author: WALKER, Justice.

text:
    Robert S. CALVERT, Comptroller, et al. Petitioners, v. FORT WORTH NATIONAL BANK, Independent Executor, Respondent.
    No. A-8572.
    Supreme Court of Texas.
    May 9, 1962.

      Will Wilson, Atty. Gen., Austin, W. V. Geppert and W. E. Allen, Asst. Attys. Gen., for petitioners.
    Stone, Parker, Snakard, Friedman & Brown, James A. McMullen, III, Fort Worth, with above firm, for respondent.
   WALKER, Justice.

The question presented by this appeal is whether property received by the beneficiary of a will as a result of the election of the owner of such property to accept under the will is to be regarded as having passed by the will for the purpose of computing the inheritance tax imposed by Article 7117, Tex.Rev.Civ.Stat.1925, as amended. Acts 1945, 49th Leg., p. 148, ch. 98. This statute was repealed in 1959, but its provisions in substantially the same language were reenacted as Article 14.01, V.A.T.S. Tax.Gen., the relevant portions of which are quoted in the margin. For convenience the several inheritance tax statutes will he referred to by the article number under which they now appear in V.A.T.S. Taxation-General.

The present case was tried before the court on an agreed statement of facts. Frank Taylor, a resident of Fort Worth, died on April 19, 1957, leaving a written will which was admitted to probate by the-County Court of Tarrant County on May 27, 1957. He was survived by his widow, Mrs. Pearl S. Taylor. At the time of his death, the testator owned separate property appraised for inheritance tax purposes at $1,750.23. He and Mrs. Taylor also owned community property of the aggregate net value of $185,190.64.

The will by its terms undertakes to dispose of the testator’s separate property and the entire community estate. After giving the home, household and kitchen furniture, and personal effects to Mrs. Taylor, all of the remainder of the separate and community property was devised and bequeathed to The Fort Worth National Bank as trustee. The trustee is directed to pay the net revenue of the trust estate or $500.00 per month, whichever is greater, to Mrs. Taylor, during the remainder of her life. Upon her death the trust will terminate and all of the trust property then remaining on hand will vest one-half in the heirs of the testator and one-half in certain named relatives of Mrs. Taylor. The will also provides for the disposition of the testator’s separate property and community interest in the event Mrs. Taylor should elect not to accept under the will. The Fort Worth National Bank is named in the will and has been duly appointed and qualified as independent executor without bond.

Subsequent to the probate of the will, Mrs. Taylor elected to and did accept thereunder by written instrument filed in the probate proceedings. The inheritance tax report filed with the Comptroller of Public Accounts lists the separate property of the testator and his one-half interest in the community estate. After Mrs. Taylor made her election, the Comptroller took the position that the entire community estate as well as the separate property had passed by the will. The inheritance tax was computed on this basis, and a total tax of $5,-137.82 was assessed against the beneficiaries of the will other than Mrs. Taylor. No tax was assessed against Mrs. Taylor for the reason, as stated in the order, that she did not receive more than her community interest plus the $25,000.00 statutory exemption.

When the inheritance tax is computed on the basis of the value of the testator’s separate property and his interest in the community estate, the aggregate amount owing is $1,444.02. The $5,137.82 assessment was paid by respondent, but such payment to the extent of $3,693.80 was made under protest. This action was then instituted to recover the latter amount. Judgment was rendered by the trial court in favor of respondent, and the Court of Civil Appeals affirmed. 348 S.W.2d 19. We agree with the courts below that the community interest of Mrs. Taylor did not pass by the will of her husband within the meaning of Article 14.01, and the judgment of the Court of Civil Appeals is accordingly affirmed.

It should be observed at the outset that departmental construction is of no assistance in determining the intention of the Legislature. The proper method of computing inheritance taxes where a widow elects to accept under a will which disposes of her interest in the community estate has been the subject of at least six different opinions by the Attorney General of Texas. From time to time earlier opinions have been modified or overruled, and overruled opinions have been reinstated. The current departmental construction is reflected by the position of the Comptroller in the present case, but for a period of some ten years ending in 1958 the official view of the Attorney General was that Article 14.01 had the meaning attributed to it by respondent.

We begin with the premise that the statute imposes a special tax and must be strictly construed against the government. Where the meaning of such a law is doubtful, the doubt should be resolved in favor of the taxpayer. See Lewis v. O’Hair, Tex.Civ.App., 130 S.W.2d 379 (no writ); 85 C.J.S. Taxation § 1135 p. 879; 28 Am.Jur. Inheritance, Estate, Succession and Gift Taxes, § 47 p. 50. It is also well settled that statutes in pari materia are to be read and construed together in arriving at the intention of the Legislature. 82 C.J.S. Statutes § 366 p. 801; 50 Am.Jur. Statutes § 348 p. 343. Moreover, as pointed out in Magnolia Petroleum Company v. Walker, 125 Tex. 430, 83 S.W.2d 929, it is proper to consider the history of the subject matter in arriving at the purpose and intent of the law.

Historically, death duties “in all countries rest in the essence upon the principle that death is the generating source from which the particular taxing power takes its being, and * * * it is the power to transmit, or the transmission from the dead to the living, on which such taxes are more immediately rested.” See Knowlton v. Moore, 178 U.S. 41, 20 S.Ct. 747, 44 L.Ed. 969. From a reading of our inheritance tax statutes, we think the basic plan and purpose of the Legislature was to levy the tax upon the privilege of succeeding to property belonging to a decedent at the time of his death. Article 14.01 speaks of property passing by will or by the laws of descent or distribution, whether belonging to inhabitants of this State or to persons who are not inhabitants. The only property that is ordinarily regarded as passing by either will or descent is that which was owned by the testator or intestate at the time of his death. See V.A.T.S. Probate Code, § 58. Article 14.15 provides that the county judge shall appoint appraisers “to fix the value of the property of such decedent subject to taxation hereunder.”

When the Legislature intended to tax the succession to property other than that owned by the decedent at the time of his death, such intention is plainly and unequivocally stated. In addition to the provisions mentioned above, Article 14.01 expressly includes: (1) property passing under a general power of appointment exercised by the decedent by will; (2) certain life insurance proceeds; (3) transfers made or intended to take effect in possession or enjoyment after death of the graiit- or or donor; and (4) transfers in contemplation of death. Property passing under a general power of appointment exercised by the decedent by will could be said to “pass absolutely or in trust by will,” but it is evident that the Legislature used the quoted language in the ordinary and more restricted sense mentioned above. If the lawmakers had intended to tax other property not belonging to the decedent, such as the surviving wife’s community interest, we think specific language to that effect would have been included in the statute.

In Jones v. State, Tex.Com.App., 5 S.W. 2d 973, 974, the husband devised certain property to his wife with the stipulation that the same was in lieu of her community interest in all other property. The widow accepted the provisions of the will, and it was contended that she should pay inheritance tax on the property devised to her. The court recognized that by virtue of the will and her election the widow had acquired full title to specific property whereas in the absence of a will she would have owned an undivided interest in the entire community estate. Since the value of the property which she received was not greater than her community interest plus the statutory exemption, it was held that the will simply effected a partition between the widow and the other beneficiaries and that no property passed to her within the contemplation of Article 14.01. The tax liability of other beneficiaries of the will who receive part of the widow’s community interest as a result of her election was not considered or decided.

In Bethea v. Sheppard, Tex.Civ.App., 143 S.W.2d 997 (wr. ref.), Henry Henke and his wife, Catherine Henke, executed a joint will and trust agreement which provided that the entire community estate should pass to a named trustee in the event the husband died first. Mrs. Henke and a daughter were to receive specified annual payments from the trust during the lifetime of the former, and the payments to the daughter were to be increased and continued for eight years after Mrs. Henke’s death. At the end of such period the corpus of the trust was to be distributed to the daughter if living; but if the daughter was not living at that time, the property was to be held in trust for an additional five years and then delivered to the daughter’s children. The husband died first, and inheritance tax was paid only on his half of the community estate. Upon the subsequent death of Mrs. Henke it was held that the right of the daughter to succeed to her mother’s community interest was taxable as a transfer by Mrs. Henke made or intended to take effect in possession or enjoyment after death.

A necessary corollary of that holding is the proposition that Mrs. Henke’s community interest did not pass by Mr. Henke’s will within the meaning of the inheritance tax statutes. There the wife consented in advance for her half of the community property to be placed in trust as directed by the husband’s will. Here the same result is accomplished by the widow’s election to accept under the will subsequent to the death of her husband. We cannot believe that the Legislature intended to tax the one transaction as an inter vivos transfer by the consenting wife and the other as a passage of title by the husband’s will.

The Attorney General directs our attention to Graser v. Graser, 147 Tex. 404, 215 S.W.2d 867; Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620; and Kelly v. Kelly, Tex.Com.App., 294 S.W. 518, where it was said that upon the widow’s election to accept the disposition made by her husband’s will, she and the other devisees take under the will and the legal result is that her community interest passes under the will as if it had always belonged to the testator. That is a convenient way of stating the consequences of the election in title controversies between the widow or her heirs and the other beneficiaries of the will. It does not mean that the widow’s interest passes by will for inheritance tax purposes, and that question was not involved in any of the three cases last'cited.

As pointed out by the writer in 5 Washington Law Review 55, it is manifest that no tax liability with respect to Mrs. Taylor’s community interest accrued at the death of her husband or upon the probate of his will, because her interest did not and could not pass solely by virtue of such will. Before it could be said that Mrs. Taylor’s interest had passed by any means, a further voluntary and affirmative action on her part was required. It was not until she elected to take under and in accordance with the provisions of the will that the trustee became entitled to her interest in the community property. Although the election when made might be held for some purposes to relate back to Mr. Taylor’s death, the effective legal act was the voluntary election of the living wife and not the testamentary disposition of the deceased husband. It seems clear to us then that Mrs. Taylor’s community interest did not pass to the trustee by her husband’s will within the meaning of Article 14.01. Whether the right of succession to such interest is taxable as a transfer made by her in contemplation of death or to take effect in possession or enjoyment after death is a question which must be determined later. Since the value of the interest received by Mrs. Taylor through and under the will is less than the value of her share of the community property plus the $25,000.00 statutory exemption, the Comptroller correctly concluded that no tax is attributable to the interest so received by her. Jones v. State, supra.

The judgment of the Court of Civil Appeals is affirmed.

      . “All property within the jurisdiction of this State, real or personal, corporate or incorporate, and any interest therein, including property passing under a general power of appointment exercised by the decedent by will, including the proceeds of life insurance to the extent of the amount receivable by the executor or administrator as insurance under policies taken out by the decedent upon his own life, and to the extent of the excess over Forty Thousand ($40,000) Dollars of the amount receivable by all other beneficiaries as insurance under policies taken out by the decedent upon his own life, whether belonging to inhabitants of this State or to persons who are not inhabitants, regardless of whether such property is located within or without this State, which shall pass absolutely or in trust by will or by the laws of descent or distribution of this or any other state, or by deed, grant, sale, or gift made or intended to take effect in possession or enjoyment after the death of the grantor or donor, shall, upon passing to or for the use of any person, corporation, or association, be subject to a tax for the benefit of the State’s General Revenue Fund, in accordance with the following classification; * * ⅜. Any transfer made by a grantor, vendor, or donor, whether by deed, grant, sale, or gift, shall, unless shown to the contrary, be deemed to have been made in contemplation of death and subject to the same tax as herein provided, if such transfer is made within two (2) years prior to the death of the grantor, vendor, or donor, of a material part of his estate, or if the transfer made within such period is in the nature of a final distribution of property and without adequate valuable consideration.”


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    Joe JONES, Jr., et al., Petitioners, v. MID-STATE HOMES, INC., Respondent.
    No. A-8642.
    Supreme Court of Texas.
    Feb. 14, 1962.
    Robert G. Carter, Marlin, for petitioners.
    Tom Bartlett, Jr., Marlin, for respondent.
   SMITH, Justice.

This is a suit in trespass to try title. Mid-State Homes, Inc. was the plaintiff in the trial court, and Joe Jones, Jr. and Della Jones, were the defendants. For convenience, the parties will hereinafter be designated as in the trial court.

The case was tried to the court without the aid of a jury. A take-nothing judgment was entered for the defendants. No findings of fact or conclusions of law were filed, and no request for such filing was made. The judgment of the trial court has been reversed and the cause remanded to the trial court for a new trial. 348 S.W. 2d 420.

We have concluded to reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court for the reasons now to be stated.

Where the parties stipulate common source, the burden rests upon the plaintiff to connect each party with the common source, and to establish a superior title from such source. See Bosse v. Cadwallader, 86 Tex. 336, 24 S.W. 798; Davis, et ux. v. Gale, Tex., 330 S.W.2d 610. In this case the common source agreed upon was the defendants. The plaintiff introduced no deed or other valid conveyance from the defendants to itself. The plaintiff did offer in evidence the following instruments : a mechanic’s and materialmen’s lien and a deed of trust executed by Joe Jones, Jr. and Della Jone., to the Jim Walter Corporation; an assignment of lien from Jim Walter Corporation to the Mid-State Investment Corporation; assignment from Mid-State Investment Corporation to the plaintiff; resignation of trustee and appointment of a substitute trustee; and a trustee’s deed to plaintiff dated July 9, 1959. The same description is contained in each instrument, and is as follows:

“A certain lot in the Oltorf Addition of Marlin, Falls County, Texas, and being recorded in the City Hall at Marlin, Texas, and said lot being in Block No. 7 of said addition and being north of Roosevelt Street south of the City of Marlin, and being west of the Sally Dunbar property. Said property is about 52 by 150 feet in size.”

The trial court sustained the defendants’ objection to the introduction of these instruments on the ground that each instrument was void for want of an adequate description, in that the description was so defective that the land could not be located on the ground.

The plaintiff then sought to identify the land by introducing in evidence field notes prepared by the County Surveyor on August 14, 1959. The petition upon which the plaintiff went to trial contains the field notes furnished by the County Surveyor. The Surveyor’s field notes are the basis for the plaintiff’s contention that the description contained in the tendered instruments sufficiently identified the land. We are not called upon to decide whether or not the Surveyor’s field notes constitute a valid description of the land. It is sufficient to say that the description contained' in the excluded instruments was so defective that it failed to furnish a nucleus of description sufficient to identify any particular property. The County Surveyor testified that the only way he could locate the land was by the use of a plat in the Tax Collector’s Office. No reference to this plat is contained in any of the instruments upon which plaintiff relies to connect itself with the agreed common source. The Surveyor testified that there was more than-one “Oltorf Addition”, and that he could not tell from the description contained in the trustee’s deed and other instruments-“what Oltorf Addition to- go to”; that according to that description [the description in the trustee’s deed] the 52 x 150 foot lot could be located in any of “approximately six different locations in the block * * * ”, assuming that the block contained 300 square feet. The witness further testified :

“Q. And from a description 52 feet by 150 feet in size, with no point or corner to tie to, that lot could be shifted anywhere in the block at will, could it not?
“A. 52 x 150 — usually the first number is the width.
“Q. I have a square here. But we could locate that lot anywhere in the block. We could put it where it was not touching any boundaries. You could locate a lot 52 x 150 anywhere. You could shift it into any number of positions, couldn’t you ?
“A. Yes, sir, according to that description.
“Q. And you couldn’t go on the ground and definitely tie that floating 52 feet by 150 feet to any point in that block without some additional description as to where it was located, could you?
“A. Like I said, I located it according to the plat in the Tax Collector’s office. And it showed it. That is the only way I located it.
“Q. But you could locate it from the description contained in these exhibits, could you?
“A. No, sir, I couldn’t.
“Q. It couldn’t be located at any particular point in that block, could it?
“A. Not from that description it couldn’t.
“Q. That is all.”

It was stipulated that the map of the addition on file in the City Hall did not show a lot 7.

The burden was upon the plaintiff to identify the land which it claimed, to establish its location, and to show the extent of its interest in the land claimed. The plaintiff must connect itself with the common source. See Tapp v. Corey, 64 Tex. 594; Tasher v. Foster Lbr. Co., Tex.Civ.App., 205 S.W.2d 665, no wr. hist.; Davis v. Gale, supra; Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490, 111 A.L.R. 1152; motion for rehearing denied 129 Tex. 413, 446, 107 S.W.2d 564, 111 A.L.R. 1152; Simonds et al. v. Stanolind Oil & Gas Co., 134 Tex. 332, 114 S.W.2d 226, 136 S.W.2d 207; Mills v. Pitts, 121 Tex. 196, 48 S.W.2d 941, 84 A.L.R. 319, and cases there cited.

The description contained in each of the instruments offered by the plaintiff is wholly defective and fails to furnish a nucleus of description sufficient to identify the land claimed. The plaintiff having failed to offer any evidence locating and identifying the land sued for and having failed to connect itself with the common source, it follows that plaintiff showed no right, title, or interest in the land involved in this suit.

The Court of Civil Appeals has held that the description “shown in each of the eight exhibits, together with the' extrinsic evidence offered under this record, is sufficient for them to be admitted in evidence.” We do not agree.

In the case of Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703, this Court, in holding the description under consideration defective and insufficient to admit parol testimony, said:

“The rule is well settled that parol evidence cannot be introduced to vary or contradict the descriptive data of a deed. 14 Texas Jurisprudence, § 251, pp. 1045, 1046. The descriptive words in an instrument should be given a liberal construction, in order that the writing may be upheld, and parol evidence is admitted to explain the descriptive words and to identify the land; but the instrument itself must contain a nucleus of description. The parol testimony must directly be connected with the descriptive data, and when more than this is required, the description is insufficient. 14 Texas Jurisprudence, § 204, pp. 992, 993, and authorities cited.”

The descriptive data contained in the instruments under consideration does not meet this test.

The plaintiff contends that the doctrine of estoppel applies in this case. The Court of Civil Appeals has held that “since ap-pellees [the defendants] executed instruments and designated the place where the house was to be erected, and since appel: lees proceeded to occupy the house built by appellant, [plaintiff] they are estopped to claim that the description in the instruments is insufficient.”

The doctrine of estoppel has no application here. There is no proof of the essential elements of estoppel. There is no proof that the plaintiff, or Jim Walter Corporation, the contractor, relied upon any representation of either of the defendants, Joe Jones or Della Jones, or that they acted upon any such representation. It is only where conduct or statements are calculated to mislead a party, and are acted upon by him in good faith to his prejudice, that the doctrine of estoppel can be invoked. See Hunter v. Malone, 49 Tex.Civ.App. 116, 108 S.W. 709, 712, cited with approval in Great Plains Oil & Gas Company v. Foundation Oil Co., 137 Tex. 324, 153 S.W.2d 452, 458; Tucker v. Smith, 68 Tex. 473, 482, 3 S.W. 671; Duval County Ranch Co. v. Foster, Tex.Civ.App., 318 S.W.2d 25, 31, wr. ref. n. r. e.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.


author: DICE, Commissioner.

text:
    Robert Bruce LEONARD, Appellant, v. The STATE of Texas, Appellee.
    No. 34502.
    Court of Criminal Appeals of Texas.
    April 11, 1962.

      C. C. Divine, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Erwin G. Ernst, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for unlawfully prescribing a narcotic drug; the punishment, two years in the penitentiary.

The State’s evidence shows that on the evening of April 8, 1960, Narcotics Officer M. B. Hightower observed the appellant, Dr. Robert Bruce Leonard, and his wife, Mrs. Fredleen Power Leonard, leave their residence in the City of Houston and drive to Mading’s Drug Store, No. 14, at 6602 Main Street. When they arrived, appellant remained in the automobile and his wife went into the drug store where she presented a prescription to the pharmacist to be filled. The prescription was dated “4/8” for “Mrs. Fredleen Power”, address “2740 Portsmouth”, and was signed “Robert B. Leonard, M. D.”. The pharmacist proceeded to fill the prescription and deliver it to Mrs. Leonard. She then left the drug store and as she walked toward the automobile in which appellant was seated she was arrested by Officer Hightower and the bottle containing the prescription was taken from her. The contents of the bottle, upon being examined by Chemist Floyd McDonald, was shown to be demerol, a trade name for ison-ipecaine, a narcotic drug. It was shown that on March 12, 1960, the appellant’s license to practice medicine was ordered cancelled by the Texas State Board of Medical Examiners. On March 25, appellant gave notice of appeal from such order to the 129th District Court of Harris County, and on September 30, an injunction was issued by the court against the board to allow appellant to practice medicine but without a narcotic permit.

As a witness in his own behalf, appellant testified that he did not give the prescription in question to his wife and denied that he knew she had it. Appellant admitted that he had written that portion of the prescription prescribing the demerol and had signed his name thereto but denied that he had written the date and the maiden name and address of his wife thereon. Appellant stated that in his practice he had signed a number of prescriptions in blank which he kept locked in his desk to be used in case of emergency for cancer patients. That the blanks were kept so that his wife could fill in the patients’ name and deliver the prescription without waiting for appellant to do it personally. He further testified that while he did not give the prescription to his wife, it was his belief, in view of his appeal from the board’s order of revocation that he did have the right to write such a prescription on April 8.

By motion to quash the indictment and motion for instructed verdict appellant insists that he cannot be convicted under Art. 725b, Vernon’s Ann.P.C., for unlawfully prescribing a narcotic drug but could only be prosecuted and convicted under Art. 741 & 742, V.A.P.C., of the misdemeanor offense of unlawfully practicing medicine.

Sec. 2(a) of Art. 725b, supra, provides: “It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug.”

Sec. 7(1) provides: “A physician or a dentist, in good faith and in the course of his professional practice only, may prescribe, administer, and dispense narcotic drugs, * *

In De Vine v. State, 151 Tex.Cr.R. 179, 206 S.W.2d 247, this Court, in construing these provisions of the Narcotic Drug Act, Art. 725b, supra, pointed out that a physician is one who is authorized by law to practice medicine in this State. While there have been amendments to the Narcotic Drug Act since this decision, we find nothing in the present act which would authorize a different interpretation and holding.

The evidence clearly shows that on April 8, 1960, the day the prescription in question was presented to the pharmacist, appellant’s license had been duly cancelled by the Board of Medical Examiners. The filing of an appeal by appellant did not have the effect of suspending the board’s order. Texas State Board of Medical Examiners v. Watt (Tex.Civ.App.1956) 287 S.W.2d 559. On such date the board’s order of cancellation had not been enjoined or stayed by the District Court. While appellant testified that on the date in question he possessed a Federal narcotic stamp or permit, this would not authorize him to prescribe a narcotic drug in this State when his license to practice medicine was cancelled.

We find the evidence sufficient to support the jury’s verdict finding appellant guilty of the offense of unlawfully prescribing a narcotic drug as charged in the indictment.

Appellant insists that the court erred in overruling his subsequent motion for a continuance. The record reflects that the motion was by the court overruled but it does not appear that any exception was reserved to the court’s ruling. In the absence of an exception to the court’s ruling, appellant’s claim of error is not before us for review. Jenkins v. State, 146 Tex.Cr.R. 458, 299 S.W.2d 946.

Appellant’s complaint of the court’s action in refusing his requested charges cannot be considered because no exception to the court’s action in refusing the same is verified by the trial judge. Carpenter v. State, Tex.Cr.App., 345 S.W.2d 412.

The exception made by appellant to the court’s action in overruling his motion to draw the names of the jurors from a receptacle likewise is not properly before us for review because not verified by the trial judge. Carpenter v. State, supra.

Complaint is made by appellant to the court’s action in admitting in evidence an executed copy of the order entered by the Board of Medical Examiners on March 12, 1960, revoking his license to practice medicine. The order was duly attested by the hand and seal of the secretary of said board and was admissible in evidence under the provisions of Art. 4497, Vernon’s Ann. Civ.St. Furthermore, the same evidence was presented to the jury when the medical register, an official record kept by the District Clerk of Harris County, was introduced in evidence without objection and by stipulation of the parties.

Other contentions urged by appellant have been considered and are overruled.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Randolph WILSON, Appellant, v. STATE of Texas, Appellee.
    No. 33773.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1961.

      No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery with firearms; the punishment, 20 years.

In view of our disposition of this case, a recitation of the facts will not be deemed necessary.

The indictment is fundamentally defective in that nowhere therein is there a description of the property taken other than “corporeal personal property.” Without a further description, the accused was not put on notice as to what he was alleged to have taken by force. Oakley v. State, 167 Tex.Cr.R. 630, 323 S.W.2d 43, and the cases there cited, calls for the reversal of the conviction and a dismissal of the prosecution under the present indictment. See also Holland v. State, 110 Tex.Cr.R. 384, 10 S.W.2d 561, and 33 Tex.Dig. «=17(3).

It is so ordered.


text:
    Hammit ROBINSON, Appellant, v. The STATE of Texas, Appellee.
    No. 34589.
    Court of Criminal Appeals of Texas.
    May 16, 1962.
    Mark Callaway, Brownwood, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is assault with intent to murder, with two prior felony convictions alleged for enhancement; the punishment, life.

In view of our disposition of this appeal, we deem it unnecessary to discuss the sufficiency of the evidence to show the identity of appellant as being the person making the assault other than to conclude that, though far from certain, it was sufficient to support the jury’s finding under a proper charge on the law of circumstantial evidence that appellant was the person who made the attack.

Appellant’s primary complaint is that the evidence is insufficient to show a specific intent to kill. The injured party testified that he had known appellant since boyhood, that they were good friends and continued to be so at the time of the trial, that they had drunk beer together, and on the night in question he knew of no reason appellant would have had to cut him. There being no showing of ill will or threats or the nature of the instrument used in the assault, the State is relegated to the proof of the injury inflicted in order to support this conviction.

Dr. Spence testified that the injured party had sustained a four-inch cut on the right side of his neck approximately ⅛⅛ of an inch in depth which appeared to have been inflicted by a sharp instrument and in which he employed a dozen stitches in repairing. When being asked whether the wound was dangerous or serious, the doctor replied, “The wound within itself, the injury as it was, at the time, was not dangerous.”

He further testified the wound did not endanger the injured party’s life but that if it had been a quarter of an inch deeper or half of an inch deeper he would have had a serious matter on his hands.

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

In Ammann v. State, 145 Tex.Cr.R. 34, 165 S.W.2d 744, this Court, in stating the rule controlling the sufficiency of the evidence to show an intent to kill, said:

“The specific intent to kill is an essential element of the offense of assault with intent to murder. Art. 1160, P.C., Vernon’s Ann.P.C. art. 1160. Such intent may be inferred when the instrument used in committing the assault is a deadly weapon. If the weapon used is not deadly, the intent to kill on the part of the accused may be ascertained from and shown by the surrounding facts and circumstances. If it is possible that death might have been inflicted by the weapon used, and if the accused intended thereby to take life by the use made thereof, the offense of assault with intent to murder is complete, even though the instrument used was not a deadly weapon. Branch’s P.C., § 1636; Franklin v. State, 37 Tex.Cr.R. 113, 38 S.W. 802, 1016; Basquez v. State, 114 Tex.Cr.R. 602, 26 S.W.2d 206; Rose v. State, 123 Tex.Cr.R. 261, 58 S.W.2d 526.”

In the case at bar, we find that the instrument that was used is unknown, that the wound inflicted was not serious and could not have caused death, and therefore there is no evidence of threats, ill will, or expression of intent by appellant. Thus, the surrounding facts and circumstances are insufficient to show that appellant intended to kill the injured party. Ammann v. State, supra; Trimble v. State, 148 Tex.Cr.R. 596, 190 S.W.2d 123.

The State contends that the fact that the injured party was cut on the throat is, alone, enough to show an intent to kill. This contention is based upon the proposition that it was only because the wound was not deeper that it did not prove fatal.

In Hunt v. State, 94 Tex.Cr.R. 155, 250 S.W. 168, this Court reversed the conviction because the evidence was insufficient to show an intent to kill. As in the case at bar, the injured party was cut on the throat and the doctor testified as follows:

“That cut itself did not extend quite far enough over nor deep enough to be fatal, but, if it had been-continued a little bit deeper, it would have been likely to produce death. * * * This wound was not deep enough to prove fatal, but, if it had punctured the jugular vein, it would probably have proved fatal.”

In Trimble v. State, 148 Tex.Cr.R. 596, 190 S.W.2d 123, the conviction was reversed because the evidence was insufficient to show an intent to kill. As in the case at bar, the injured party was cut on the throat and the doctor testified that it was a long wound across the side of the neck just below the edge of the angle of the jawbone and that the wound in the condition it was in could not have caused death.

In Sofge v. State, 133 Tex.Cr.R. 409, 111 S.W.2d 720, the conviction was reversed because the evidence was insufficient to show an intent to kill. The injured party was stabbed near the left nipple; the wound was wide, and the doctor testified that had the knife not struck a rib death would have ensued.

In Ammann v. State, supra, the conviction was reversed because the evidence was insufficient to show an intent to kill. The injured party was cut across the abdomen; the cut was 8 to 10 inches long, and the doctor testified that it only lacked ⅛⅛ to %ths of an inch being deep enough to enter the abdominal cavity.

The State’s position that an injury which is not serious in itself but would have proved fatal had it been deeper is, standing alone, enough to support a finding of a specific intent to kill would overrule all the above cited cases, and cannot be sustained.

Because the evidence is insufficient to show an intent to kill, the judgment is reversed and the cause remanded.


author: BELCHER, Commissioner.

text:
    Leonard James BOMAR, Appellant, v. The STATE of Texas, Appellee.
    No. 34552.
    Court of Criminal Appeals of Texas.
    May 16, 1962.
    Charles William Tessmer, Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., Frank Watts, Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the unlawful posses- . sion of marijuana; the punishment, six years.

Following the state’s abandonment of a prior conviction alleged for enhancement, the appellant entered a plea of nolo con-tendere in open court and, after proper admonishment by the trial court as to his plea, he and his counsel agreed to waive the presence of all witnesses and stipulate all of the evidence.

The stipulation was made that if P. R. Peace were present he would testify that he had received information that appellant and “the accomplices Tommy D. Jackson and James E. Jones were at a shine parlor at 4402 Spring Avenue in Dallas”, and that “these defendants would have a quantity of marijuana in their possession.” He would testify further “that he and the other officers knew from working this district that this defendant, Leonard James Bomar, was a known user and dealer in marijuana, and that he was the proprietor of the shoe stand which was located there on Spring Avenue”.

The stipulation was that Peace would further testify that he went to the shoe stand with other officers; observed the lights off; saw “these three persons” moving around inside the building; that he went to the back door and Officer Daniels went to the front; that as he entered the back door he observed Jackson and Jones run to the rear of the building'; that he stopped them and observed them throw three marijuana cigarettes to the floor; that he immediately retrieved the marijuana, and upon searching the premises found Exhibit C concealed in a corner of the rear of the building.

The stipulated testimony of Police Officer Daniels was that he assisted in searching the shoe shine parlor and found Exhibit B in the rear of the building.

It was also stipulated that J. P. Listen, if present, would testify that he assisted in the search and found Exhibit A concealed in a hole in the attic of the building.

Also, it was stipulated that all of these officers would identify the appellant and testify that he was present in the place of business along with these other persons at the time that this marijuana was found in their possession.

The further stipulated testimony was to the effect that the substances contained in Exhibits A, B and C were analyzed and found to contain marijuana.

The appellant did not testify or offer any evidence in his behalf, and he made no objection to the search or the fruits thereof. He was at all times represented by counsel of his own choice.

Art. 10a, Vernon’s Ann.C.C.P., provides for the waiver of a jury upon a plea of nolo contendere. Art. 505(6), V.A.C.C.P., provides that the legal effect of such plea shall be the same as that of a plea of guilty. Aguillar v. State, Tex.Cr.App., 339 S.W.2d 898.

The evidence stipulated is sufficient to sustain the conviction upon such plea, and to comply with the provisions of Art. 12, V.A.C.C.P.

. It is insisted that the facts are no stronger than those in Brock v. State, 162 Tex.Cr.R. 339, 285 S.W.2d 745, in which it was held that the evidence was insufficient to support the conviction.

In Brock, supra, the search revealed eight capsules of heroin on a shelf in a washroom leading off from the main barroom which was used by the customers of the cafe, including seamen and taxi cab drivers who used it to shave and clean up. Also, Brock denied ever having seen the heroin.

In the instant case, one package containing thirty grains of marijuana was concealed in a hole in the attic of the building and two packages were found at different locations in the rear of the building, and there was evidence that appellant was a known user and dealer in marijuana. It is apparent that the facts of these cases are distinguishable and that Brock, supra, is not here controlling.

The judgment is affirmed.

Opinion approved by the Court.


author: McDonald, judge.

text:
    Troy Eugene HOLCOMB, Appellant, v. The STATE of Texas, Appellee.
    No. 34545.
    Court of Criminal Appeals of Texas.
    April 25, 1962.

      No attorney for appellant of record on appeal.
    Henry Wade, Criminal Dist. Atty., Frank Watts, Jack Hampton, Phil Burleson, Asst, Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is robbery with firearms; the punishment, confinement in the penitentiary for 50 years.

Jack L. Anderson, the complaining witness, testified that he was night manager of a Fina Service Station located in Dallas County; that about midnight of June 17, 1961, he and a friend, James B. Davis, were having a conversation near the front entrance of the station when two men walked up and asked for a gas can; that appellant, who the witness identified at the trial as one ot the two men, followed him into the station, pulled out a gun and said “Let’s have it”; that he went to the cash drawer, opened it and appellant secured the money contained therein; that appellant also took the money which was in a coin changer fastened to his belt and some $98 contained in his billfold; that appellant then stated “I ought to shoot the big fat s. o. b.”; that he waited upon several customers who came into the station while appellant was still present and after they drove out appellant said “Give me that money, too”; that the wire to the phone in the station was cut by appellant and he also took the keys to the witness’ car. Anderson further stated that between $200 and $300 was taken, which was under his care, custody and control, without his consent on the night in question and that he was put in fear of his life or serious bodily harm by appellant’s actions. The witness identified appellant as the person who took the money from him at a police line-up on June 19, 1961, and also identified State’s Exhibit #1 as a .32 caliber gun similar to the one used by appellant in the robbery.

The testimony of James B. Davis was substantially the same as that of the complaining witness.

Police officers of the City of Dallas Police Department were called by the State and testified that around midnight on June 18, 1961, they went to an apartment house in Dallas where they found appellant in company with three companions; that appellant was found hiding in a clothes closet and placed under arrest. One of the officers identified State’s Exhibit #1 as a gun belonging to appellant which was found in the apartment.

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

There are no formal bills of exception or objections to the court’s charge appearing in the record.

Appellant first complains that an illegal search was made of the apartment because accomplished without a warrant for his arrest.

This contention has been raised in two previous cases against appellant, Holcomb v. State, 356 S.W.2d 669, and Holcomb v. State, 356 S.W.2d 670, rendered on April 4, 1962, by this Court, arising out of the same search. There is no evidence in the record that appellant owned, occupied, or controlled the premises in question. Under such facts, appellant is not entitled to complain that the search was illegal. Rubens v. State, 166 Tex.Cr.R. 71, 311 S.W.2d 242.

It is next contended by appellant that the trial court erred in not considering his motion for change of venue.

Art. 562, Vernon’s Ann.C.C.P., provides, “A change of venue may be granted on the written application of the defendant, supported by his own affidavit and the affidavit of at least two credible persons, * * An examination of the record reveals the absence of affidavits by two credible persons in support of the application. Failure to so comply with Art. 562, supra, renders the application fatally defective. Philpot v. State, Tex.Cr.App., 332 S.W.2d 323.

Finding the evidence sufficient to sustain the verdict of the jury and no reversible error appearing, the judgment is affirmed.


text:
    J. B. LUSTER, Appellant, v. The STATE of Texas, Appellee.
    No. 34591.
    Court of Criminal Appeals of Texas.
    May 16, 1962.
    John A. Langford, Collins, Langford & Pine, El Paso, for appellant.
    Edwin F. Berliner, Dist. Atty., Sam W. Callan, Charles A. Gary, Asst. Dist. Attys., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant J. B. Luster and his co-in-dictees, Jimmie Earl Smith, Joe Louis Trussed and Olenn Glenn Ward, were jointly charged by indictment with the offense of felony theft.

Upon the granting of a severance, appellant was separately tried and convicted and his punishment assessed at confinement in the penitentiary for two years.

The State’s proof shows that on the Sunday afternoon of March 26, 1961, the appellant and his three co-indictees came to a Yearwood Butane Co. station in the town of Fabens and told the attendant in charge they wanted some tires. The four were travelling in appellant’s automobile and when they arrived, the appellant, Trussed and Ward went inside and Smith remained outside at the car. After telling the attendant they had a cattle truck out on the road with some “flats” and they needed two tires, the prosecuting witness, William A. McBirnie, an assistant manager of the station was called and came to the station. When he arrived, one of appellant’s companions told him that he needed a couple of tires because “he had a cattle truck up above Clint with some blown out tires” and “He couldn’t find tires anywhere else and that the cattle had been sitting there for quite a few hours; they hadn’t been fed or watered, or anything, and that they had to get them going”.

After listening to their story, which was described to him as an emergency, Mc-Birnie went to the warehouse and secured two 1000 x 22 Richmond truck tires of the market value of $105.11 each, and one Mohawk tube of the value of $7.91 and proceeded to sell and deliver them to appellant and his companions. In the transaction appellant and his companions used a Gulf Company Credit Card which had been issued to Lewter Feed Lots Company of Lubbock from which an invoice for the purchase was made and the name “Joe Trussell” was signed thereto by appellant. After the credit card invoice was signed, appellant and his companions left the station with the tires and tube.

The proof shows that the Gulf Credit Card used by appellant and his companions in purchasing the tires and tube had been furnished appellant’s companion, Joe Trus-sell, while he was in the employ of the Lewter Feed Lots in Lubbock as a truck driver. On March 18, 1961, Trussell’s employment with the Feed Lots had been terminated and he was told to turn the credit card in to the company. This he failed to do and after such date he no longer had permission to use the credit card.

The prosecuting witness, McBirnie, testified that when he sold the tires and tube to appellant and his companions he believed the representations made by them that they had a load of cattle out on the highway and believed that they had the right to use the credit card and had he not so believed he would not have sold the tires and tube to them.

The proof further shows that appellant and his companions were arrested in El Paso on March 27 while seated in an automobile parked in front of a house at a certain address. After their arrest the two tires and tube obtained from the injured party were recovered from the house by the officers. On March 29 appellant made and signed a written statement to Officer Rodney Vugteveen in which he admitted and described in detail how he and his companions obtained the tires and tube from the injured party by using the Gulf Credit Card and falsely representing to him that they had the truck on the road and needed some tires. In his confession appellant stated that their plan was to put the tires on the credit card and then dispose of them for money.

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

The court submitted the issue of appellant’s guilt to the jury upon the State’s theory of theft by false pretext and instructed the jury on the law of principals.

Appellant’s sole contention on appeal is that the evidence is insufficient to sustain the conviction.

Appellant first insists that the evidence is insufficient because it does not show that he came into possession of the property by means of a false representation or pretext. With such contention we do not agree. The State’s testimony is undisputed that before appellant and his companions obtained the tires and tube from the injured party they falsely represented to him that they had a cattle truck with some blown out tires out on the highway, loaded with cattle. They also presented to him the Gulf credit card and by their actions represented that they had authority to use it. In Dixon v. State, 152 Tex.Cr.R. 504, 215 S.W.2d 181, it was held by this Court that verbal assertions or direct representations are not required to show false pretense or representations but they may be shown by a party’s acts and conduct. See also Farias v. State, Tex.Cr.App., 322 S.W.2d 281.

It is next contended that the proof merely shows an extension of credit by the injured party to the Lewter Feed Lots Company in the sale of the tires and tube to appellant and therefore does not constitute theft. While use of the credit card in the transaction did constitute an extension of credit to the Lewter Feed Lots Company, no credit was extended by the injured party to the appellant and his companions. Although credit was extended to Lewter Feed Lots, the fact remains that appellant and his companions obtained the property from the injured party by reason of the false pretext and representations made to him. Assuming that Lewter Feed Lots, to which the credit card was issued, may have been obligated to pay the credict invoice, this would not alter the fact that appellant and his companions obtained the same by false pretext. The facts proven are sufficient to support appellant’s conviction for theft by false pretext. See Massey v. State, 160 Tex.Cr.R. 49, 266 S.W.2d 880; Walker v. State, 160 Tex.Cr.R. 383, 271 S.W.2d 286; Mount v. State, 167 Tex.Cr.R. 7, 317 S.W. 2d 212; Bond v. State, Tex.Cr.App., 345 S.W.2d 520, in support of the conclusion reached herein.

The judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Bedford Jewel SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 34619.
    Court of Criminal Appeals of Texas.
    May 16, 1962.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

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

The appellant was observed driving on a public highway in Carson County. Highway Patrolman Jack B. Morton was the only witness for the state. He testified that when he first saw the appellant he was driving partially on the shoulder and partially on the roadway; that as he turned and was in pursuit, appellant crossed over into the left hand lane of traffic; that he stopped appellant and asked him for his driver’s license; that appellant did not find the license, though he looked through his wallet for some 5 minutes, until the witness showed it to him.

The Patrolman testified that the way in which appellant was handling his car put him “on suspicion” that he had a drunk driver; that after he was stopped appellant walked back to the patrol car “and he staggered quite a bit”; that his speech was impaired — “his talk was slurred. * * * He smelled very strongly of alcoholic beverages.”

The witness further testified: “I had seen the subject before. I asked him why he had done such a thing as to get out there under the influence of intoxicating beverages. And he said ⅜ * * he got mad and went to Amarillo and got drunk.”

Patrolman Morton expressed the opinion that the appellant “was definitely under the influence of intoxicating beverages” when he was arrested.

The jury rejected the defensive issue raised by the testimony of appellant and his witness, that he was under the influence of a sedative and not alcohol, and the evidence is sufficient to sustain the verdict.

No brief has been filed in appellant’s behalf and the record contains no bills of exception showing error.

The judgment is affirmed.


text:
    Richard DURAN, Appellant, v. The STATE of Texas, Appellee.
    No. 34592.
    Court of Criminal Appeals of Texas.
    May 9, 1962.
    Lawrence Arnim, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Paul D. Filer, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is unlawfully carrying a pistol; the punishment, 180 days in jail.

The evidence is undisputed that appellant had a pistol when a difficulty arose and one Lupe Sanchez was shot and killed after appellant was stabbed with an ice pick and otherwise assaulted by Sanchez and six or seven of his companions.

Appellant was not acquainted with any of the boys. It was his testimony that, as he was walking from the bus to his mother-in-law’s home, the boy threatened to beat him up and drew a knife and said: “I’m going to cut you up”, and he ran; that when he left to go to' his home he took with him his brother-in-law’s .22 caliber pistol, and when he got to the bus stop the seven or eight boys were there and he was assaulted and stabbed in the back; that he fired the pistol “up” and started running; that one of the boys grabbed him and pulled him down, and as he turned around that boy was right at him with a straight edge razor and he shot.

The state’s witness who identified the pistol introduced in evidence, testified that he found it the next morning some 7 feet from where the body of Lupe Sanchez was when the officers made their investigation. He testified that Lupe Sanchez, who was his step-brother, had attacked appellant and that Sanchez and his companions were pursuing appellant as he was running away, “running and shooting”; that after Lupe got shot the appellant “didn’t do nothing. We were all on top of him ⅜ * * Duran and my brother was right on the bottom. I didn’t know he was shot * * * everybody got up and they started running. Richard Duran (Appellant) ran too and I ran after him, and I saw my brother lying there so I turned back.”

The testimony shows that appellant was “no billed” as to the charge of murder, but was indicted for carrying a pistol. He testified that he had never been convicted, of a felony or for a misdemeanor involving moral turpitude, and there is no evidence in the record suggesting any misconduct or violation of law by appellant other than the carrying of a pistol, unless it be the testimony as to the killing of Lupe Sanchez.

Much of the state’s evidence related to the investigation of “a murder case”.

Bill of Exception No. 1 certifies that in his closing argument the assistant district attorney told the jury that it was their duty to convict “this punk”. The trial court sustained the objection but overruled appellant’s motion for mistrial.

The complained of argument was manifestly improper. Whether the court’s instruction removed its harmful effect is the controlling question.

In Spradlin v. State, 156 Tex.Cr.R. 617, 245 S.W.2d 251, the defendants charged with robbery were referred to as punks in the argument of counsel for the state. We found no reversible error, but pointed out that the bill of exception was deficient, there being no showing that a mistrial was sought, and that the minimum punishment was assessed. The bill of exception before us has no such deficiency and the jail term assessed was six times the minimum.

Argument which may be harmless in some cases would become extremely inflammatory in others. McGrew v. State, 140 Tex.Cr.R. 77, 143 S.W.2d 946.

, The charge against appellant was that he carried a pistol. His testimony that he had never been convicted of a felony or of a misdemeanor involving moral turpitude was not challenged. He was not charged with murder, yet the killing was proved in detail and there were no instructions in the court’s charge from which the jury could know of appellant’s right of self defense and to arm himself for that purpose.

We conclude that under the record the argument was of such prejudicial nature that the court’s instruction to disregard it did not remove its harmful effect.

The judgment is reversed and the cause remanded.


text:
    Silas DARNELL, Appellant, v. The STATE of Texas, Appellee.
    No. 34429.
    Court of Criminal Appeals of Texas.
    May 9, 1962.

      Ross Huffmaster, Kaufman, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is possession of wine for the purpose of sale in a dry area, two prior convictions being alleged for enhancement of punishment; the punishment assessed by the jury, six months in jail and a fine of $400.

The state’s evidence was to the effect that the appellant was observed by officers using binoculars who testified that they saw him get into an automobile with other occupants and go in a northeasterly direction from appellant’s house; and they watched appellant as he unloaded some boxes of alcoholic beverages; that early the next morning the officers found 12 quarts of wine and some beer at the place where they saw appellant unloading the beverages; that at the place where appellant was barbecuing hogs, the officers found a quart of wine and nearby a half-carton or 12 cans of beer. The wine and beer was offered in evidence.

The state’s evidence further shows that there was a trail leading from the house where appellant lived alone to where the wine and beer was found, a distance of some four or five hundred yards.

The area was shown to be dry, and the prior convictions alleged were proved.

Two points of error are presented, both complaining of the admission of evidence to the effect that appellant was taken by the officers to the stash and while under arrest he said that some of the beer was his.

We find no objection in the record on the ground that appellant’s statement was inadmissible because it was made while under arrest or without warning.

We further note that the appellant testified :

“They came to the house and loaded me up and carried me down there and showed me that case of wine * * * and said it was mine. It’s not mine.”
“Q. Is this beer here yours? A. Yes, sir. That beer is mine.
“Q. You told Mr. Evans that was yours? A. Yes, sir. I told Mr. Evans.
“Q. Is it your testimony that this carton was found where the wine was ? A. That’s what they were telling me when they got me down there and I told them I didn’t know nothing about that carton there. * * * ”

The admission of the evidence complained of is not, under the record, ground for reversal.

The jury resolved the fact issues against the appellant.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.


text:
    Joe B. SPRINGFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 34498.
    Court of Criminal Appeals of Texas.
    May 16, 1962.
    Brown & Shuman, Lubbock (on appeal only), for appellant. .■
    William H. Davis, Chief, Enforcement Division, State Securities Board, Austin, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is selling securities without having been registered as a dealer by the Securities Commission of Texas; the punishment, confinement in the penitentiary for one year.

In view of our disposition of this appeal, a statement of the facts will not be necessary.

The trial judge admonished the jury against a quotient verdict in his written charge as follows:

“ * * * it would not be permitted of each juror to state or set down a number of years and that you should add up the total of the sums so stated and divide the same by the number of jurors, and thereby agree to be bound by ascertaining the result so obtained.”

Appellant excepted to this charge because it “constitutes and is a comment upon the weight of the evidence by the court with implication of the court’s opinion that the Defendant should be assessed a term in the penitentiary” and is “an undue limitation of the jury’s field of deliberation insofar as the penalty is concerned.”

The punishment provided in Article 581-29, Vernon’s Ann.Civ.St., for the offense charged has no minimum penalty. The jury could have assessed a fine and no confinement at all, or confinement for a period of days, or a period of months, and the court’s reference to “years” was clearly improper for the reasons stated in Green v. State, 154 Tex.Cr.R. 197, 226 S.W.2d 454. See also Barrera v. State, 157 Tex.Cr.R. 49, 246 S.W.2d 480.

The State was allowed to prove that appellant had made four separate sales of securities in addition to the one for which he was there indicted for the purpose of showing the he was a dealer in securities. Upon another trial, the court’s charge should limit the jury’s consideration of this evidence to the purpose for which it was admitted. Graeb v. State, 104 Tex.Cr.R. 293, 283 S.W. 819, and Thomas v. State, 103 Tex.Cr.R. 671, 282 S.W. 237.

For the errors above pointed out, the judgment is reversed and the cause is remanded.


text:
    W. C. KILPATRICK, Appellant, v. The STATE of Texas, Appellee.
    No. 34610.
    Court of Criminal Appeals of Texas.
    May 16, 1962.
    Bryant, Glenn & Thomas, by Allen Glenn, Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

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

The arresting officer, Abilene Police Patrolman Dorrough, expressed the opinion that appellant was under the influence of intoxicating liquor when he stopped the pickup truck he was driving. He testified:

“Q. Now, tell this jury what physical factors that you base your opinion upon that he was under the influence of intoxicating liquor?

“A. Number one, he was — when he first got out of his pickup, he staggered quite a bit. He had to hold on to his pickup to walk to the back of it to keep from stumbling around. His speech was very slurred. His eyes were more or less glassy. When we first got him to the station, he was very belligerent. He didn’t want to associate with us, or didn’t want to help us in any way. We had to just tell him everything, had to tell him several times.

“Q. Was there anything else ?
“A. No, sir. That’s * * * ”

On cross-examination the officer testified that he had not known the appellant previously; had never seen him walk or heard him talk and did not know whether he had a speech impediment or whether the slurring of his words was a natural condition.

The arresting officer was the only witness for the state. The appellant did not testify and the only witness he called was the Youth Counselor for the City of Abilene who testified to appellant’s good reputation for sobriety and for being a peaceful law abiding citizen.

Three formal bills of exception complain of remarks of the attorney representing the state, in his argument to the jury, as violative of Art. 710 Vernon’s Ann.C.C.P. which provides that the failure of the defendant to testify shall not be alluded to or commented upon by counsel in the cause.

Bill of Exception No. 1 certifies that “there was no person other than the Defendant who might have testified concerning the matter of whether or not the defendant has a slur or has lumbago, as was discussed in the prosecutor’s argument.”

Bill No. 3 certifies that “there was no person other that the Defendant to whom the prosecutor’s argument ‘this man was sworn in’ could have referred.”

The bills were approved with the qualification that there were four people with the defendant at the time of his arrest and there were four witnesses sworn for the defendant in the presence of the jury at the trial and available to defendant.

The remarks that “we don’t know that” and “the sole case for the defense has been a character witness”, and “this man was sworn in”, made in connection with argument relating to whether appellant in fact had an impediment in his speech, or which affected the way he walked, viewed in the light of the certification in the bills of exception, constituted an indirect reference to the appellant’s failure to testify and require reversal. Boone v. State, 90 Tex.Cr.R. 374, 235 S.W. 580; Burns v. State, 141 Tex.Cr.R. 557, 150 S.W.2d 384; Royal v. State, 160 Tex.Cr.R. 598, 273 S.W.2d 426.

The fact that the trial judge sustained objection and instructed the jury to disregard a comment upon the defendant’s failure to testify did not cure the error. Lankford v. State, 156 Tex.Cr.R. 113, 239 S.W.2d 394.

The judgment is reversed and the cause remanded.


text:
    Sam PEAVY and Faye Joyce Peavy, Appellants, v. The STATE of Texas, Appellee.
    No. 34550.
    Court of Criminal Appeals of Texas.
    April 25, 1962.

      Weldon H. Berry, Houston, for appellants.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellants, Sam Peavy and Faye Joyce Peavy, were jointly charged, tried and convicted for the offense of aggravated assault upon a police officer and their punishment was assessed at fines of $250 and $100, respectively.

The facts, as reflected by the State’s testimony shows that on the night in question the appellant, Sam Peavy, while driving his automobile in the City of Houston was stopped by City Officer D. R. Perry and given a traffic ticket for operating the vehicle with a defective muffler. At such time appellant was very belligerent with the officer and after receiving the ticket, he got back in his automobile and started off at a high rate of speed, spinning the wheels. Officer Perry proceeded to follow the appellant as he drove down the street and to where he turned into the driveway at his home. The officer then got out of the police car to give appellant some additional traffic tickets, including one for speeding. Appellant ordered him off his property and after the officer informed appellant he was under arrest a struggle ensued between them. During the encounter Officer Perry went •to the patrol car and radioed for help. In response to the call, Officers W. J. Wehr •and H. C. Seibert, Jr. went to the scene. Both officers were in uniform and were ■wearing a badge. When they arrived, ap-pellant and the officer were still engaged •in the struggle and they proceeded to assist •Officer Perry wrestle appellant to the •ground and place hand cuffs on him. During the struggle, appellant struck Officer Wehr, the prosecuting witness, several times and his wife, the appellant Faye Joyce Peavy, came out of the house, jumped on ■Officer Wehr’s back and began hitting him ■with her fists.

Appellants, testifying as witnesses in their own behalf, denied that either hit the officers on the night in question and testified that it was the officers who had administered a brutal beating to appellant, Sam Peavy. Several of appellants’ neighbors were called as witnesses who corroborated their denial that they hit or struck the officers on the occasion in question.

The jury resolved the conflict in the testimony against appellants and we find the evidence sufficient to sustain their verdict.

Appellants’ sole claim of error on appeal is that the court erred in refusing to give their requested charge on self defense and defense of another.

Such complaint is not properly before us for review because no exception to the court’s action in refusing the requested charge is verified by the trial judge. Eldredge v. State, 162 Tex.Cr.R. 282, 284 S.W.2d 734; Carpenter v. State, Tex.Cr.App., 345 S.W.2d 412 and Leonard v. State, Tex.Cr.App., 356 S.W.2d 926.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Luther DORSEY, Appellant, v. The STATE of Texas, Appellee.
    No. 34623.
    Court of Criminal Appeals of Texas.
    May 16, 1962.

      Tom Moore, Jr., Waco, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is felony theft; the punishment, two years.

The circumstantial evidence offered without objection, viewed in the light most favorable to the jury’s verdict, is sufficient to sustain the finding that appellant acted as a principal with one George Currie in the theft of more than $50 in currency from the cash register at the checking stand of Mrs. W. R. Newsom, an employee in a Supermarket in Big Spring owned by Don ■Newsom.

The indictment alleged that the money belonged to Joe Bell.

The evidence shows that Joe Bell was the manager of the Supermarket at the time of the theft, and was in charge of the store and had the care, control and custody of Mr. Don Newsom’s property in the store.

Joe Bell did not testify at the trial. The evidence shows that he was no longer employed by Don Newsom and had gone to Spur, and at the time of the trial was ill in the hospital in Lubbock.

Joe Bell was not in the store at the time the money was taken out of the open cash register by George Currie, while Mrs. New-som was checking appellant’s purchase and selling him some snuff and tobacco.

Mrs. Newsom testified that she did not give permission to appellant or any other man in any way to take money from the cash register.

The sole ground for reversal is predicated upon the contention that the state failed to prove the essential element of lack of consent of Joe Bell, the owner named in the indictment.

The precise question presented is whether, under the record, reversal should be ordered bcause the state resorted to circumstantial evidence to prove that Joe Bell did not consent to the taking of the money from the cash register.

Appellant relies upon the rule as stated in Lynch v. State, 70 Tex.Cr.R. 449, 156 S.W. 1182: “Where positive, affirmative testimony can be shown in regard to want of consent, this may be done, and it cannot be shown by circumstantial evidence.” He also quotes from the early case of Wilson v. State, 12 Tex.App. 481: “this proof should be made by the persons themselves if they are attainable, and if they are not to be had, their absence should be accounted for before the State can be allowed to resort to circumstantial evidence.”

We are aware of no holding by this Court that evidence to the effect that the special owner is ill in the hospital in another county is not a sufficient predicate for proof by circumstantial evidence that he did not consent to the taking of property from the store of which he was the manager and in charge of the property stolen.

This Court has, on numerous occasions, applied the rule that want of consent may not be inferred from other circumstances when the owner is present and is a witness in the theft case, but does not testify that the property was taken without his consent. Mitchell v. State, 166 Tex.Cr.R. 291, 313 S.W.2d 286, and cases cited. 5 Branch’s Ann.P.C.2d 88, Sec. 2639, cites cases holding that the judgment will not be reversed because the person or persons in whom ownership and possession is alleged were not placed on the stand to testify directly and in terms to want of consent, if no bill of exception was reserved to the circumstantial evidence offered to prove want of consent. Among the cases cited are Allen v. State, Tex.Cr.App., 24 S.W. 30, and Taylor v. State, 109 Tex.Cr.R. 323, 4 S.W.2d 564.

We hold that the circumstantial evidence offered by the state was sufficient to sustain the jury’s finding that the money was taken from the possession of Joe Bell without his consent, and that such evidence was admissible for that purpose, Joe Bell not being present at the trial but ill in a hospital in another county.

We further hold that appellant, not having raised the question by objection in the trial court, may not complain for the first time in this Court that the state resorted to circumstantial evidence in proving want of consent of the special owner, Joe Bell.

The judgment is affirmed.