author: CHRISTIAN, J. HAWKINS, J. LATTIMORE, J.

text:
    CLAXTON v. STATE.
    (No. 11126.)
    Court of Criminal Appeals of Texas.
    Nov. 23, 1927.
    Rehearing Denied March 21, 1928. Application for Leave to File Second Motion for Rehearing Denied April 11, 1928.
    1. Homicide <3^286(2)— Definitions of “malice aforethought” and “malice” held not erroneous as not permitting jury to acquit of murder though homicide was committed under sudden passion.
    In prosecution for murder, instructions defining “malice aforethought” as voluntary and intentional doing of unlawful act by one ■ of sound memory and discretion, with purpose, means, and ability to accomplish consequences, including state of mind under which killing takes place without justifiable cause, and defining “malice” as denoting wrongful act done intentionally without just cause or excuse, field not to constitute reversible error as not permitting jury to acquit of murder, though homicide was committed under influence of sudden passion aroused by adequate cause.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Malice; Malice Aforethought.]
    2. Criminal law <guw8l4(8, 9) — Instruction that jury could determine whether deceased’s in- • suiting words or conduct were real cause of killing held erroneous as inapplicable to facts (Pen. Code 1925, art. 1251).
    In prosecution for murder, in which defendant claimed to have killed deceased under influence of passion aroused by statements which he believed to be true as to insulting words and conduct of deceased, instruction that jury could determine whether insulting words or conduct were real cause of hilling held erroneous as inapplicable to facts, though it substantially included provisions of Pen. Code 1925, art. 1251.
    3. Criminal law (§=>1186(4) — Instruction inapplicable to facts held harmless, where charge as whole was not misleading (Code Cr. Proc. 1925, art. 666).
    In prosecution for murder, instruction that jury could determine whether insulting words or conduct of deceased were real cause of killing, though erroneous as inapplicable to facts, ⅞eld not prejudicial under Code Or. Proc. 1925, art. 666, where charge considered as whole did not mislead jury.
    4. Homicide (⅝=>171 (3) — In prosecution for killing, evidence of details of shooting of others in same transaction held admissible.
    In prosecution for murder, in which shooting of deceased and of others grew out of same transaction and were practically contemporaneous, evidence of details of shooting of others held admissible as res geste, crimes being so intermixed and' blended that they form indivisible criminal transaction.
    On Motion for Rehearing.
    5. Criminal law ⅞=>822 (I) — Criticized charge must be construed in connection with charge as whole.
    On appeal from conviction for murder, criticized charge must be considered in connection with charge as whole, and does not constitute reversible error merely because, standing alone, it might be misconstrued because not aptly worded.
    6. Criminal law <§=>! 186(4) — In reviewing conviction court must consider all evidence and instructions in determining whether criticized portion of charge injured defendant’s rights (Code Cr. Proc. 1925, art. 666).
    In giving effect to Code Cr. Proc. 1925, art. 666, it is duty of court reviewing conviction for murder to have in mind all evidence and instructions of court, and from all these try to reach fair conclusion as to whether some portion of charge which may be subject to criticism was calculated to injure rights of defendant.
    Ón Application for Leave to Pile Second Motion for Rehearing.

      7. Homicide <§=>l 64 — Proof of relative size and strength of parties to homicide is ordinarily admissible.
    Proof of relative size and strength of parties to homicide is ordinarily admissible in behalf of either person in prosecution thereof.
    8. Criminal law <3=>363 — Testimony of finding blood under deceased’s head held admissible as res gestae.
    In prosecution for murder, testimony as to finding of blood tinder head of deceased, brought out in development of res geste, held properly admitted.
    Commissioners’ Decision.
    Appeal from District Court, Milam County; John Watson, Judge.
    J. A. Claxton was convicted of murder, and he appeals.
    Affirmed.
    E. A. Camp, of Rockdale, and Henderson, Kidd & Henderson, of Cameron, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment confinement in the penitentiary for 99 years.

This is the second appeal of this ease. The first, appeal is reported in 105 Tex. Cr. R. 308, 288 S. W. 444. The companion case of Clax-ton v. State is reported in 103 Tex. Cr. R. 233, 280 S. W. 832. In the instant case appellant was convicted of the murder of Otto Junek, and in the companion case of the murder of J. M. McAlpine. Both homicides resulted from the same transaction and occurred at the same time and- place. The evidence disclosed by the present record is substantially the same as that shown in the former appeal of this case and of the companion case. In the companion case, the reversal was based mainly upon an error in the charge of the court. However, in reversing the companion case, the court said that:

“We are not, to be understood as saying that the evidence may not be strong enough to support a conviction for murder, but that the mind of this court upon an examination of this record is left, in such condition that we are desirous that the evidence should be passed upon again by another jury.”

The present case was formerly reversed upon an error in the court’s charge. However, a careful review of the record of the former appeal led the court to the conclusion that the evidence was sufficient to support a conviction of murder. After a reversal of the judgment of the trial court, in granting the state’s motion for rehearing the court said:

“In the present record is the verdict of the second jury of the same nature. Upon reflection, it is believed that, in overturning the judgment of the jury and that of the trial court on the fact of mental agitation, this court, on the present record, has gone too far, and should be impelled by duty to grant the state’s motion for rehearing, to set aside the judgment reversing the conviction and to order its affirmance.”

We now have in the present record the verdict of the third jury of the same nature. The facts of the instant case being substantially the same as in the former appeal (105 Tex. Cr. R. 308, 288 S. W. 444), a recital thereof would be largely repetition. We content ourselves with the statement that we. find no evidence in the record in addition to that contained in the former record, which would justify a recession from our former position. It follows that we must overrule appellant’s contention that the court erred in embodying in his charge an instruction covering the law of murder. Appellant’s contention that the evidence is insufficient to sustain a conviction for murder, being necessarily ' involved in the proposition that the court erred in submitting to the jury the issue of murder, must likewise be overruled.

Appellant brings forward numerous exceptions to the court’s charge. We deem it unnecessary to discuss but two of the propositions raised by such exceptions.

Appellant attacks the court’s definition of malice and malice aforethought as applying equally to murder and manslaughter, his position being that under the definition submitted to the jury they could not have acquitted appellant of murder even though they believed the homicide was committed under the influence of sudden passion aroused by an adequate cause. The court defined malice aforethought as “the voluntary and. intentional doing of an unlawful act by one of sound memory and discretion, with the purpose, means and ability to accomplish the reasonable and probable consequences of the act.” The term was further defined in the' succeeding paragraph as follows:

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

The jury were instructed in immediate connection with the definition of malice aforethought that “malice in its legal sense denotes a wrongful act done intentionally without just cause or excuse.”

In the recent ease of Collins v. State, No. 10957 (Tex. Cr. App.) 299 S. W.403, opinion delivered October 26, 1927, we had occasion to discuss the question presented here. In that ease, as in this, the jury were instructed, in connection with the definitions objected to, that malice was “a condition of the mind showing a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.” In the Collins Case, we held that where manslaughter is an issue malice should not be defined as denoting in its legal sense “the intentional doing of a wrongful act to another without legal justification,” as such definition is subject to the objection that it can be applied to both murder and manslaughter, each of those offenses involving the intentional doing of a wrongful act. See Hayes v. State, 14 Tex. App. 330; Copper v. State, 94 Tex. Cr. R. 199, 250 S. W. 185. Ho.wever, we approved the definition of malice aforethought as “a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken,” and held that the objectionable definition of “malice aforethought” did not constitute reversible error. The holding in the Collins Case is applicable here, and we are constrained to overrule appellant’s contention.

Appellant vigorously assails as error paragraph 12 of the court’s charge, which reads as follows:

“The jury is at liberty to determine whether under all the circumstances, the insulting words or conduct, if any, were the real cause of the killing.”

In paragraph 11 of the charge, the court instructed the jury as follows:

“You are further instructed that it is immaterial whether the deceased, Otto Junek, or J M. McAlpine, each, either, or both, used insulting words to or conduct toward the daughter of the defendant, if you should find that the defendant was informed by his daughter, Vera Claxton, or in case of a reasonable doubt thereof, that the deceased, Junek, and said McAlpine, or either of them, did use insulting words to or insulting conduct toward Carrie Gunn, and that defendant believed such information to be true, or in case of a reasonable doubt thereof, he would have the same right to act upon such information as if the deceased, Junek and McAl-pine, each, either, or both of them, had in fact so used insulting words or conduct toward his .daughter, if any.”

Paragraph 14 of the charge reads as follows:

“If you believe from the evidence, viewed from the defendant’s standpoint at the.time of the homicide, or have a reasonable doubt thereof, that the defendant, J. A. Claxton, was informed that the deceased, Otto Junek, or that one J. M. McAlpine while acting with Otto Junek, or that the said Otto Junek and said J. M. McAlpine, acting together, did use insulting words or insulting conduct toward Carrie. Gunn, and that the defendant belieyed said information to be true, and such information produced in his mind either of the emotions of the mind known as anger, rage, resentment, or terror, rendering it incapable of cool reflection, and that, acting under the influence of either of the said emotions of the mind known as anger, rage, resentment, or terror, sufficient to render the mind incapable of cool reflection, he shot and killed said Otto Junek at his first meeting with him after receiving said information, then the defendant would be guilty of no higher degree of homicide than manslaughter, regardless of where or the manner in which the homicide occurred.”

Again, in paragraph 18, the court charged the jury as follows:

“You are instructed that in determining whether the state of mind referred to in par7 agraph 14 of this charge did actually exist on the part of the defendant at the- time of the commission of the homicide, and in determining whether such state of mind was produced by the information received by the defendant relating to the insulting words or conduct toward his daughter, Carrie Gunn, if you find from the evidence he did receive and believe such information, you should view the transactions and conditions surrounding the homicide from the defendant’s standpoint and consider all of the conditions and circumstances in evidence which, viewed from his standpoint, might cause such information to produce on the part of the defendant the state of mind referred to in such paragraph of the charge.”

Appellant asserts that the instruction given in paragraph 12 is contradictory of the instructions contained in paragraphs 11,14, and 18, and is the reverse of and contrary to the law of the case. He takes the position that the instruction complained of is equivalent to an instruction to the jury that it was immaterial as to whether the insult and abuse were actually offered if appellant had received and believed.the information thereof, but that the jury, in determining whether the offense was murder or manslaughter, could be governed by their finding as to whether such insult and abuse were actually offered and were the real cause of the homicide, since the insult and abuse could not have been the real cause of the homicide, unless they actually had been offered. In short, appellant takes the position that the instruction complained of was calculated to lead the jury to believe that before they could reduce the homicide to manslaughter they must find that the insult and abuse were actually offered and were the real cause of the homicide.

In submitting paragraph 12, the court substantially embodied therein the provisions of article 1251, P. C., which provides that:

“The jury shall be at liberty to determine whether under all the circumstances, the insulting words or gestures were the real cause of the killing.”

Being inapplicable to the facts of this case, paragraph 12 should have been omitted from the charge. However, considering the charge as a whole, we do not believe the instruction contained in paragraph 12 was calculated to mislead the jury. The attention of the jury was more than once directed to the fact that it was immaterial whether appellant’s daughter had actually been insulted by the deceased, Junek and McAlpine, provided appellant had received and acted upon information believing the same to be true, and that such information produced in his mind anger, etc., rendering it incapable of cool reflection, etc. In the view we take of the matter, we are constrained to hold that under the provisions of article 666, O. C. P., we would be unauthorized to reverse the judgment of the trial court because of the error committed by the court in embodying paragraph 12 in the charge. It does not appear from the record that the error complained of was calculated to injure the rights of appellant, and neither does it appear that appellant has not had a fair and impartial trial.

Appellant asserts that the trial court committed error in permitting the state to prove over his objection the details of the shooting of McAlpine and the wife of the said McAlpine. We are unable to agree with appellant that this testimony was inadmissible. Underhill on Criminal Evidence (3d Ed.) § 152, lays down the rule applicable here as follows:

“If several crimes are intermixed,'or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, either direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.”

That the killing of McAlpine and the shooting of the wife of McAlpine both grew out of the same transaction and were practically contemporaneous is clearly shown by the evidence. The crimes were intermixed land blended with one another and so connected that they formed an indivisible criminal transaction. Proof of the killing of McAlpine and the shooting of his wife was a part , of the res gestae of the killing of Junek. See Branch’s Annotated Penal Code, § 2347, and authorities cited therein; also, see Nichols v. State, 97 Tex. Cr. R. 174,.260 S. W. 1050.

There are numerous other complaints contained in the record which we will not undertake to discuss. However, we have carefully examined every contention made by appellant, with the result that we have reached the conclusion that no reversible error, is reflected by the record.

Finding no error, 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.

HAWKINS, J.

Appellant devotes many pages of his motion for rehearing to a most persuasive argument presenting the contention that the court was in error in disposing of appellant’s criticism of paragraph 12 of the court’s charge. Appellant’s premise is that said paragraph is in direct contradiction of other portions of the charge and that therefore our opinion is not in harmony with Barbee v. State, 58 Tex. Cr. R. 129,124 S. W. 961, and Henry v. State (Tex. Cr. App.) 54 S. W. 592, and contrary to the principle announced in Le Masters v. State, 81 Tex. Cr. R. 577, 196 S. W. 829. We cannot regard the criticized charge as being in direct contradiction of other portions of the'instructions. It is not aptly worded, and, standing alone might be misconstrued; but the charge must be considered as a whole. See note 158, art. 658, Vernon’s O. C. P. vol. 2, p. 252. In giving effect to article 666, C. 0. P., it is the duty of this court to have in mind all the evidence and the instructions of the court in its entirety, and from all these try and reach a fair conclusion as to whether some portion of the> charge which may be subject to criticism was calculated to injure the rights of appellant. It is manifestly impracticable to set out in the opinion all the evidence or all the instructions.; the best we can hope to do is to state our deliberate judgment after considering the entire record. A further painstaking examination of the facts and the charge confirms us in the belief that the view of the matter expressed in our original opinion is correct.

We think the Collins Case (Tex. Cr. App.) 299 S. W. 40S, citéd in our former opinion, controls the point made upon the court’s definition of malice. ' The jury could not have been confused upon the issue that the offense might have been manslaughter although the killing was intentional. The court pointedly told the jury that if appellant in a passion aroused by adequate cause shot at deceased “with intent to kill him,” he would only be guilty of manslaughter.

At the same time Junek was killed and as a part of that same transaction appellant also killed McAlpine and wounded Mrs. McAlpine. Appellant was on trial for killing Junek. He again urges that details of such killing, and of those incident to the killing of McAlpine, and the wounding of the latter’s wife, and proof of the wounds inflicted on the two latter parties, and the surroundings and conditions immediately following the tragedy at the place of the killing, should not have been admitted because prejudicial to the appellant because the killing of Junek was admitted to have been unlawful. This same contention in principle was made in Simpson v. State, 97 Tex. Cr. R. 57, 263 S. W. 273, but was not sustained.

We have again examined with patience all the questions presented in appellant’s motion. In some instances the state’s inquiry may have extended with unnecessary particularity into some questions; but we find nothing which to our minds would justify the court in ordering a reversal.

The motion is therefore overruled.

On Application for Leave to Eile Second Motion for Rehearing.

LATTIMORE, J.

In asking leave to file second motion for rehearing, appellant sets out at length certain complaints which were in his original motion, and were considered and deemed not such as to call for reversal, and which were not discussed in detail in the opinion overruling the motion. Proof of the relative size and strength of the parties to a homicide is ordinarily admissible in behalf of either party in a prosecution therefor. 13 Ruling Case Law, p. 822. While in some cases such proof upon the whole facts might be deemed irrelevant, it seems to have been generally held not of reversible effect. Taylor v. State, 41 Tex. Cr. R. 148, 51 S. W 1106; Lundy v. State, 59 Tex. Cr. R. 131, 127 S. W. 1032; Patterson v. State, 87 Tex. Cr. R. 95, 221 S. W. 596. In fact, we know of no case in which the admission of such testimony has been held sufficient to call for a reversal. In the instant case, some time during the trial, and before the evidence closed, the court admitted testimony showing that appellant was larger and heavier than deceased. Apparently, being of opinion, when the testimony closed, that no issue had been developed to which such evidence was relevant, the court instructed the jury not to consider said testimony.

The fact of the giving of such instruction has been held in numerous cases to cure the error, if any, of the admission of the testimony. In Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925, 37 Am. St. Rep. 836, a death penalty ease, and in which case the admission of matter seemingly much more hurtful than that now complained of, it was held not cause for reversal; the court having instructed the jury not to consider the testimony. In Hatcher v. State, 43 Tex. Cr. R. 237, 65 S. W. 97, the rule seems to be laid down that only when the admitted testimony is of such damaging character as to suggest the impossibility of withdrawing the impression made by same from the minds of the jury would same be cause for reversal. To the same effect is Martoni v. State, 74 Tex. Cr. R. 90, 167 S. W. 349. The cases cited in appellant’s application relate to matters of much greater import to the accused than that here involved.

That one accused of murder who pleads not guilty to the charge, but, as appears in the instant case, in that connection offers to plead guilty to manslaughter, may not thus restrict or prevent the state from the full development of all material facts in the case, seems sound; the shooting of a woman in the same transaction in which the instant homicide occurred, and the conduct of the parties at the time, would be res gestae and provable. We deem the testimony of the finding of blood, etc., under the head of deceased, which was brought out in the development of the res gestae, not subject to complaint.

Regretting that we may not respond to the application, same will be denied.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes

      @s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CHRISTIAN, J.

license: Public Domain

text:
    WHITE v. STATE.
    (No. 11248.)
    Court of Criminal Appeals of Texas.
    Feb. 22, 1928.
    Rehearing denied April 4, 1928.
    Criminal law <§=>!099(6) — Statement of faets, filed over 90 days after notice of appeal, cannot be considered (Code Cr. Proc. 1925, art. 760, subd. 5).
    Statement of facts, filed more than 90 days after notice of appeal was given, cannot be considered by Court of Criminal Appeals, under Code Cr. Proc. 1925, art. 760, subd. 5.
    Commissioners’ Decision.
    Appeal from District Court, Damar County; George P. Blackburn, Judge.
    Z. White was convicted of murder, and be appeals.
    Affirmod.
    Sturgeon & Sturgeon, of Paris, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder ; the punishment confinement in the penitentiary for 5 years.

No bills of exception appear in the record. Notice of appeal was given on the 30th day of April, 1927. A statement of facts was filed on September 15, 1927. It is thus seen that the statement of facts was filed more than 90 days after notice of appeal was given. In such condition, the statement of faets cannot be considered by this court. Subdivision 5 of article 760, C. C. P. 1925; Rudolph v. State, 107 Tex. Cr. R. 628, 298 S. W. 434; Triggs v. State, 105 Tex. Cr. R. 578, 289 S. W. 391; Bailey v. State, 104 Tex. Cr. R. 150, 282 S. W. 804.

No error being manifested by the record, the judgment is affirmed.

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


author: HAWKINS, J.

text:
    HOLT v. STATE.
    (No. 11661.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    Criminal law <§=>1023(9) — Appeal in prosecution for driving while intoxicated, will be dis- ' missed, where no sentence was shown to have been rendered.
    Where penalty assessed is less than death, sentence is prerequisite to an appeal, and, where record in prosecution for driving while intoxicated did not show sentence was ever pronounced against defendant, appeal must be dismissed.
    Appeal from District Court, Rockwall County; Joel R. Bond', Judge.
    CJarence Holt was convicted for driving an automobile upon the highway while under the influence of intoxicating liquor, and he appeals. Appeal dismissed.
    Appeal reinstated, and judgment affirmed.
    5 S.W.(2d) 770.
    J. Frank Wilson, of Dallas, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for driving an automobile upon the highway while appellant was under the influence of intoxicating liquor; punishment being one year in the penitentiary.

The record contains a transcript and a supplemental transcript, but in neither is it shown that sentence was ever pronounced against appellant.

Where the penalty assessed is less than death, a sentence is prerequisite to an appeal. Dodd v. State, 77 Tex. Cr. R. 543, 179 S. W. 564; Carrell v. State, 83 Tex. Cr. R. 536, 204 S. W. 334. Other authorities will be found collated under note 3, art. 769, 3 Vernon’s C. C. P. 1925, p. 150.

No jurisdiction having been conferred on this court by appeal in absence of sentence, the appeal must be dismissed.


author: MORROW, P. J.

text:
    READ v. STATE.
    (No. 11772.)
    Court of Criminal Appeals of Texas.
    March 28, 1928.
    Bail <§=>66 — Appellate court cannot pass on merits, where recognizance does not state that appellant was convicted of felony (Code Cr. Proc. 1925, art. 817).
    Court of criminal appeals is without jurisdiction to pass on merits of case, where recognizance does not state that appellant was convicted of felony, as required by Code Cr. Proc. 1925, art. 817.
    Appeal from District Court, Marion County; R. T. Wilkinson, Judge.
    Boss Read was convicted of possessing equipment for the unlawful manufacture of intoxicating liquor, and he appeals.
    Appeal dismissed.
    P. G. Henderson and J. H. Benefield, both of Jefferson, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Possession of equipment for the unlawful manufacture of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one year.

The case is before us without statement of faets or bills of exceptions. There is nothing in the record upon which a reversal could be ordered. However, this court is without jurisdiction to pass upon the merits of the case owing to the fact that the recognizance does not comply with the legal requirements, in that it fails to state that the appellant was convicted of a felony, such being an essential statutory requisite. See article 817 O. O. P. 1925.

The appeal is dismissed.
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    KELSEY v. STATE.
    (No. 11188.)
    Court of Criminal Appeals of Texas.
    March 31, 1928.
    1. Criminal law <⅜»394 — Evidence obtained by search of defendant’s house under warrant issued on information and belief held inadmissible.
    In prosecution for possessing liquor for sale, evidence obtained by search of defendant’s house under search warrant issued on information and belief, without statements of facts or circumstances on which belief was grounded, held inadmissible.
    2. Criminal law 169(2) — Improper admission of officers’ testimony as to finding whis-ky in defendant’s house, where merely repetition of defendant’s testimony, held not ground for reversal.
    Where defendant, accused of possessing liquor, testified in her own behalf that officers found in her house two jars containing whis-ky, receipt of officers’ testimony to the same effect, though improper, was not ground for reversal.
    3. Criminal law.<§=>l 169(2)— Erroneous admission of testimony is not prejudicial, where same fact is proved by other testimony not objected to.
    Erroneous admission in evidence of testimony is not ground for reversal, when the same fact is proved by other testimony against which no objection is made, especially when the other testimony is given by the defendant.
    4. Criminal law <⅜=*1169(2, 3) — Admission against defendant of prejudicial testimony, not admitted by him or proved by other means, requires reversal.
    Admission of material and prejudicial testimony against defendant, which has not been admitted by him or proved by other means without objection, is ground for reversal.
    5. Criminal law <3=>I 169(2) — Admission, in prosecution for possessing liquor for sale, of testimony concerning whisky found in yard and garage under insufficient search warrant, held prejudicial, notwithstanding defendant’s testimony as to whisky in house.
    In prosecution for possessing liquor for sale, where warrant for search of premises for intoxicating liquor was insufficient because issued on information and belief, admission of testimony of officers as to finding additional jars of whisky in yard and garage constituted prejudicial error, requiring reversal, notwithstanding defendant had herself testified that two jars containing whisky were located in the house.
    6.Criminal law 1 ½(2) — Argument in liquor prosecution, on (aiiure to testify of defendant’s 'husband previously convicted on similar testimony, held improper.
    In prosecution of wife for possessing liquor for sale, after husband had been tried and convicted, in which defense was that wife poured out whisky to save her husband, argument of state’s counsel commenting on failure of husband to testify held improper, where it appeared he was convicted on practically the same testimony, and was therefore not available as a witness.
    Appeal from District Court, Eastland County; Elzo Been, Judge.
    Mrs. E. E. (Kittie) Kelsey was convicted of unlawfully possessing intoxicating liquor for the purpose of sale, and she appeals.
    Reversed and remanded.
    Chastain & Judkins, of Eastland, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for the unlawful possession of intoxicating liquor for the purpose of sale; punishment fixed at confinement in the penitentiary for a period of three years.

Several officers, possessed of a search warrant, visited the home of the appellant. Upon entering the house, they observed two fruit jars with whisky in them. According to the officers, upon their arrival, the appellant attempted to empty one of the bottles into a funnel which went through the floor. They found no whisky in the house, though on the porch was a basket containing a lot of empty bottles. In the yard, buried in the ground and in the garage, some other whisky was found. On the premises there were found altogether eleven jars of whisky.

The appellant testified that she knew of the whisky that was in the house, but had no knowledge of any other whisky upon the premises. The evidence showed that, at the time of the search, her husband was in jail, charged with violating the law prohibiting the liquor traffic. She said she was undertaking to make bond for him; that, when the officers appeared, she did not know that she was violating the law in pouring the whisky out; that she did it in order to protect her husband against another prosecution.

The search warrant was issued upon information and belief, and stated no fact or circumstance upon which the belief was grounded. Objection was urged against the receipt in evidence of the testimony of the officers showing the result of the search which was made under the search warrant mentioned. The objection should have been ■sustained. The search warrant having been issued upon an improper affidavit, the introduction in evidence of the result of the search thereunder was inhibited by article 727a, C. O. t. 1925. The appellant having testified in her own behalf that the officers found in her house two fruit jars containing whisky, the receipt of the testimony of the officers to the same effect, though improperly received, could not form the basis for a reversal of the judgment. The erroneous admission in evidence of testimony is not ground for a reversal when the same fact is proved by other testimony against which no objection is made. See Vernon’s Crim. Stat. 1916, vol. 2, art. 938, p. 904, notes 27 and 28; and Vernon’s Crim. Stat. 1922, p. 2644, note 27; also Vernon’s Ann. C. C. P. 1925, vol. 3, art. 847, p. 271, note 32. The rule has particular application when the accused gives, without objection, testimony-the same as that erroneously received over objection. See volume last mentioned, page 275, note 33; also Trevino v. State, 83 Tex. Cr. R. 562, 204 S. W. 996; Morse v. State, 85 Tex. Cr. R. 83, 210 S. W. 965; Rodriguez v. State, 89 Tex. Cr. R. 373, 232 S. W. 512; Gonzales v. State (Tex. Cr. App.) 299 S. W. 901; Bonilla v. State (Tex. Cr. App.) 2 S.W.(2d) 248; Stone v. State, 89 Tex. Cr. R. 416, 232 S. W. 818.

The rule is not so construed as to render harmless material and prejudicial testimony against the accused which has 'not been admitted by him or - proved by other means without objection. In the case of Saddler v. State, 20 Tex. App. 195, the rule is thus stated:

“ ‘The admission of illegal evidence of an important fact material and pertinent to the issue, and which is additional to other facts legally in evidence, is erroneous, and that a conviction in such case will not be permitted to stand.’ * * * McWilliams v. State, 44 Tex. 116.”

In the present instance, the appellant testified that She had no knowledge of any whisky on the premises except that which was in her house. • By her testimony, she presented a defensive theory, namely, that the whisky found in her house had been placed there by her husband before his arrest, and that her act in attempting to pour it out was to shield him against another prosecution. Her intent in possessing the whisky which was found in the house was therefore a controverted question for the jury. In passing upon that issue, however, there was, by the manner in which the case was tried, rendered available to the jury the testimony of the' officers that they found nine additional jars of whisky, not in the house or the immediate possession .of the appellant, but in the yard and garage. Of this last-mentioned whisky, as above stated, she disclaimed any knowledge. The record standing thus, it cannot be properly said that the testimony of the officers with reference to that part of the whisky which they claimed to have found in the yard and garage was not calculated to injure the appellant. It was calculated to influence the jury upon the controverted issue of intent with reference to the whisky that was in the house and of knowledge of that which was on the premises; also with reference to the penalty which was fixed at two years above the minimum allowed by law.

A bill of exceptions complains of the argument of counsel for the state as follows:

“Gentlemen, don’t you know that, if this defendant’s testimony was true, that her husband had placed the whisky in that house, her husband, although he is a bootlegger, would have had enough manhood to get on the witness stand in her behalf and tell you that it was his whis-ky. He would have done so even though he 'knew it would result in his getting another term in the penitentiary himself.”

It was in evidence at the time the appellant was tried that her husband had been tried and convicted, and the impropriety of the remarks cannot be doubted. The inference from the record is plain that he was convicted upon practically the same testimony as that which bore upon the appellant’s case, and that he was therefore not available to the appellant as a witness. However, as the matter appears in the bill of exceptions, we would not feel warranted in reversing the judgment on account of the argument mentioned.

For the error pointed out, the judgment is reversed, and the cause remanded.
      <g=sPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LATTIMORE, J. HAWKINS, J.

text:
    MANIES v. STATE.
    (No. 11112.)
    Court of Criminal Appeals of Texas.
    March 7, 1928.
    Rehearing Denied April 11, 1928.
    1. Intoxicating liquors <§=>226 — Permitting questions what attracted witness’ attention to car containing liquor which defendant drove and regarding description of condition of car, held not error.
    In prosecution for possessing liquor for purposes of sale, in which defendant claimed he came to where parties had car containing liquor, who were unable to make it go and they induced him to drive it, permitting questions what attracted witness’ attention to car while defendant drove it into garage, and regarding description of condition of ear, held not error.
    2. Intoxicating liquors <@==>233(I) — In liquor prosecution, in which defendant claimed liquor in car defendant drove belonged to others, evidence that defendant was intoxicated held admissible.
    In'prosecution for possessing liquor for purposes of sale, in which defendant claimed to have no connection with intoxicating- liquor which he was transporting and that it belonged to others, admitting evidence that defendant was under influence of intoxicating liquor at time, held not error.
    3. Criminal law @=»742(l)—Where state proved defendant was in possession of automobile containing liquor, truth of defendant’s explanation was for jury.
    In prosecution for possessing intoxicating liquor for purposes of sale, where state proved defendant was in possession of automobile containing liquor and driving it, truth of defendant’s explanation that he came to where parties had car, who were unable to make it go and that they got defendant to drive car for them, held for jury.
    Appeal from District Court, Schleicher County; J. P. Sutton, Judge.
    Jim Maníes was convicted of possessing intoxicating liquor for purposes of sale, and he appeals.
    Affirmed.
    Anderson & Mobley, of San Angelo, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, two years in the penitentiary.

The facts are short, and show appellant as the driver and apparent possessor of the car in which were found 328 quarts of tequila, shown by the testimony to be intoxicating. The defense was, that appellant came to where some parties had said car; but were unable to induce it to go, and they got appellant to drive the car for them.

Complaint is made, that the district attorney asked a witness who saw appellant drive the car in question into a garage at Eldorado, “What first attracted your attention to the car?” The objection that it had not been shown that appellant was in possession of the car, and that he could not be responsible for what attracted the witness’ attention, seems without merit. Another bill complains that witness was asked to describe the condition of the car. The condition of the car was apparently what attracted the attention of the officers. It had a false bottom, and the signs were upside down and one of them badly crumpled up. We perceive no injury in the overruling of this objection.

Two bills of exception complain of the admission of testimony that the defendant was under the influence of intoxicating liquor at the time. The admission of this testimony was not error. He claimed to have no connection with the intoxicating liquor which he was transporting and that it belonged to others. His condition as being under the influence of intoxicating liquor, was a circumstance to be considered by the jury in passing upon the entire case.

The remaining bill of exceptions complains of the refusal of appellant’s motion for a peremptory instruction of not guilty, based on the proposition that the state had not made out the case as laid in the indictment. We cannot agree to the soundness of the contention. The state had proved appellant in possession of the car and driving it. He gave his explanation, the truth of which was for the jury. '

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

On Motion for Rehearing.

HAWKINS, J.

We have re-examined the record in the light of appellant’s motion, but find no reason for changing the views already expressed.

The motion is overruled.
      @=For other cases see same topic and KEY-NTJMBER in all Key-Numbered Digests and Indexes


text:
    KING v. STATE.
    (No. 11193.)
    Court of Criminal Appeals of Texas.
    March 28, 1928
    Criminal [aw @=>1169(1)—Receipt of testimony as to result of illegal search held harmful, in absence of other evidence of possession of liquor for sale (Code Cr. Proc. 1925, art. 727a).
    In trial for possessing intoxicating liquor for sale, error in receiving officers’ testimony as to result of search of defendant’s house under warrant not based on proper affidavit, in violation of Code Cr. Proc. 1925, art. 727a, held not harmless, in view of jury’s assessment of penalty far in excess of minimum, where defendant's only admission of possession was in her testimony that she had liquor in beer bottles found for her own use, and they were not introduced in evidence nor size thereof stated.
    Appeal from District Court, Eastland County; Elzo Been, Judge.
    May King was convicted of possession of intoxicating liquor for the purpose of sale, and she appeals.
    Reversed and remanded.
    Chastain & Judkins, of Eastland, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Possession of intoxicating liquor for the purpose of sale is the offense ; punishment fixed at confinement in the penitentiary for a period of 2½ years.

There were two counts in the indictment, one charging the sale of intoxicating liquor; the other the unlawful possession thereof.

Possessed of a search warrant, certain officers searched the house occupied by the appellant and found a jug of whisky, a number of bottles of beer, and some wine. There was testimony that the appellant had sold whisky. The transaction occurred in February, 1927. A witness testified that he bought a bottle of whisky from the appellant some four or five months before that time. However, this testimony was controverted by his own affidavit to the contrary and by the testimony of the appellant, and the court charging sale was abandoned. Her entire testimony on the subject of possession was as follows:

“I was at home on February 25th, on the occasion when the officers of the law visited my house. * * * I recognize those two bottles. It is my property. I never did deny that it was my property. I had this liquor for my own use.”

The warrant for the search was illegal in that it was not based upon the proper affidavit. The introduction of proof of the result of the search was inhibited by the statute, article 727a, O. O. P. 1925, and was received over appropriate objection by the appellant, and the ruling is properly presented for review. In meagerness of other testimony, the error in receiving the testimony of the officers cannot be regarded as harmless. Except in the testimony quoted, the appellant made no admission of the possession of anything. The only bottles mentioned by the officers were beer bottles. One or more of them seem to have been on hand at the trial, though they do not appear to have been introduced in evidence, nor is the size of them stated. If the possession by her of two bottles of intoxicating liquor be inferred, the inference that it was possessed for sale could come alone from the testimony of the searching officers which was improperly before the jury. Such improper testimony was no doubt appropriated by the jury on the issue of intent and the penalty, which was fixed, far in excess of the minimum.

The judgment is reversed and the cause remanded.
      other cases see same topio and KfiY-NUMBER in all Key-Numbered Digests and Indexes


author: MARTIN, J. HAWKINS, J.

text:
    STILLWELL v. STATE.
    (No. 11177.)
    Court of Criminal Appeals of Texas.
    Dec. 14, 1927.
    Rehearing Denied April 11, 1928.
    I. Criminal law <§=wi 1661/2(8) — Alleged error in overruling challenge for cause held not available where exception failed to show peremptory challenges were exhausted.
    Where court’s qualification of bill of exceptions showed that defendant was allowed extra peremptory challenges, and it did not clearly appear that such challenges were used, alleged error of court in overruling challenge for cause to one of jurors in panel could not be considered on appeal.
    2. Witnesses <®=>374(l) — In prosecution for murder'of person alleged to have had improper relations with defendant’s wife, evidence that state’s witnesses had lived in adultery held inadmissible.
    In prosecution for murder, refusal to permit proof that two of state’s witnesses were living in adultery at time of the homicide held not error, where no legal accusation was ever filed against the parties, though evidence was sought to be admitted to show bias in favor of deceased, alleged to have had improper relations with defendant’s wife.
    Commissioners’ Decision.
    Appeal from District Court, Falls County; Jolm Watson, Judge.
    Jack Stillwell was convicted of manslaughter, and he appeals.
    Affirmed.
    Nat Dlewellyn, of Marlin, for appellant.
    T. B. Bartlett and C. Pearce, both of Marlin, and A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, manslaughter; punishment, two years’ confinement in the penitentiary. A former appeal of this case is reported in 104 Tex. Cr. R. 338, 283 S. W. 840, where enough of the facts are stated to illustrate the points involved in this appeal.

By bills of exception Nos. 1, 2, and 3 complaint is made of the action of the court in overruling appellant’s challenge for cause to three of the jurors in the panel. Neither of the first two of these jurors appear to have been forced on appellant. The court qualifies bill No. 3 pertaining to third juror as foU lows: “After counsel for defendant had exhausted his 15 peremptory challenges, the court informed him that he would allow him two additional challenges, and counsel for defendant was allowed 17 peremptory challenges.” It is not clearly shown that appellant had not these extra challenges unused when the third undesirable juror was taken. Under these circumstances there could have been no error in the court’s action. Where the bill of exception fails to show defendant exhausted his peremptory challenges, the alleged error in overruling his challenge to an objectionable juror cannot be revised on appeal. Tuttle v. State, 6 Tex. App. 560; Branch’s P. C. p. 278. Mr. Branch states the rule as follows:

“A judgment of conviction will be reversed on appeal if it is shown by a proper bill of exceptions (1) that a good challenge for cause to a juror was erroneously overruled by the trial court, (2) that defendant exhausted his peremptory challenges, and (3) that one or more objectionable jurors sat in the case.” Branch’s P. C. § 542.

Under this rule none of appellant’s bills show error.

Complaint is made because the court in his charge failed to present the issue of justifiable homicide, under the statute, when committed by the husband upon the person of any one taken in the act of adultery with his wife. This same question was before the court on a former appeal, and we see no reason for changing the former ruling of this court thereon. The evidence does not appear to be materially different and in our opinion does not raise the issue.

Complaint is made in bills of exception Nos. 4, 5, and 7, the substance.of which is that the court was in error in refusing to permit appellant to prove that Zeddie Jones and one Sam Jones, both material witnesses for the state, were living in adultery at the time ■ of and prior to the killing in question. They were at the time of the trial husband and wife. No legal accusation of any kind is shown to have ever been filed against these parties and the court was correct in refusing to admit the evidence. “Proof of mere accusations against, or evidence of particular acts of misconduct, is not admissible to affect the credibility of a witness.” Branch’s P. C. § 168.

Finding no error in the record, 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.

HAWKINS, J.

Appellant thinks we may have overlooked a recital in his bill of exception No. 3 to the effect that he had exhausted his peremptory challenges. It was not overlooked, but considered in connection with the court’s explanation appended to the bill it cannot be determined with certainty whether the two additional' challenges allowed by the court were available to appellant when the matters complained of in bill- of exception No. 3 arose. If the two additional challenges had been exhausted we see no reason whatever for the court’s explanation.

Appellant renews his insistence that error is shown by bills 4, 5, and 6, his position being that the excluded evidence was admissible as tending to show bias in favor of deceased on the part of state’s witnesses Zeddie Jones and Sam Jones. Appellant killed one Oliver at Jim Guy’s house in July, 1924, at which time Sam Jones was working "for and living with Jim Guy and his wife- Zeddie. About a year after the killing Zeddie left home with Sam Jones. She procured a divorce and married Sam. - It appears from the bills of exception mentioned that appellant sought to prove facts which he claims would show that at the time of the killing Sam and Zeddie were having improper sexual relations with each other and knew that deceased and appellant’s wife were meeting at Zeddie’s house for the purpose of indulging in like conduct, and therefore appellant concludes that Sam and Zeddie would be biased in favor of deceased. It is impracticable to set out all the excluded evidence of which appellant complains, but it may be questioned whether such evidence, if admitted, would have shown that Zeddie and Sam were having adulterous relations at the time of the killing. Recognizing the principle that the motives which operate upon the mind of a witness can never be regarded as immaterial or collateral (Branch’s Ann. Tex. P. 0. § 163), yet we cannot agree that the facts of the present case, or the matters recited in the bills of exception now under discussion, call for the application of such principle. Crist v. State, 21 Tex. App. 361, 17 S. W. 260; Sexton v. State, 48 Tex. Cr. R. 497, 88 S. W. 348, to which we are referred by appellant, reveal that in each instance the witness claimed to have been biased was shown to have direct relations with either the defendant or the injured party. This is not true in the present case.

The motion for rehearing is overruled.
      ®=5For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LATTIMORE v. STATE.
    (No. 11461.)
    Court of Criminal Appeals of Texas.
    March 28, 1928.
    1. Criminal law <⅝=>4092(9), 1099(6) — Order attempting to grant additional time after expiration of former extensions to file statement of facts and bill of exceptions held noneffective.
    Order attempting to grant 10. days’ additional time within which to file statement of facts and bill of exceptions, made after expira-ation of former extensions, held not effective.
    2. Criminal law <⅞=»1092(7), 1099(6) — Where bill of exceptions and statement of facts were filed 20 days after expiration of last extension, but within 90 days from notice of appeal, statement only should be considered (Code Cr. Proc. art. 760, subd. 5).
    Where statement of facts and bill of exceptions were filed in lower court on 27th' of August, motion for new trial having been overruled on 18th of June, and last extension to file statement of facts and bill of exceptions having expired on 7th of August, held that bill of exceptions should be disregarded, but statement of facts could be considered under Code Cr. Proc. art. 760, subd. 5, providing statement of facts in felony case filed within 90 days from date of notice of appeal is given shall be considered.
    3. Larceny <@=»65 — Evidence held insufficient to sustain conviction of theft of property of value over $50.
    In prosecution for theft of property over value of $50, evidence held insufficient to sustain conviction.

      Appeal from Criminal District Court, Dallas County; Grover Adams, Judge.
    Robert Lattimore was convicted of tbeft of property over the value of $50, and he appeals.
    Reversed and remanded.
    G. W. Lindsey, of Dallas, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for theft of property over the value of $50; punishment being two years in the penitentiary.

The motion for new trial was overruled on the 18th day of June, and 80 days granted in which to file statement of facts and bills of exception, which time expired on the 18th day of July. Within the 30-day period, on, to wit, July 15th, 20 days’ additional time was granted. The last extension expired on August 7th. On the 17th day of August an order was made which attempted to grant 10 days’ additional time. This last order was noneffective, having been made after expiration of the former extensions. Parker v. State, 83 Tex. Cr. R. 81, 200 S. W. 1083; Mireles v. State, 98 Tex. Cr. R. 396, 266 S. W. 418; Hart v. State, 86 Tex. Cr. R. 653, 218 S. W. 1054; Miller v. State, 98 Tex. Cr. R. 621, 267 S. W. 487; Buckley v. State (Tex. Cr. App.) 300 S. W. 67; Frier v. State (Tex. Cr. App.) 1 S.W.(2d) 306. The statement of facts and bills of exception were both filed in the lower court on the 27th day of August. The authorities’ cited, and many, others which might be referred to, compel us to disregard the bills of exception, but the statement of facts will_ be considered under subdivision 5, art. 760, C. C. P., which reads:

“The statement of facts in a felony case filed within, 90 days from date notice of appeal is given shall be considered as having been filed within the time allowed by law for filing same, notwithstanding the succeeding provisions of this subdivision.”

M. B. Anderson operated a tailor and pressing establishment in the city of Dallas, and appellant worked for him. The place was burglarized on the night of November 27th, and some $350 worth of clothing and other articles taken from the shop. Among them were eight new suits of clothes, a sweater, a grey overcoat, a new hand bag, and a hat. No property was ever recovered by Anderson except the hat, hand bag, and overcoat. He received them from Mr. Taylor, sheriff of Marion county, some 2 months after the burglary. Anderson testified that he notified Mr. Tajdor to get the property from a relative of appellant who lived at Jefferson. Taylor was present as a witness, and testified that he got the overcoat from one Henry Olds, the hand bag from Emmett Gooper, and the hat from Abe Cooper. None of this property was found in the possession of appellant. Neither Olds nor the Coopers were produced to testify that they received the alleged stolen property from appellant. One witness testified that on the night of the burglary he met appellant on the railroad tra.cks in Dallas about 10 :30 at night, and that appellant was wearing a grey overcoat and carrying a black hand bag, but no effort was made to show by this witness nor any one else the identity of these articles with those which had been stolen. The inability of the state to trace into the hands of appellant any property which had been stolen from the burglarized store presents a complete failure to make out a case.

On account of the insufficiency of the evidence, the judgment must be reversed and the cause .remanded.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MARTIN, J. MORROW, P. J.

text:
    LEVINE v. STATE.
    (No. 11385.)
    Court of Criminal Appeals of Texas.
    Feb. 22, 1928.
    Rehearing Denied April 11, 1928.
    1. Intoxicating liquors <&wkey;167 — Persons unlawfully acting together as principals in transporting liquor are both guilty.
    Persons unlawfully acting'together as principals in transportation of intoxicating liquor are each and both guilty of offense therefor, hence defendant was not entitled to instruction authorizing acquittal in case jury found companion had placed sack containing whisky at place where officer afterwards found it.
    2. Criminal law &wkey;sl 120(8) — Nothing is presented for review by bills of exception to evidence on ground search was illegal and not containing affidavit and search warrant.
    Where affidavit and search warrant were not set out in bills of exception taken to evidence claimed to have been found by officers without a legal search warrant, appellate court being unable to determine therefrom whether or not search is illegal, nothing was presented for review.
    3. Arrest «&wkey;71— Generally legal right in officer to arrest carries right to search.
    Generally legal right in officer to arrest defendant carries- with it the right to make a search without a search warrant.
    On Motion for Rehearing.
    4. Intoxicating liquors &wkey;>236(20) — Evidence held to sustain conviction for transporting liquor.
    In prosecution for transportation of intoxicating liquor evidence held sufficient to sustain conviction.
    Commissioners’ Decision.
    Appeal from District Court, Robertson County; W. C. Davis, Judge.
    August Levine was convicted for’-' the unlawful transportation of intoxicating, liquor, and he appeals.
    Affirmed.

      Bush & Parten, of Franklin, for appellant.
    J. G. Lyles, Co. Atty., of Franklin, and A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, unlawful transportation of intoxicating liquor; penalty, one year.

An officer on the premises of appellant observed him and a third party approaching. When these parties saw the officer they started running, and refused to stop when commanded. When appellant reached a fence he took a sack, which he had'in his right hand, and struck it twice against the fence and threw it over the fence. Appellant was apprehended and arrested thereafter. Returning to the point where appellant was seen to strike the fence, the officer found what he testified was the identical sack with one whole jar of whisky in it unbroken and three jars broken all to pieces.

Appellant introduced a witness who testified that he saw one Slim Smith, in appellant’s presence, drop something in a sack near the fence, and afterwards , saw appellant when the officer got after him run up and hit something in a sack against the fence. It was appellant’s theory that the sack which the officer afterwards found near the fence containing the whisky was placed' there by Smith, and that he was entitled to an affirmative presentation of this theory to the jury by an instruction to acquit appellant if these facts were found to be true. We do not agree with this contention. If appellant and Smith were unlawfully acting together as principals in the transportation of intoxicating liquor, as the record suggests they were, they were each and both guilty. In other words, the testimony does not present a defensive matter which necessarily entitled appellant to an acquittal, as pointed out by appellant’s objections and exceptions to the charge. The court charged on circumstantial evidence, and appellant may have been entitled to a charge on principals, but this defect in the court’s charge was nowhere pointed out and was not brought forward for review.

Many bills of exception were taken to the evidence of the officer as to what was found on the premises after his arrest, because the said officer was not armed with a legal search warrant. The affidavit and search warrant are nof set out in the bills, and the illegality of the search is set forth as mere statements of the ground of objections, the truth of which is not verified by the court. We are unable to determine from the face of the bills whether or not the search was illegal, and nothing is therefore presented which we are able to review. . Plunk v. State, 98 Tex. Cr. R. 140, 265 S. W. .158; Murff v. State, 103 Tex. Cr. R. 617, 281 S. W. 1076. We are inclined to the opinion that the facts show a legal right in the officer to arrest appellant, which generally carries with it the right to search without a search warrant. Agnello v. U. S., 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Hodge v. State, 107 Tex. Cr. R. 579, 298 S. W. 573.

No reversible error appearing in the record, 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.

Opinion on Motion for Rehearing.

MORROW, P. J.

In the light of the appellant’s motion for rehearing, we have made the most careful examination of the statement of facts and the record of which we are capable.

From the testimony of the state’s witnesses, it is made manifest that the appellant and Slim Smith, while approaching the appellant’s house, observed an officer and fled, taking different courses. Appellant had a sack in one hand and a package in the other. Whether Smith was carrying anything the officer could not say. Just before the officer overtook the appellant he struck the fence several times with a sack which he had in his hand, and then threw the sack over the fence to the east side. The officer observed the odor of whisky, arrested the appellant and conducted him to his home, and then returned to the place of the arrest and picked up an article which he described as a “tester.” He returned to the house, and in a short time thereafter, in company with another officer, went to the place where the sack was thrown and picked up a sack containing a jar of whisky, some broken glass, and three jar tops. The sack, ground, and fence all bore evidence of having had whisky spilled upon them.

From the appellant’s witness Holliday, it was shown that before the arrest, he observed Smith deposit something on the east side of the fence about 14 feet from the appellant, who was near the fence. According to Holliday, after depositing the object in the brush, Smith had a conversation with the appellant. He saw them approach the appellant’s house and saw them run upon observing the officer. Smith had been sojourning at the appellant’s home. On his direct examination, Holliday said that he saw nothing in the hands of the appellant, but on cross-examination said that as the appellant, started to run, he had a sack in his hand until he got to lie fence; that Smith also had something in his hand and was going in another direction; that he had something on his shoulder like a sack. He also said that he saw the appellant strike the fence with a sack two or three times just before the officer reached him. Tarver, another witness, testified that on the day after the arrest of tiie appellant, he and the witness went to a point inside of the field (which would he on the west side of the fence) and there found a sack which had some broken glass and three jar tops in it.

Appellant contends that his defensive theory, namely, that Smith was the offender, was not submitted to the jury. The evidence seems conclusive from both the state and the appellant’s witnesses that the appellant possessed a sack; that he struck it against the fence several times; that he threw it over to the east side of the fence about the time the officer reached him; that the officer, soon after the arrest, found it and identified it upon the witness stand; that it contained a jar of whisky, some broken glass, and jar tops. If it be conceded that Smith also had a sack with whisky in it, that fact would not exculpate the appellant. The- evidence supports the theory that they were both transporting whisky, that they were acting together as principals in whatever was done, but we perceive no testimony which would warrant the acquittal of the appellant upon the ground that Smith alone was the offender.

The motion is overruled.
      i&wkey;Eor other cases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes


author: CHRISTIAN, J. MORROW, P. J.

text:
    FLORENCE v. STATE.
    (No. 11368.)
    Court of Criminal Appeals of Texas.
    Feb. 29, 1928.
    Rehearing Denied April 11, 1928.
    1. Criminal law &wkey;>6l4(3) — Denying application for second continuance for absent witnesses, where defendant applied for process for witnesses nearly two years after return of indictment, held not error.
    Where indictment was returned in August, 1925, and in October, 1926, defendant’s first application for continuance was granted and case was again continued and called for trial on June 9, 1927, overruling defendant’s second application for continuance for absent witnesses, where he averred in application that process had been issued for both witnesses on May 24, 1927, and again on June 6, but no return was made, hold not error, since defendant failed to show sufficient diligence in securing presence of witnesses.
    2. Criminal law ⅞=»1134(10) — In passing on question of error in refusing continuance, court looks to evidence adduced on trial.
    In. passing on question of alleged error in overruling application for continuance, Court of Criminal Appeals looks to evidence adduced on trial.
    3. Criminal law t&wkey;>396(2) — Where accused testified to part of conversation with officer while under arrest, state could introduce whole of declaration made at same time on same subject (Code Cr. Proc. 1925, arts. 727, 728).
    Where accused charged with aggravated assault had testified to part of conversation not res gestas between himself and officers while 'under arrest, state, under Code Cr. Proc. 1925, art. 728, had right to introduce whole of his declaration made at same time and upon same subject, notwithstanding article 727, relating to use of confessions made while under arrest.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Dallas County; Grover Adams, Judge.
    Earl Florence was convicted of aggravated assault, and he appeals.
    Affirmed.
    J. E. Newberry and W. R. King, both of Dallas, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is aggravated assault; the punishment confinement in jail for two years.

The facts relied upon by the state were these: J. M. Denman was approximately 70 years old, weighed about 130 pounds, and was five feet two inches tall. He was a flagman in the city of Dallas. On the 1st day of August, 1925, he was on duty at the railroad tracks near a flag station. Appellant and another man were crossing the railroad tracks in a truck when Mr. Denman attempted to stop them; His signal sign struck against the truck. At the time a train was approaching the street. Appellant proceeded across the street, stopped his truck, and went back across the track to the point where Mr. Den-man was standing and struck him in the face with his fist. Mr. Denman sank to the ground with blood coming from his mouth and nose. A crowd congregated at the point of the difficulty, and appellant got in his car and drove away. ‘ Mr. Denman was taken in an ambulance to the hospital. He died before reaching the hospital. At the time of the difficulty appellant was 37 years old, five feet eight inches tall,'weighed 185 or 190 pounds, and was a strong, vigorous man.

Appellant-contended that he did not see deceased when he attempted to stop him, and that after he learned that he had passed the stop-signal he went back to deceased for the purpose of making an explanation. He stated that deceased used a great deal 'of profanity, became excited, and sank to the ground. He denied that he struck deceased, and contended that the death of deceased was due to heart attack brought about by excitement.

The first bill of exception complains of the action of the trial court in overruling appellant’s second application for a continuance. The indictment was returned against appellant on the 28th of August, 1925. On the 18th of October, 1926, when the ease was called for trial, the state announced ready,. appellant’s first application for a continuance was granted, and the case reset for November 29, 1926. On November 29, 1926, the case was again continued and set for trial on June 6, 1927, and at that time passed by the court to June 9, 1927. When the casé was called for trial on June 9th, appellant filed his application for a continuance based on the absence of Dr. Mc-Adams and Dr. Knight. He averred in his application that process had been issued for both of said witnesses on May 24, 1927, returnable June 6th, next. No return was made of either of said subpcenas. After said witnesses failed to appear on June 6th, process was on said date again issued for them but was never returned. No circumstances that would have justified appellant in waiting nearly two years after the return of the indictment before applying for process for the witnesses were shown. Under such conditions, we are constrained to hold that appellant failed to show sufficient diligence in securing the presence of his witnesses. Horne v. State, 104 Tex. Cr. R. 358, 284 S. W. 557; Walker v. State, 105 Tex. Cr. R. 141, 287 S. W. 497.

Appellant based his motion for a new trial, in part, on the overruling of his application for a continuance. The state controverted the motion and attached to the controverting plea the affidavits of the witnesses upon whose absence the application for a continuance was based. These affidavits showed that neither of said witnesses would testify to all of the facts set forth in the application for a continuance. Appellant alleged in the said motion, in substance, that the absent witnesses would testify that they made a careful examination of the deceased before he died; that there were no marks of violence on his body; that there was no blood about his nose or mouth; and that deceased, in the opinion of the witnesses, died from a heart stroke or high blood pressure brought about by anger or excitement. The affidavits of the witnesses show that appellant was bleeding at the mouth and nose; that there was no evidence of bruises or abrasions on the exposed surface of his body and head; and that they did not remove his clothes to examine him. Dr. Mc-Adams’ affidavit was further to the effect thkt he was of the opinion that deceased died from heart trouble resulting from excitement aroused by the fight, and not by any direct violence. Looking to the evidence adduced on the trial, we are of the opinion that if appellant had shown diligence in securing the presence of the witnesses, the trial court nevertheless did not err in overruling the motion for a new trial. In passing on such question this court looks to the evidence adduced on the trial. Branch’s Annotated Penal Code, § 305; Walker v. State, supra.

Bill of exception No. 2 presents the following occurrence: While appellant was sitting in his automobile in front of his house .he was approached by officers and asked if his name was Earl Florence. He replied in the affirmative, and one of the officers stated to him that “the old man,” with whom he (appellant) had had the difficulty that day, had died. Appellant testified qn direct examination that he thereupon stated:

“I said I was very sorry, and I said I didn’t have anything to do with hurting him, and they said he had died anyway.”

The state then called the officer as a witness and asked him what appfellant told him on the occasion in question. The officer testified that appellant asked him if deceased was dead, and that when he answered in the affirmative, appellant stated that he was sorry, that he did not know why it happened like it did, and that he just lost his temper and had a fight up there. Appellant objected to such testimony on the ground that he was under arrest at the time. The bill of exception shows that appellant was under arrest and that the statement was not res gestae. In qualifying appellant’s bill the court states that the testimony objected to by appellant was admitted because of the fact that on his direct examination appellant testified to a part of the conversation between himself and the officers. We are inclined to the view that the statement objected to by appellant was admissible. Article 728, O. O. P. 1925, provides:

“When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as, when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence.”

We quote from Copper v. State, 94 Tex. Cr. R. 199, 250 S. W. 185, as follows:

“While Brooks was testifying for the state he was asked on cross-examination what he said to appellant after the officers came, and he replied, T said, Bill Copper, you’re a dirty, lowdown s- of a b-, any man who would call another out and shoot him like you did me.’ Afterward, and while Sheriff Malone was on the stand for the state, he was asked relative to what he heard appellant say at the time Brooks came up, and over objection was allowed to state that appellant said to Brooks, T went down there 'to kill you;’ the objection being that appellant was under arrest and unwarned at the time. The ruling of the trial court in admitting said evidence is referable to article 811, C. C. P. [now article 728], which declares that, if part of a conversation be introduced by one party to a controversy, all of said conversation relating to the same subject-matter, or shedding light on it, may be introduced by the opposite party. The matter is not made quite clear by the bill of exceptions, but it appears that a statement by appellant that he went down to Brooks’ to kill him would be admissible under the above rule as shedding light upon the statement of Brooks that any man who would call another out and shoot him as appellant did, was appropriately described by the language used.”

See, also, Venn. v. State, 105 Tex. Cr. R. 19, 284 S. W. 955; Livingston v. State, 103 Tex. Cr. R. 372, 280 S. W. 802; Ruedo v. State, 101 Tex. Cr. R. 651, 277 S. W. 117.

Finding no error, the judgment of the trial court 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.

MORROW, P. J.

Appellant insists that in the original opinion the inhibition against the receipt in evidence of a declaration of the accused while under arrest in the absence of compliance with the confession statute (article 727, C. O. P. 1925) was violated, and cites Hext v. State, 104 Tex. Cr. R. 46, 282 S. W. 242, and precedents to which reference is made therein. The authorities cited are to the effect that the state, upon its own initiative, may not use against the accused declarations made while under arrest which are not res gestae, which are not rendered inadmissible by compliance with the terms of article 727, supra, and which are not embraced in the exceptions therein named. In the present instance, it was the appellant, and not the state, who introduced the declarations made by him while under arrest. He having done so, it was clearly the right of the state under article 728, O. O. P. 1925, to introduce the whole of his declaration made at the same time and upon the same subject. Such a construction of the statute is supported by the authorities cited in the original opinion, and also others collated in Vernon’s Tex. O. O. P. 1925, vol. 2, p. 840.

The motion for rehearing is overruled.
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author: MARTIN, J.

text:
    SIMMS v. STATE.
    (No. 11475.)
    Court of Criminal Appeals of Texas.
    March 28, 1928.
    1.Criminal law <&wkey;7l9(0 — In prosecutor’s argument in abortion trial, his exhibiting metallic instrument and informing jury defendant used similar instrument, when there was no such evidence, held ground for reversal.
    In prosecuting attorney’s argument in trial of a physician for abortion, Ms exhibiting a “sound” which is a metallic, mechanical instrument capable of producing an abortion, and informing jury that defendant used similar instrument in producing abortion, held, ground for reversal, where there was no such evidence and state’s allegations of use of mechanical means by defendant to produce abortion were, if supported at all, supported only weakly by circumstances.
    2. Criminal law &wkey;>9<40 — Refusing new trial on discovery of evidence, woman had attempted to perform abortion on herself before visiting defendant held error.
    Where, after verdict of guilty had been returned in prosecution of physician for performing abortion, defendant and counsel discovered that, prior to woman’s visit to defendant she had attempted to perform an abortion on herself by use of a small rubber hose, held that trial court’s refusal to grant new trial on ground of such newly discovered evidence was error.
    3. Criminal law &wkey;»772(6) — Failure to present affirmatively in charge the chief defense that prosecutrix herself caused abortion held error.
    In prosecution of physician for performing abortion, court’s failure to present affirmatively in his charge the chief defense that prosecu-trix herself caused the abortion, the only way in which such defense was presented being in the language: “You are instructed that the defendant would not be guilty * * . * if any abortion was - caused or produced that was caused by some other person or means than that alleged in the indictment,” held error.
    Commissioners’ Decision.
    Appeal from District Court, Cherokee County ; C. A. Hodges, Judge.
    P. A. Simms was convicted of having committed the offense of abortion, and he appeals.
    Reversed and remanded.
    D. L. Harry, of Jacksonville, John A. Ford, of Waco, and G-. W. Cribs on, of Jacksonville, and Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellant. >.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Appellant was charged by indictment with having committed the offense of abortion upon Ola McDaniel, by the use of a metallic instrument, the name and character of which was to the grand jury unknown.

She twice visited the office of appellant, a negro physician, who on both occasions inserted a speculum in her vagina, but used no other mechanical instrument that she knew of. A speculum was described as an instrument in common use by physicians for the examination of the private parts of a woman, which is neither intended to, nor likely to produce an abortion. She was taken ill with severe pains after this, last visit and on the next day called Dr. Moore, who attended her until she delivered a dead foetus or embryo child, some two to four months old. The bowels of the child had been punctured, and according to Dr. Moore the foetus was in a state of decomposition which indicated it had been dead for several days. He used a speculum on the prosecuting witness upon his first visit, of the same character as that used by appellant, and found no evidence of injury from external causes to the fcetus. The fluid sack immediately in front of the entrance to the wound was intact, and was still intact about two days later when the foetus was expelled. Prosecuting witness admitted on cross-examination the use of various medicines, prior to her visit to appellant’s office recommended as being effective in producing an abortion. She testified to symptoms of fever and pains indicating a septic condition arising from the presence of a dead foetus in her womb, all prior to her visit to appellant. The state was unable to show the use of any mechanical means by appellant, other than an instrument in common and legitimate use by physicians.

With the state’s allegation of the use of mechanical means by appellant to produce an abortion, weakly supported, if at all, by circumstances, the district attorney exhibited to the jury a “sound” (being a metallic, mechanical instrument capable'of such use) and stated: “He used an instrument somewhat similar to that.” He had, theretofore over appellant’s objections, exhibited this same instrument in the presence of the jury to witnesses. There is not any evidence in the record, which we have been able to find, to the effect that appellant used a sound or any instrument similar to a sound.

The unsworn ex parte statement of the district attorney given without opportunity of cross-examination was thus made, to supply a fact apparently wholly lacking in the evidence. This being the positive statement of a fact outside of the record, accompanied by the exhibition of an instrument capable of producing an abortion, and being upon one of the vital and meagerly proven issues in the case, presents such a serious probability of injury, that we would not feel justified in overruling appellant’s assignment presenting this matter. Numerous authorities might be cited supporting the above conclusion. Some of them are as follows: Tillery v. State, 24 Tex. App. 273, 5 S. W..842, 5 Am. St. Rep. 882; Orman v. State, 24 Tex. App. 504, 6 S. W. 544; McKinley v. State, 52 Tex. Cr. R. 182, 106 S. W. 342; Vernon’s C. C. P. 1925, vol. 2, p. 92, for full collation of authorities.

Motion was made for a new trial based upon newly discovered evidence of the following character: It came to the knowledge of appellant and his counsel after the verdict of guilty had been returned, that prior to her ever having seen appellant, prosecuting witness had tried to perform an abortion on herself by the use of a small rubber hose about the size of a lead pencil. This was described by some of the witnesses as being effectively used by women for that purpose. Witness denied on the trial that she had ever used any mechanical means of any kind to produce an abortion, but upon being confronted with the statement of a witness after the trial had ended, to the effect that she had, she then disclosed same for the first time and filed an affidavit that such was a fact. Without lengthening this opinion unduly, suffice it to say that appellant and his counsel, we think, were not lacking in diligence in trying to ascertain this fact from witnesses prior to the trial.- In view of the issue overwhelmingly made at the trial that witness herself was responsible for the death of the child and her own miscarriage, we think the court erred in refusing to grant a new trial, that this evidence might become available to appellant. Gainer v. State, 89 Tex. Cr. R. 538, 232 S. W. 830; Brown v. State, 13 Tex. App. 59; Monroe v. State, 105 Tex. Cr. R. 543, 289 S. W. 686; Anderson v. State, 93 Tex. Cr. R. 634, 248 S. W. 681; Barrett v. State, 98 Tex. Cr. R. 627, 267 S. W. 511.

Complaint is made, that the court failed to properly and affirmatively present in his charge his main defenses, and that said charge presents same only in a negative way. From whát has been said, it already appears that the issue of whether or not the prosecuting witness herself was responsible for the abortion, if any, was overwhelmingly raised by the evidence. The only way this was presented was in the following language:

“You are instructed that the defendant would not be guilty * * * if any abortion was caused or produced that was caused by some other person or means than that alleged in the indictment.”

The theory of the state was pertinently and affirmatively charged upon, and the appellant’s theory should have had a like presentation. It has been said:

“The defendant is entitled to a distinct and affirmative presentation of the issues arising upon his evidence, in order that the jury may not be induced to ignore his defenses upon the supposition that the court did not deem them of sufficient importance to justify consideration, and for the further reason that without such presentation the jury are in no condition to make an intelligent selection of the law which should govern them in case they should find that the defendant’s evidence was true.” Reynolds v. State, 8 Tex. App. 414, citing Heath v. State, 7 Tex. App. 464; Miles v. State, 1 Tex. App. 514.

On another trial the jury should be pointedly and pertinently instructed on the defensive issues raised by the evidence.

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

PER OU.RIAM.

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.
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