imposed by the county court or county court at law shall not exceed one hundred dollars.”

Where the fine imposed on a trial de novo in the county court in a case appealed from an inferior court does not exceed $100, it has been the uniform holding that the judgment of the county court is final and no appeal lies therefrom to this court. Neubauer v. State, 31 Tex. Cr. R. 513, 21 S. W. 363. Many cases are cited in section 409, Branch’s Ann. Tex. P. C., and in note 2 under article 53, Vernon’s Ann. Tex. C. C. P., vol. 1.

The motion of the state’s attorney is granted, and the appeal is dismissed.


author: LATTIMORE, J. HAWKINS, J.

text:
    WININGER v. STATE.
    No. 13359.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    Rehearing Denied March 25, 1931.
    Hamilton, Fitzgerald & Grundy, of Memphis, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

The court gave the following definition of prima facie evidence:

“ ‘Prima facie evidence’ as that term is here used in the law, does not mean conclusive evidence; but it is such evidence as, unless and until it is overcome or rebutted or contradicted by other evidence, is sufficient in law to constitute proof of a fact.”

This was excepted to, among other things, for its failure to tell the jury that they must consider same together with all the facts and circumstances in evidence, and in connection with the other charges on the burden of proof and presumption of innocence. In his able brief appellant cites Floeck v. State, 34 Tex. Cr. R. 314, 30 S. W. 794, 795; Walden v. State, 100 Tex. Cr. R. 584, 272 S. W. 139; and Garlington v. State (Tex. Cr. App.) 25 S.W. (2d) 333, in support of his contention in this regard.

As we understand Floeck’s Case, supra, it does not support appellant, but on the contrary approves a definition of prima facie evidence in substance the same as the one here objected to. The complaint in that case was that the law authorizing presumption based on prima facie evidence, was unconstitutional, and the charge given on the point here involved was as follows:

“By the law of this state, the payment of the United States special tax as a seller of spirituous, vinous, and malt liquors shall be held to be prima facie evidence that the person paying such tax is engaged in selling such liquors. By ‘prima facie evidence’ is meant, not that the evidence is conclusive, but that it may be rebutted or overcome by the contrary.”

We must keep in mind that in the case at bar, in the paragraph of the charge immediately following that containing the definition of prima facie evidence above quoted, the court told the jury that they must find and believe from the evidence beyond a reasonable doubt that the defendant possessed for the purpose of sale spirituous liquors capable of producing intoxication; and that this was followed by a further instruction on presumption of innocence and reasonable doubt generally ; and that he further specifically then told the jury that if they had any reasonable doubt of appellant’s guilt of the offense charged, they should"acquit him.

The exception to the charge in Floeck’s Case, supra, was that it was on the weight of the evidence, invaded the province of the jury, and the point was made that the effect of the law was to take from the jury the right to pass on the facts of the whole case. Judge Henderson said in his opinion in the Floeek Case, supra, as follows:

“It will be noticed in this case that the court in its charge, carefully guarded the rights of the defendant on this subject. The jury were informed that the payment of the federal tax to sell liquors was prima facie evidence merely ; and he then defined ‘prima facie evidence’ as ‘not conclusive, but such as may be rebutted or overcome by evidence to the contrary;’ and in the same connection he charged the jury on the presumption of innocence and reasonable doubt, and left them to determine from all the evidence in the case as to the guilt or innocence of the defendant. The charge of the court was in accord with the article above quoted, and in our opinion it was not violative of the provisions of the constitu-' tion, as an infringement on the right of trial by jury. The jury were properly instructed as to the character of prima facie evidence. Nor were they told, as a matter of law, to find defendant guilty upon such evidence, but were left by the charge free to weigh the prima facie evidence, together with all the other testimony, in connection with the reasonable doubt and presumption of innocence which a defendant is entitled to in every criminal trial, and to render their verdict accordingly. In this we see no error.”

We are inclined to think that what has led appellant’s counsel to cite the Eloeck Case, and has also caused said opinion to some extent to be misapprehended, will be found in the language of paragraph four of the syllabus of said opinion, the ssdlabus of course having been prepared by the Court Reporter, which paragraph reads as follows:

“ ‘Prima Facie’ Evidence — -Meaning of— How Weighed.- — ‘Prima facie’ evidence is merely proof of the case upon which the jury may find a verdict, unless rebutted by other evidence. In other words, prima facie evidence is not conclusive, but such as may be overcome by evidence to the contrary; and such evidence is to be weighed together with the other evidence, and in connection with the reasonable doubt and presumption of innocence which obtain in all criminal trials.”

The language of this paragraph of the syllabus is not the language of this court laying down a definition of prima facie evidence. The said paragraph quoted is the language of this court down to the semicolon, but the remainder of said paragraph of the syllabus is not the language of this court, and it is this latter part of said syllabus which has caused the trouble. The heading of said paragraph of the syllabus in small capitals as follows: “Prima Facie Evidence — Meaning of— How Weighed,” is significant, and shows that the Reporter who prepared both the heading and the syllabus, in using the words “Meaning of,” intended the definition in the first part of said paragraph; and in the wordg “How Weighed” referred only to the latter part of said paragraph, which, as above stated, was not and is not a part of the definition of prima facie evidence, but was and is a direction to the jury as to their use of such evidence, which is a matter of procedure. No authority known to the writer, either textbook, elementary, or in decision, gives to the words “prima facie evidence” a meaning or definition which would include what is said in the latter part of this paragraph of said syllabus, and it is manifestly improper to attempt to make same a part of a correct definition of said expression.

In reference to Garlington v. State (Tex. Cr. App.) 25 S.W.(2d) 333, we have no doubt of the soundness of the opinion in the Gar-lington Case, which held that when the court gives in charge the law of prima facie evidence he should explain the meaning of same, and tell the jury that the presumption thus arising may be rebutted or overcome by evidence. The court in that case gave to the jury no definition of prima facie evidence. There is nothing in said case in the least contrary to the opinion entertained as to the correctness of the present ease.

Examining the Walden Case, supra, we note that there was no definition of prima facie evidence attempted or given in the charge of the trial court in that case, hence no necessity for an authoritative announcement regarding the correctness or sufficience of what would be a proper definition thereof. It is noted that in the opinion in that case the whole of paragraph 4 of the syllabus in Floeck’s Case, supra, is quoted merely as part of an argument that the Legislature did not intend, by the enactment of the law regarding prima facie evidence, to declare the possession of more than a quart of liquor absolute or conclusive proof of guilt. The case of Ratliff v. State (Tex. Cr. App.) 25 S.W.(2d) 343, cites the Floeck Case, supra, but does not in any way indorse the proposition that a charge defining prima facie evidence would not be sufficient, or that it would call for a reversal in a given case, when it failed to incorporate in such definition the latter part of what appears in the fourth paragraph of the syllabus in said Floeck Case.

On its facts the instant ease shows no effort on the part of the accused to prove that he had the whisky in question for any legitimate purpose. In other words, he did not try to overcome or rebut the presumption arising from the fact of possession of more than twenty gallons of whisky, but defended on the proposition that he had no connection with the possession of any whisky at the time in question.

Without going into the evidence at length, it sufficiently showed that on a certain occasion appellant’s car was stalled in a ditch, and later was found to have a broken axle, and that going from the place where the car was in the ditch and where appellant was seen, tracks were discovered, and not far away some forty-six half-gallon jars of whisky were found secreted in some weeds, and that in appellant’s car was found parts of cartons, and that from other circumstances the state sufficiently made out and established toi the satisfaction of the jury that the whisky in question was in appellant’s car and was unloaded by him at the time his car was stalled,, and was in his possession at the time and place referred to. The jury saw fit to give appellant the lowest penalty.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant renews his criticism of the charge defining the term “prima facie” evidence and calls attention to other exceptions to the definition than those considered in‘our original opinion. If appellant had undertaken to explain possession of the liquor in a manner consistent with an innocent possession, the failure of the court to respond to the further exception might have presented some difficulty, but we are not inclined to think his failure to do so presents error when the defense was a denial of any sort of connection with the liquor.

The motion for rehearing is overruled.


author: LATTIMORE, J. HAWKINS, J. .

text:
    WRIGHT v. STATE.
    No. 13959.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    Rehearing Denied March 25, 1931.
    Robertson & Friberg, of Wichita Falls, foi appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction of burglary of a private residence; punishment, five years in the penitentiary.

There are only two bills of exception. The first urges that the trial court should have required that a jury to try this case be drawn from the general panel of jurors for the week. Bell v. State, 92 Tex. Cr. R. 342, 243 S. W. 1095, 1097, with other cases, is cited. From the bill of exceptions as qualified we make the following statement of the situation.

Wichita county has three district courts, and operates under the interchangeable jury law. Judge Martin, before whom this case was tried, has been for many years charged with the duty of impaneling the jury for the week, passing on the whole body of jurors summoned for jury service that week in any or all of said courts. After hearing excuses and requests for discharge, etc., for cause, such jury panel is ready for service either in Judge Martin’s court or that of one of the other judges. It was customary for judges of the other courts, who have before them jury cases for trial, to send their bailiffs to Judge Martin’s court requesting that jurors be sent to their courtrooms for service, m the present instance, about the time of the swearing in of the whole jury panel, and evidently before the'call of the instant case for announcement of ready for trial, appellant’s counsel laid on tlie desk before Judge Martin some papers,.stating at the time that same were motions in his case. Judge Martin then said: “I am busy now, I will hear your motions later.” Apparently about the time the jurors were tested and sworn, and before call for announcement of ready in appellant’s case, a bailiff appeared from Judge Cook’s court with the request that a panel of jurors be sent to said court. In response, the clerk of Judge Martin’s court was instructed to call the names of the first 25 jurors on the list, which was done, and said jurors were instructed to at once proceed to and report for service in Judge Cook’s courtroom. Judge Martin then called appellant’s case for announcement. He announced ready for trial, but insisted on having a jury drawn from the whole of the general panel.

The number of jurors left in Judge Martin’s courtroom, after sending the other 25 out, was 27. While questioning said jurors appellant called the court’s attention to his motions, and was then informed by the court that he would have the names of the 27 jurors put into a hat and drawn, but the court would not regall the other jurors from Judge Cook’s court. Appellant waived the drawing of the 27 names, but took his bill of exceptions to the court’s refusal to draw the jury from the whole of the general panel summoned for the week’s service. We do not think the cases cited by appellant support his contention. The article of our statute quoted and relied on in the Bell Case, supra, contains the following language, speaking of those jurors whose names the accused is entitled to have drawn: “Shall cause the names of all the members of the general panel available for service as jurors in such case” (Code Cr. Proe. 1925 art. 626) to be placed in a hat or other receptacle, etc. Clearly those members of the general panel who had already been detailed for service, and sent to other courts equally entitled, would not, and in the very nature of the case could not, be “available for service in this case.” The giving effect here of what we said in the Bell Case, supra, would but give to appellant what he was tendered by Judge Martin, viz., the right to have drawn those jurors available for service in his case. The reason for the rule of the statute in question is to prevent any unfavorable order in the listing of the jurors and to give to the accused an equal chance to have jurors deemed favorable to him, at the head of the list. We think the appellant’s contention in this regard without merit.

The other bill of exceptions complained of the testimony of the sheriff of the county, who said that some six weeks after the commission of the alleged crime, and after appellant was arrested, he took appellant’s shoe to the house alleged to have been burglarized and fitted the shoe in a track just outside the window of said house, which was shown by testimony to have been the place of the burglarious entry. This testimony was objected to on the ground that there was no connection showing that the footprint into which the sheriff fitted appellant’s shoe was the footprint covered with a board by a city detective the morning after the alleged burglary; also-that to allow the sheriff to testify that he placed said shoe in said track and that they fitted was, in effect, to admit hearsay testimony of the fact that the two footprints, that is, t-he footprint covered with the board, and the footprint into which the shoe was fitted, were one and the same. It was also objected further that the investigation conducted by the sheriff was too remote in point of time to be material, and that the admission of such testimony was without proper predicate. Examining the record we find that the testimony showed that a window was raised in said house and the burglarious entry thus effected; that by reason of recent rains the ground near said window was soft, and that the track of only one person was observed in the soft ground by this window. A detective who made an examination the day after the burglary testified that he placed a board over some of said tracks. The sheriff testified that, after appellant’s arrest, some six weeks after the alleged burglary, he took appellant’s shoe, carried it to the house burglarized, found at the window in question a board over some tracks, removed the board, and that appellant’s shoe fitted the tracks.

We are of opinion that the objections made to this testimony go more to its weight than to its admissibility. If appellant’s shoe fitted a track under the window through which the burglar entered the house in question, testimony as to such fact would be both admissible and material. The weight of such testimony might be affected by the length of time elapsing between the burglary and the fitting of the shoe in the track. The defense was an alibi, though appellant himself did not take the witness stand, nor give testimony. His witnesses claimed that he was in Oklahoma City, some 175 miles from Wichita county, at the time of the burglary. We find in the record the testimony of two high school boys who lived near the scene of said burglary. Both of these boys testified that on said night they saw this appellant sitting in a Ford coupé near said house. They were passing by and had a flash-light which they flashed into said coupé. Seeing a man in same, they went up to the car and talked to him for a while. They had the flash-light on his face, and both testified to some of his features. They also said he told them to put that light out and get away from there, that they would get into trouble. The testimony further shows that on the Sth of April appellant pawned in Fort Worth, Tex., some of tlie property taken from the alleged burglarized residence, the pawn ticket given him showing that he gave his residence as 109½ Fifteenth and Frago streets, in Fort Worth.

Reverting to the question of the admissibility of the sheriff’s testimony, it would appear sound to say that the effect of testimony that appellant’s shoe fitted a track in front of a window in the burglarized house, which was raised by some one from the outside on the night in question, would unquestionably have evidential weight as supporting the proposition that appellant made the track, and that he was in Wichita Falls at the time the track was made. The fact, in evidence, that tracks in the soft dirt by said window were covered with a board the morning after said burglary, and that, when the sheriff subsequently went to said place with appellant’s shoe, he removed a board from certain tracks into which he fitted appellant’s shoe, would lend further weight to the proposition of the admissibility of the testimony.

Being of opinion that no error is shown, and that the testimony supports the judgment, same will be affirmed.

On Motion for Rehearing.

HAWKINS, J. .

A consideration of appellant’s motion and the authorities referred to therein has not' changed our conclusion that the proper disposition was made of the case in our original opinion.

The motion for rehearing is overruled.


author: LATTIMORE, J.

text:
    VASQUEZ v. STATE.
    No. 14233.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    Wright Stubbs, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder; punishment, confinement in the penitentiary for life.

The record is here without statement of facts or bills of exception. There being nothing before us for our consideration, and no error appearing, the judgment will be affirmed.


text:
    ELLIOTT v. STATE.
    No. 14031.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    Baker & Baker, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The unlawful sale of intoxicating liquor is the offense; penalty, confinement in the penitentiary for one year.

Brand, the alleged purchaser, testified that on a certain day he purchased a pint of whisky from the appellant, who conducted a tourist camp.

Testifying in ■ his own behalf, the appellant denied the sale. He stated, however, that he was visited by Brand, who claimed that, due to the sickness of his wife, he was greatly in need of whisky, and was informed by the appellant that he had none. Tomlin, who was present, proppsed to give Brand a pint of whisky and handed the bottle of whisky to the appellant, who handed it to Brand. This version of the transaction was verified by the testimony of Tomlin and his wife. That the general reputation of Brand for truth and veracity was bad was declared by a number of witnesses. That his reputation in that respect was good was vouched for .by several other witnesses.

When the jury panel was called into court and sworn to answer questions, the appellant demanded that the jurors be brought into the courtroom individually to the end that each might be examined in the absence of the others. In refusing to grant this request we think no error was committed. The control of the matter was one within the discretion of the trial judge save in exceptional eases. See Pena v. State (Tex. Cr. App.) 29 S.W.(2d) 785.

After the jurors were assembled and sworn to answer questions, the appellant sought the privilege of propounding to each individual juror the inquiry as to whether he was in favor of the law of presumption, of innocence. The request was properly refused. See Rushing v. State (Tex. Cr. App.) 36 S.W.(2d) 159. The court gave instructions to the jury that they were bound to give effect to the law of presumption of innocence and reasonable doubt, and that they would be so instructed in the charge of the court. In beginning his examination of the jurors ■for the purpose of determining whether to challenge them, the appellant asked the first juror whether he was prejudiced against any man charged with the violation of the liquor law. Before the juror could answer, the court interposed, stating to the appellant that he might propound that to the jury as a general question but that he would not be permitted to propound it to the jurors individually. Under the facts of the case, the question is deemed a pertinent one, in reply to which the accused was entitled to have the answer of each individual juror. The action of the court was an undue restriction of the appellant’s right to1 inform himself of the attitude of each member of the panel to the end that he might intelligently exercise his peremptory challenge or challenge for cause, as the facts developed might warrant.

Prom the case of Kerley v. State, 89 Tex. Cr. R. 199, 230 S. W. 163, 164, the following quotation is taken:

■“As related to a peremptory'challenge a juror is ‘objectionable’ whom the accused on trial, desiring to eliminate, makes known his wish in a timely and orderly manner. A peremptory challenge is, in our statute, defined as ‘a challenge made to a juror without, assigning any reason therefor.’ Code of Crim. Procedure, art. 690. It is the privilege of accused to exclude from jury service one whom, in his judgment, is unacceptable to him. Thompson on Trials, vol. 1, § 43. In conferring it, the law gives effect to the natural impulse to eliminate from the jury list not only persons who are rendered- incompetent for some of the disqualifying causes named in the statute, but persons who, by reason of politics, religion,' environment, association, or appearance, or by reason of the want of information with reference to them, the accused may object to their service upon the jury to which the disposition of his life or liberty is submitted.”

See also Reich v. State, 94 Tex. Cr. R. 449, 251 S. W. 1072; Barnes v. State (Tex. Cr. App.) 88 S. W. 805; Gilmore v. State, 37 Tex. Cr. R. 81, 38 S, W. 787; Plair v. State, 102 Tex. Cr. R. 628, 279 S. W. 267; Ward v. State (Tex. Cr. App.) 31 S.W.(2d) 638.

Complaint is made of some remarks of counsel for the state in the nature of testimony to the effect that some of the witnesses for the appellant had perjured themselves, which remarks should have been withdrawn at the request of the appellant. As they are not likely to occur upon another trial, a discussion of them is deemed unnecessary. The other objections to the remarks of counsel are not deemed tenable.

Because of the errors pointed out, the judgment is reversed and the cause remanded.


author: MORROW, P. J. DATTIMORE, J.

text:
    HERRERA v. STATE.
    No. 13822.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    Rehearing Denied March 18, 1931.
    C. J. Matthews and T. B. Monroe, both of San Antonio, and Alfred Mueller, of Llano, for appellant.
    F. I-I. Hammond, Dist. Atty., of Burnet, Carl Runge, of Mason, Critz & Woodward, of Coleman, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is’ murder; penalty assessed at death.

This is the second appeal of this case. A report of the former appeal will be found in 27 S.W.(2d) 211. Traveling in an automobile belonging to the appellant, he and Chaves, while on their way to San Angelo, passed through the town of Mason. A witness by the name of Smith had dropped some apples from his car. 1-Ie was overtaken by the appellant and Chaves, who had picked up some of the apples. A conversation took place between them. Later Smith found that he had lost his traveling bag and advised Murray, the sheriff, at Mason, by telephone. Murray followed and overtook the appellant’s car. With the appellant’s permission he searched the car for the hand bag. The appellant disclaimed having it. A quantity of whisky was discovered in the car, whereupon appellant was put under arrest by Murray. The appellant, Chaves, and Murray started in the appellant’s car towards the town of Mason. The car was driven by the appellant, and when he turned the car in the wrong direction, an altercation took place in which Murray was killed. He received wounds upon the head and three gunshot wounds. After Murray was killed, Herrera departed in his car and was arrested on the following day. Meanwhile, however, he took a number of gallons of whisky which were in the car, Murray’s pistol, and another pistol with which Murray was killed, and some other articles and hid them at a certain place, where, upon information given by appellant, they were later found by officers. Appellant made a written statement claiming that the deceased was killed by Chaves. They were each indicted. Chaves testified as a witness for the state and described the homicide in detail, claiming that the deceased was killed by Herrera. It seems that Chaves was an employee of the appellant and that the whisky belonged to the appellant.

A recital of the testimony in detail would serve no useful purpose. It is somewhat voluminous. A careful reading of it leaves in the minds of the court no question that it is sufficient to establish the guilt of the appellant. There is ample proof of facts corroborative of Chaves, the accoinplice, and many circumstances in an independent manner. leading to the conclusion that the appellant was an actor in the homicide. On the whole, the evidence is deemed of a character to support the finding of the jury that the murder of the deceased was upon malice aforethought. In the charge of the court “malice aforethought” is defined in the following language:

“The term ‘malice aforethought,’ in its legal signification, means the intentional doing of an unlawful act without legal justification. It is a state or condition of the mind showing a heart regardless of social duty and fatally bent on mischief, the existence of which 15 inferred from acts committed or words spoken.”

The definition is one that has frequently been approved by the decisions of this court. See Harris v. State, 8 Tex. App. 109 ; Ellis v. State, 30 Tex. App. 604, 18 S. W. 139; Swilley v. State (Tex. Cr. App.) 25 S.W.(2d) 1098. It is quite true, as contended by the appellant’s counsel, that the intentional doing of an unlawful act without legal justification, standing alone, is not a sufficient definition of malice aforethought. See Hayes v. State, 14 Tex. App. 331. However, when the expression last mentioned is accompanied by the additional statement as contained in the subdivision of the charge quoted above, it has been approved as a sufficient definition. Among the eases so holding is Collins v. State, 108 Tex. Cr. R. 72, 299 S. W. 403, 404, cited by the appellant, in which it is said:

“We think the first sentence in said charge is subject to the objection urged, but the last sentence contains a correct definition of malice aforethought, as first announced in a terse and lucid opinion by Judge Clark in the case of Harris v. State, 8 Tex. App. 109, and which has been subsequently' approved in many cases.”

The paragraph of the charge held insufficient in Copper’s Case, 94 Tex. Cr. R. 199, 250 S. W. 185, 187, differs materially from the paragraph of the charge under consideration. Among th.e cases approving the charge criticized is Davis v. State, 110 Tex. Cr. R. 605, 10 S.W.(2d) 116. The discussion of the matter in the Claxton Case, 109 Tex. Cr. R. 345, 4 S.W. (2d)_542, is deemed in conflict with the present contention of the appellant.

Based- upon the appellant’s written statement which he introduced in evidence, the following special charge was requested by him:

“You are charged that as a part of the law of this case that the fact that the defendant took the pistol, the liquor and the clothes that he was wearing at the time out in the pasture and hid or buried them does not make him guilty of the offense charged, for the reason that if he had no part in the killing and was not guilty of the killing, whatever ho may have .done afterwards, would not make him guilty under the indictment in this case.”

The same point was raised by exception to the main charge. The appellant’s statement reveals that he was present at the time of the homicide ; that he took possession of the contraband whisky, the pistol of the deceased, and the pistol with which Murray was killed; also flight and an effort to suppress- material evidence as bearing upon the homicide. The comment by the court in the suggested charge was properly refused, it being in the nature of singling out and instructing the jury with reference to the effect of isolated parts of the evidence which were admissible upon the general issue. See Garza v. State, 102 Tex. Cr. R. 241, 277 S. W. 382, and cases collated.

The contention that the court should have instructed the jury that if the appellant was'an accessory to the murder he was entitled to an acquittal is fully met by the paragraph of the charge which instructed the jury that if Chaves killed the deceased the appellant should be acquitted-

The indictment upon which the appellant was formerly tried embraced no averment charging that in killing the deceased the appellant acted upon malice aforethought. After his case was reversed he was re-indicted, the indictment charging that he did then and there, with malice aforethought, voluntarily kill A. T. Murray by then and there shooting A. T. Murray with a pistol, etc. Appellant contends that by the procedure in the former trial he is immune upon the principle of former jeopardy from any penalty by reason of the death of Murray exceeding confinement in the penitentiary for five years, in consequence of which, he contends that his present attack upon the judgment must be sustained. On the former trial the court, in its charge, defined and made clear to the jury the fact that unless the appellant was prompted by malice aforethought his penalty could not exceed confinement in the penitentiary for five years.

In the case of Landers v. State (Tex. Cr. App.) 25 S.W.(2d) 868, 869, to which we have , been referred, there was a verdict assessing the death penalty for murder upon an indictment omitting the averment of malice aforethought. In passing, it was stated that there was neither necessity nor propriety for charging separate counts as an indictment charging that the killing was upon malice aforethought was inclusive of all phases of the offense set forth in article 1257a, Vernon's Ann. P. 0. In that case it was said:

“That the verdict is at variance with the charge of the court is manifest. It is likewise contrary to the statute under which the appellant was tried. The effect of the verdict was to find that the appellant was guilty of murder without malice aforethought, the penalty for which, as stated in the statute * * * was confinement in the penitentiary for not less than two nor more than five years. In receiving the verdict and entering judgment condemning the appellant to suffer death, there was error committed which necessitates a reversal of the judgment.”

Nothing in the case mentioned holds or implies that in the enactment of article 1257a, the Legislature created two offenses. But one offense was created, namely, that of murder. The legal penalty is death or confinement in the state penitentiary for any term of years not less than two, dependent upon the proof. If, however, the jury finds that there is'an absence of malice aforethought, they are privileged to assess no higher penalty than confinement in the penitentiary for five years. In the present case, the indictment being irregular and the verdict having been set aside at the instance of the accused, cannot be regarded as a sound basis for the present claim of the appellant that by the verdict finding him guilty of murder and assessing the death penalty he was acquitted of the capital offense. Precedents illustrating the correctness of the conclusion stated are numerous. Among them the following are mentioned: Sterling v. State, 25 Tex. App. 716, 9 S. W. 45, 8 Am. St. Rep. 452; Garza v. State, 39 Tex. Cr. R. 358, 46 S. W. 242, 73 Am. St. Rep. 927; Marshall v. State, 73 Tex. Cr. R. 531, 166 S. W. 722, L. R. A. 1915A, 576; Amer. & Eng. Eney. of Law, vol. 17, p. 606; Huey v. State, 88 Tex. Cr. R. 377, 227 S. W. 186, 12 A. L. R. 1003.

Finding no error that would warrant a reversal, the judgment is affirmed.

On Motion for Behearing.

DATTIMORE, J.

The definition of “malice aforethought” given in this case, embracing that part to which specific exception was taken, is identical with that given in other cases, which have been approved by this court. Connell v. State, 46 Tex. Cr. R. 259, 81 S. W. 746, and Cain v. State, 42 Tex. Cr. R. 213, 59 S. W. 275, are cited in addition to the authorities referred to in our original opinion. Appellant cites us to no case upholding the only other contention made in his motion. We still adhere to our conclusion that the requested charge would have been on the weight of the evidence.

The motion for rehearing will be overruled.


author: CHBISTIAN, J.

text:
    FLATT v. STATE.
    No. 14038.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    See, also, 36 S.W.(2d) 518.
    J. K. Bussell, of Cleburne, for appellant.
    Penn. J. Jackson, Co. Atty., of Cleburne, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHBISTIAN, J.

The offense is aggravated assault; the punishment, a fine of $100 and confinement in jail for four months.

Jess Platt, the brother of appellant, was a married man. He had gone with some parties to the home of Prank Hamlin, where he was introduced as George Wakefield, Hamlin being advised at the time that he (Jess Elatt) was a single man. Hamlin had a young daughter. After being introduced into Hamlin’s home appellant began going with the daughter. Hamlin discovered that Jess Elatt' was a married man ánd had several children. Upon learning such fact he warned Jess Platt not to go with his daughter any more. A quarrel ensued, but no blows were struck. Sometime later Jess Elatt and appellant armed themselves with a baseball bat and a hoe handle and approached Hamlin while he was talking to some parties upon the sidewalk. Appellant walked up behind Hamlin and struck him two or three times with the heavy baseball hat, knocking him to the sidewalk. He then got on top of Hamlin, chewed his ears, and gouged his fingers in his eyes, almost putting them out. Jess Platt stood nearby with a hoe handle and kept the crowd back. He said: “Stand back. This is our fight. Let him kill the s-of a b-.” Appellant testified that he did not know about the previous trouble between Hamlin and his brother Jess Platt; that his brother came to him and told him that Hamlin had called him a s- of a b-; that he and his brother got in a car and went to town for the purpose of whipping Hamlin. Appellant did not deny making the assault.

The state proved by the witness Hamlin that after learning that Jess Platt was married he had warned him to quit going with his daughter; The witness piso testified that Jess Platt cursed him at the time. Appellant objected to the testimony on the ground that it was hearsay. It is certified in the bill of exception that appellant was not present. We think the objection was properly overruled. Appellant and Jess Platt were present and acting togther- with unlawful intent in the commission of the offense. The testimony touching the previous trouble between Jess Platt and Hamlin shed light upon the motive and intent with which the offense was committed. We quote the rule laid down in Branch’s Annotated Penal Code, § 694, as follows: “When the parties were present and acting together with unlawful intent in the commission of the offense, proof of the acts or declarations of either done or made prior to the termination of the conspiracy or the commission of the Offense is admissible if it throws light upon the offense or the motive or intent with which it was committed, under the doctrine of principals and without reference to a conspiracy, although such acts or declarations were not in furtherance of any conspiracy and were done or made in the absence of the defendant on trial.” See Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; Smith v. State, 48 Tex. Cr. R. 241, 89 S. W. 817; White v. State, 60 Tex. Cr. R. 559, 132 S. W. 790.

The judgment is affirmed.

PER CURIAM.

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

HAWKINS, J., not sitting.


author: CHRISTIAN, J.

text:
    FLATT v. STATE.
    No. 14037.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    J. K. Russell, of Cleburne, for appellant.
    Penn. J. Jackson, Co. Átty., of Cleburne, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is aggravated assault; the punishment, a fine of $100 and confinement in jail for four months.

The testimony is identical with that adduced in the case of W. M. Flatt v. State (Tex. Cr. App.) 36 S.W.(2d) 517, this day delivered. A jury was waived, and the case submitted to the court.

Appellant brings forward one bill of exception in which he complains of'the argument of the county attorney. It appears that the county attorney, in submitting the case to the court, used language as follows: “The court knows that if the prosecuting witness, Frank Hamlin, had taken a shotgun and killed Jess Elatt for being a married man and attempting to go with his daughter that-you could hardly find a jury in Johnson County that would convict him for it.”

It further appears from the bill that the county attorney stated in argument that, if appellant should be found not guilty of ag-* gravated assault, he could go back over to Venus and “do the same thing over that he has done in this case.” Appellant objected to the argument on the ground that it was not a reasonable deduction from the testimony, was prejudicial and inflammatory, and served no other purpose than to inflame the mind of the court against him. The olyeetion was overruled. The argument was improper. However, the testimony showing appellant’s guilt was uncontroverted. We find nothing in the penalty assessed, under the facts, that would lead us to believe that the learned trial judge was influenced by the improper argument. Hence we would not feel warranted in ordering a reversal.

The judgment is affirmed.

PER CURIAM.

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

HAWKINS, J., not sitting.


author: • LATTIMORE, J. HAWKINS, J.

text:
    BAKER v. STATE.
    No. 13611.
    Court of Criminal Appeals of Texas.
    Oct. 29, 1930.
    Rehearing Denied March 25, 1931.
    Lon A. Brooks, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   • LATTIMORE, J.

Conviction for murder; punishment, confinement in the penitentiary for fifteen years.

The opinion upon former appeal will be found reported in 112 Tex. Cr. R. 254, 16 S. W.(2d) 248.

There are no bills of exception in the record, and the only question here presented is whether the evidence is sufficient. Appellant was charged with poisoning her husband. Her confession was in evidence, in which she admitted that she bought strychnine, put it in a package, and addressed it to her husband, in which she also put a letter purporting to have been written by her husband’s mother telling him that she had heard he was sick and was sending him some medicine, and for him to take it. The confession further set out that the woman placed this package, so addressed to her husband, in the mail. It was further stated therein that appellant was asleep at the time her husband received this package through the mail, but he told her that he had taken some of the contents, and that it was bitter and made the water bitter, and that he had let their baby taste of the stopper and medicine. In the confession it is further stated that a few minutes after this conversation deceased died in convulsions. By other witnesses the state proved the sale of the strychnine to appellant; that a package came to deceased through the mail and was handed to him by the party in whose servant house he and appellant were living at the time. Shortly after deceased was found in convulsions in his yard and died in a few minutes. A bottle of strychnine identified by the druggist who sold it to appellant was found in the servant house. The opened-package received through the mail was also found therein, as was the letter purporting to have been written by the mother of deceased to him advising him to take the medicine. The doctors who examined deceased shortly after his death testified that convulsions was one of the symptoms of strychnine poisoning, and one of them, Dr. Metz, testifying upon a hypothetical ease, apparently setting forth facts relating to the condition of deceased, stated that upon such facts he would be of opinion that the death of deceased was caused by poisoning. There is not the slightest suggestion in the record that deceased was then or had ever been afflicted with any kind of disease or ailment which might have caused him to have convulsions. The facts stated in the record point conclusively to appellant as the guilty party. We think the evidence sufficient.

The judgment will be affirmed.

HAWKINS, J., absent.

On Motion for Rehearing.

HAWKINS, J.

It is appellant’s contention that the record, aside from her confession, is still bare of sufficient evidence to meet the requirements of the law regarding the necessity of proof other than the confession which shows or tends to show that deceased came to his death through criminal agency. We have again reviewed the. evidence in the present record, and, taken in connection with the confession, we are of opinion it is sufficient in the respect mentioned.

The motion for rehearing is overruled.


author: CALHOUN, J.

text:
    LATHAM v. STATE.
    No. 14021.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    B. E. Reynolds and Jeff A. Fowler, both of Throckmorton, for appellant.
    Lloyd W. Davidson, State’s At,ty., of Austin, for the State.
   CALHOUN, J.

Conviction for malicious mischief; punishment, fifty days in the county jail.

Appellant complains of the action of the trial court in refusing to grant appellant’s motion for an instructed verdict for the reason that the evidence was insufficient to support a conviction, in that the only testimony introduced in the case tending to connect the appellant with the commission of the offense was that of Buck Bales, who according to his own testimony was an accomplice in the commission of the offense, and because there was no testimony corroborating the testimony of the said Buck Bales. There were only two witnesses who testified in the case. One of these was the complainant, Dan Masters, who testified that he resided in Throckmorton county, Tex., and on the 1st day of June, 1930, he owned a Buick coupé, 1926 model, automobile. On the night of June 1, 1930, he had his car in a garage; that when he put his car in the garage that night it was in good shape and none of the casings were down or flat. The next morning he found all of the casings on the car down flat, and on examination they showed that they had been cut or punctured with a knife or some sharp instrument. The only other witness, was the witness Buck Bales, who testified as follows:

“My name is Buck Bales, I reside in Throckmorton County, Texas. On the night of June 1st 1930 I went with Thurman Lath-am to Dan Masters garage, and the defendant Thurman Latham did not have a knife and I loaned him my knife before we went into the garage. The defendant went into the garage and I stayed at the door and kept watch while the defendant was back in the garage I heard a noise that sounded like air escaping from something. Just ■ before the defendant, Thurman Latham and myself went to the garage of Dan Masters, the defendant said to me, ‘lets puncture old Danny’s tires and give him some flats to fix.’ That the next morning when the defendant and myself passed by Dan Masters’ home, we saw Dan Masters out there near his garage and the defendant, Thurman Lat-ham, said, ‘well I guess old Danny boy (meaning the man Dan Masters) is fixing his flats.”

Under the testimony of the said Buck Bales, if the same was true, he was an accomplice. Article 718, C. C. P., provides that a conviction cannot be had upon the testimony of an accomplice unless corrohorated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense. There being no other evidence in the ease except the testimony of the witness Buck Bales tending to connect the appellant with the offense committed, the conviction cannot stand and musí; be set aside. Newton v. State, 62 Tex. Cr. R. 622, 138 S. W. 708; Huffman v. State, 57 Tex. Cr. R. 399, 123 S. W. 596; Phillips v. State, 17 Tex. App. 175; Brown v. State (Tex. Cr. App.) 20 S. W. 924.

The judgment is reversed and cause remanded.

PER CURIAM.

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


text:
    LATHAM v. STATE.
    No. 14022.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    B. F. Reynolds and Jeff A. Fowler, both of Throckmorton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Conviction for malicious mischief; punishment, a fine of $100.

Appellant complains of the action of the trial court in refusing to gran); appellant’s motion for an instructed verdict for the reason that the evidence was insufficient to support a conviction, ip that the only testimony introduced in the case tending to connect the appellant with the commission of the offense was that of Buck Bales, who according to his own testimony was an accomplice in the commission of the offense, and because there _was no testimony corroborating'the testimony of the said Buck Bales. There were only two witnesses who testified in the ease. One of these was the complainant, L. I. Gregory, who_ testified that he had left in the field overnight, among other things, a one-row planter, and that the next morning he found the planter turned over and the lever bent and the springs that carry and lift the beam removed. The only other witness was the witness Buck Bales, who testified as follows:

“My name is Buck Bales. I reside in Throckmorton County, Texas. On the night of June 1st, 1930, I went with the defendant into the field of L. I. Gregory and helped him turn over the one row planter.”

Under the testimony of the said Buck Bales, if the same was true, he was an accomplice. Article 718, O. G. P., provides that a conviction cannot be had upon the testimony of an • accomplice unless corroborated by other evi-, denee tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense. There being no other evidence in the case except the testimony of the witness Buck Bales tending to connect the appellant with the offense committed, the conviction cannot stand and must be set aside. Newton v. State, 62 Tex. Cr. R. 622, 138 S. W. 708; Huffman v. State, 57 Tex. Cr. R. 399, 123 S. W. 596; Phillips v. State, 17 Tex. App. 175; Brown v. State (Tex. Cr. App.) 20 S. W. 924.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


text:
    SHANNON v. STATE.
    No. 14018.
    Court of Criminal Appeals of Texas.
    March 4, 1931.

      Bogard & Anderson, of San Augustine, for appellant.
    Bloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

Deceased, Norman Williams, received a wound in the heart at the hands of appellant. The testimony shows that. the knife used by appellant had a blade approximately two and one-half inches long. Appellant testified that Ije did not intend to kill deceased, his version of the transaction being that deceased threatened to kill him and made a movement as if to draw a weapon from his hip pocket. According to appellant’s testimony, deceased had been following him around in an endeavor to bring about a difficulty. Touching his purpose in stabbing deceased, appellant said that he was endeavoring to protect himself and get away from deceased when he struck the fatal blow, and that he had no intention or desire at the time he stabbed deceased to kill him. It was the theory of the state, given support in the testimony, that appellant made an unprovoked attack upon deceased with the intention of killing him.

The court’s charge as a whole failed to require a finding of a specific intent to kill before a conviction for murder was authorized. The killing was with a weapon not per se deadly, and a lack of intent to kill was testified to by appellant. Under the circumstances the charge of the court should have been amended in response to appellant’s ■ exception, as the presence of an intent to kill was indispensably necessary. Stroud v. State, 113 Tex. Cr. R. 621, 24 S.W. (2d) 52; Miller v. State, 112 Tex. Cr. R. 125, 13 S.W. (2d) 865; Bookman v. State, 112 Tex. Cr. R. 233, 16 S.W. (2d) 123, 125.

The charge was timely and properly excepted to because of its failure to submit an instruction covering the law of aggravated assault. As hereinbefore stated, the killing was with a weapon not per se deadly, and a lack of intent to kill was testified to by appellant. We quote from Bookman v. State, supra, on motion for rehearing, as follows:

“Intent to kill being absent, although death results, what offense, if any, would accused be guilty of? If the evidence raise the issue of lack of intent to kill, should the court instruct on aggravated assault? These questions were rather exhaustively considered in the recent case of Miller v. State, 112 Tex. Cr. R. 125, 13 S.W.(2d) at page 865, and the conclusion reached that under our present statute an intent to kill was an essential ingredient of the crime of murder, and that, when the issue was raised that such intent was wanting, an instruction on aggravated assault was called for. It follows that the failure of the court to instruct upon that issue in the present case was an omission which demands a reversal.”

Giving application to the holding of this court, the opinion is expressed that the refusal of the trial judge to submit an instruction on the law of aggravated assault constitutes reversible error.

The court instructed the jury that homicide committed under the influence of sudden passion arising from an adequate cause was neither excused nor justified by law, but might be considered by the jury in determining the punishment to be assessed. The expression “under the immediate influence of sudden passion” was defined, as was the term “adequate cause.” Eollowing these definitions, the court instructed the jury as follows:

“And in order to warrant you in assessing the punishment for murder at a period of five years or less, it is necessary not only that adequate cause existed to produce the state of mind referred to, that is, of anger, rage, sudden resentment or terror sufficient to render the mind incapable of cool reflection, but also that such state of mind actually existed at the time of the commission of the offense, and that it was produced by adequate cause.”

Appellant was tried under our present murder statute (Vernon’s Ann. P. O. arts. 1256 to 1258). The minimum penalty for murder is two years. The effect of the instruction above quoted was to advise the jury that the punishment could not be assessed at five years or less unless the jury believed that there was an absence of malice aforethought at the time appellant struck the fatal blow. The jury assessed the penalty at six years. Such instruction was manifestly erroneous. It was contradictory of that part of the court’s charge wherein the jury were instructed that if they believed beyond a reasonable doubt that appellant “did voluntarily and with malice aforethought ■ kill Norman Williams as charged in the indictment then you will find the defendant John Shannon guilty of murder and assess his punishment at death or by confinement in the penitentiary for life, or for any term of years not less than two.” Appellant was entitled to a clear, succinct, and unambiguous charge, and one which in no respect contradicted other portions of the charge. Henry v. State (Tex. Cr. App.) 54 S. W. 592, and authorities cited.

In applying the law of self-defense to the facts, the court instructed the jury as follows:

“If from the evidence in this case you believe that at the time the defendant John Shannon killed the said Norman Williams, if you find that he did kill him, he, the said Norman Williams was making or was about to make an attack upon him, the said John Shannon, with a knife or some other weapon unknown to defendant and from the manner and character of it, taken in connection with all the surrounding circumstances happening at the time or beforehand, as viewed from the defendant’s standpoint alone, it caused the defendant John Shannon, to have a reasonable expectation or fear of death or serious bodily injury, and the defendant killed the deceased, then you should acquit him.”

Appellant timely and properly objected to the foregoing charge on the ground that it required the jury to find that “deceased was making or was about to make an attack .upon defendant with a knife or some other weapon sufficient to cause him to anticipate death or some serious bodily injury when the law only requires them to find that defendant so believe the case to be when viewed from his standpoint alone.” Appellant testified that he believed that deceased was about to draw a weapon and attack him. The theory of apparent danger should have been submitted from the standpoint of appellant. Branch’s Annotated Penal Code,. § 1925; Lyons v. State, 71 Tex. Cr. R. 189 159 S. W. 1070.

Appellant now contends that it was fundamental error for the .court to fail to charge “reasonable doubt” in immediate connection with the instruction covering the law of self-defense. We quote from Regittano v. State, 96 Tex. Cr. R. 477, 257 S. W. 906, 908, as follows:

“It is believed, however, that where, as in the instant case, the defensive theory is an affirmative one — that is, where the connection of the accused with the homicide is conceded and justified by affirmative testimony given by the accused — when the. matter is properly presented in the trial court, there should be embodied in the charge submitting his defense the information to the jury that, if they believe the affirmative defensive facts or have a reasonable doubt of their truth, an acquittal should result.”

See also Shannon v. State (Tex. Cr. App.) 30 S.W. (2d) 331.

While the court should have charged'the doctrine of reasonable doubt in connection with the instruction covering the law of self-defense, it was incumbent upon appellant to present an exception to the charge at the proper time. Regittano v. State, supra.

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

PER CURIAM.

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

HAWKINS, J., not, sitting.


text:
    PRATT et al. v. STATE.
    No. 14203.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    V. Earl Earp, of Sweetwater, for appellant.
    . Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense', possession of equipment for the manufacture of intoxicating liquor; penalty, one year in the penitentiary.

The record is here without statement of facts or any bill of exception, and nothing is presented for review.

The judgment is affirmed.

PER CURIAM.

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


text:
    HERNANDEZ v. STATE.
    No. 14117.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, and Durwood H. Bradley, Dist. Atty., of Lubbock, for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for cne year.

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

The judgment is affirmed.

PER CURIAM.

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


text:
    McCLURY v. STATE.
    No. 14236.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    E. B. Lamson, of Port Arthur, for appellant. i Lloyd W. Davidson, State’s Atty., of Aus- , tin, for the State.
   LATTIMORE, J.

t Conviction for possessing intoxicating liquor for purposes of sale; punishment, confinement in the penitentiary for a period of eighteen months.

We fail to find in this record any statement of facts. There is one bill of exceptions, which complains of the introduction of certain testimony. In the absence of a statement of facts, we are unable to appraise the question thus attempted to be raised.

The judgment will be affirmed.


author: • CALHOUN, J.

text:
    PRESTON v. STATE.
    No. 14052.
    Court of Criminal Appeals of Texas.
    March 11, 1931.

      Thos. C. Turnley, of Galveston, for appellant.
    O’Brien Stevens, Crim. Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   • CALHOUN, J.

The appellant was convicted in the' district court of Harris county for failure to stop and render aid to a person struck by an automobile which appellant was driving, and his punishment assessed at three years in the penitentiary.

The state’s evidence shows that on or about the 29th day of January, 1930, one George Rodriquez, while crossing a street in the city of Houston, was struck by an automobile driven by appellant and carried or dragged something like 200 feet. It further shows that appellant was requested and “hollered” at to stop, and was told that he had a man under his car, but that he did not stop. The state’s evidence further shows that, as soon as the man fell loose from the car, appellant stepped on the gas and went on at a rapid rate of speed. The injured man was taken to a hospital, where he stayed about one month on account of such injuries. The appellant denied that he had any collision with any one at the time mentioned, and also offered evidence seeking to establish an alibi.

Appellant presents two bills of exception. Bill of exception No. 1 complains •that while the state’s witness J. E. Davis was on the witness stand he was asked by the state’s attorney whether several days after the alleged offense was committed and appellant was out on bond he had heard the appellant make threats to kill and injure a man named Rogers, to all of which testimony the appellant objected on the following grounds: That said testimony was irrelevant and immaterial and not admissible and was not part of the res gestee of the case. Tim bill itself fails to show what testimony was given, or that any testimony was given. The qualification to said bill sets out what testimony witness gave, but there is no explanation which would show that the testimony given was irrelevant and immaterial and not admissible and merely presents a general objection. The further objection that the testimony was not part of the res gestse of the case is shown by the bill to be true, but this fact alone does not render the testimony inadmissible, for the reason that the bill shows the declaration of appellant admitted in evidence was made by appellant while he was out on bond, and the bill of exception fails to show that any objection was made to the testimony, and therefore in our opinion this bill does not set out sufficient facts to show that error was committed in the matter complained of. This court has repeatedly held that a bill of exception must itself show or make manifest the error complained of, and must be so full and certain in its statements as that in and of itself it'will disclose all that is necessary to manifest the error complained of. McCall v. State, 113 Tex. Cr. R. 62, 18 S.W. (2d) 172; Black v. State, 111 Tex. Cr. R. 372, 13 S.W. (2d) 100; Shelburne v. State, 111 Tex. Cr. R. 182, 11 S.W.(2d) 519; Salinas v. State, 113 Tex. Cr. 142, 18 SW.(2d) 663; Fisher v. State, 108 Tex. Cr. R. 404, 1 S.W.(2d) 318.

Appellant’s bill of exception No. 2 attempts to bring forward for. review all 'the matters set up as grounds for a new trial in appellant’s amended motion therefor. The said motion contains seven different alleged grounds of error, no one of which was preserved by a separate bill of exception. There' is no certificate of the trial judge that the contentions of the appellant are in fact true. The verification simply shows that such contentions were made. Nothing is presented by this bill for review, as it merely brings forward the supposed error in overruling, the motion for new trial, which is based upon numerous grounds. Moore v. State, 111 Tex. Cr. R. 63, 11 S.W.(2d) 322; Simpson v. State, 110 Tex. Cr. R. 399, 10 SW.(2d) 567; Cuellar v. State, 110 Tex. Cr. R. 47, 7 S.W. (2d) 565.

The facts, although disputed, being sufficient to suppprt the verdict, and no reversible error appearing, the judgment, is affirmed.

PER CURIAM.

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