author: CHRISTIAN, J. BATTIMORE, J.

text:
    SEALE v. STATE.
    No. 14069.
    Court of Criminal Appeals of Texas.
    March 25, 1931.
    Rehearing Denied June 10, 1931.
    See, also, 26 S.W.(2d) 275.
    Williams & Bell, of Childress, for appellant.
    A. J. Folley, Dist. Atty., of Floydada, and Lloyd W. Davidson, State’s Atty., df Austin, for the State. .
   CHRISTIAN, J.

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

Operating under a search warrant, officers searched a garage and found therein approximately 500 gallons of whisky. A false end had been built to the garage, making a secret Dompartment in the hack thereof, in which the whisky in question was concealed. It was uncontroverted that appellant huilt the garage. The officers testified that appellant stated to them at the time they presented the search warrant to him that he was running a tilling station. He further stated to the officers, according to their testimony, that they might go ahead and search, as there was no liquor in the place.

Testifying for himself, appellant said that he had leased the premises to his brother on November 28, 1928, for a consideration of $500, $250 of which was paid in cash, the remainder to be paid when he (appellant) returned from Mineral Wells; that upon making the trade he left for Mineral Wells, where he was operated on; that he remained in Mineral Wells for three weeks; that he had just returned from Mineral Wells and had only been in the filling station about thirty minutes when the officers made the raid; that he had gone to the filling station for the purpose of receiving the remainder of his lease money; that his brother had left him in charge while he went for the money; that he knew nothing of the presence of the whisky in the garage; that he had not built the false end in the garage where the whisky was found.

In rebuttal, the state introduced a witness who had been selling and delivering gasoline and oil to appellant. He-testified that he sold appellant gasoline shortly prior to the raid, and that he had also sold him gasoline and-oil two or three days before the raid. He also said that appellant had given him some whisky a few days before the raid.

Appellant objected to the testimony of the .officers touching the result of the search on the ground that the garage was not included in the description of the premises set forth in the affidavit for the search warrant. We think the objection was properly overruled. We quote from the .affidavit as follows: “Before me, the undersigned authority, on this day personally appeared Ed. Tharp and C. T. Heller, each known to me to be credible persons, and who, each upon their oaths state that they have reasons to believe and do believe that the hereinafter described place, house, building, residence and premises, which is being used' and operated by one Homer Seale and employees is being used and occupied by them (or him) as a place for the unlawful manufacture of intoxicating liquor in violation of and contrary to the laws ■of the State of Texas; that said building, place, residence, and premises is described as follows, to-wit: that a certain filling station, building or house, located and situated on the public road leading from the town of Matador, Texas, to the town of Paducah, Texas, and being on the north side and adjacent to said public road known as Lee Highway or Highway No. 28 in Motley County, Texas, and about 9.4 miles east of the town of Matador, Texas, and about 200 yards east of a creek known as Tepee Creek. Said building, place and premises in Motley County, Texas."

There seems to be no doubt from the record that the premises in question consisted of a filling station and garage. The garage was approximately 25 feet from the filling station, and a .fence inclosed the buildings on three sides. According to the state’s witnesses, appellant stated that he was running the filling station. The opinion is expressed that the description in the affidavit included the garage.

The further contention is made that the description set forth in the search warrant failed to follow that embraced in the affidavit. It was recited in the search warrant that the affiants had made affidavit that they had reason to believe and did believe that “a certain place, building and premises, which is being used and occupied by one Homer Seale and employees is being used by them as a place for the unlawful manufacture of intoxicating liquor, and for the unlawful sale of intoxicating liquor, in violation of and contrary to the laws of the State of Texas.” Thereafter it is recited in the search warrant that said place, building, and premises is situated 9.4 miles east of Matador, Motley county, Tex., on the Matador-Paducah highway, said highway being known as Lee highway or highway No. 28, about 209 yards east of a creek known as Tepee creek in Motley county, Tex. It is further stated that the property in question is situated on the north side of and adjacent to said Lee 'highway. We think the description in the search warrant did not materially vary from that set forth in the affidavit.

A further objection to the testimony of the officers was that the affidavit failed to set forth facts and circumstances sufficient to constitute probable cause. Touching probable cause, it is stated that the reason for believing that the building, place, and premises ■of the appellant were being used for the unlawful manufacture and sale of intoxicating liquor was as follows: “By the report of others and what looks to me as liquor being delivered to parties as I passed there.”

On the former appeal of this ease it was held that the affidavit sufficiently manifested on its face the existence of probable cause for making the search. See Seale v. State (Tex. Cr. App.) 26 S.W.(2d) 275. We are not led to believe that we were in error in our former holding, Rozner v. State, 109 Tex. Cr. R. 127, 8 S.W.(2d) 441. The statement in the affidavit is equivalent to an averment that it had been reported to the affiants by others that appellant was manufacturing and selling intoxicating liquor on the premises in question.

In submitting appellant’s affirmative defense, the court instructed the jury, in paragraph 7 of the charge, as follows: “You are instructed that if you find 'and believe from the evidence that Walter Seale had leased the filling station and was in possession of the intoxicating liquor found in the filling station, if any was so found, and that defendant was not in possession of same, or if you have a reasonable doubt as to whether or not such were the facts, then you will find the defendant not guilty.”

Further, in paragraph 8 of the charge, the jury were instructed as follows: “You are instructed that even though you find that defendant was in possession of the garage and that whisky was found in same, still such possession would not alone authorize you to find defendant guilty, and if you find from the evidence that defendant had no knowledge of the presence of whisky, if any, in the garage, or if you have a reasonable doubt as to defendant’s knowledge of the presence of whisky, if any, in the garage, then you will find the defendant not guilty.”

In paragraph 3 of the charge, the court instructed 'the jury that the word “possession” means the exercise of actual control, care, and management of the property in question. Appellant objected to paragraph 7 of the charge on the ground that it was a limitation upon his rights, in that, before the jury would be justified in acquitting him, they must find th-at Walter Seale leased the filling station and was in possession of the whisky. It is insisted that the jury should have been instructed they could not convict him unless they found that he. had the personal care, control, and management of the whisky.

Paragraph 8 was objected to on the ground that it was, in effect, an instruction that the jury might find him guilty if they believed that he had knowledge that whisky was in the garage and he was in possession of said garage at the time. It was urged that the jury should have been instructed that they could not convict him unless he had the personal care, control, and management of the whisky, and, further, that knowledge that whisky was in the garage would not be sufficient, even if he were in possession of said garage.

Appellant testified that the filling station was in charge of his brother, and, further, that he did not know that the whisky was in the garage, and exercised no control over it whatever. Considered in connection with the court’s definition of possession, we are unable to see how appellant’s affirmative defense could have been more pertinently called to the attention of the jury in the charge of the court. Paragraph 8 of the court’s charge appears to have been framed to meet the suggestion of this court contained in the opinion on the former appeal. We quote therefrom as follows: “In addition to the defensive charges given by the court, the jury should have been further instructed to acquit if they had a reasonable doubt .as to appellant’s knowledge of the presence of the whisky in the garage, since he may have been in possession of the filling station and garage without •being guilty of the offense charged.. Rhoden v. State, 102 Tex. Cr. R. 413, 278 S. W. 211, and authorities there cited. Mere knowledge of its presence, of course, is not sufficient to convict, as has been held. Crawford v. State (Tex. Cr. App.) 23 S.W.(2d) 368. However, lack of such would constitute a complete defense. The above suggested charge would fully meet appellant’s objections to the court’s main charge, though we doubt if this exact point was sufficiently raised to require a reversal.”

Appellant objected to the court’s definition of “possession” on the ground that it failed to require the jury to find that appellant exercised personal control, care, and management of the whisky. The charge required the jury to find before they convicted that appellant exercised the actual control, care, and management of said liquor. The definition given by the court was held proper in Thomas v. State, 89 Tex. Cr. R. 609, 232 S. W. 826. See also Wilkes v. State, 106 Tex. Cr. R. 430, 289 S. W. 44.

The state proved in rebuttal by the witness McCoughren that he delivered oil and gasoline to appellant at the filling station, and that “a day or so before the raid appellant gave him some whisky.” Appellant objected to this testimony on the ground that ft was immaterial and threw no light on any issue in the case. We think the testimony was admissible. Appellant testified that he had no whisky at the filling station. He further testified that he had been in Mineral Wells for two of three weeks, and that he had been at the filling station only about thirty minutes on the day of the raid for the first time since his return from Mineral Wells. The testimony touching the gift of whisky to the witness tended not only to show that appellant had whisky in his possession at the filling station, but also tended to show that appellant was not in Mineral Wells at the time claimed by him.

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

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

BATTIMORE, J.

Appellant complains because we failed to pass on a proposition which he says in his motion was presented in his assignments of error. We have examined the record, but fail to find any bill of exception to the charge of the court for failure to submit an affirmative defensive theory based on the claim that one Stanley was in possession of the whisky at the time the place was raided by the officers; nor do we find any special charge presenting such proposition. In the absence of such exception we fail to see just ground for complaint, and are of the opinion that any attempt to secure a reversal because such theory was not submitted, comes too late at this time.

Under the facts of this ease, if appellant had possession of the whisky in question at all, he had the actual care, control, and management in person of same at the filling Star tion where it was found. We think the definition of possession as given in the charge of the court was entirely sufficient and applicable to the facts. The facts in any given case must affect and control the charge. If appellant had been absent, and the facts showed him not to have exercised any personal relation to the intoxicating liquor, there might be some room for the complaint.

■Believing the former disposition of the case to be correct the motion for rehearing will be overruled.


source: Caselaw Access Project

author: BATTIMORE, J.

license: Public Domain

text:
    KIRK v. STATE.
    No. 14263.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    Adams & McAlister, of Nacogdoches, for appellant.
    Bloyd W. Davidson, State’s Atty., of Austin, for the State.
   BATTIMORE, J.

Conviction for murder; punishment, two years in the penitentiary.

Appellant presented to the court his bill of exception complaining of the court’s refusal to instruct the jury not to consider the testimony of Mr. Sullivan , regarding appellant’s bad reputation for peace and quietude. The court refused to approve this bill, and prepared one of his own, upon the filing of which appellant filed his bystanders’ bill duly sworn to by three citizens of the county. The bill, of the court and said bystanders’ bill are in conflict. We have examined the entire record on the points at issue.

Appellant had filed an application for a suspended sentence which placed in issue his reputation for being a peaceable, law-abiding-citizen or otherwise. After appellant testified, claiming self-defense, and that he acted upon threats of deceased, the state placed upon the stand Mr. Sullivan, who swore that he was familiar with the general reputation of appellant for peace and quietude in the community in’ which he lived, and that it was bad. Upon cross-examination he said that he was testifying about appellant’s reputation from 'what he knew himself and not what others said; that he was sure of that: that it was not what others said, but what he (Mr. Sullivan) said, based on their business dealings, etc. The state took Sullivan on redirect, and he testified that he was acquainted with appellant’s general reputation as a peaceable, law-abiding citizen in the community where he was best known, and that it was bad. Upon being recross-examined, he affirmed again that he was basing his testimony upon his own personal dealings with defendant and his own personal knowledge of him — not what Tom, Dick, or I-Iarry said, but what “I. B. A. Sullivan knows himself.” He also said it made no difference how many times the district attorney asked him; that he was basing his testimony on what he knew personally. He further said he did not know that he had heard anybody talk about appellant’s reputation, but that he knew what he knew, and was testifying from his personal observation and dealings with appellant. He emphatically said there was no question about that — that it was his own personal observation and dealing with appellant, and that he could not say for sure whether he had ever heard anybody else say anything about it, and that he did not know whether he could name a single man he had ever heard say anything about it. In our opinion, in this condition of the record, the learned trial judge fell into error in not sustaining the motion to strike out the testimony of the witness. Brownlee v. State, 13 Tex. App. 257; Trammell v. State, 10 Tex. App. 467; Tyler v. State, 46 Tex. Or. R. 14, 79 S. W. 558.

Further examination discloses that but three witnesses testified regarding appellant’s reputation for peace' and quietude, one of whom affirmed that his reputation was very good, and the third of whom said it was bad. The question of such reputation was very vital to appellant as, supporting his application for suspended sentence. We cannot tell but that the jury may have been hurtfully influenced against appellant and that their denial of a suspended sentence was based upon the testimony of witness Sullivan.

We have examined each of the other bills of exception, and are of opinion that same present no error.

For the error mentioned, the judgment will be reversed and the cause remanded.


author: HAWKINS, J.

text:
    CONTRERAS v. STATE.
    No. 14127.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    Van Haile McFarland, of Eagle Pass, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for theft; punishment being two years in the penitentiary.

The indictment contained three counts, the first charging by the usual averments the theft by appellant of $66 from Augustin Leal. This count only was submitted.

The facts upon which the conviction rests may be briefly stated as follows: T. T. Taylor had the general agency of the National Standard Life Insurance Company and of the Kansas City Life Insurance Company with headquarters at San Antonio. Appellant was a subagent of Taylor’s. During the year 1929 appellant wrote seven life insurance policies in the two companies named in favor of Au-gustin Leal and three of his brothers. In ¡negotiating with appellant for these policies, Augustin Leal acted with his brother, Earnes-to, and his mother in securing the seven policies mentioned. About March 1, 1930, Au-■gustin Leal desired to purchase a new truck, and appellant represented to him that by making advance premium payments he could bor‘row enough money on the insurance policies to purchase the truck. On said last-named date Leal paid appellant $66 as part of a five-year advance premium payment. Appellant did not have authority to collect advance premium payments, and never at any time turned over to Mr. Taylor or to the insurance companies this $66 or any part of the $1,000 which he collected altogether from Augustin Leal.

The contention is that the undisputed evidence showed that Augustin Leal intended to part, and did part, with both the title and possession of the $66 in question, never expecting the return of any part of it, and that appellant therefore could not be guilty of theft as charged in the indictment. Based upon this contention, he requested the court, to charge the jury that, if Leal intended to part with the title and ownership of the $66 they would find the defendant not guilty of theft as charged in the indictment. The court declined to give this charge, but instructed the jury to convict appellant if he obtained from Augustin Leal the $66 in money by means of false pretext and with intent to deprive Leal of the value thereof and with intent to appropriate? it to the use and benefit of appellant without the consent of Leal. Appellant predicates alleged error in the refusal of his special instruction upon expressions found in many cases which he cites to the effect that, if the owner of the property parted, or intended to part, with the title as well as the possession, the offense would be swindling and not theft. Recently we' had occasion to review this question in De Blanc v. State (Tex. Civ. App.) 37 S.W.(2d) 1024, decided April S, 1931. It was there recognized that the distinction between swindling and theft mentioned above was generally accepted as correct, but that the intent of the owner in parting with his property was not the sole' distinction. Where it is a question of whether the offense is swindling or theft by conversion, the distinction mentioned unquestionably is controlling. See Anderson v. State, 77 Tex. Cr. R. 31, 177 S. W. 85, 87; Rundell v. State, 90 Tex. Cr. R. 410, 235 S. W. 908, and other cases cited in De Blanc’s Case, supra. It is plain from the facts of the present case that from the representations made by appellant to Leal he understood that appellant would transmit the money collected to his state agent in San Antonio, and that the policies would be credited with the advance premium payments, thereby rendering them available as collateral for a loan. The representations made by appellant were evidently intended to and did leave the impression upon Leal that appellant was authorized to deal with the policies in this manner. The representations having reference to future happenings would not support a prosecution for swindling. Martin v. State, 36 Tex. Cr. R. 125, 35 S.W. 976, and other cases collated under section 2627, Branch’s Ann. Tex. P. O., and in note 3, under Article 1545, Yernon’s Ann. P. C. of Texas, vol. 3.

The jury was fully warranted in also finding that at the very time appellant made the false representations he entertained the fraudulent purpose of converting the money which he hoped to obtain from Leal, that he did convert it, and that he obtained possession of it by a fraud practiced on Leal, but for which Leal would never have surrendered the money to appellant. We take this quotation from Anderson v. State, supra: “But this ease aptly illustrates a case where but for the fraudulent representation the title to the hogs would have passed, yet the appellant would not be guilty of swindling, because the fraudulent representation relied on was as to something thereafter .to occur. And also aptly illustrates a case where a person obtains possession of property by fraudulent pretext, and under circumstances where the title would pass but for the fraud practiced, and is, in our opinion, the very character of case which article 1332 was intended to reach and punish.”

Article 1332 referred to in the quotation is now article 1413, P. C. (1925). Upon the facts, the present case and the one from which the quotation is taken are similar. It is a question here whether the title to the money passed by reason of the fraud practiced upon Leal.

Because the question was considered at length in the r&ent opinion in De Blanc’s Case, supra, we pretermit a further discussion of it here. It follows from what has been said that under the facts of the present case we think the refusal of the special charge not erroneous.

The judgment is affirmed.


author: CHRISTIAN, J.

text:
    JACKSON v. STATE.
    No. 14140.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    T. H. McGregor, of Austin, and E. A. Camp, of Rockdale, for appellant.
    A. J. Lewis, Co. Atty., of' Cameron, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

Under an indictment charging him with murder, appellant was convicted of assault with intent to murder and his punishment assessed at confinement in the penitentiary for five years.

Mrs. Louise Melde and appellant were neighbors. Apparently their relations had been friendly until shortly before the assault. About 60 days prior to the trouble between the parties, appellant borrowed $60 from Mrs. Melde, and she had requested that it be paid. Shortly before the difficulty the foster daughter of the injured party telephoned appellant, asking that the money be immediately paid. According to appellant’s version, he had already paid the money to an agent of Mrs. Melde. Prior to the date of the difficulty, some one had taken a pistol from one Joe Elliott. According to the version of appellant, believing that Mrs. Melde’s son had taken the pistol, appellant had sought to have him return it to the owner in order to avoid trouble. On the day of the difficulty, appellant went to the home of Mrs. Melde for the purpose of collecting an account she was due him. Going to the back door, which, according to his testimony, was his custom, he was invited in by Mrs. Melde and her foster daughter.

Touching the assault, the foster daughter of Mrs. Melde testified, in substance, as follows: Mrs. Melde told appellant that she would pay the bill as soon as appellant paid her the $60 he owed. Upon being advised by appellant that he had paid the money to her agent, Mrs. Melde started to pay appellant’s bill. Appellant began to curse and abuse Mrs. Melde, calling her a whore, and other vile names. He called the son of Mrs. Melde a s- of a b-, and, approaching the injured party, he threatened to strike her. AVhen appellant cursed Mrs. Melde, she attacked him, striking him several times with her fist. Whereupon appellant pulled a pistol and struck Mrs. Melde several blows on the head. Appellant left the scene of the difficulty, and returned to his home.

Appellant, testifying in, his own behalf, denied that he struck Mrs. Melde with a pistol, and declared that he had no pistol on his person at the time. 1-Ie said that the injured party attacked him with a knife, and that, in order to protect himself and prevent her from injuring him, he struck her a light blow with a pocket knife. -Further, he denied that he cursed Mrs. Melde or her son. He testified that he had no intention of injuring Mrs. Melde. At this point we quote appellant’s testimony as follows:

“At that time I did not know of any ill-will or ill-feeling toward me on the part of any of the Melde family. On that occasion I went around the house, as usual, and walked upon a little back porch and knocked on the kitchen door; Mrs. Melde herself opened the door and told me to come in and I did; she told me to go in the bed room right adjoining that room and I went in; there was a chair setting in there and I started toward the chair and Mrs. Melde followed me; she walked down to the right. There was a door leading out the front of •the house; the house faces near North and ■she was down on the right side of me, and when I turned around she said ‘What do you want’ in a sort of hoarse way, and I said ‘Mrs. Melde I have a little water bill here if you want it’ and she said T will pay you when you pay me,’ and I told her ‘Why, Mrs. Melde, I give Colonel that money this morning, and 'as far as your bill is concerned you need not bother, because I never did bother you about the water bill and I don’t care if you don’t pay it until the end of the year’; she said no more about the water, but said ‘You have been trying to send my boy to the penitentiary’ and I said ‘your boy, I never did anything to you people in my life except benefit you’ and I said ‘Mrs. Melde, if anybody told you that I tried to send' your boy to the penitentiary, they just told you a lie,’ and that is about all I had time to say because she jumped onto me with that. She struck me the first lick right along here (indicating the cheek) and I attempted to sling her back and did sling her arm back, but she was a heavy woman and I did not sling her very far, and by that time Mary was on me hitting me. Mrs. Melde hit me on the right cheek and back (indicating) and I pushed' them back a time or two, but I did not last long because Mrs. Melde rushed in and struck at me again and pushed me back, and I pushed her back and she come in and struck me here (indicating face) and I felt something touch me across there. That was across the left side of'the face, my jaw, and when I saw that knife in her hand I got my hand in my pocket and got out my knife and hit her on top of the head; I hope God will paralyze me if I hit her any other lick; if I did intentionally, and I do not believe I did unintentionally. She then sorter staggered back and looked up at me and turned and went out of the house, and I just said to Mary ‘Don’t come any closer to me’ and Mary followed her out of the house and as she got to'the steps I went on by them and as I started off I said T am sorry this happened, but feel like you brought it on yourself and I never did anything but try to benefit you in my life’ and I walked on off. I went home. I did not want to hit her the first time; I hit her because I know she. tried to hurt me and would have hurt me with that knife, and I hit her to get loose and get out of there.”

Appellant received some scratches. According to his testimony, Mrs. Melde’s blows bruised his face and body. A physician, who testified for the state, said that he examined Mrs. Melde. He said: “At that time she had two wounds, one on the scalp and cheek that were visible and were found from my examination. At that time I would class those wounds as minor wounds; ' at that time there was nothing apparently serious about either wound except the probability of infection. There is a probability of any character of wound becoming infected.” Approximately a week after the difficulty one of the wounds became infected, and, thirteen da^s after the assault, Mrs. Melde died.

The jury reached the conclusion that the wounds inflicted by appellant were not the proximate cause of Mrs. Melde’s death.

The court charged on provoking the difficulty as follows: “If you believe from the evidence, beyond a reasonable doubt, that at the time of the difficulty the defendant did some act or acts or used some language, or did both, with an unlawful and wilful intention of producing an occasion to bring on a difficulty and to kill or inflict serious bodily injury upon the deceased, or offer violence to her person and that such act or acts or language, or both, if any such there were of the defendant, were reasonably calculated under the circumstances at the time, to provoke a difficulty with the deceased, and after such act or acts or language or both, if any there was, of the defendant, caused the deceased either alone or jointly with Mary Melde, to attack the defendant with her hands or with a knife or make other hostile demonstration toward him showing within itself or by words accompanying it, an immediate intention to kill or inflict serious bodily injury or do violence to the person of the defendant, as viewed solely from his standpoint at the time, and the defendant in pursuance of his original unlawful and wilful intention, if any, to kill or inflict upon the deceased serious bodily injury, if any such intention the defendant had, did make an assault upon the deceased with a deadly weapon or with his hands or fists in order to save his own life or himself from serious bodily injury, or from violence to his person, then if you so find you are instructed that the defendant’s plea of self-defense will not avail him, and the offense, if any, would be murder, assault with intent to murder or aggravated assault, and if you so find from the evidence, beyond a reasonable doubt, you will find the defendant guilty of murder, or assault with intent to murder or aggravated assault, and indicate by your verdict which offense, if any, and assess his punishment as prescribed in this charge; and in the event you have a reasonable doubt as to the grade of offense, if any, defendant is guilty of, if in fact you find him guilty, then you shall give him the benefit of the doubt and find him guilty of no higher grade of offense than aggravated assault.”

The foregoing charge furnished no guide for determining the conditions under which, on a charge of assault with intent to murder, appellant might have been guilty of no more than an aggravated assault, notwithstanding the issue of provoking the difficulty was in the case. - Under the court’s charge, the jury were warranted in finding appellant guilty of assault with intent to murder if he provoked the difficulty with no intention to kill the injured party or seriously injure her. With the issue of provoking the difficulty in the case, in considering whether appellant was guilty of assault with intent to murder or aggravated assault, it was necessary that the jury understand that, if appellant’s statement that he did not intend to kill or seriously injure Mrs. Melde was to be accepted as true, he would be guilty of no greater offense than an aggravated assault. On this question there was nothing in the charge for the guidance of the jury. We quote from Thompson v. State, 85 Tex. Cr. R. 144, 210 S. W. 800, 802, as follows: “If upon another trial the law of provoking the difficulty is submitted, it should embody, not only the theory of provocation with intent to kill or seriously injure, but the jury should be told in appropriate language that, if the appellant provoked the difficulty with the intent to injure the deceased, but with no intent to kill him or do him serious bodily harm, and aft-erwards fired upon him for the protection of his own life against a threatened assault by the deceased, his conviction could not be for a higher grade of offense than aggravated assault.”

Any intention of holding that the language used in Thompson v. State, supra, is applicable except in a prosecution for assault with intent to murder, when the issue of provoking the difficulty is in the ease, is disclaimed. In Thompson’s Case the conviction was for assault with intent to murder under an indictment charging murder.

While appellant’s exception to the charge in question is not as specific as it might have been, when considered in connection with the charge, we deem it sufficient to have apprised the trial court of the vice of which complaint was made.

Paragraph 11 of the court’s charge embodies an instruction covering the law of self-defense. This charge appears to be related to the charge covering murder. The court advised the jury that if, in acting under a reasonable expectation or fear of death or serious bodily injury at the hands of deceased, appellant struck deceased and killed her as charged in the indictment, he should be acquitted. In submitting the law of assault with intent to murder, the court instructed the jury, in substance, that if they believed beyond a reasonable doubt that appellant assaulted deceased with malice aforethought with intent to murder, and not in self-defense, to find him guilty of assault to murder. As related to assault with intent to murder, no further mention of self-defense was made. If the jury referred’ to paragraph 11 of the charge for an application of the law of self-defense to the facts, they found that under the instruction therein contained that they could not acquit appellant, under'the law of self-defense, unless they believed that he hilled deceased by striking her with a pistol or knife, etc. Bearing in mind that the court predicated the charge covering the law of assault with intent to murder on testimony to the effect 'that the wounds were not the proximate cause of deceased’s death, it is apparent that the charge on self-defense contained in paragraph 11 would furnish no adequate guide for determining whether appellant acted in self-defense when the state sought to hold him on a charge of assault with intent to murder. The jury would probably conclude from reading the charge on self-defense that if the wounds were the proximate cause of Mrs. Melde’s death, appellant would be excusable if he acted in self-defense, but otherwise if the wounds were not the proximate cause of her death and that in the latter event the fact that he acted in self-defense would not preclude his conviction for assault with intent to murder. In short, the charge on self-defense, as applicable to murder, was so drawn as to be inapplicable to assault with intent to murder. Considering the charge in its entirety, the opinion is expressed that no adequate instruction on the law of self-defense as applied to assault with intent to murder was embodied therein. Hence appellant’s objection to the charge for its failure to give an instruction covering the law of self-defense in connection with assault with intent to murder was well taken.

In the first part of the charge on self-defense, the court instructed the jury, in substance, that, if they believed from the evidence that deceased, either alone or in connection with Mary Melde, or both or each of said parties acting jointly, made of was making an attack real or apparent on appellant, etc., which from its manner and character caused' appellant, viewing the same from his standpoint at the time, to have a reasonable expectation or fear of death or serious bodily injury at the hands of deceased and Mary Melde or either of them, and that, acting under such reasonable expectation or fear of death or serious bodily injury at the hands of deceased, appellant did strike, etc., and kill Mrs. Melde, he-should be acquitted. Appellant objected to the charge on the ground that it in effect restricted his right to defend against an "attack by Mrs. Melde, and did not give him the right to defend against an attack at the hands of Mary Melde and Mrs. Melde jointly and separately. The italicized portion of the charge required that appellant act under a reasonable expectation or fear of death or serious bodily injury at the hands of deceased alone before he was entitled to defend himself. Appellant’s testimony raised the issue of a joint attack by Mrs. Louise Melde and Mary Melde. The court should have responded to the exception and amended the charge.

In the event of another trial, if for assault to murder, attention is called to changes by recent laws in the law of assault to murder.

The judgment is reversed and the cause remanded.

PER CURIAM..

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


text:
    TURBYVILLE v. STATE.
    No. 14246.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    L. D. Ratliff, Dennis P. Ratliff, and L. D. Ratliff, Jr., all of Haskell, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

The prosecution was under article 1377, P. C. (1925), amended by Acts of the Second Called Session of the 41st Legislature (1929) chapter 26, page 41 (Vernon’s Ann. P. C. art. 1377). The act in substance provides that, whoever shall enter upon the inclosed lands of another without the consent of the owner, and “shall catch or take or attempt to catch or take, any fish,” etc., shall he guilty of an offense. Conviction resulted, with punishment assessed at a fine of $10:

The sufficiency of the complaint and information was challenged by motion to quash upon. various grounds; one being that the charge against appellant was uncertain, it being alleged in the disjunctive. That the state’s pleading was defective in the particular mentioned is supported by many authorities cited in section 503, Branch’s Ann. Tex. P. C.

The judgment is reversed, and the prosecution ordered dismissed under the present pleading.


author: LATTIMORE, J.

text:
    LANDRUM v. STATE.
    No. 14258.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    Shelton & Shelton, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for interfering with a railroad switch; punishment, two years in the penitentiary.

The statute under which this conviction was had is article 1335 of our Penal Code, which provides as follows: “If any person shall wilfully place any obstruction upon the track of any railroad, or remove any rail therefrom, or displace or interfere with any switch thereof, or in any way injure such road,” etc.

The indictment herein charges as follows, omitting formal parts: “That Elmer Landrum ⅞ ⅜ ⅞ then and there unlawfully and wilfully displace and interfere with a switch of the Missouri Pacific Railway Co. by cutting the copper wire in said switch there situate, whereby the lives of persons were endangered.”

We think this averment insufficient to charge a violation of the statute above referred to. There is no averment .that the switch referred to was a part of, or connected with, any railroad track. Said switch might have been abandoned, or might not yet have been installed as part of the track or in the yards of the railway company. The indictment appears to us to be bad. There are many kinds of switches; for instance, telephone switches, electric light switches, etc. These might be the property of a railway company. The evident intent of the statute in question as here applicable is to punish any person who shall willfully displace or interfere with any switch in the track of any railroad. We think it unquestionably necessary that it be averred that the switch was part of the track or connected with the track of said railway company.

For the error of the indictment referred to, the judgment will be reversed, and the prosecution ordered dismissed.


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

text:
    FROMM v. STATE.
    No. 13961.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    Rehearing Denied June 10, 1931.

      W. B- Howard, of Childress, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one and one-half years.

Appellant operated a filling station. Approaching the station, officers saw appellant come out of the building and go toward a dugout, which was about fifty yards from the station. Appellant had a fruit jar carton under his arm. A search being made, the officers discovered three half-gallon jars full of whisky. Appellant testified that the liquor found by the officers had been placed in- his house a few minutes before by- a man whose name he did not know; that this man left the whisky in order that appellant might sample it and buy it if it suited him; that he (appellant) and his wife used whisky for medicinal purposes; that it was his intention to sample the whisky and determine whether he would buy it; that the unknown person left with the purpose of returning for his money, but that he had never come back for it. Appellant’s wife testified that she and her husband used whisky for medicinal purposes. A doctor testified that he had advised appellant to use whisky as a stimulant. For the purpose of impeaching appellant, the state proved that he had theretofore been indicted in another case involving a violation of the liquor law. We are unable to reach the conclusion that the evidence'is insufficient to support the conviction. The jury were warranted in concluding that- appellant’s version of the transaction was not true. Looking to the state’s testimony, it is observed not only that appellant possessed more than a quart of intoxicating liquor, but that, when the officers approached, he apparently endeavored to hide such liquor.

We find in the record some objections to the court’s charge. It is recited that said objections were duly presented to the trial court before the main charge was read to the jury, but such statement is not authenticated by the trial judge. Hence the objections are not entitled to consideration. Davis v. State (Tex. Cr. App.) 28 S.W.(2d) 794.

Appellant filed an application for á continuance, but brings forward no bill of exception in respect thereto. Hence the action of the court in overruling the application cannot be reviewed. Myers v. State, 109 Tex. Cr. R. 130, 3 S.W.(2d) 438.

No error being presented, the judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

MORROW, P. J.

In paragraph 6 of the court’s charge it is said; “It is,' not unlawful for a person to have in his possession whisky or any other intoxicating liquor when the same is being so had and held for medicinal purposes.”

It is the contention of the appellant that this paragraph of the charge limited his defense to the possession of the liquor for medicinal purposes. In paragraph 8 of the charge the court specifically informed the jury that, if the whisky was possessed by the appellant for any other purpose than for sale, ór if the whisky had been left with him for the purpose of sampling it with the view of buying it, or if there was a reasonable doubt upon either of those matters, or a reasonable doubt as to whether the appellant had the whisky for the purpose of sale, an acquittal should follow.

The court gave an instruction accurately and fully advising the jury on the subject of prima facie evidence, as defined in article 671, P. C. The instruction is in accord with the precedents announced by this court. When the evidence that the accused possessed more than one quart of intoxicating liquor is conclusive, it is not incumbent upon the court, or necessary for the protection of the appellant’s rights, to instruct upon the law of circumstantial evidence. This has been so held by this court several times. See Terry v. State, 101 Tex. Cr. R, 267, 275 S. W. 837; Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569.

The motion for rehearing is overruled.


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

text:
    NEWSOM v. STATE.
    No. 14396.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    Rehearing Denied June 10, 1931.
    Duncan & Davis, of Gonzales, for appellant.
    Iiloyd W. Davidson, State’s Atty., of Austin, for the State.
   DATTIMORE, J.

Conviction for murder; punishment, four years in the penitentiary.

The record is here without any bills of exception. The statement of facts is very short, and reveals beyond controversy that appellant cut and stabbed deceased with a knife apparently without any claim of self-defense, from which cutting deceased died very shortly. The only claim presented in appellant’s brief is that the testimony fails to show a previous intent to kill. We find nothing in the authorities cited by appellant supporting the proposition that from facts like these a jury would not be justified in concluding that the killing was a voluntary killing. Under the terms of our present murder statute, one who voluntarily kills another without malice is punishable by confinement in the penitentiary for some period of years not less than two. We regret our inability to agree with the position taken by appellant’s counsel.

No error appearing, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

Appellant, through his counsel, challenges the sufficiency of the evidence to support the verdict.

The following is a synopsis of the evidence: Newsom, the appellant, James, the deceased, and, three other persoiis, ■ came in an automobile to a place called Hamon’s Store, at which there was a filling station. James brought a tire to one of the attendants and sought to have it repaired. It was not in a condition permitting repair, and, after some conversation between Newsom and James, Newson declared that, if James “would stay with him,” they would make the boy in the store repair the tire. James, it seems, demurred. One of the attendants in the store was named Olin Freeman. James said: “Olin Freeman is our friend; he hasn’t done anything to us. He can’t help how John Hamon runs his store.” Newsom said to James: “You red-headed son-of-a-biteh, I am not talking to you.” Newsom got up and commenced cutting at James with a knife or something in his hand. He was attempting to cut to stab the deceased somewhere about his.cbest and then struck at James and cut him in the groin. James turned and ran. He had nothing in his hand at the time, and made no attempt to strike Newsom. After James fell, Newsom ran out to him and tried to make him get up, and s'aid: “Do you think you got enough, you son-of-a-biteh?” On redirect examination, the witness said that, after James fell, Newsom went to him and tried to help him up.

A doctor described the wound upon the de>-ceased, stating that it was inflicted by a sharp instrument which severed the femoral vessel, one of the main vessels of the human body; that death resulted from the wound; that a sharp instrument, when used in the hands of a man of the size of the appellant, with sufficient force to stab a person in the groin, would likely produce death or serious bodily injury. There were no other wounds upon the body of the deceased.

The knife used was not introduced in evidence. It was not described further than has been indicated' here. The appellant did not testify. The court gave no instruction to the jury on the subject of a deadly weapon, and was not requested to do so. The jury was instructed upon the law of murder and aggravated assault. There are no hills of exception complaining of the procedure on the trial.

In the case o;£ Hudson v. State, 59 Tex. Cr. R. 655, 129 S. W. 1125, 1127, Ann. Cas. 1912A, 1324, the term “deadly weapon” is thus defined: “A weapon by which death may readily and easily he produced; anything no matter what it is, whether it be made for the purpose of destroying animal life, or whether it is made by man at all, or whether it is made by him for some other purpose, if it is a. weapon; if it is a thing by which a death can be easily and readily produced, the law recognizes it as a deadly weapon.”

In the case mentioned, and many others, whether a poeketknife, used as a weapon, is a deadly weapon, is a questioh of fact to be. determined from the manner of its use. In other words, it is not a. deadly weapon per se. Henderson v. State, 55 Tex. Cr. R. 170, 115 S.W. 588. But from the manner of its use, ithe jury are to judge whether, in the particular case, the knife used was a deadly weapon.

In Price’s case, 87 Tex. Cr. R. 163, 220 S. W. 89, it is said: “A weapon may become deadly when from the manner of its use it is calculated to inflict death or serious bodily injury, ibut it is -unnecessary that an injury be inflicted which is 'likely to produce death or give rise to apprehension before the weapon be deadly.”

The character of the wounds- is relevant to prove the nature of the weapon used. See Branch’s Ann. Tex. P. C. p. 934.

In the present instance, the character of the weapon used, in'so far as it illustrated the intent of the accused, was left without objection, to the decision of the jury. As stated above, the issue of intent to kill was submitted to the jury in the charge, and to them was committed the decision as to whether the offense, if any, was murder or aggravated assault. Nothing is found in the record which would justify this court in overturning the verdict.

The motion for rehearing is overruled.


author: CHRISTIAN, J; HAWKINS, J.

text:
    HAIRE v. STATE.
    No. 14083.
    Court of Criminal Appeals of Texas.
    April 22, 1931.
    Rehearing Denied June 10, 1931.
    L. E. Keeney, of Texarkana, for appellant.

      Lloyd W. Davidson, State’s Atty., of Aus- ' tin, for the State.
   CHRISTIAN, J;

The offense is arson; the punishment confinement in the penitentiary for two years.

According to the averment in the indictment, the property was owned by appellant, was situated in a town, and was covered by policies of insurance. The building consisted of a barber shop and restaurant, a partition wall dividing the two places of business. There were two back rooms, one behind the barber shop and the other back of the restaurant. The fire originated in the room behind the restaurant. On May 24, 1930, at 3:15 a. m., the fire alarm was given. The record is silent as to the identity of the party turning in the alarm. After extinguishing the fire, the fire marshall made a survey of the partially burned building. He found in the room back of the restaurant an ordinary alarm clock with some wires, coils, and an "extension cord on it. There was an electric light drop in the center of the room. The extension cord was-connected with this drop. A resistance coil was so connected with the clock and extension cord as to create a spark. There were some rags saturated with gasoline near the resistance coil. The fire had burned through the walls near the clock. The minute hand of the clock was broken off and the hour hand was set at 3 o’clock. In the room behind the barber shop were some bottles and fruit jars containing gasoline. Some of these bottles were on the floor and others were on a shelf, a hair tonic bottle of gasoline was among those found in the room behind the barber shop. In the room back of the restaurant were some empty bottles. Entering the attic through a “scuttle hole” the marshal discovered a two-gallon ice cream container, a one-gallon oil can, and two half-gallon fruit jars, all containing a quantity of gasoline. Approximately seven gallons of gasoline remained in the building after the fire. The resistance coil seems to have been taken from a Ford automobile. There was a quantity of paper in the house.

On the 6th day of February, 1930, appellant called W. E. Hatcher, local agent for the East & West Insurance Company of New Haven, Cfonn., to his place of business and advised him that he desired to buy fire insurance on his barber shop furniture, fixtures, building, and dwelling. The dwelling was situated 6 or S feet from the barber shop. On the occasion of this visit Mr. Hatcher sold appellant a policy in the sum of $1,000 covering loss by fire on the barber shop and restaurant combined. A policy in the sum of $750 was taken on the furniture and fixtures in the barber shop. A third policy in the sum of $1,000 covered the dwelling. Appellant owed, the building and loan association on his property, and the policies were placed in their possession. After the fire they were canceled by the insurance company.

Several months prior to the fire appellant had moved his refrigerator, kitchen cabinet, and cook stove out of the restaurant. The place was then rented to Mrs.' Waters, who opened up a cafe and lunch room. She operated the place two months and sold it to Mrs. Mullins, who had some furniture in the place at the time of the fire. Mrs. Mullins had quit staying in the restaurant approximately a week before the fire. It appears that she had gotten work in some other place.

Some time before the fire appellant and his family took up their dwelling in another part of town. Appellant testified on cross-examination that he had talked to the building and loan company about making a loan on his barber shop before he and his family moved. A few days before the fire the loan was turned down. It was appellant’s, purpose if he secured the loan to buy the place hé had moved in. The evening before the fire appellant sold Preston Bobo two ceiling fans for $40. Bobo took these fans from the place of business the same evening. After the fire an old ceiling fan and some parts of blades of a ceiling fan were found in one of the back rooms. According to appellant’s testimony he had only a small amount of gasoline in his place of business. On the evening after the fire appellant approached the fire marshal and said: “What is this I hear about you saying that I set this place on fire?” The fire marshall asked appellant who told him that he had made the statement appellant attributed to ■him. Appellant replied that “they” had told him about it all over town. The marshal then asked him to name one person who had told him. Appellant said that he could not remember who it was. Appellant’s next statement to the marshal was that it was a frame-up. He also stated to the marshal that he carried $500 insurance on the restaurant, as well as $1,000 on the building and $750 on the barber shop equipment. Appellant left his shop on the evening of the fire between 7:30 and 8 o’clock. According to his testimony he locked the front door of the barber shop, leaving Clifton Spear, Preston Bobo, and a Mr. Thomas in the cafe.

Appellant denied that he burned the building, and declared that he had not aided any one in constructing the machine which set fire to it. He testified that it would have taken morp than $750 to have replaced his barber shop furniture and equipment. He further testified that he was making a good living out of his barber shop. On cross-examination he said that he did not remember ■having a conversation with Tommy Sheffield shortly before the fire about burning the house. We quote his testimony at this point on cross-examination as follows: “I did not tell Tommy Sheffield next morning that I thought the place would be in ashes this morning, and asked him why they did not do it. You asked me if I will say I did not do it, or I just don’t remember, — I don’t remember it. No, Thomas is not Tommy Sheffield. Thomas is a different man entirely. Tommy Sheffield was not around there that following day. I do not remember Tommy Sheffield being around' my shop there Tuesday. * * * You ask if I had not had that gasoline in my place for a long time, — I used a little gasoline in the shop but what I used was in a half-gallon fruit jar by the window, I did not have a five-gallon jug of gasoline there that I know of. There wasn’t any five-gallon jug there that I know of. If there was a five-gallon jug there I do not remember it: ⅜ ⅜ * I <j0 uot remember that on Tuesday Tommy Sheffield walked into my place, and poured some gasoline out in some fruit jars.”

Appellant declared that he -had not wanted any old junk fans, and that he had not had any old fans brought to his place of business prior to the fire.

The accomplice witnesses Olifton Spear and Preston Bobo testified in substance that they aided appellant in constructing the electric machine that burned the building; that about the time they finished the machine appellant’s wife drove up and he left with the admonition that the boys should scatter the gasoline around; that prior to the fire he had offered them $100 each to help him burn the building; that after scattering the gasoline they closed the building and left; that after selling the new electric coiling fans to Bobo, appellant stated that he wanted some old junk fans of similar motors placed in the building; that they secured two old junk fans and put them in the building before they carried the new fans out.

We are unable to reach the conclusion that the accomplice witnesses were not sufficiently corroborated. The law forbidding a conviction upon the uncorroborated testimony of an accomplice does not demand that there be direct evidence pointing to the accused as the offender, but merely requires that there be other evidence tending to connect the defendant with the offense committed. Article 718, C. C. P.; Minor v. State, 108 Tex. Cr. R. 1, 299 S. W. 422, 429. We quote from Minor v. State, supra, as follows: “Circumstances proved by credible witnesses may be as potent as direct testimony in tending to connect the accused with the commission of the offense. The state is not called upon to point to some single or isolated fact which in itself, unrelated to othqr proven facts, will be sufficient corroboration. It is the combined and cumulative weight of the evidence furnished by nonaccomplice witnesses which supply the test.' If by this rule it appeal's on appeal that before the jury there was proof confirming the testimony of the accomplice to material facts tending to connect.the accused with the commission of the offense, the law is satisfied. Underhill’s Crim. Ev. (3d Ed.) §§ 129 and 130; Meredith v. State, 85 Tex. Cr. R. 239, 211 S. W. 227; Wright v. State, 47 Tex. Cr. R. 433, 84 S. W. 593; Huggins v. State, 85 Tex. Cr. R. 205, 210 S. W. 804; Halbadier v. State, 85 Tex. Cr. R. 593, 214 S. W. 349; Middleton v. State, 86 Tex. Cr. R. 307, 217 S. W. 1046; Walker v. State, 94 Tex. Or. R. 653, 252 S. W. 543; Willman v. State, 99 Tex. Or. R. 259, 268 S. W. 933, 269 S. W. 801.”

It is not necessary that the cprroborating facts or evidence should be such as to show guilt independent of the evidence of the accomplice witness. The law demands that the corroboration with some degree of cogency tend to establish facts material and relevant which would authorize the jury to credit the testimony of the accomplice. Johnson v. State, 84 Tex. Cr. R. 400, 208 S. W. 170; Millican v. State, 109 Tex. Cr. R. 673, 7 S.W.(2d) 82. If the testimony of the" accomplice witnesses should be eliminated entirely, we are not prepared to say that the circumstances would be insufficient to support the conviction. We summarize as follows: That the fire was of incendiary origin is made plain by the evidence. Appellant owned the building and had had it insured. He had moved to another part of town and desired to buy the property in which he had taken up his residence. He had made a fruitless effort to secure a loan upon his business property. A few, days before the fire he had been advised that the loan could not be made. The evening before the fire he had sold two new ceiling fans from his barber shop and restaurant. Two old fans had been placed in the building, apparently for the purpose of misleading those who might investigate the fire. He charged the fire marshal with accusing him of burning his building, but was unable to name any person who had told him such accusation had been made. He claimed that it was a frame-up, apparently before complaint had been lodged against him. He and the accomplice witnesses were apparently good friends, and were together on the evening of the fire. The preparation for the fire necessarily- took some time. G-asoline was scattered about the building in bottles and found in the ceiling in larger containers.

Proof that the property was insured was required in support of a material averment in the indictment. It was in evidence that the insurance was in written policies issued by the East & West Insurance Company of New Haven, Conn. The policies had been issued by W. E. Hatcher, local agent of the insurance company. Prior to the time of the trial the policies had been cancelled and taken up by a special agent from -the home office in New Haven, Conn.1 It appears from the qua!-ification appended to the hill of exception that appellant had requested that the policies he taken up by the agent and canceled. . The policies were executed in duplicate by the use of carbon paper. They were not signed by appellant, only the signature of the insurance company appearing thereon. The witness testifying to the fact that the building was insured had issued the policies. The duplicates referred to were in his possession and had been kept by him after issuing the originals. Touching the state’s diligence to procure the originals, the court qualified the hill of exception as follows: “Proof having been made that the originals had been taken from the place where they had been placed by the resident agent at the request of the defendant; and that their whereabouts was not now in fact known. It being the opinion of the court that the state having made proof of its lack of knowledge of their whereabouts of the originals, after haying made due inquiries as to where it would most likely be found, that the state could not be required to follow in search of an inference, that might lead to its- discovery in another state and out of the jurisdiction of this state; whereupon the court permitted the introduction of the duplicate carbon copies and the witness to testify therefrom.”

We deem the predicate sufficient to warrant the reception in evidence of the carbon copies of the policies.

Appellant sought to have the jury instructed, in substance, to acquit him if they ■had a reasonable doubt as to whether he was present when the house caught fire and burned. He now takes the position that under the facts he was not guilty as a principal, but that, if guilty at all, he could only be held as an accomplice. It is true that the evidence shows that appellant was not present when •the house caught fire and burned. -Moreover, it shows that the accomplice witnesses were not present at such time. However, it was shown, from the standpoint of the state, that appellant and the accomplice witnesses acted together in constructing the electrical machine, in placing the gasoline and other combustible material in the building, and in setting the alarm clock for the hour that the spark was to ignite the combustible material and set fire to the house. Although absent when the fire actually started, appellant and his companions had used indirect means to commit the offense. Article 68, P. C., provides: “If any one by employing a child or other person who cannot be punished to commit an offense, or by any means, such as laying poison where it may be taken and with intent that it shall be taken, or by preparing any other means by which a person may injure himself and with intent that such person shall thereby be injured, or by any other indirect means cause another to receive in-jury to his person or property, the offender by the use of such indirect means becomes a principal.”

We deem the article quoted applicable to the facts in the present case. There is no testimony in the record supporting the theory that appellant was an accomplice.'

The judgment is affirmed.

PER CURIAM.

Thé 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 insists that our original opinion regarding the receipt of secondary evidence to prove the contents of the insurance policies is out of harmony with the holding in Cox v. State, 100 Tex. Cr. R, 172, 272 S. W. 490.

At the time of the fire the insurance policies were held by a building and loan a.ssocia\ion which was carrying a loan on the property. After the fire the local agent of the insurance company was directed by the home office of the company to cancel the policies, but the building and loan association declined to surrender them. The cancellation was effected by written notice sent by registered mail. Later the insurance company sent a special agent to secure the policies and they were turned over to him by the building and loan association. The home office of the insurance company was at New Haven, Conn. The local agent testified: “The last time I saw the original policy was when it was turned over to the agent of the insurance company. * » ⅜ I fcn0W why they (the policies) were ■taken up by the special agent of the company; they had been cancelled by registered mail and the home office wanted the original policies themselves,” We are of opinion the evidence supports the conclusion that the-original policies were at the home office in New Haven, Oonn., beyond the jurisdiction of the court. No effort to secure the policies from the home office was shown. This being true, what is the law regarding the receipt of secondary evidence?

An investigation of the question leads to the discovery that the decisions of our own court are in' conflict on the subject, one line being in accord with the decisions of the Supreme -Court of this state, and the other line in conflict therewith.

■Pursuing the- inquiry reveals that there is no uniformity in the decisions of the courts of the various states on the subject. Greenleaf on Evidence (16th Ed.) vol. 1, § 563e, subdivision 2, states the result of the author’s investigation in the following language; “If the writing is in the control of a third person without the jurisdiction of the court, no resort to legal force is of service. But it is possible to maintain that the party desiring to use the document should at least make an effort to obtain the writing by consent of its possessor; and upon this point there is much difference of opinion. A number of courts distinctly insist that some such effort must have been made; the majority of rulings, either assume or decide that no effort to obtain is necessary. * * * ” In Corpus Juris, vol. 22, § 1329d, p. 1036, without undertaking to state the weight of authority, the conflict therein is adverted to in the following language: “In a large number of cases where primary evidence of the fact to be proved was out of the jurisdiction of the court in which the evidence was desired to be used, as where books, instruments, documents, or other writings constituting or containing the primary evidence were in possession of a stranger who was beyond the jurisdiction of the court and the reach of its liroeess, courts have held secondary evidence admissible, apparently without further proof of inability to procure the original writings. Other authorities, however, assert the view that the fact that the writing is in the possession of a person beyond the jurisdiction of the court is not in itself sufficient ground for the introduction of secondary evidence; but that it must be shown that fruitless efforts have been made to obtain the writing, or the court must be satisfied that with the exercise of due diligence the writing cannot be produced.* * * ” To the same effect is Ruling Case Law, vol. 10, § 70, at page 913. In both Corpus Juris and Ruling Case Law the opinions upon the subject are cited on both sides of the question under the references heretofore stated.

In Wharton’s Criminal Evidence, vol. 1 (10th Ed.) § 200, p. 429, he appears to state the rule to be that secondary evidence may be given as to the contents of “papers beyond the jurisdiction of the court, provided effort has been made to obtain the evidence of the party holding them, ⅜ * * ” but later on in the same section he states that “parol evidence of an insurance policy is admissible where it has 'been shown to have been surrendered to an agent out of the court’s jurisdiction before the trial,” citing in support of the latter statement, State v. Watson, 63 Me. 128.

In the case of Federal Chemical Co. v. Jennings, 112 Miss. 513, 73 So. 567, and reported in L. R. A. 1917D, at page 529, will be found authorities collated from the courts of many states upon the subject under consideration.

Coming to the decisions of our own state, it is found that the Supreme Court has adopted the rule that if the primary evidence is in the hands of a stranger to the suit beyond the jurisdiction of the court secondary evidence will be admissible in the absence of a showing that some effort had been made to prociire the original. In M., K. & T. R. Co. of Texas v. Dilworth, 95 Tex. 327, 67 S. W. 88, 89, the conclusion of Judge Gaines with reference to the question is stated very tersely in this language: “In some of the courts it is held that it must be shown that' some effort has been made to procure the original, but the weight of authority seems to be that such showing is not necessary.” See, also, Smith v. Traders’ National Bank, 82 Tex. 368, 17 S. W. 779; McBride v. Willis & Brother, 82 Tex. 141, 18 S. W. 205; Veck v. Holt, 71 Tex. 715, 9 S. W. 743. In Corpus Juris, vol. 22, § 1329d, page 1036, will be found many cases decided by the Courts of Civil Appeals of the State in which the Supreme Court ruling is followed.

In our own court it will be found that the rule adopted by the Supreme Court has been followed in Robey v. State, 73 Tex. Cr. R. 9, 163 S. W. 713; Arensman v. State, 79 Tex. Cr. R. 546, 187 S. W. 471, and James v. State, 88 Tex. Cr. R. 656, 228 S. W. 941. On the other hand, in Moore v. State, 66 Tex. Cr. R. 169, 146 S. W. 183; Brown v. State, 67 Tex. Cr. R. 543, 150 S. W. 436, and Cox v. State, 100 Tex. Cr. R. 172, 272 S. W. 490, this court followed the other line of authorities to the' effect that secondary evidence would not be received where the primary evidence was beyond the jurisdiction of the court unless proper diligence to obtain it was shown. The learned judge who wrote the opinions in the Moore and Brown Cases was a member of the court when the later cases of Robey and Arensman were decided. While in the two first mentioned eases and in Cox’s Case, insurance policies were involved and in the two later cases, as well as in James’ Case, the subject of the evidence sought was' other things, the principle is the same, and the cases seem irreconcilable. The writer of the opinion in Cox’s Case followed Moore’s Case, and made no reference to the holding in James’ Case.

The rule of admitting secondary evidence where the primary evidence is beyond the jurisdiction of the court in the hands of a stranger to the suit without the necessity of showing an effort to secure it is based on the fact that the primary evidence can not be reached by a subpoena duces tecum or any other process of the court. In civil eases either party to the suit may take depositions of the witness out of the state, and at least request that the documents consisting of ‘ the primary evidence be attached to his answers. If the showing above referred to is not required as preliminary to receiving secondary evidence in civil cases there would seem a much stronger reason for applying the same rule in criminal cases where one party to the litigation (the state) is not permitted to take depositions. The principle is much the same as permitting the reproduction of the testimony of a witness who is beyond the jurisdiction of the court on a subsequent trial. It is largely a rule of necessity. There ought not to be a conflict in the holdings of the two courts of last resort in this State on the subject unless a good reason exists therefor on account of some procedural requirement. We have not been able to discover any such reason. After a careful examination of many authorities from our own state, as well as those from other jurisdictions, we have concluded that the more reasonable rule is the one permitting secondary evidence where the primary evidence is beyond the jurisdiction of the court, without the necessity of showing an effort to obtain it. So concluding, and in order that no further conflict may appear, the cases of Brown v. State, 67 Tex. Or. B. 543, 150 S. W. 436; Moore v. State, 66'Tex. Or. B. 169, 146 S. W. 183, and Cox v. State, 100 Tex. Cr. R. 172, 272 S. W. 490, are expressly overruled on the point involved.

If we had not reached the conclusion heretofore stated with reference to the proof of the insurance policy, we would hesitate long before reversing the case upon the point urged by appellant. Under the provisions of articles 1311 and 1312 of the P. C., the owner may destroy his property by fire unless it is a house within a city, or when it is insured, or under certain other circumstances provided in the statute not pertinent here. The indictment in the present case charged that the property burned was situated in the city of Texarkana, and further alleged that said house was insured. Assuming that the evidence shows that appellant burned the house, proof either that the house was within the city of Texarkana, or that it was insured, would have made out a complete cause of arson. By reason of the manner of the allegations in the indictment the court required the jury to find from the evidence beyond a reasonable doubt not only that the property was situated in the city of Texarkana, but also that it was insured. The charge was more onerous against the State than required, unless it was necessary because of the peculiar wording of the indictment. The un-contradicted evidence in the case established the fact that the property was situated in the city of Texarkana. Appellant secured the lowest penalty.

We have again reviewed the testimony in view of appellant’s insistence that the evidence is not sufficient to corroborate the accomplice witness. We think it unnecessary to restate the evidence in detail, but believe the conclusions expressed in, our original opinion regarding that matter to be correct.

The motion for rehearing is overruled.


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

text:
    Ex parte HEPTINSTALL.
    No. 14404.
    Court of Criminal Appeals of Texas.
    April 29, 1931.
    Rehearing Denied June 10, 1931
    Martin, Shipman & Winters, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Aus‘tin, for the State.

   HAWKINS, J.

This is an appeal from an order of the district judge of the Forty-Second judicial district of Texas refusing to release relator under habeas corpus proceeding.

[I] There was pending in the district court of Taylor county an indictment charging one Ed -Bloss with rape upon Ethel Heptinstall. The case was called for trial on the 3d day of February, 1931, a jury selected, the indictment read and the defendant’s plea of “not guilty” entered and the witnesses sworn. The state called to the witness stand the alleged injured female, the relator here. After giving her name and place of residence, she refused to testify to any material facts about which she was interrogated. She was ashed by the trial judge if she understood the" consequences of her refusal to testify and assured him that she did. She refused to answer material and pertinent questions propounded both by the court and the district attorney. She positively told the court that she would continue to refuse to answer, whereupon the court held her in contempt, and punished her by a fine of $100 and three days in jail.

On the 9th day of February application was made for a writ of habeas corpus, which was issued and a hearing thereon was had the same day and relator remanded to the custody of the sheriff. The judgment of contempt and the commitment issued thereunder by virtue of which the sheriff held relator were regular. There was no claim that the fine assessed, as part of the punishment, had been satisfied. No brief for relator has been furnished and we have been unable to ascertain from the record any basis for her demand for release. She appears to have been in flagrant contempt of the court.

The judgment remanding relator is affirmed.

On Motion For Rehearing.

MORROW, P. J.

The penalty assessed is that which, under the statute, is within the discretion of the court rendering the judgment of contempt, that is to say, by confinement in jail ■for three days and a fine of $100. This not being a civil but a criminal contempt (Ex parte Robertson, 27 Tex. App. 628, 11 S. W. 669, 11 Am. St. Rep. 207), the fine, if not reduced by a judgment of the court in which it was entered, must be paid or satisfied in the same manner as prescribed by law for the satisfaction of a conviction for a misdemeanor, that is to say, by confinement in the county jail and the fine reduced at the rate of one dollar per day, as provided by chapter 68, Acts of 40th Leg. (1927), 1st Called Session, page 194 (Vernon’s Ann. C. C. P. art. 793), as construed in Ex parte Rowley, 112 Tex. Cr. R. 163, 15 S.W.(2d) 1118; Ex parte Polly, 111 Tex. Cr. R. 431, 15 S.W.(2d) 16; Ex parte Xoung et al., 103 Tex. 470, 129 S.W. 599.

Judicial decisions on the subject of contempt are numerous and variant in many •particulars. See Corpus Juris, vol. 13, p. 4. In this state, an appeal does not lie from a judgment of contempt, but if the judgment is ■one of which the court is without jurisdiction to enter, relief by way of habeas corpus is available. ,See Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111; Ex parte Tinsley, 37 Tex. Cr. R. 517, 40 S. W. 306, 66 Am. St. Rep. 818. Doubtless, through habeas corpus, courts could relieve against confinement on a contempt judgment imposing cruel and unusual punishment forbidden by article 1, § 13 of the state Constitution. See Ruling Case Law, vol. 6, p. 524, § 37. Ordinarily, relief against a contempt judgment is not within the pardoning power of the executive. See Sharp v. State, 102 Tenn. 9, 49 S. W. 752, 43 L. R. A. 788, 73 Am. St. Rep. 851, in which many cases are cited upon the subject. See, also, Taylor v. Goodrich, 25 Tex. Civ. App. 109, 40 S. W. 515; Ruling Case Law, vol. 6, p. 538, § 51. The decisions of this court, by implication, seem to indicate that the power to modify a judgment of contempt rests with the court entering the order. See Tex. Jur., vol. 9, p. 614, § 29.

The motion for rehearing is overruled.


text:
    JONES v. STATE.
    No. 14361.
    Court of Criminal Appeals of Texas.
    May 27, 1931.

      John B. McNamara, of Waco, for appellant.
    Lloyd W. Davidson, • State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

Appellant was employed as an automobile mechanic in a garage operated by his father. He had ,sold an automobile to Jesse Cline and Clarence Cline on the deferred payment plan. At the request of the Cline boys, appellant had gone to the home of Ab. Cline, their uncle, where Jesse Cline and Clarence Cline resided, for the purpose of collecting a deferred payment on the car. Upon his arrival, appellant was invited into the house, where he drank some home brew with the Cline boys. While in the house it was agreed between those present that Jesse Cline and Clarence Cline would deliver the automobile to appellant because they were unable to meet their payments. All of the discussion between the Cline boys and appellant about the car was good-natured and amicable. The parties remained in the house from about 11:30 a. m. until 3 o’clock in the afternoon. It had been raining for several hours. After the rain stopped, appellant, Ab. Cline, Jesse Cline, and Clarence Cline left the house. Shortly after they had gone into the yard Ab. Cline remonstrated with appellant and one of the Cline boys for urinating near the house. Appellant and the Cline boy immediately desisted and went to a nearby outhouse. The automobile which the Cline boys were delivering to appellant had to be pushed from the yard. Appellant and the Clines undertook to push the automobile into the road in order that appellant might tie it behind his truck. While the parties were engaged in pushing the car from the yard into the road, it became stuck in a small ditch. Jesse Cline then went to the home of Lloyd McCollum, deceased, which was about 200 yards away. A few minutes after Jesse Cline went to McCollum’s house, Ab. Cline stated that he would go to the home of deceased and get a chain to pull the car out of the ditch. Deceased and a Mr. Chamberlain returned with Ab. Cline and Jesse Cline.

The community in which Cline lived was known as Bull Hide. As soon as deceased approached appellant, he said to appellant, in substance, that it looked like he had •come down there to impose on the Cline boys and run Bull Hide. Appellant replied that he was not trying to run over anybody but trying to push his car out of the ditch, and asked deceased if he would help push the car out. Deceased replied: “No, the' law will have to push the car out of the ditch; it is the law’s business to take the car.” Appellant said: “Well,, if, you feel that way about it you had better go back to your home.” Ab. Cline then asked deceased to assist in trying to get the ear out of the ditch, and deceased replied: “Well, I will help you (meaning Ab. Cline), but I will not help him (meaning appellant).” After an unsuccessful effort to get the car out of the ditch, deceased walked to the automobile and began to clean his shoes off on the running board. Some of the witnesses said deceased was using a stick, some said he’was using his knife, and another witness said that he was scraping his foot on the running board of the car. While deceased was thus engaged, according to appellant’s testimony, Ab. Cline told appellant to get his ear out of his yard, and undertook to pick up a piece of iron pipe three or four feet long lying on the ground near the car. Appellant told him not to pick the piece of pipe up. Cline did not pick up the pipe, but said to deceased as he (Cline) approached appellant: “Mack, must I hit him?” Deceased replied: “I believe I would.” In the meantime one of the Cline boys walked behind appellant, and appellant said to him “Now don’t you all try to gang on me.” State’s witnesses testified that Ab. Cline did not pick up a piece of iron pipe. According to their version, just as deceased told Cline that he believed he would hit appellant if he were Cline, appellant called deceased a dirty s-1 — • of a b-. Appellant testified that he did not use the epithet, but that it was used by deceased toward him. Deceased told appellant that nobody was afraid of him (appellant) ; that he might have a gun but he did not have the courage to use it. Deceased advanced rapidly toward appellant, with his hands clenched. Appellant testified that he thought deceased had a knife in his right hand. State’s witnesses testified that deceased’s hands were clenched, but that he had no knife. As deceased advanced on appellant, appellant pulled his pistol and fired when deceased was within three or four steps of him. State’s witnesses testified that the pistol was elevated and the shot passed over deceased’s shoulder. Appellant testified that he fired for the purpose of trying to stop the advance of deceased, and that he had no intention of hitting him. Deceased continued to advance upon appellant. When appellant fired the second shot, deceased was close to him. This shot took effect. Deceased turned and walked away, and appellant did not attempt to fire another shot. After walking some fifteen or twenty steps, deceased fell to the ground, and died in a short time. Deceased’s wife came running to the scene of the shooting and requested that some one get a doctor. Appellant testi-fled that he told her he would get a doctor as soon as he could get his ear cranked. State’s witnesses denied that appellant made this statement.

There had been no previous trouble of any character between appellant and deceased; neither had there been any trouble between appellant and the Clines.

After charging on self-defense, the court submitted an instruction covering the law of provoking the difficulty. The opinion is expressed that the issue was not raised. It was undisputed that deceased, immediately upon approaching appellant, charged him with having come to the Cline home for the purpose of imposing on the Cline boys and running the community. After appellant asked deceased to help him push the car out of the mud, deceased declined to help him, and told him it was the law’s business to take the car. Deceased finally told Ab. Cline that he would help him push the car out, but that he would not help appellant. Moreover, deceased told Ab. Cline that he believed he would hit appellant if he were Cline. It was at this point, according to state’.s witnesses, that appellant said to Ab. Cline: “Ab. you are a man; you are a man, but there is a dirty s-■ of a b- (referring to deceased).” State’s witnesses testified that appellant elevated his pistol and fired the first shot over the shoulder of deceased. He did not shoot decéased until he continued to advance and was practically on him. Deceased' must have known that his remarks were calculated to anger appellant and call forth some sharp retort on his part.

In Munden v. State (Tex. Cr. App.) 64 S.. W. 239, Munden and deceased had had a quarrel. After the deceased had advised Munden that he could not haul any more logs across his land, Munden said to deceased, in substance, that no man could keep him from hauling logs across deceased’s land. . Deceased said something that the witnesses were unable to hear, and Munden called deceased a G-d-liar. Munden testified that before he called deceased a liar deceased had said “You d-d little s-■ of a b-you have been running over people but you can’t run me off.” After calling deceased a liar, Munden stepped back two or three feet and ordered deceased to stop. Deceased continued to approach him with an axe handle, and Munden shot him. This court held that the issue of provoking the difficulty was not in the case. In the present case the evidence, viewed from the state’s standpoint, shows that deceased began the conversation that led up to the difficulty.' There were no antecedent acts on the part of appellant. It was only after deceased had used language calculated to anger appellant that he used the epithet towards deceased. When deceased approached appellant, as hereinbefore stated, appellant, according to the testimony of state’s witnesses and appellant, shot over his shoulder. It was error to limit appellant’s right of self-defense by a charge on provoking the difficulty. Branch’s Annotated Penal Code, § 1955; Johnson v. State, 67 Tex. Cr. R. 441, 149 S. W. 165.

Appellant testified as follows: “The reason for my shooting when I did, and shooting Mr. McCollum, was because I thought he was ■ going to come right on up there to me and hurt me; with him like that, coming right up on me, and then there was Ab. standing behind there with a piece of pipe, and Jesse coming around behind me. Ab. was there within striking distance of me, about as far as from you to me.”

Appellant objected to the charge on the ground that in submitting self-defense the court failed to instruct the jury that he had the right to defend himself against what appeared to be a joint attack upon him by Ab. Cline, Jesse Cline, and deceased. We think the exception was well taken. Where there is evidence, viewed from the accused’s standpoint, that he was in danger from more than one assailant, the charge should instruct the jury that he had a right to defend against all or either. Branch’s Annotated Penal Code, § 1934; Black v. State, 65 Tex. Cr. R. 336, 145 S. W. 944, 947.

Appellant further objected to the charge on the ground that it was too restrictive, in that it predicated his right to defend himself upon an assault by deceased, with a knife or what appellant took to be a knife. State’s witnesses testified that deceased had no knife in his hand, but advanced on appellant with clenched fists. There was testimony to the effect that, immediately before approaching appellant, deceased had a stick in his hand with which he was cleaning his shoes. On another trial the charge of the court should not restrict appellant’s right to defend against an attack with a knife.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


text:
    WILLIAMS v. STATE.
    No. 14249.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    T. B. Ridgell, of Breekenridge, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is moving mortgaged property out of the county in which it was- located at the time the lien was created; the punishment, confinement in the .penitentiary for two years.

B. Post testified that appellant introduced himself as J. R. Ramsey and told him that he desired to purchase a radio. He said he sold appellant a Majestic combination radio, for which appellant agreed to pay him approximately $200. Appellant indorsed over to Mr. Post three insurance notes. Mr. Post further testified that when one of the notes became due he was unable to find the radio in Stephens county. He said appellant told him he had removed the radio to Port Worth. The state introduced a witness who testified that appellant told him he had moved the radio to Clovis, N. M. Appellant failed to pay the notes. The state offered in evidence, over appellant’s objection, an instrument in writing, which reads as follows:

“Monnig Dry Goods Co.
“Breekenridge, Texas, 6th day of Jan. 1930 “Received of the Monnig Dry Goods Company (1) Maj. 1S1 and 3 notes 74.89 160.00 & 80.00 Model 181 Serial No. 20009 for which I agree to pay to B. Post or order $313.50 as follows: $-herewith, the balance in payments of $85.00 on the 1st day of each consecutive month, beginning 1st day of Peb. 1930 40.00 Blay 1st 1930, which payments, other than the one herewith, I agree to make to the office of B. Post or to a collector authorized in writing.
“The title to the above described property is to remain in B. Post until full payment is made; but I cannot by returning the property release myself of my obligation to make full payment. Upon failure to pay any installment the whole unpaid balance shall, at the option of B. Post, become due and payable at Breekenridge, Texas, together with ten per cent interest from date and a reasonable attorney’s fee in case account is placed with attorney for collection. •
“This agreement shall cover any other merchandise that may -be sent in exchange of that originally delivered.
“No Verbal or Written Conditions or Agreements Not Contained Herein Are Binding on any Party Hereto.
“[Signed] J. R. Ramsey,
“Street and No. 1216 W. 7th
“City Ft Worth.”

Appellant offered no testimony.

It is expressly set forth in the instrument executed by appellant that the title to the property therein described remained in B. Post. It was alleged in the indictment that appellant had executed and delivered to B. Post a valid mortgage in writing on the property described in tjie indictment. We quote from Knox v. Brown (Tex. Com. App.) 16 S.W.(2d) 262, 265, as follows: “A mortgage leaves the title to the property in the grantor, and gives to the grantee a lien upon it, by means of which the grantee is authorized to appropriate it to the extent of its value to the payment of the debt thus secured.”

The instrument introduced in evidence is not, on its face, a mortgage. Hence there was a variance between the instrument described in the indictment and that received in evidence.

The property appellant received was described in the indictment as “one Majestic radio set complete, same being 181 model, serial number 20009.” In the instrument in writing received in evidence over appellant’s objection, the property was described as “one Maj. model 181, serial number 20009.” The indictment contained no innuendo averments showing that the property set forth in the instrument in writing was intended to be described as a Majestic radio. We think appellant’s objection to the introduction of the instrument should have been sustained. A material variance between the indictment and the mortgage as to the property described is fatal. Branch’s Annotated Penal Code, § 2665; Honeycut v. State, 23 Tex. App. 71, 3 S. W. 716. The rule is further stated by Mr. Branch, in section 2665, as follows: “It being necessary to describe the property in the indictment the proof must correspond with the allegations as to such description although the property is described with unnecessary particularity.”

Further, in the same section, he states the rule as follows: “Where the state fails to prove that the property disposed of bore the particular though unnecessary description alleged, it is error to authorize the jury to convict if they find that it was the same property mortgaged where no allegation of mutual mistake or an incorrect description is contained in the indictment.”

See Coleman v. State, 21 Tex. App. 520, 2 S. W. 859.

The judgment is reversed and the cause remanded.

PER CURIAM.

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