author: CRITZ, J. CURETON, C. J.

text:
    TEXAS STEEL CO. v. FORT WORTH & D. C. RY. CO. et al.
    No. 1453-5695.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.

      George W. Armstrong, of Fort Worth, for appellant.
    Thompson & Barwise, Dee, Lomax & Wren, Goree, Odell & Allen, and Fred L. Wallace, all of Fort Worth, for appellees.
   CRITZ, J.

This suit was brought by Texas Steel Company, hereinafter designated the steel company, against the Fort Worth & Denver City Railway Company and the Missouri, Kansas & Texas Railway Company, in the district court of Tarrant county, Tex., for overcharges and penalties. The certificate explains the suit. The pertinent part of the certificate reads as follows:

“Appellant alleges as its cause of action for overcharges and penalties for extortion that the Railroad Commission of Texas, on February 13, 1915, established — after notice and hearing to which appellant was a party — commodity rates for rolling mills, known as Commodity Tariff No. 48-A, and that said rates have never been canceled in the manner provided by law and are still in force and effect; and that the appellees have charged it rates grossly in excess of said rates in the shipment of said 112 cars, and it sues for the overcharges and the penalties provided for in article 6475, Vernons Ann. Stats.
“The appellees contend that these rates were lawfully cancelled by the Railroad Commission of Texas on April 26,1922, by its Circular No. 5548, which rates were subsequently reduced approximately 10 per cent by order of the Railroad Commission of Texas of June 15, 1922, As shown by its Circular 'No. 5573, and that the rates thus established are the lawful rates.
“The circular of April 26,1922, recites that:
“ Whereas it appearing to the Railroad Commission of Texas that in pursuance of orders dated July 7, 1916, * * * entered by the Interstate Commerce Commission in its docket No. 8418, Railroad Commission of Louisiana v. Aransas Harbor Ry. Co. et al., and associated cases, certain freight rates * ⅜ *, as in said orders prescribed have been on and continuously since Nov. 1, 1916 * * * published and applied to the transportation of freight traffic .between points within the State of Texas by railroad companies operating lines of railroad in this state, which said freight rates are carried in the following tariffs’ etfi. (describing various tariffs); and Whereas, it further appearing to this Commission that said freight rates now published in the hereinbefore mentioned tariffs and classifications having been continuously since their publication and being now applied to such intrastate freight traffic and being recognized by this Commission as being so lawfully applied, the shipping interests and public welfare of this state require that they be adopted by this Commission.’ The. order therefore adopts the rates and is signed by two members of the Commission and attested by the Secretary.
“On May 4, 1922, the Interstate Commerce Commission entered an order in said cause No. 8518, stating, among other things, that it ‘further appearing that by order entered April 26, 1922, the Railroad Commission of Texas has adopted and prescribed for observance and application subsequent to May 15, 1922, between points within the State of' Texas the intrastate rates heretofore entered by this Commission ⅜ * ⅜ (describing them), and it further appearing that said rates * * * will, if said order of this Commission be vacated, continue in effect as the lawfully established rates * ⅜ * it is ordered that said rates be vacated,’ etc.
“It appears from the 31st Annual Report of the Railroad Commission of Texas that these orders were made in pursuance of. an agreement or an arrangement between the two said commissions and at the same time an arrangement was made for joint hearings of future applications involving inter and intra state rates.
“It is urged that there was no docketing of a cause, no notice to the railroads or to appellant, and no evidence introduced, nor any character of hearing had as a predicate for this Circular.
“The rates adopted by the Railroad Commission of Texas in said Order No. 5548, were filed by A. C. Fonda as publishing agent of the railroads of Texas, with the Interstate Commerce Commission following the Shreveport decision and under the claim that said decision authorized the filing of such rates and the cancellation of corresponding intrastate rates in the State of Texas. The State contended that such rates were not in fact authorized by the Shreveport decision and that the same were without authority and void, and proceedings were pending in the courts to test the validity of said 'rates when the operation of the railroads was taken over by the Government pending the war, and such proceedings were suspended thereby.
“Federal control over the railroads was terminated by act of Congress on February 29, 1920, but the Interstate Commerce Commission continued to exercise jurisdiction oyer intrastate rates up to April 26, 1922, when the agreement or arrangement' above mentioned was made, in pursuance of which the several law suits involving the validity of the Shreveport rates were dismissed.
“Question 1: Is the said Circular No. 5548 adopting said rates, void and subject to collateral attack for any of the following reasons, to wit:
“(1) Because no notice was given to the railroads as provided by article 6449 of the Statutes of 1925, prior to the issuance of said circular?
“(2) Because no notice was given to appellant, which appears to be the only rolling mill in Texas and the only one interested in the exception giving rolling mills preferential rates as provided in said Tariff No. 48-A adopted February 13,1915 ?
“(3) Because there appears to have been no evidence of the docketing of the cause, or hearing, or evidence, as provided by the rules of the Railroad Commission of Texas?
“(4) Because the Railroad Commission of Texas was without authority to make the said arrangement or agreement with the Interstate Commerce Commission?
“(5) Because the Eonda rates which were adopted were established unlawfully as claimed to have been held by the Court of Civil Appeals in the case of Abilene & Southern Ry. Co. v. State, 199 S. W. 878; and the United States Supreme Court in the Minnesota Rate Cases, 230 U. S. 352, 33 S. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, Ann. Cas. 1916A, 18, and Wisconsin Ry. Com. v. C., B. & Q. Ry. Co., 257 U. S. 683, 42 S. Ct. 232, 66 L. Ed. 371, 22 A. L. R. 1086, and other cases.
“Question 2: If the order of the Railroad Commission of Texas of February 13, 1915, has not been canceled by the orders mentioned:, are the appellees liable for overcharges and the penalties provided by art. 6475, for not observing the rates established in said order?
“Appellant sues for the penalties provided by statute for discrimination upon the ground that the fabrication in transit privilege granted to its competitors constitutes an unjust discrimination against it, and that this privilege applies to traffic and points wholly intrastate, and is null and void. The appellees contend that this transit privilege was filed by the Southwestern lines with the Interstate Commerce Commission and that it thereby becomes an interstate regulation and that it is not subject to attack in the state courts.
“This transit privilege allows to dealers and fabricators who have paid freight upon inbound shipments from other states and have preserved their freight bills and otherwise complied with the regulations, the privilege of forwarding from their warehouses outbound' shipments of the same character of article or ■ articles of kindred character, for a period of twelve months, at a lower charge than is made at the same time for a corresponding distance upon like traffic, against the appellant. Paragraph 8 of the said privilege provides as follows:
“ ‘The identity of structural iron and steel, also iron and steel articles converted into tank iron, unloaded in a warehouse, storeroom, etc., cannot be preserved. * * * Substitution of structural iron or steel, also iron and steel articles converted in tank iron, originating in one line, for a like commodity originating on other lines, will be permitted.’
“While the regulations require daily reports and cancellations of billing for steel used locally, in practice it is claimed no daily reports are made, but the reports are made quarterly; and no daily cancellation of billing is made for steel used locally, but such billing is used upon outbound shipments of other steel; and in practice billing for structural steel, such as beams, girders, and channels, is used for forwarding merchant steel bars and reinforcing concrete bars, and vice versa. It is urged that prior to the cancellation of common point territory and during a part of the time when the shipments in controversy were being made, the competitors of appellant were permitted to make shipments to any place in common point territory at a flat charge of two cents per 100 pounds, whereas appellant was required to pay for corresponding distances for the same traffic, mileage rates up to 48 cents per 100 pounds. It is urged that since the cancellation of common point territory one of appellant’s competitors, the Colorado Iron & Fuel Co., and its customers, are still permitted to make such intrastate shipments at the flat two cent charge, and appellant’s' other competitors are still allowed to make shipments at very much less than appellant is required to pay at the same time for corresponding distances.
“It is urged that this transit privilege operates very greatly to the disadvantage of appellant in marketing its product and in meeting competition.
“Question 3: Is said transit privilege void and subject to collateral attack on either of the following grounds:
“(1) Because the traffic to which it is intended to be applied has lost its interstate character and has become a ‘part of the mass of state property,’ as held by the Supreme-Court of Texas in the case of G., C. & S. F. Ry. Co. v. State, 97 Tex. 274, and 78 S. W. 495, and the Supreme Court of the United States in the cases of Atl. C. L. Ry. Co. v. Standard Oil Co., 275 U. S. 257, 48 S. Ct. 107, 72 L. Ed. 270; and A., T. & S. F. Ry. Co. v. United States, 279 U. S. 76S, 49 S. Ct. 494, 73 L. Ed. 947.
“(2) Because the Interstate Commerce Commission has no power to create discrimination and a regulation having that effect is void in view of Section 2 of the National Transportation Act which provides, in substance, that a common carrier shall not ‘directly or indirectly by any special rate, rebate, drawback, or other device, charge, col-' lect * * * from any person greater or less compensation for any service rendered for the transportation of property than it charges and collects from any other person for a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions’ ; and in view also of the decision of the Court of Civil Appeals of Texas in the ease of Houston Chamber of Commerce v. Railroad Commission of Texas, 19 S.W.(2d) 583, holding that an order of the Railroad Commission of Texas is void where it has the effect of creating discrimination.
“Question 4: Is the General Order of the Railroad Commission of Texas, issued as Circular No. 5573, dated June 15, 1922, wherein the rates complained of herein were adopted, void and subject to collateral attack in the District Court of Tarrant County, Texas?”

The several questions propounded hy the Court of Civil Appeals to this court really involve the decision of two main contentions made by the steel company:

(a) The steel company in effect contends that the railroads have been charging for intrastate shipments of steel rates promulgated hy the Texas Railroad Commission, but that the orders of the Railroad Commission by authority of which such rates and charges have been made are utterly void, and therefore subject to collateral attack in a court other than a district court of Travis county, Tex.

(b) The steel 'company further contends that the railroad companies have discriminated against it as a shipper of iron and steel products, in that they give its competitors located wholly outside the state a lower rate in the state of Texas than is given it. The steel company bases such contention on the use by intrastate shippers of transit privileges set forth in a tariff of Southwestern carriers on file with the Interstate Commerce Commission, and' applicable to shipments moving wholly interstate.

The steel company attempts to recover damages and penalties under the provisions of article 6475, R. C. S. of Texas 1925, for such alleged wrongful charges both for shipments moving wholly intrastate, and those moving wholly interstate. We shall discuss the two contentions separately, first discussing the intrastate matter.

The railroad companies contend, with reference to' intrastate shipments, that under article 6448, R. C. S. of Texas 1925, the Texas Railroad Commission is authorized to fix rates to be charged for the carriage of shipments of freight, including steel and iron, between two points in this state, that is, for intrastate shipments, and that, where such rates have been adopted and prescribed by the Texas Railroad Commission, in an order regular on its face, such order is not subject to collateral attack in the district court of Tarrant county, Tex. It is contended In this connection by the railroad companies that under the provisiohs of article 6452, R. G. S. of Texas 1925, all rates prescribed by the Railroad Commission are deemed reasonable, fair, and just, and are effective as between private parties and railroad companies until found otherwise in a direct attack brought in a district court of Travis county, Tex.; it being undisputed that the rates here attacked by the steel company are those adopted and prescribed by the Railroad Commission. We sustain the contention of the railroad companies in this respect.

It is undisputed that on April 26, 1922, the Texas Railroad Commission issued circular No. 5548 and designated as a “General Order.” This order purports to prescribe and fix rates to be charged for shipments of steel and iron moving wholly intrastate in this state. Subsequently, on June 15, 1922, a general order was made and issued by the Texas Railroad Commission reducing rates on all commodities involved in this suit a certain per cent.

The suit, in so far as it involves the above orders of the Texas Railroad Commission, is based Upon the theory and contention that the above orders are absolutely and totally void for the several reasons set out in “Question No. 1” propounded in. the certificate from the Court of Civil Appeals. We overrule these contentions.

It is the settled law of this' state that the Railroad Commission is a quasi judicial body. Producers’ Refining Co. et al. v. M., K. & T. Ry. Co. of Texas (Tex. Com. App.) 13 S.W.(2d) 679.

Since the Railroad Commission is a quasi judicial body, it follows that an order regular upon its face, made by the commission, is not subject to collateral attack. Articles 6452, 6453 R., C. S. of Texas 1925; West Texas Compress Co. v. Railway Co. (Tex. Com. App.) 15 S.W.(2d) 558; Producers’ Refining Co. v. M., K. & T. Ry. Co., 13 S.W.(2d) 679; Id. (Tex. Com. App.) 13 S.W.(2d) 680; Railroad Commission v. Weld, 95 Tex. 278, 66 S. W. 1095; M., K. & T. Ry. Co. of Texas v. Railroad Commission (Tex. Civ. App.) 3 S.W.(2d) 489; Empire Gas & Fuel Co. v. E. L. Noble et al. (Tex. Com. App.) 36 S.W.(2d) 451.

As shown by the certificate, the steel company contends that the orders of the Railroad Commission are utterly void, because (a) made without notice to the railroads; (b) because no notice was given to the steel company; (c) because there appears to have been no evidence heard by the Railroad Commission, and the case was not docketed; (d) because the order was made in pursuance to an agreement with the Interstate Commerce Commission; and (e) because the rates were established unlawfully. All of these contentions are utterly untenable. The last (e), we presume embraces the others.

Under the plain and simple terms of article 6452 it is provided that all rates prescribed by the commission shall be conclusive as between private parties and railway companies, until found otherwise in a direct action. This article reads as follows: “In all actions between private parties and railway companies brought under this law, the rates, charges, orders, rules, regulations and classifications prescribed by the Commission before the institution of such action shall be held conclusive, and deemed and accepted to be reasonable, fair, and just, and in such respects shall not be controverted therein until finally found otherwise in a direct action brought for the purpose in the manner prescribed by the two succeeding articles.”

Under the provision of article 6453 it is expressly provided that any party dissatisfied with any decision of the commission may attack the same by a direct proceeding or suit in Travis .county, Tex., in which suit the Railroad Commission must be made a party. The statute in question reads as follows: “If any railroad company or other party at interest be dissatisfied with the decision of any rate, classification, rule, charge, order, act or regulation adopted by the Commission, such dissatisfied company or party may file a petition setting forth the particular cause or causes of objection to such decision, act, rate, rule, charge, classification, or order, or to either or all of them, in a court of competent jurisdiction in Travis County, Texas, against said Commission as defendant. Said action shall have precedence over all other causes on the docket of a different nature, and shall be tried and determined as other civil causes in said court. Either party to said action may appeal to the Appellate Court having jurisdiction of said cause; and said appeal shall be at once returnable to said Appellate Court at either of its terms; and said action so appealed shall have precedence in said Appellate Court of all causes of a different character therein pending; provided, that, if the court be in session at the time such right of action accrues, the suit may be' filed during such term and stand ready for trial after ten days’ notice. Provided further that no preliminary injunction shall be issued without notice to the -opposite party and that no temporary restraining order shall be granted without notice to the opposite party unless it' shall clearly appear from 'specific facts shown by affidavit or by the verified petition that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon. Every such temporary restraining order shall be enforced with the date and hour of issuance, shall be forthwith filed in the clerk’s office and entered of record, shall define the injury and state why it is irreparably [irreparable] and why the order was granted without notice, and shall by its terms expire within such time after entry, not to exceed ten days, as the court or judge may fix, unless within the time so fixed the order is extended for a like period for good cause shown, and the reasons for such extension shall be entered of record. In case a temporary restraining order shall be granted without notice in the contingency specified, the matter of the issuance of a preliminary injunction shall be set down for a hearing at the earliest possible time and' shall take precedence of all matters except older matters of the same character ; and when the same comes up for hearing the party obtaining the temporary restraining order shall proceed with the application for a preliminary injunction, and if he does not do so the court shall dissolve the temporary restraining order. Upon two days’ notice .to the party obtaining such temporary restraining order the opposite party may appear and move the dissolution or modification of the order, and in that event the court" or judge shall proceed to hear and determine the motion as expeditiously as the ends of justice may require.”

We take it that the statutes above quoted mean what they say. It is not contended that the orders of the Railroad Commission here collaterally attacked are void on their faces, or that the Railroad Commission was without inherent lawful jurisdiction to act in the premises. If such contentions were made, they would be without merit.

The various statutes above mentioned have been in force for many years, and time and experience have demonstrated their wisdom. The statutes providing against collateral attacks on the judgments and orders of the commission were necessary in order that the commission might properly function. The rules and rates of the commission are matters of general public interest, as well as interest to shippers and carriers. If an order of the commission, lawful on its face, can be collaterally attacked in the various courts and counties of the state on grounds such as those urged in the instant case, interminable confusion would result, and railroad companies, though honestly endeavoring to obey the law and the orders of the commission could be mulcted in large sums in damages and penalties, and the orders and rates of the commission rendered hazardous to obey.

We think that a casual reading of the certificate will demonstrate that the orders of the commission here attacked as null and void are regular on their faces. All the grounds urged to nullify such orders require the court to go behind them to ascertain the facts, and do not appear on the face of such orders. It has long been settled in this state that such an attack is collateral.

If an order of the commission regular on its face can be collaterally attacked on the ground of want of notice, or any other ground here urged, then the orders and rates of the commission could be rendered null and void in a proceeding in which the commission was never given an opportunity to be heard either on the facts or the law. Furthermore, different courts might reach conflicting conclusions as to the facts involved in the same order. This demonstrates the wisdom of the statute and the correctness of the rule here announced. The legislature recognized in the beginning that to allow such attacks would lead to intolerable results, and foreclosed the right to do so by the statute prescribing the manner and the court in which the rules and rates of the commission can be subjected to judicial review. At this point we wish to state that we do not want to be understood as holding that we would hold these orders illegal in a direct proceeding. We do not pass on that matter, as we have no such proceeding here. What we do hold is that the orders here attacked are not subject to be called in question except in a direct proceeding brought in full conformity with the provisions of article 6453, supra.

With reference to the issues presented regarding alleged discriminations by the railroad companies growing out of the rates on file with the Interstate Commerce Commission, it is the settled law that such a suit cannot be maintained in a state court at all, and can only be maintained in ‘a federal court after the matter has been presented to the Interstate Commerce Commission. T. & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 S. Ct. 350, 51 L. Ed. 553, 9 Ann: Cas. 1075.

What we have said settles the issues of this case, and demonstrates that this suit cannot be maintained at all in the district court of Tarrant county, Tex.

We recommend that the questions certified .be answered as above indicated.

CURETON, C. J.

The opinion of the Commission of Appeals answering the certified questions is adopted and ordered certified.


source: Caselaw Access Project

author: CHRISTIAN, J.

license: Public Domain

text:
    SUITER v. STATE.
    No. 13828.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Francis M. Chaney and Oren Pármeter, both of Dallas, for appellant.
    Harry S. Pollard, Asst. Dist. Atty., of Dallas, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is aggravated assault; the punishment, a fine of $250 and 180 days’ confinement in jail.

The state’s testimony was to the effect that appellant took prosecutrix and another young woman to his room, where he photographed them in the nude. Prosecutrix testified that appellant induced her to drink some intoxicating liquor, and persuaded her, by making promise of employing her as a model, to remove all of her clothing. Several pictures of the two women were taken; they being nude at the time. It was the further version of prosecutrix that, while she was sitting on appellant’s bed in a nude condition, he approached her and sat down by her; that, after she had dressed, appellant asked her to permit him to kiss her female organ; that she pushed appellant away; that he placed his hand on her at the time and shoved her down on the bed. After prosecutrix requested appellant to desist, he procured a cab, paid the fare, and sent prosecutrix and her companion home; the time being 2 o’clock in the morning. On first being questioned by her mother, prosecutrix told a false story. Prosecutrix was seventeen years of age, and her companion somewhat older.

The court charged the provisions of article 1139, P. O., as follows: “You are- charged that when an injury is caused by violence to the person the intent to injure is presumed, and it rests with the person inflicting the injury to show accident or innocent intention. The injury intended may be either bodily pain, constraint, a sense of shame or other disagreeable emotions of the mind.”

Appellant timely and properly excepted to this charge. No physical injury was inflicted. It has been held in some cases that, although there is no evidence of actual physical violence, it is not error to charge the provisions of article 1139, supra.. It appears that these cases were assaults of an indecent character by an adult male upon a female. See Young v. State, 31 Tex. Cr. R. 24, 19 S. W. 431; Hill v. State, 37 Tex. Cr. R. 279, 38 S. W. 987, 39 S. W. 666, 66 Am. St. Rep. 803; Stripling v. State, 47 Tex. Cr. R. 117, 80 S. W. 376; Floyd v. State, 29 Tex. App. 341, 15 S. W. 819. In the latter case it was held that the charge should not have been given because the evidence rendered it doubtful whether the feelings of the female were injured. It was suggested that the charge should have been that, “if the jury believed from the evidence that an injury had been inflicted, then the presumption obtained, and it rested with the accused to show accident or innocent intention.” In many cases, when actual physical violence was relied upon, it has been held that, unless there was evidence of injury inflicted by such violence, the charge should not be given. Brown v. State, 42 Tex. Cr. R. 417, 60 S. W. 548, 96 Am. St. Rep. 806; Thompson v. State (Tex. Cr. App.) 89 S. W. 1081; Fowler v. State, 113 Tex. Cr. R. 407, 21 S.W.(2d) 672; Tubbs v. State, 50 Tex. Cr. R. 143, 95 S. W. 112.

It was said in Tubbs v. State, supra, in reviewing the authorities dealing with the propriety of giving the charge in question, that probably, in an assault upon a female where the circumstances showed an injury to her feelings, the charge would be warranted, but that, where there was any question as to appellant’s intent to injure, the court should be very careful not to charge the jury that the intent to injure would be presumed. In other words, where the state relies upon an assault of an indecent character by an adult male upon a female, and the testimony shows some acquiescence on her part, or there is some questidn as to the sense of shame produced on the female, the charge shown by the record in the instant case should not be given. Again, when the state relies upon violence, and no injury has been inflicted, the presumption mentioned in the statute will not obtain, and the charge should not be given. The information in the instant case charged an assault by an adult male upon a female. The jury may have concluded that it was doubtful, under the evidence, whether the female’s feelings were injured. Under the facts disclosed by the record, we are constrained to hold that the giving of the charge constituted reversible error.

Appellant sought in a special charge properly and timely presented to .have the jury instructed, in substance, that, if he did not intend to injure prosecutrix, but had probable ground to believe that his attempts to become familiar with her were agreeable, he should be acquitted. We quote from Weaver v. State, 66 Tex. Cr. R. 366, 146 S. W. 927, 928, as follows: “It appears to be the rule in this state that, if the issue is raised by the testimony, it is error to refuse to charge that if defendant did not intend to injure, but thought his attempts to embrace or kiss prosecutrix would be agreeable, he should be acquitted. Kearse v. State [Tex. Cr. App.] 88 S. W. 364; Chambless v. State, 46 Tex. Cr. R. 1, 79 S. W. 577; Stripling v. State, 47 Tex. Cr. R. 120, 80 S. W. 376; Brown v. State, 42 Tex. Cr. R. 417, 60 S. W. 548, 96 Am. St. Rep. 806.”

In view of the evidence, we do not believe the court was warranted in declining to give the charge.

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.


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

text:
    HALL v. STATE.
    No. 14287.
    Court of Criminal Appeals of Texas.
    April 29, 1931.
    Rehearing Denied June 24, 1931.
    Mark Smith and G. Goodwin Sweatt, both of Waxahachie, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is murder; penalty assessed at confinement in the penitentiary for a period of forty years.

Nat Hall shot and killed Jake McGill. A few minutes prior to the homicide, the parties mentioned had engaged in a fight on the street. They were separated and McGill got into the automobile of the -witness Burth and went to his abode. He and Burth resided in the same building, though not in the same room. After getting his pistol, appellant went to the room of Burth and from there to McGill’s room. McGill opened the door and the appellant entered. Burth was near by and soon heard the report of two pistol shots. He saw the deceased and the appellant struggling out into the hall. The appellant departed. Mc-Gill was taken to a hospital, where he made a dying declaration in which he described the fight in the street and stated that both he and the appellant had been drinking; that the fight began over a trivial matter. He said that after going to his room he heard the appellant talking to Burth and stating that he desired to see McGill. Burth advised the appellant to wait until the next dpy, but appellant demanded entrance to McGill’s room. When the door was opened the appellant entered and said: “You didn’t treat me right. I am going to kill you.” He immediately drew his pistol and shot McGill. They clinched and. McGill’s undershirt was set on fire. There was testimony that at the time of the fight in the street the deceased said he would kill the appellant. This was controverted by bystanders.

In his testimony the appellant described the encounter in the street and claimed that without provocation he was knocked down by the deceased, who picked up a brick and said with an epithet that he was going to kill the appellant. After they were separated, the appellant got his pistol and went to the room, of Burth and then to that of the deceased. The deceased unlocked the door and appellant inquired why he .was struck by the deceased. The deceased immediately made a demonstration and said, “I will finish you.” Appellant had his gun in his hand and fired. They were so close together that the deceased’s undershirt was set on fire.

The statement of facts has been read and a summary of the testimony is given above. However, the court is without authority to give effect to the statement of facts as a legal document. The motion for new trial was overruled and notice of appeal given on the 29th day of November, 1930. Eighty days from that date were allowed within which to file the statement of facts and bills of exception. The statement of facts was filed with the clerk of the trial court on February 23, 1931, which was not within the time allowed, but was within ninety, days from the date of notice of appeal which, under article 760, subd. 5, O. O. P., would entitle the statement of facts to consideration upon the condition that it met the other statutory requirements. One of the essentials to the consideration of the statement of facts is its approval and certification by the trial judge. See Rev. Civ. Stat. 1925, art. 2243; C. C. P. art. 760, subd. 2; Vernon’s Ann. Tex. C. C. P. vol. 3, p. 103, note 24; Rosso v. State, 99 Tex. Cr. R. 10, 267 S. W. 1116; Gifford v. State, 101 Tex. Cr. R. 7, 274 S. W. 149; Boles v. State, 102 Tex. Cr. R. 634, 279 S. W. 261.

When the statement of facts was filed in this court on February 28, 1931, it did not bear the certificate of approval by the trial judge, and noticing this, the state’s attorney returned the statement of facts to the district clerk on the possibility that the duplicate had been signed and approved. On the 16th of April, the statement of facts was returned to this court bearing the signatures of the attorneys and the certificate of approval by the trial judge. Accompanying it was an affidavit in which the following statement is made: “It having come to the attention of defendant’s counsel only today that the statement of facts filed in this cause was not signed by the prosecuting attorney or by the trial judge, defendant, through his counsel, says that same was not due to any fault or neglect on his part, or the part of his counsel. Counsel for defendant says that the County Attorney and the trial judge are both willing that such statement of facts be now signed by them and were willing to sign the same at the time that they were filed. Counsel for defendant was ill at the time, and it was due to an oversight that the statement of facts was not signed.”

The authority of this court to consider a statement of facts filed more than ninety days after the motion for new trial is overruled is conditioned upon the showing that the delay was not due to the lack of diligence upon the part of the appellant or his counsel. The absence of the authority by this court to consider as authentic the statement of facts found here is a subject of regret. Both statute and precedents forbid the consideration of the document as an authentic statement of facts.

At the time the statement of facts was filed with the district clerk without the approval of the trial judge, it was without legal effect. When it was subsequently filed with the approval of the trial judge, the time allowed by statute for filing the statement of facts had expired'. On the subject of diligence, it is not shown that prior to the time that he actually approved the statement of facts it was ever presented to the district judge. There is nothing brought forward in the affidavit excusing the delay which would warrant the consideration of the statement of facts by this court. The subject has been considered many times, as is manifest from the precedents collated in Vernon’s Ann. Tex. O. C. P. 1925, vol. 3, p. 132, note 55. See Shaddix v. State, 90 Tex. Cr. R. 431, 235 S. W. 602; Vickers v. State, 90 Tex. Cr. R. 609, 236 S. W. 483; Nothaf v. State, 91 Tex. Cr. R. 378, 239 S. W. 215, 23 A. L. R. 1374; Johnson v. State, 93 Tex. Cr. R. 224, 246 S. W. 390; Riley v. State, 95 Tex. Cr. R. 539, 255 S. W. 179; Houseton v. State, 95 Tex. Cr. R. 596, 255 S. W. 188; Clampitt v. State, 96 Tex. Cr. R. 148, 256 S. W. 272; Crump v. State, 105 Tex. Cr. R. 209, 287 S. W. 246; Weaver v. State, 106 Tex. Cr. R. 175, 291 S. W. 240; Williams v. State, 108 Tex. Cr. R. 124, 299 S. W. 258; Walkup v. State (Tex. Cr. App.) 25 S.W.(2d) 864.

In defining the offense of murder the court used the language of the statute. See article 1257a, Vernon’s Ann. P. C. Malice and malice aforethought were also defined in an instruction given on the subject of murder such as has been approved in numerous cases, among them, Davis v. State, 110 Tex. Cr. R. 605, 10 S.W.(2d) 116.

In bill No. 2 complaint is made of paragraph 11 of the court’s charge giving the converse of the appellant’s theory and stating the state’s theory arising from the ■'evidence on the subject of self-defense. We think the court was within the precedents. See Branch’s Ann. Tex. P. C. p. 1088, § 1942, and cases there collated; also, Garner v. State, 34 Tex. Cr. R. 356, 30 S. W. 782; Logan v. State, 46 Tex. Cr. R. 575, 81 S. W. 721; Neyland v. State, 79 Tex. Cr. R. 652, 187 S. W. 196.

In tlie absence of the facts that were before the trial court, the reviewing court cannot appraise the charge given to the jury. Owing to the circumstances, we have been impelled to discuss the entire record in the present instance. From our investigation, however, we are led to the conclusion that the presence of the statement of facts would not affect the result of the appeal.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

We declined to consider the statement of facts because not approved by the trial judge. Appellant files a motion for rehearing signed by one of his counsel who affirms that he was ill “at the time,” and did not know until after the record was filed in this court that the statement of facts was not approved by the trial judge.

The affidavit is very indefinite, and probably too general for consideration; but our attention is attracted by the fact that another attorney of experience and ability appears from the record to have been connected with the trial. His name is signed to the exceptions to the court’s charge, also to a special charge which was refused, and it seems he appeared in the motion for new trial, and his name is attached to the bills of exception. There is no attempt by affidavit or otherwise to show any reason why this attorney did not see that the statement of facts was properly attested. The only question raised is that we should have considered the statement of facts.

The motion for rehearing will be overruled.


author: CALHOUN, J. LATTIMORE, J.

text:
    McCLELLAN v. STATE.
    No. 14364.
    Court of Criminal Appeals of Texas.
    May 20, 1931.
    Rehearing Denied June 24, 1931.

      J. D. Willis, of Waco, for appellant.
    -Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

. The conviction is for murder; punishment, twenty years in the penitentiary.

The state’s testimony shows that the appellant killed his paramour, with whom he had lived in -adultery off and on for some time. Appellant admitted the killing, but placed in evidence the issue of self-defense. .

There are no exceptions or objections to the court’s charge, nor are there any special requested charges.

Bill of exception No. 1 complains of the action of the court in sustaining the state’s objection to a question by appellant to the witness Joe Rutland as to whether or not he had ever had occasion to arrest the deceased, as to whether he knew her general reputation as being a peaceable, law-abiding citizen, and as to her general reputation in the community for chastity and virtue. It is observed that the bill of exception fails to show what the answer of the witness would have been.

We take the following from the case of Ross v. State (Tex. Cr. App.) 29 S.W.(2d) 381, 382: “A bill of exception taken to the refusal of the court to permit a witness to answer a question should show what the answer of the witness would have been. Branch’s Annotated Penal Code, § 212. The general reputation of deceased for being a law-abiding citizen was not in issue. It is the rule that, where self-defense is an issue, the accused may prove the general character for violence of his adversary for tile purpose of 'showing who probably began the difficulty. Such proof is admissible whether threats are involved or not. Branch’s Annotated Penal Code, § 2095; Daniels v. State, 5S Tex. Cr. R. 569, 126 S. W. 1153. Where the accused seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce, evidence of such threats, and, where proof of threats of the character mentioned have been made, it is competent to introduce evidence of the general character of the deceased. The inquiry, however, may not extend further than the question as to whether the deceased was a man of violent or dangerous character or a man of quiet and inoffensive disposition, or whether he was such a person as might reasonably be expected to execute a threat made. Article 1258, P. C.; Denson v. State, 107 Tex. Cr. R. 649, 298 S. W. 604, 605; Ball v. State, 113 Tex. Cr. R. 58, 18 S.W.(2d) 641.”

The fact that the general reputation of deceased for being law-abiding or her general reputation in the community for chastity and virtue might be good or bad, and whether or not she had ever been arrested, would not seem to involve characteristics that would aid in determining whether the accused was justified in assaulting her.

Bill of exception No. 2 complains of the introduction by the prosecuting attorney of a fountain pen device identified by appellant as having been in his possession and of the asking by said attorney as to whether the device would shoot like any other pistol. The objection was that same was immaterial, irrelevant, and prejudicial, because the evidence showed deceased was killed by a 45 Colt pistol, and the introduction of said device could have no bearing on the case.

A bill of exception complaining of the admission of evidence must set, out such facts or so much of the evidence as will verify the truth of the objections interposed. Enough of the surrounding facts and circumstances must be stated to enable the appellate court to determine the merits of the bill and the correctness of the ruling involved and to show that the evidence was inadmissible and the ruling was erroneous and hurtful to the cause of the appellant. See 4 Tex. Jur. § 216, for collation of authorities. .

Bill No. 3 complains of the state’s counsel asking appellant whether or not he had embezzled some money from a Mr. Caldwell because same had been investigated by a grand jury and no indictment returned, and because the question was prejudicial and misleading. The court qualified the bill in substance to the effect that the appellant testified on direct examination that, while working for Mr. Caldwell, he sold a load of produce for which he did not turn in the money, for which, offense he stayed in jail seven or eight days when he got out on bond, but for which he was never indicted. The court further qualified the bill to the effect that the state’s counsel was then permitted to examine the witness upon the matters about which he had testified on his direct examination. No exception was taken to said qualification, and, as thus qualified, it was clearly within the province of the state’s attorney to cross-examine appellant on the matters already brought out by his own counsel.

Bill of exception No. 4 complains of the action of the court in sustaining the state’s objection to testimony offered by appellant to the effect that, the husband of deceased was employed and able to take care of deceased; because such matter was material on the theory of mitigation and extenuation, and because it showed that deceased was a married woman, when part of the testimony introduced had showed that the reason for the homicide was because deceased had informed appellant she was going to quit and go to a “sweetie.” This bill is subject to the same criticism as bill of exception No. 2.

Bill of exception No. 5 complains of the action of the court in sustaining the state’s objection to the introduction of a picture of the deceased taken in an abbreviated bathing suit, for the reason that appellant wanted to show the jury what she looked like. We fail to see wherein this evidence would be admissible upon any issue in the case.

Bill of exception No. 6 complains of the action of the court in sustaining.the state’s,, objection to the testimony of appellant’s witness, Mitchell Shakespeare, former husband of deceased, to the effect that deceased was a violent and high-tempered person. The trial court qualified the bill to the effect that the witness on further examination testified that he did not know her reputation in respect to the above inquiry; and, as so qualified, the.bill shows no error.

Bill of exception No. 7 complains of the action of the court in sustaining the state’s objection to the questioning to appellant’s witness, W. B. Mobley, a constable of McLennan county, as to deceased’s general reputation for virtue and chastity, for the reason that the same was material and was admissible in mitigation and extenuation of the defense. The question involved in this bill of exception has been disposed of in the discussion of bill No. 1.

Bill of exception No. 8 complains of the action of the court in overruling appellant’s objection to the introduction by the state, after both sides had rested and after the court had prepared his charge and same had been submitted to counsel, of new witnesses. The bill further shows that the said ¡witnesses in behalf of the state were intro-duced before the argument of the cause began. Said action by the court was permissible under article 643, C. O. P., which provides that the court shall allow testimony to be introduced at any time before the argument of the cause is concluded, if it appear that it is necessary to a due administration of justice. There is nothing in this bill to show that the admission of said evidence was not necessary to the due administration of justice, and it is within the judicial discretion of the court whether testimony shall be permitted before or during the argument. Whether the testimony proposed to be introduced is in rebuttal or not is immaterial, if it appear to be necessary to a due administration of justice. Branch’s P. C. § 378; Timbrook v. State, 18 Tex. App. 6; Reynolds v. State, 71 Tex. Cr. R. 454, 160 S. W. 362; Raleigh v. State, 74 Tex. Cr. R. 484, 168 S. W. 1050.

Bill of exception No. 9 complains of the following; On the third day of deliberation, the court received a question in writing from the jury as follows; “Gan malice aforethought occur immediately before an act done. N. R. Legg as Foreman.” The court responded in writing, “Yes.” The bill further shows that appellant’s counsel had gone to the court after the jury had been out two days and advised the court that it was necessary for him to go to Npw Orleans, and requested the court to see if anything was wanted by the jury before he left; and complains further that the giving of said additional charge was prejudicial to the-appellant, and, if given, should have been amplified and discuss.ed, and to the giving of which and the action thereon the appellant raised objection in his motion for new trial. Article 677, C. C. P., provides: “The jury, after having retired, may ask further instruction of the judge as to any matter of law. For this purpose the jury shall appear before the judge in open court in a body, and through their foreman shall state to the court, verbally or in writing, the particular point of law upon which they desire further instruction; and the court shall • give such instruction in writing, but no instruction shall be given except upon the particular point on which it is asked.”

In the absence of a showing to the contrary, it must be presumed by this court that there was a full compliance with said article 677, O. O. P. Said bill of exception does not show that the appellant or his counsel was not present at the time of the proceedings, nor does it show that the appellant or his counsel was precluded or prevented from excepting to the action of the trial court. Nor does the bill show any of the exceptions whereby the appellant would not be charged with having waived or having accepted the action of the trial court in the matter. All these matters are missing in this bill of exception, and, so far as the matter appears from the bill, it fails to reflect any error. This court must of necessity be controlled by the bill which brings such complaint forward for review.

By bill of exception No. 10 appellant raises the issue that the evidcn'ce in this cause was insufficient to sustain the verdict found by the jury, to wit, a verdict of murder with malice aforethought.

All of the eyewitnesses to the killing testified substantially to the same fdcts, that is, that the killing took place in the Waco Tourist Camp; that there were two beds in the room in which they were at the time; ’ that the deceased and appellant were sitting on one bed, and just before the shooting they heard the appellant ask the deceased if she was coming back to him, to which she replied that she would not live with him unless he got a job ; that the deceased after said remark got up and went to the other bed in the room; that the appellant then said, “That is all I want to hear yqu say”-; that he then got up and leisurely walked across the floor and went to the bed and got his gun and shot the deceased. They all testified that deceased was unarmed, not making any demonstration towards the appellant, and had made no threats. One of the witnesses testified further that three weeks before the day of the killing the appellant told witness that he would kill the deceased unless she went back to him, and said further that it-was a pretty time for her to quit him; that he had given her .the money that he sold the produce for, and had bought her two dresses and gave her $100, and said he was going to kill her if she did not live with him, and that he was broke and did not have a dime.

We think the facts justified the jury in concluding that malice aforethought appeared from the evidence.

¡, No reversible error appearing in the record, the judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

Renewed complaint appears of our disposition of the matters contained in appellant’s bill of exception No. 2, which sets forth that the state was allowed to introduce in evidence and to ask appellant regarding a device having the appearance of a fountain pen, same being a tear gas gun, which was identified by appellant as having been in his possession for some time. The, state asked him if it would shoot like any other pistol. It is stated in the bill of exception that both the introduction and the question were objected to as immaterial, irrelevant, and prejudicial. If the witness made any answer to the question asked, it is not set out in the bill of exception. We are not apprised by the bill of the state’s purpose in introducing said device in evidence, nor is there anything set out in the bill opposing the idea that this may have been one of the most material bits of evidence in the state’s case. Further than to set out the ground of appellant’s objection, said bill of exception contains nothing to show what a tear gas gun is, or how it was or was not material evidence to go before the jury. Simply to object to proffered testimony as being immaterial, irrelevant, and prejudicial brings nothing before this court for review, and, unless the evidence be patently and necessarily inadmissible — which is not the case here — this court would not be called on to reverse a case upon such a complaint.

In our original opinion we quoted the statute authorizing the jury to ask, and the trial court to give, additional instructions after the retirement of the jury, as to any matter of law. Bill of exception No. 9 sets out that the jury asked, and the court gave, both in writing, additional instructions. The jury asked in writing if malice aforethought might be formed immediately before the doing of an act. The court in writing informed .them that it could. The question was proper, and the answer both direct and correct. Malice aforethought may be formed in the mind just before the doing of an act. Sherar v. State, 30 Tex. App. 349, 17 S. W. 621; Garza v. State, 11 Tex. App. 345; Duebbe v. State, 1 Tex. App. 159 ; McCoy v. State, 25 Tex. 33, 78 Am. Dec. 520; Campbell v. State, 15 Tex. App. 506; Lewis v. State, 15 Tex. App. 647. Being of this opinion, it becomes unnecessary for us to discuss the legal sufficience of appellant’s complaint of the asking and giving of the above instruction.

It appears that appellant’s attorney had voluntarily absented himself, being called on business to a distant city. Obviously, the trial court could not be compelled to delay the trial in order to submit this answer to counsel. Had his attorney been present, it would appear to have made no difference. We cannot conceive how the court could have elaborated upon the simple direct answer made to the jury’s question, nor could any elaboration have made same more manifest, or made an answer more responsive.

The motion for rehearing will be overruled.


author: LATTIMORE, J.

text:
    SADLER v. STATE.
    No. 14244.
    Court of Criminal Appeals of Texas.
    June 10, 1931.
    Couch & Couch and S. P. Leslie, all of Bon-ham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, two years in the penitentiary.

Two officers in a car together out on a road met appellant just past a turn in said road. They had started out with a view of either intercepting or ascertaining if appellant was transporting or possessing intoxicating liquor. When they met him, they turned their car across the road, whereupon appellant stopped his car, and, according to the testimony of the officers, proceeded to break a container of liquor, and then go to the rear •of his ear and break two or three others. One of the officers testified that appellant threw part of the whisky at them, and that it splashed on them, and that it was in the bottom of the car. The evidence amply supports the verdict and judgment.

There are six bills of exception. The first brings forward all of the various grounds alleged in the motion for new trial, and asserts that the court erred in refusing to grant such new trial. A bill of exception of this kind is of no practical value. It would be manifestly proper for the appellant to make complaint of the matters severally, and at the time they occur in the course of the trial, and to bring up his several bills of exception presenting such complaint.

Bill of exception No. 2 complains of the refusal of the court below to compel the officer who arrested appellant to disclose from whom he got the information on which he was seeking appellant, and which led him to make the trip. We know of no reason why the court should attempt to compel the officers to disclose such information.

Bill of exception No. 3 complains of the reception of testimony of the officers who were present when, as they stated, appellant broke several containers of whisky, part of which splashed on them—to the effect that, after they carried appellant to jail, they wrung out their handkerchiefs and the liquid thus obtained was whisky. The fact that appellant was under arrest would not suffice to prevent the introduction of this testimony.

There is nothing in bill of exception No. 4 calling for discussion. Bill No. 5 sets up that the officer testified that, when he turned his car in front of appellant, he expected to apprehend him, and that he did stop him right there. Asked by appellant on cross-examination if he did not so do, this was answered in the affirmative. Appellant then moved to exclude all the testimony of the officer as to the acts of appellant after he was stopped. The refusal of the court to grant this motion is obviously correct. Appellant, according to the state’s theory, proceeded to break a number of container’s of whisky which he had in his car after he was stopped by the officers. These things were res gestae of the offense charged, and testimony of same was admissible.

The remaining bill of exception complains of the fhet .that, after the state rested its ease one afternoon, it was permitted to reopen the ease the next morning, and that thereupon appellant ashed for a continuance because of the absence of two witnesses. The bill is qualified at length, and in such manner as to show that appellant was informed the evening before he made his motion for continuance that the state was going to reopen its case, and it is not shown that he made any effort to secure the testimony of the two absent witnesses. It is further shown both by the record and the qualification of the court that the testimony of these two witnesses was material only to matters which were drawn out by the cross-examination qf the state witness the next morning after the state had rested its case the evening before. It/ appears that the state’s attorney was uncertain as to whether he had shown that, after appellant came into view of the officers just before his arrest, he had moved his car along the road any distance. ' For the purpose of making this proof, the court was asked to reopen the case the next morning. When the case was reopened, the state introduced the officer who testified to the fact that, after appellant came into his view, he moved his car some one hundred feet along the road. This was all the purpose for which the' state reopened the case. Appellant’s counsel took the witness on cross-examination and went into a number of matters which, in our view, and evidently in that of the trial court, were not at all germane to the matter for which the state reopened the case, and which do not seem to be of any value in shedding light upon the admissibility of the officers’ testimony. It clearly appears that the testimony of the absent witnesses related only to matters thus brought out by appellant’s counsel during his cross-examination of the officers on said morning. We do not think the bill manifests any error.

The judgment will be affirmed.


author: CHRISTIAN, J. LATTIMORE, J.

text:
    NAUGLE v. STATE.
    No. 14152.
    Court of Criminal Appeals of Texas.
    May 13, 1931.
    Rehearing Denied June 24, 1931.

      J. E. Clarke and Erazier & Averitte, all of Hillsboro, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is rape; the punishment, confinement in the penitentiary for 25 years.

It was alleged in the indictment that prose-cutrix, Mary Marshall, was under the age of 18 years. She testified that she was 13 years of age. It was uncontroverted that appellant drove to the home of prosecutrix during her mother’s absence, and advised prosecutrix that a lawyer (naming him) in Hillsboro wanted to see her. Accompanying appellant was Leonard Throckmorton, who drove with the parties to the scene of the offense. Touching her ride with appellant in his automobile and his mistreatment of her, prosecutrix testified, in substance, as follows; Appellant urged her to let him take her to town to see the lawyer. She demurred, stating to appellant that she did not want to go without getting her mother’s consent. Answering her, appellant stated that he would take her to her mother before driving on to town, in order that she might ask her mother if she could go. Prosecutrix entered the automobile, and appellant, instead of going by the home of prosecutrix’s grandmother, where her mother had gone, drove out of town. Realizing that appellant was taking her into the country, prosecutrix began to scream. She tried to get out of the car. Appellant and his companion held her. After driving some distance, appellant stopped the car, pushed prosecutrix out, and forceably took her into a field. She fought to her utmost. She begged appellant to desist, but to no avail. Overcoming her resistance, appellant had sexual intercourse with' her. Appellant was drunk. He had a shotgun in the car. ’J'wo men approached while appellant was mistreating prosecutrix. An officer and another man approached and ordered appellant to release prosecutrix. Appellant refused to obey, and one of the men struck him on the head with a gun. Prosecu-trix was released. Appellant had torn her clothing practically off of her.

The two men who first approached the appellant and prosecutrix testified • that they saw appellant with his arm around prosecu-trix’s neck; that he took her down the road, she begging appellant to release her; that prosecutrix asked the witnesses to rescue her from appellant; that they immediately reported the matter; that before reaching the scene they had heard prosecutrix scream. The officer and his companion; testified to having rescued prosecutrix from appellant. The torn clothing of prosecutrix was introduced in evidence. The physician who examined pros-ecutrix testified that she had been penetrated.

Appellant did not testify in his own behalf, but sought to prove that prosecutrix was of previous unchaste character. He offered a witness who testified that he had spent the night with prosecutrix in a shed. This witness declined to say whether he had sexual intercourse with prosecutrix. Other witnesses for appellant testified that they had seen prosecutrix in automobiles at night in the company of men.

Affirming her previous chastity, prosecutrix declared that appellant alone had had sexual intercourse with her.

Appellant urges in his brief that his right of examination of the members of the special venire on their voir dire was unduly restricted, his position being that the questions he sought to propound to the individual members of the venire were calculated to elicit information which, if not affording sufficient ground of challenge for cause, would have better enabled him to properly exercise his peremptory challenges. He now seeks to invoke the principle thaj; the right to appear by counsel, guaranteed by the Bill of Rights, carries with it the right of counsel, within reasonable limits, to examine each juror, individually in order to prepare himself for the intelligent exercise of the peremptory challenges allowed him by statute. See article 1, § 10, Constitution of Texas; article 3, C. C. P.; Plair v. State, 102 Tex. Cr. R. 628, 279 S. W. 267; Holland v. State, 107 Tex. Cr. R. 582, 298 S. W. 898. The rule contended for is correct, but appellant has failed to bring himself within its operation.

Booking to bills of exception one to six, inclusive, which relate to the matter under discussion, we find nothing that apprises this court that counsel was denied the right to examine each -juror individually, or that he was unduly curtailed in his right of examination. The bills show that the jurors were examined individually, and simply reflect the ruling of the court in regard to the questions embraced in the several bills. Thompson on Trials (2d Ed.) vol. 1, § 102, states the rule as follows: “Hypothetical questions, that is, questions as to what the juror would or would not decide in a supposed state of the evidence, are not allowed.”

This rule was approved in Houston v. State, 83 Tex. Cr. R. 190, 202 S. W. 84. An examination of said bills 1 to 6, inclusive, discloses that the several questions which were not allowed by the court are purely hypothetical, seeking to have the prospective jurors say what their attitude would be under certain conditions, and how they would weigh certain testimony, as opposed to other evidence. We think the court was clearly within his discretionary rights in excluding the questions.

Bill of exception 8 shows that one .of the talesmen was informed that the evidence would show that appellant was drunk or intoxicated at the time of the alleged offense, and that, taking the matter personally, was he ordinarily prejudiced against a man who drinks or gets drunk. The proposed juror was not permitted to answer the question. We think in this respect the court fell into érror, but the bill is defective, in that it fails to show that the talesman served on the jury at all.

Bills of exceptions 10 and 12 relate to the same subject-matter. As disclosed by said bills, after counsel for appellant had elicited •from prosecutrix on cross-examination that she had stated to the county attorney, shortly after the commission of the offense, that appellant did not penetrate her because he was too drunk, and, further, that after making said statement she was examined by Dr. Garrett, the state asked the witness, over appellant’s objection, in substance, whether she made the same statement to Dr. Garrett that she had given on the witness stand on the trial of the case. The answer was in the affirmative. Thereafter, Dr. Garrett was called to the witness stand by the state and testified, in substance, over appellant’s objection, as to the statement made by prosecu-trix to him when he examined her. This statement was consistent with the testimony given by prosecutrix on the trial. Appellant, having required prosecutrix to testify to a "declaration she had made out of court which was inconsistent with her testimony upon the trial, it was proper for the state to support her in the manner disclosed by the bills of exception. In his Annotated Texas Penal Code, section 181, Mr. Branch states the rule as follows: “Where a state’s witness is attempted to be impeached by showing that he has made statements with reference to the transaction out of court different from and contradictory to his testimony delivered on the present trial, it is not error to permit the state to support the witness by 'showing that shortly after the transaction, and before any motive or inducement existed to fabricate, he made statements of the matter similar to his testimony delivered on the trial.” We deem the testimony within the rule announced by the decisions. Holland v. State, 110 Tex. Cr. R. 384, 10 S.W.(2d) 561; Wilson v. State, 111 Tex. Cr. R. 134, 11 S.W.(2d) 803; Taylor v. State, 87 Tex. Cr. R. 330, 221 S. W. 611; Johnson v. State, 42 Tex. Cr. R. 377, 60 S. W. 48.

Bill of exception No. 11 presents the following occurrence: On cross-examination, appellant elicited from prosecutrix that she had testified on a habeas coriras hearing involving the transaction out of which the indictment grew; that thereafter she went to the state of Oklahoma; that since her return from Oklahoma she had been in jail and was in jail at the time of the trial; that she was under indictment charging her with a felony. On redirect examination the state propounded to the witness a question as follows: “Now then, counsel asked you about your being in jail and having gone to Oklahoma, just fell the jury how that came about?”

Appellant objected to the question on the ground that it was not shown that he was responsible for the witness having gone to Oklahoma, and that it would be inflammatory and prejudicial for said witness to give her reasons for having gone to said state. The. court overruled the objection with the statement that the witness, being under indictment, would be permitted to tell the jury why she went away. Answering the question, prose-cutrix testified, in substance, that Charlie Bee had carried her to Oklahoma; that her mother and sister had accompanied them; that neither her mother nor her sister furnished the money for the trip; that she did not know who furnished the money; that she did not intend to remain in Oklahoma, but expected to return to Hillsboro; that it was not her purpose to absent herself in order that she might not be called upon to testify in the trial of appellant’s case. The testimony elicited from prosecutrix by appellant on cross-examination was calculated to lead the jury to believe that she had left the state immediately after the habeas corpus hearing, for the purpose of evading the process of the court, and that her reason for so absenting herself was that appellant was not guilty of the offense she had charged him with. It was evidently the purpose of the state, in having the witness to explain her reasons for going to Oklahoma, to remove the reflection carried in the questions propounded to the witness by appellant. We deem the testimony admissible under the provisions of article 728, O. C. P., which reads as follows: “When part of an act, declaration or conversation or writing is given -in evidence by one party, the whole on the same subject may be inquired into by the other, as, when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence.”

In his brief, appellant complains of the refusal of the court to permit him to withdraw his announcement of ready. We find in the transcript a written motion wherein it is averred that one of appellant’s witnesses, who would have given material testimony (the testimony being set out in the motion), had left the court during the trial, and that appellant and his counsel were unable to find the witness. It is stated in the motion that the witness had been duly, served with process. Nowhere do we find a bill of exception relating to the refusal of the court to grant the motion. In the absence of a bill of exception this court is not authorized to review the matter. Texas Jurisprudence, vol. 4, page 211; Stovall v. State, 112 Tex. Cr. R. 230, 16 S.W.(2d) 242.

Appellant timely and properly presented the following requested instruction: “You are instructed that if you should have a reasonable doubt as to whether the prosecuting witness, Mary Marshall, was of chaste character prior to the alleged offense involved in this case, and if you should further have a reasonable doubt as to whether at said time she was above the age of 15 ye.ars, you will acquit the defendant of the offense of rape.”

Prosecutrix testified that she was 13 years of age. We find no testimony in the record controverting her statement as to her age. Hence the charge was properly refused.

The following written instruction was timely and properly presented to the court: “You are instructed that under no circumstances can yoii convict the defendant of rape unless you should find and believe from the evidence beyond a reasonable doubt that the defendant at the time actually penetrated the female organ of the prosecuting witness, Mary Marshall, and if you should have a reasonable doubt from all the evidence in this case you will acquit the defendant of the offense of rape.”

Appellant contends that the foregoing charge should have been given because of the fact that the testimony showed that appellant was drunk before reaching the home of prose-cutrix, and that he drank an additional full pint of whisky before committing the assault, ¿further, he contends that prosecutrix’s statement, made out of court to the officers, that appellant did not penetrate her because he was too drunk, raised the issue sought to be submitted in the requested charge. It is observed that in the general charge the court instructed the jury that it was necessary, in order to constitute rape, that penetration be shown. After defining rape, and applying the law to the facts, the court instructed the jury as follows: “You are further charged that unless you believe from the evidence in this case beyond a reasonable doubt that the defendant, W. J. Naugle, as charged in the indictment, in the County of Hill and State of Texas, did on or about the 9th day of May, have carnal knowledge of the said Mary Marshall, and that he penetrated her female organ with his male organ, and that the said Mary Marshall was a female and not the wife of the said W. J. Naugle and was then and there under the age of 18 years you will acquit the defendant of rape. If you have a reasonable doubt as to whether the defendant was guilty of rape, as that term is defined in this charge, you will acquit him of this offense, and next consider whether the defendant is guilty of assault with intent to rape.”

After giving the foregoing charge, the court defined assault with intent to rape, and applied the law to the facts. Thereafter an instruction on aggravated assault was embraced in the charge. Without deciding whether the issue contended for by appellant was raised, the opinion is expressed that the court’s main charge contained an adequate affirmative instruction to the jury to acquit appellant of rape if they had a reasonable doubt that he penetrated the female organ of prosecutrix.

In his argument to the jury, private prosecutor used language as follows: “He was so damnably licentious, so damnably depraved that he not only penetrated her female organ but her rectum, and committed one of the most damnable crimes known to mankind.”

Appellant objected to the argument, and the court instructed the jury not to consider the remarks of prosecutor. Prosecutrix testified, Without objection, that in addition to penetrating her female organ,'appellant inserted his male organ into her rectum. Hence it appears that the statement that such was the fact is supported by the evidence. Moreover, the testimony on the part of the state supports the statement that appellant was licentious and depraved. If the remark that appellant committed one of the most damnable crimes known to mankind was improper, attention is called to the fact that appellant’s objection went to the argument as a whole, when part of it was permissible and pertinent. It is the rule that a bill which complains of the argument as a whole, when part of such argument is permissible, is insufficient to present error. Texas Jurisprudence, vol. 4, page 390; Moore v. State, 107 Tex. Cr. R. 287, 296 S. W. 308.

Other remarks on the part of private prosecutor were as follows: “Now they say she went to Oklahoma. The record shows that before she went to Oklahoma she appeared here and testified on the habeas cor,pus hearing. Counsel for defendant sat here and had her testimony on the habeas corpus hearing in his hands, and he tried in a few instances to show that she had made contradictory statements in that testimony and her testimony here now on the stand, but he never at any time read from the book to show you that she had done so. He says she is now under indictment for accepting a bribe. To do what, to go to Oklahoma. Why? To get her out of the way as a witness in the Naugle Case. Somebody was interested. Somebody carried her out there. Why?”

The bill of exception (No. 16) merely sets out the argument complained of, and appellant’s objections thereto. The connection in which the language was used is not shown. None of the surrounding circumstances are recited. Such pertinent facts as are necessary to enable this court to determine whether an error was committed, and, if so, whether it is of such a nature as to authorize a reversal, should have been embraced in the bill. The bill is manifestly insufficient. Tex. Jur. vol. 4, page 391; Bryant v. State, 109 Tex. Cr. R. 32, 2 S.W.(2d) 846; Ferguson v. State, 95 Tex. Cr. R. 212, 253 S. W. 290; Moore v. State, 107 Tex. Cr. R. 287, 296 S. W. 308. If the statement of facts should be consulted, it is observed that the testimony supports the statement in argument that prosecutrix went to Oklahoma aftei she had testified on a habeas corpus hearing, and, further, that she was under indictment for accepting a bribe.' Reference to such matters was unquestionably proper. Appellant interposed objection to the remarks as a whole. He should have singled out the objectionable remarks, with the request that they be withdrawn from the jury. Instead of doing this, he objected on the ground that the argument was “prejudicial and inflammatory.”

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.

LATTIMORE, J.

In the light of appellant’s motion for rehearing, we have again considered his complaints, based on the refusal of the trial court to allow him to ask each venireman the questions appearing in his bills of exception Nos. 1 to 6, inclusive, and are of opinion that none of his contentions are sound. We quote the question asked, as set out in his bill of exception No. 6, as illustrative: “The prose-cutrix will testify, so we assume, that she had never before on any other occasion been penetrated by any other person than the defendant on the occasion in question, in other words, never had sexual intercourse with any other man. Now should it develop on the trial of the case that at sometime the prosecutrix had been penetrated, but as to whether the defendant penetrated her or some other man, the defendant will offer testimony to the effect that she had been penetrated by some other man and that will in part depend upon circumstantial evidence, facts and circumstances that will support the supposition that she had had intercourse with other men. Are you so prejudiced against circumstantial ..evidence that you cannot take into consideration, or do you believe that strong facts and circumstances, notwithstanding she says she didn’t, coul& be strong enough to show that she was mistaken?”

Little analysis would seem needed to make plain the fact that no juror could give answer intelligently to such hypothetical inquiry.

We believe that the expression used in our original opinion, in discussing bill of exception No. 8, viz.: That said bill fails to show what the answer of the juror would have been to the question asked, should not have been used, and same is withdrawn from said opinion. However, since it is not shown that the talesman, to whom the question was propounded, sat on the jury in the trial of the case, the error, if any, of sustaining the state’s objection to said question, could not avail appellant. The authorities cited by Mr-Branch in section 543 of his Annotated P. O. all sustain the proposition that it must be shown that, as a- result of the alleged error of the court in the matter complained of, the juror in question or some objectionable juror was forced on the accused. In his motion for new trial, appellant sets up that the court refused to let him ask the same question here involved of the other talesmen, but there is nothing in bill of exception No. 8, or elsewhere in the record, to support this contention.

Appellant again urges that the case should have been continued for the absence of his witness, Baker. We find in, the record what appears to be an application for such continuance made after the trial began, but if such application was ever presented to the trial court for action until in the motion for new trial, such fact does not appear from the record. No bill of exception presents the alleged error of such refusal to continue. This is always held necessary. See cases cited in subdivision 6 of the notes to article 667, Vernon’s Annotated C. C. P.; Gray v. State, 100 Tex. Cr. R. 195, 272 S. W. 469; Payne v. State, 100 Tex. Cr. R. 241, 272 S. W. 788.

We have uniformly held that where there appears no controversy as to the fact that the female involved in a case of rape is under fifteen years of age at the time, the law applicable does not call for the submission to the jury of the question of her previous unchaste character.

We think the argument, complaint of which is renewed in the motion -for rehearing, not of such wrongful character as to call for reversal.

The motion for rehearing will be overruled.


text:
    REED v. STATE.
    No. 14271.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    Rehearing Denied June 26, 1931.
    H. S. Beard, of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The conviction is for the possession of intoxicating liquor for the purpose of’ sale; punishment, one year in the penitentiary.

The only question presented for review is the sufficiency of the evidence to support the conviction.

The witness E. W. Rochelle was an accomplice, and the court instructed the jury that he must be corroborated. His testimony was substantially as follows: That he knew the appellant and had known her about three years; that he and appellant leased a small farm in Hood county ostensibly for the purpose of placing an old man thereon to make a crop, but really for the purpose of manufacturing intoxicating liquor; that stills were erected in the house and on the premises and Rochelle was placed in charge thereof; that he had a helper, a boy by the name of Hughes, and an old man by the name of McMehon. Rochelle testified that the appellant was paying him at the rate of $50 a week in whisky for his services. He testified that several hundred gallons of whisky were made, and that appellant hauled all of it to Fort Worth. He further testified .that some -time prior to the raid by the officers he and appellant had discovered that in all probability they would be raided and had removed all the whisky from the premises and had dismantled the stills. He also testified that the appellant visited said premises almost daily while they were making the liquor.

Appellant did not testify nor offer any evidence.

Appellant insists that the corpus de-licti was established alone by the testimony of Rochelle, who was an accomplice, her contention being that it was not shown by testimony other than that of the accomplice that she possessed intoxicating liquor for the purpose of sale. Under the terms of the statute, an accused cannot b'e convicted upon the testimony of an accomplice unless there he corroborative evidence. which in and of itself tends to connect, the .accused with the commission of the crime, and the corroboration is not sufficient if it merely shows that a crime has been committed. Article 718, C. O. P. The conviction cannot be sustained unless (a) the accomplice’s testimony of the corpus delicti is corroborated, and (b) there is other testimony tending to connect the appellant with the commission of the offense. Townsend v. State, 90 Tex. Cr. R. 552, 236 S. W. 100, and authorities cited. The corroboration may be either by circumstances or by positive testimony. Pope v. State, 81 Tex. Cr. R. 54, 194 S. W. 590. It is impracticable to lay down any rule as to the precise amount of evidence which is requisite to sustain the accomplice’s account identifying the defendant as one of the criminals. What appears to be required under the law is that there should be some fact or facts deposed to, independently altogether of the evidence of the accomplice, which, taken by itself, leads to the inference not only that a crime has been committed, but that the accused is implicated in it as charged.

Considering the corroborative evidence, it is shown that the witness A. S. Nabors testified that he rented the place in question to the witness Rochelle and appellant jointly because they stated that they wanted to put an old gentleman on a little place somewhfere, and that this place just suited them; that they went out and looked at it with him before renting it.

The witness H. P. Nimmo testified that he had seen the appellant and the witness Rochelle together on several occasions^ that he visited the place where the alleged still was located on one occasion at the solicitation of the appellant and the witness Rochelle; that they were accompanied by a man by the name of Smith, who ran a gin at Cresson. He testified that the appellant and the witness Rochelle weren’t exactly worried, but that they were nervous; that he had seen the appellant on different occasions come through Cresson going in the direction of Fort Worth and then back out in the direction in which the leased property was, and that she was driving a Chevrolet coupS. To the áame effect was the testimony of the witness L. Smith. He also testified that he had pointed out the sheriff to Rochelle.

The witness Dan Magill testified that his business was that of a line walker for the Lone Star Gas Company; that he knew the place in controversy; that his duties as gas line walker carried him by that place during the month of February, 1929, about sixty feet south of the house; that some one lived in the house during the month of February, 1929, and that he had seen the witness Rochelle at the place; that he saw the appellant there; that during that time he had seen the appellant there quite often, and that he had seen her leave there driving a Chevrolet coupé a number of times; that on one or two occasions the witness Rochelle left with her; that he passed there every day except on Sunday ; that he smelled whisky or whisky mash when he passed that place or was near the place; that he saw some barrels there which were being washed; that one time when he came by he met the appellant and she told him that there was some whisky across the road, some aged whisky and some raw whis-ky; that she told him if he wanted a drink to go over there and get it; that he went over there, and it was there where she said it was, and he took a drink, and that it was whisky; that when he went over to the place where she told him the whisky was, he found a half gallon of red whisky and about a quart of white whisky, and that he took a drink of same.

Sheriff E. A. Lambert testified that under a search warrant he searched the premises which had been occupied by the witness Rochelle and others; that he found there 53 barrels that were empty and found 150 pounds of sugar and about a pound and a half of yeast, one pressure tank, one gasoline pressure tank, a burner, a copper coil, “I call it a ‘worm’ made in a zinc tub,” in a zinc container; that in the back room there was a furnace; that there was nothing on this furnace; that there was a cellar in the yard and that a pipe was running from the inside of th@ house out to the cellar; that the cellar was fourteen, fifteen, or sixteen inches deep in what he called mash, whisky mash, just grain and old sour mash,' which looked like it had been dumped into this cellar. He testified that the equipment that he found there could have been used in the manufacture of whisky; that he didn’t find any whis-ky, and that there was not any one on the premises.

Our conclusion is that the combined and cumulative evidence' furnished by the non-accomplice witness was sufficient to meet the requirement of the statute, and that the evidence was sufficient to establish the corpus delicti.

The judgment is affirmed.

PER CURIAM.-

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

On Motion for Rehearing.

LATTIMORE, J.

There can be no question but that an accomplice witness can be sufficiently corroborated by circumstances. This is uniformly held by all the authorities. Ñor can this court, or any court, lay down any hard and fast rule as to the amount of such corroboration. To be sufficient, it need only to measure up to the statutory requirement that it tend to connect the defendant with the commission of the offense. We are not impressed by a review of the facts in this case with the idea that the circumstances relied upon by the state to corroborate the accomplice witness are not sufficient for that purpose. The contrary is true.

The motion for rehearing will be overruled.


author: MORROW, P. J.

text:
    DAVIS v. STATE.
    No. 14322.
    Court of Criminal Appeals of Texas.
    June 10, 1931.
    A. S. Johnson, of Winona, and Whit Owen, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for unlawfully transporting intoxicating liquor; penalty assessed at confinement in the penitentiary for two years.

The state’s testimony may be summarized as follows: On the 30th day of October, the appellant borrowed an automobile from Chester Haggerty. Joe Miller was with the appellant. The above was the testimony of Hag-gerty. In the car the appellant and Miller drove to a place near Palestine, where the appellant put a carton in the car. While returning to Tyler, both Miller and the appellant were arrested. In the car (which was driven by Miller) was a carton containing four gallons of whisky. The above is the testimony of Miller, who was a coindictee of the appellant.

The court instructed the jury that Miller was an accomplice, and that his testimony required corroboration.

Prom the testimony of the officers who made the arrest, it is shown that after pursuing the car in which the appellant and Miller were riding, and which Miller was driving, the two were arrested and the car searched. In the car the officers found the carton containing four gallons of whisky.

Appellant introduced testimony supporting his reputation as a law-abiding citizen. His testimony is summarized as follows: He and Miller were riding in a car. They drove in the neighborhood of a place called Bullard, where there were some woods. They were in company with each other, except for about ten minutes, during which time he left the car, while Miller was sitting in it. The trip was arranged by Miller, and the ear obtained by him. Appellant denied that he put the carton of liquor in the car, and claimed that he had never seen it until it was discovered by the officers upon the occasion of the arrest.

The sufficiency of the evidence is attacked upon the ground of want of corroboration of the witness Miller. Under the statute, an accomplice, used by the state, will not support a conviction, unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense. In the present instance, the commission of the offense, that is, the transportation of intoxicating liquor, is shown by the officers who made the arrest, as well as by the accomplice witness. The appellant’s connection with the car in which the liquor was transported was proved by Haggerty, who testified that the appellant borrowed the car from him. The possession of four gallons of liquor in the car in which Miller and appellant were riding is criminative evidence against both of them, and certainly tended to connect the appellant with the commission of the offense. The testimony of Hag-gerty hlso tends to connect the appellant with the commission of the offense. His defensive theory, namely, that Miller was the borrower and possessor of the car, and that the whisky was put therein by Miller, without the knowledge and consent of the appellant, was an issue upon which the jury passed under the charge of the court, against which there are no objections urged.

In the motion for new trial, the conviction is attacked upon the ground that after the evidence was closed, and while the attorneys for the appellant were making an examination of the charge of the court, the judge submitted to the jury, in succession, three cases of persons who had entered pleas of guilty, and verdicts in the three cases mentioned were rendered by the jury, under the circumstances above stated. The persons who were then tried were white men charged with burglary. The appellant was a negro. It is claimed in the motion that this procedure was without the consent of the appellant, and was prejudicial to his rights. Evidence was heard upon the motion for new trial. It was shown that after the evidece was closed and while counsel-for the appellant were examining the charge of the court, the statement was made in open court and in the presence of'the appellant and his attorneys that, if there was no objection, the prosecuting attorney would use the jury in some other cases in which there were pleas of guilty and in which there would be no contest, and that the minimum punishment was agreed upon. Each of the appellant’s attorneys stated that he h^d no objection to the procedure mentioned. The jury was then sworn in each of the cases successively, evidence heard, verdicts rendered, and the lowest penalty assessed in each case. The appellant was present and made no objection to the procedure, and the attorneys in his behalf, as stated above, expressly waived any objection thereto. In article 11, O. O. P., it is declared that one accused of crime may waive any right secured to him, except the right of trial by jury in a felony case. The procedure under consideration is novel and might, under some circumstances, be injurious. As a precedent, we are not disposed to commend it. In the present instance, however, there is no injury shown, and no facts stated which would lead to the conclusion that the interest of the appellant was prejudicial. The accused was not deprived of a trial by a jury. The matter appears to be but an irregularity which the appellant’s counsel affirmatively sanctioned, and against which he interposed no objection until after the verdict. Under the annotations of the statute, above mentioned (article 11, supra), are many citations of cases in which the question of waiver has been considered by the court.

In the case of Grant v. State, 3 Tex. App. 1, the question of the effect of a waiver by counsel was presented and decided against the accused. It appeared that the statute, with reference to the manner of impaneling the jury, had been changed. Counsel for the appellant waived the impaneling of the jury under the new law, and consented that it be impaneled under the old law. Appellant, at the time, did not object. The court held that, in the absence of injury shown, the waiver was binding. It is thought that the same rule would be applied in the present appeal.

The judgment and sentence ignore the Indeterminate Sentence Law, article 775, C. O. P., 1925, under the terms of which the appellant should be condemned to suffer confinement in the state penitentiary for a period of not less than one, nor more than two, years.

The judgment is reformed and affirmed.