author: NORVELL, Justice. SMITH, Justice

text:
    FORT WORTH & DENVER RAILWAY COMPANY, Petitioner, v. Mrs. O. B. WILLIAMS et al., Respondents.
    No. A-9715.
    Supreme Court of Texas.
    Jan. 29, 1964.
    Rehearing Denied Feb. 26, 1964.

      Dean & Nowlin, Chas. H. Dean, of counsel, Plainview, Tilley, Hyder & Law, Fort Worth, for petitioner.
    Huff & Bowers, Lubbock, for respondents.
   NORVELL, Justice.

This is a wrongful death action arising out of a railroad crossing collision instituted by the surviving widow and children of O. B. Williams, deceased, against the Fort Worth & Denver Ry. Co. Trial to a jury resulted in a judgment for the plaintiffs, which was affirmed by the Court of Civil Appeals after a portion of the damage recovery was remitted. 367 S.W.2d 925.

The automobile-train collision which claimed the life of O. B. Williams occurred shortly after midnight on September 16, 1956. The deceased accompanied by his minor son was traveling in his automobile on a country highway near the town of Petersburg, Texas. This highway crosses two parallel railroad tracks of petitioner at an angle of seventy-five to eighty degrees. These tracks are several feet apart and run in a north-south direction. The track to the east is the main through track. The west track is a siding. It joins the east, or main, track at two points, one south, and the other north of the highway.

The highway runs west and east across the two tracks. The deceased approached the juncture from the east driving in a westerly direction. The crossing is marked by the standard cross-arm signs. The highway as it approaches the crossing from the east is straight. The terrain surrounding the crossing is level. There are no obstructions to a motorist’s view.

On the night of the accident, a freight train was traveling north from Lubbock to Childress. Behind it and traveling in the same direction was a special passenger train. The freight stopped on the siding to allow the faster passenger train to pass it. As the freight train approached the point where the west side track diverges from the east main track, the brakeman got down and threw the switch allowing the freight to pass onto the siding. After the freight was completely on the siding and stopped thereon, the brakeman threw the switch back to its original position and the passenger train proceeded at a slow rate of speed on the east main track. The fireman on the freight train tossed a fusee, a small flare, onto the highway west of the crossing, since the freight was blocking it. He did not place a fusee oil the highway to the east of the crossing.

When the passenger train was approximately 1300 feet from the crossing, the deceased crossed the east main track and drove into the freight train occupying the ■ west side track. He died a few minutes thereafter. His son knew nothing of the events immediately prior to the collision as he was asleep on the back seat of the automobile at the time.

The engineer and the fireman on the passenger train testified that they saw the deceased’s automobile cross the east main track in front of them and thought that he had safely crossed the west track also as the headlights of the automobile disappeared from view. They said that they assumed that the freight train had been cut ■or divided so as to leave the crossing clear. Seconds later, when they realized that a collision had occurred, they stopped the passenger train some two to three hundred feet short of the crossing. The passenger train was equipped with the statutory 1500 candle power headlight. It also carried a Mars •oscillating (figure eight) light which was ■operating.

In answer to special issues, the jury found that the crossing was extra hazardous immediately before the collision. Being extra hazardous, it was incumbent upon the railway company to take extra safety measures to protect those using the crossing. The jury found the company has failed in the duty in the following particulars: the freight train crew failed to place a signalman on the highway after the train stopped on the west side track; the freight train crew failed to place a fusee on the highway to the east of the tracks; the freight train crew failed to keep a proper lookout for the deceased and the crew failed to cut its freight train at the crossing. The jury further found that all of these omissions constituted negligence. Accompanying proximate cause issues were found in plaintiffs’ favor. The jury further found that the deceased’s view of the freight train was obscured by the beam of light from the passenger train locomotive shining between the deceased and the freight train, but that it was not negligence for the deceased to continue to drive his car into such beam of light. The jury absolved the deceased of other alleged acts of contributory negligence.

We hold that the trial court erred in receiving in evidence a motion picture film of an experiment or demonstration made by the respondents’ attorney designed to show that a beam of light similar to that cast by a locomotive headlight would cause a “curtain or wall of light” to obstruct the view of a person approaching such beam of light at an angle of approximately ninety degrees.

The questioned experiment was conducted by respondents’ attorney in a public park in the City of Lubbock at about 11:30 at night. To simulate the 1500 candle-power headlight of the passenger train, the attorney placed a police barrel light on top of a pick-up truck. He then positioned his camera to one side of the beam of the barrel light and attempted to photograph objects on the other side of the beam. He moved his camera in a line parallel to the barrel light’s beam, increasing the distance from the barrel light, — the source of the beam. He started exposing the film at about 200 feet from the barrel light and finished the film at a distance of six to seven hundred feet. He also varied the distance of the camera from the beam of the barrel light, from 50 to 250 feet. The objects which he attempted to photograph were located a few feet to the opposite side of the barrel light’s beam. They consisted of two automobiles, a galvanized iron building and some trees.

Counsel for petitioner questioned respondents’ attorney, the sponsor of the motion picture, on voir dire and again on cross-examination as to the conditions under which the experiment was conducted. When asked the power of the barrel light used in the experiment, respondents’ attorney stated that he had been told by the city officials from whom he had borrowed the light that it was 1500 candle-power. Petitioner objected to this testimony as being hearsay and the court sustained the objection and instructed the jury not to consider the witness’ answer. Petitioner then objected to the admission of the film into evidence stating that the experiment had not been conducted under conditions substantially similar to those existing at the time of the collision. This objection was overruled and the jury was allowed to view the film.

In order to render evidence of an experiment made out of court and without the presence of the opposing party admissible, it is generally held that there must be a substantial similarity between conditions existing at the time of the occurrence which gives rise to the litigation and those in existence at the time the experiment is conducted for demonstration purposes. It is not, however, essential that the conditions of the occurrence and the experiment be identical. Houston, East & West Texas Ry. Co. v. Sherman, Tex.Com.App., holdings approved by the Supreme Court, 42 S.W.2d 241 (1931); Rodgers v. State, 93 Tex.Cr.R. 1, 245 S.W. 697 (1922). When there exists a dissimilarity, testimony of an experiment should be excluded when the result thereof would probably confuse rather than aid the jury. There exists an area wherein the determination of the admissibility of proffered experiment testimony rests within the discretion of the trial judge. This occurs whenever the dissimilarity between the occurrence conditions and the circumstances of the experiment is minor or can be made abundantly clear by explanation. Houston, East & West Texas Ry. Co. v. Sherman, supra. Panhandle and Santa Fe Ry. Co. v. Haywood, Tex.Civ.App., 227 S.W. 347, wr. ref. (1921). See, Annotation, Experimental evidence as affected by similarity or dissimilarity of conditions, 85 A.L. R. 479.

The. Court of Civil Appeals was of the opinion that the admissibility of the experiment testimony was a matter within the trial court’s discretion in that the dissimilarities were minor and could be amply explained without confusing or misleading the jury. We are unable to agree with this position. This is not the ordinary photograph case wherein a picture is used to delineate skid marks upon a highway, the physical condition of a road crossing and the like. The purpose of the questioned experiment was to demonstrate the effect of a strong beam of light upon the eyes of a person approaching the beam from an angle of approximately ninety degrees. The motion picture film accordingly represents the retina of the human eye upon the hypothesis that what is shown to be disclosed or obscured on the camera film would likewise be disclosed to or obscured from the human eye. In such experiments, complicated scientific and perhaps physiological factors may be encountered. Care and caution must be exercised in admitting this type of experiment evidence. Dean Wigmore has discussed at some length the dangers inherent in the use of both still photographs and motion pictures of artificial settings. Wigmore on Evidence (3rd Ed.) §§ 798-799, Vol. 3, pp. 201-208. See also, Scott, Photographic Evidence, §§ 624 and 625, Annotations, 27 A.L.R. 913, 19 A.L.R. 877, 83 A.L.R. 1315, 129 A.L.R. 361, 78 A.L.R.2d 152.

Before it can be said that dissimilarity of conditions merely goes to the weight and hence presents a jury question, the judge must be able to say with some degree of certainty, that confusion will not occur and such dissimilarities as are disclosed are capable of explanation so as to be readily understood. In the present case the position of lights, distances and like matters relating to the experiment are not entirely clear. Apparently no exposure of film or camera shot was made across or through the light beam with the origin of the beam (the barrel light) a distance of 1300 feet away, or at a distance approaching 1300 feet. All the testimony we have as to the similarity of the scenes shown upon the film and their actual appearance to the human eye is the statement of an interested nonexpert that conditions disclosed by the film looked about the same to him as the conditions appeared to him when observed at the time the experiment was actually photographed. As above stated, the Diesel locomotive had two lights, one a 1500 candlepower steady light and a Mars oscillating light which may have cast a wider beam than the stationary light and could have lighted up areas on the sides of the track and increased visibility despite the obscuring effect, if any, of the stationary beam. There was a total absence' of a showing of the candlepower of the barrel light used in the experiment. When it appeared that a statement as to the candlepower of the barrel light was based upon hearsay, the trial judge ordered such tcsti-mony stricken and instructed the jury not to consider it.

It appears that the petitioner railroad had refused to allow any of its equipment to be used by respondents in conducting an experiment. It also appears that the prime objective sought to be attained by the experiment was to demonstrate that a beam thrown by a light of high candlepower would operate as a “curtain of light” to obscure objects lying behind the beam. The trial judge could properly consider both these factors in ruling upon the admissibility of the testimony, but even so, we are ■of the opinion that the experiment evidence was not sufficient in law to meet the requisites of admissibility. Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210 (1958); New York Life Ins. Co. v. Alman, 5th Cir., 22 F.2d 98 (1927); McLendon v. State, 90 Fla. 272, 105 So. 406 (1925). There can be no doubt as to the importance of this experiment testimony to respondents’ case. It was regarded as and no doubt was a highly persuasive piece of evidence. In fact, counsel for respondents in arguing for its admission, despite the dissimilarity of the accident and experiment conditions, asserted that it was his position that “if these (the films of the experiment) are not admissible, then we don’t have any law suit. Now, that’s just the pure common substance of it.” Counsel, in the heat of trial, may have overstated his position, but it can hardly be gainsaid the error of the trial court in receiving in evidence the films of the experiment was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 503, Texas Rules of Civil Procedure, Pittman v. Baladez, supra. The record discloses a reversible error. Casualty Insurance Company of California v. Salinas, 160 Tex. 445, 333 S.W.2d 109, 90 A.L.R.2d 1056 (1960).

It is urged by petitioner as the basis for the rendition of a judgment in its favor that when the improperly admitted experiment evidence is disregarded, there remains no more than a scintilla of evidence supporting the finding that the crossing was extra hazardous at the time of the fatal collision. See, Choate v. San Antonio & Aransas Pass Ry. Co., 90 Tex. 82, 36 S.W. 247 (1896), 91 Tex. 406, 44 S.W. 69 (1898); Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898); W. St. John Garwood, “The Question of Insufficient Evidence on Appeal,” 30 Tex.Law Review 803; Robert W. Calvert, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error.” 38 Tex.Law Review 359.

It is conceded that the crossing in question is not extra hazardous under normal conditions and that other than providing the warning signs required by statute, the railroad would not be required to take any further measures to protect the traveling public insofar as the crossing involved in this case is concerned. See, Missouri, Kansas & Texas Ry. Co. of Texas v. Magee, 92 Tex. 616, 50 S.W. 1013 (1899); Galveston, Harrisburg & San Antonio Ry. Co. v. Wells, 121 Tex. 310, 50 S.W.2d 247 (1932) ; Texas & New Orleans Ry. Co. v. Hart, 163 Tex. 450, 356 S.W.2d 901 (1962).

Petitioner cites Texas & New Orleans R. Co. v. Compton, 135 Tex. 7, 136 S.W.2d 1113 (1940) and Texas & New Orleans R. Co. v. Stratton, Tex.Civ.App., 74 S.W.2d 741, wr. ref. (1934). These cases hold that the presence of a train on a crossing blocking a public highway docs not in itself constitute an extra hazardous crossing. But the question as to whether a crossing is extra hazardous necessarily depends upon the facts of each case. In Tisdale v. Panhandle & Santa Fe Ry. Co., Tex.Com.App., 228 S.W. 133, 16 A.L.R. 1264, holdings approved by the Supreme Court (1921), it was said:

“Whether or not any given state of facts describing the surroundings of any particular crossing are such as to mark such crossing as one attended with unusual danger or extraordinary hazard is a question solely for the determination of the jury, unless only one conclusion could be drawn therefrom by all reasonable minds.”

The Tisdale case is also authority for the proposition that a railroad crossing may present no undue dangers at one time, while at another, it may he extra hazardous. The degree of danger involved depends on the circumstances existing at the time of the accident. With reference to the duty of employing a flagman, it was said in Tis-dale that:

“A flagman might not be required under the law at a certain crossing at one time, and yet it might he negligence to fail to provide one there at another time. The sole question for determination is whether or not at the time of the accident the conditions surrounding the crossing in question rendered it more than ordinarily hazardous or unusually dangerous.”

See also, Missouri-Kansas-Texas R. Co. of Texas v. McLain, 133 Tex. 484, 126 S.W.2d 474 (1939) and Beaumont, S. L. & W. R. Co. v. Richmond, Tex.Civ.App., 78 S.W.2d 232, wr. dis. (1935).

As heretofore indicated, it was respondents’ theory that the beam of light cast by the lights of the passenger train’s Diesel locomotive had the effect of obscuring Williams’ vision and thus rendered the crossing extra hazardous.

While the question is admittedly close, it is the view of a majority of the members of the Court, arrived at after a detailed consideration of the physical circumstances of the collision, the presence of lights and the positions of the trains with reference to the crossing, that when the improperly admitted experiment evidence is disregarded, that which remains raises no more than a scintilla of evidence supporting the theory that the crossing was extra hazardous immediately before the collision occurred. In legal contemplation, a mere scintilla is equated with “no evidence” as it will support nothing more substantial than a surmise or conjecture. See, Joske v. Irvine, supra. However, all members of the Court agree that an order remanding the case rather than rendering judgment should be entered in the interest of justice. Had the experiment evidence been excluded rather than admitted, another species of evidence could probably be resorted to in support of the premise that the lights of the locomotive had an obscuring effect upon the vision of one approaching the crossing. Further, the defect relating to the admission of the evidence above discussed lay primarily with the inadequate basis relied upon to support its introduction. If a proper predicate be laid, photographic evidence could be rendered admissible.

Other matters mentioned in the briefs need not occur on another trial and further discussion is therefore pretermitted.

The judgments of the trial court and Court of Civil Appeals are reversed and the cause remanded to the district court for another trial.

SMITH, Justice

(dissenting).

I would affirm the judgment of the Court of Civil Appeals, 367 S.W.2d 925. That judgment requires a remittitur of $6,750.00.

The defendant by refusing the plaintiffs the privilege of using its tracks and facilities rendered it impossible for the plaintiffs to make the test under similar conditions. The defendant’s objection to the test that was actually made, was based on the ground that the experiment was not under substantially similar conditions as existed at the scene of the collision, was properly overruled by the trial court.

I disagree with the majority view that there was no more than a scintilla of evidence, aside from the evidence of the result of the test, to show that the involved crossing was one attended with unusual danger or extraordinary hazard.

I agree that the question as to whether a crossing is extra hazardous necessarily depends upon the facts in each case. However, due to lack of time, I will supplement this dissent at a later date. In this connection, the opinion of the Court holding that it was the view of the majority that there was no more than a scintilla of evidence, in effect, no evidence to support the jury finding that the crossing was extra hazardous came to my attention sometime after Tuesday, January 21, 1964.

Since the opinion merely states that “it is the view of the majority of the members of the Court,” without stating which members do not agree, I wish to definitely place myself with the view that there is more than a scintilla of evidence to support the finding of a hazardous crossing. There is evidence of probative force without the evidence of the moving picture.

I would affirm the judgment of the Court of Civil Appeals.

      . Articles 4671-4673, Vernon’s Ann.Tex.Stats.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge. MORRISON, Judge McDonald, judge.

license: Public Domain

text:
    Julian HERNANDEZ, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 36182.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1963.
    Rehearing Denied Jan. 15, 1964.
    Second Motion for Rehearing Denied Feb. 26, 1964.
    Hill, King & McKeithan, Mission, Gerald Weatherly, Laredo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

Appellant was tried upon an indictment alleging that he made an assault upon Hig-inio Gutierrez, Jr., with the intent to murder him. The jury found him guilty as charged and assessed the minimum punishment of one year in the penitentiary.

The evidence, including the testimony of Gutierrez and the testimony and the confession of the appellant, shows that the appellant stabbed Gutierrez with the instrument introduced in evidence.

The instrument is described as a Japanese letter opener. The blade is a bit more than }4 inch wide at the handle; is 2⅞ inches long and has a sharp point. The sheath is 3¾ inches in length and when the blade is inserted in the sheath the instrument is 614 inches long.

According to the state’s evidence, the appellant who was involved in an argument or difficulty with some other boys, pushed or bumped into Gutierrez as he was reaching into the back of an automobile to get a package of cigarettes. According to appellant’s testimony he did not push or bump into Gutierrez.

Gutierrez testified that it was a surprise to him that someone was pushing- him and that he pushed him away and told him to “cut it out”; that the appellant attacked him and stabbed him in the left side of the abdomen; that after he was stabbed all he did was “reach out and grab his right wrist with my left hand, and got him by his collar with the right hand, and I pushed him back against another car, I’d say six to eight yards, and I hit his hand on the fender of the car ’til he dropped the weapon, and I saw it was a knife, or rather one of those Japanese letter openers.”

Appellant’s statement to the sheriff, introduced without objection, and which appellant testified was correct except for the part about his hitting or pushing Gutierrez, contains the following confession:

“My name is Julian Hernandez, Jr., and I am seventeen years old. I was born in San Ignacio, Texas, and I consider San Ignacio my home. On the 17th of August of 1962, I arrived at Villarreal’s Place, which is a half mile north of the town of Zapata, Texas. In this place there was a dance going on. We were near where the musicians play and started to play, Refugio Jasso, Jorge and Juan Gonzalez. They pushed me, and I hit that boy, I believe him to be Higinio, and there is where the fight commenced. He threw me down. I got up, and that is when I stabbed him. They took the knife away, but I don’t know who. Immediately, I was arrested by a Deputy Sheriff and brought to the Courthouse in Zapata, Texas.”

Dr. Cigarroa, physician and surgeon, who treated Gutierrez at Mercy Hospital in Laredo, described his wound as “a penetrating wound of his abdominal cavity * * * in his left lower quarter of the abdomen * *

The doctor testified that Gutierrez was administered a general anesthetic and a surgical incision was made into the abdominal wall which was necessary in order to determine the extent of the injury and to attempt to repair it. He testified:

“ * * * the instrument or instruments that were used to cause his injury went through the skin, went through the muscle, went through the fat, went through the interlining of the abdominal wall, and went inside the abdominal cavity, into what we commonly call the belly, and such an instrument or instruments could cause injury to one of the pieces of intestine or to a major vessel or it could cause injury to the fat that covers the in- • testines, that we call the omentum, that is a layer of fatty apron that covers the intestines, and that can also be injured. He also had to be operated upon because with such a penetration, the wound would have to be thoroughly cleansed, irrigated, and so that risk of peritonitis and infection can be minimized, in order to do everything possible to save his life."
He also testified:
“Q. Will you tell the Court and the Jury, Doctor, what his condition was when you operated on him, when you made the incision, in other words ?
“A. He had considerable amount of blood inside of his abdominal cavity, and this was due to the fact that he had sustained a laceration or a cut by this instrument or instruments in what we call the omentum, that is, the fatty apron that covers the intestines, and he also had a laceration of the lining of the intestinal cavity, the abdominal cavity, the peritoneum, from which he was bleeding, in addition to bleeding from the muscle, bleeding inside the abdominal cavity. * *
On cross-examination he stated: “It’s far more dangerous to be struck in the belly with a knife than to administer a general anesthetic with the equipment we have nowadays.
“Q. But even with the general anesthetic there is danger of death?
“A. Even with the general anesthetic.”

Shown the letter opener, Dr. Cigarroa testified that in his opinion it was such an instrument as may have caused the wound, and that a penetrating wound with such type of weapon can be • calculated to produce death.

The evidence shows that Gutierrez had been recently discharged from the Army; was 26 years old and weighed some 160 pounds and had lived all his life in Zapata; that appellant was 17 years of age, weighed about 134 pounds, and was a life long resident of- San Ignacio, in Zapata County; that "the appellant and Gutierrez were not acquainted and had not previously met, nor had there been any ill feeling between them prior to the day in question.

The appellant testified that he had no intent to kill Gutierrez and that he acted in self-defense. He filed application for suspended sentence and offered evidence of his good reputation as a peaceful and law abiding person.

The jury rejected the appellant’s claim of self-defense and his application for suspended sentence and found against him on the issue of intent to kill.

The principal ground upon which claim for reversal is presented is the contention that the evidence is insufficient to sustain the jury’s finding that appellant made the assault upon Gutierrez with the intent to kill him.

The prosecution was for the offense defined in Art. 1160 Vernon’s Ann.P.C. which provides a punishment of not less than one nor more than three years for the offense of assault without malice, with intent to murder.

Malice not being alleged, and not being an essential element of the offense charged, the fact that the appellant may have acted under the influence of sudden passion aroused by an adequate cause would not be a defense. It was necessary, however, that the state prove that the appellant made the assault with the specific intent to murder him. Rodriguez v. State, 146 Tex.Cr.R. 206, 172 S.W.2d 502.

The rule appears to be that when the evidence, though meager, is such that from it the jury could logically draw the conclusion that the accused committed an assault with the intent to murder, this Court would not be authorized to hold the evidence insufficient. Daugherty v. State, 153 Tex.Cr.R. 8, 216 S.W.2d 222.

Applying such rule this Court affirmed the conviction in Moseley v. State, 158 Tex.Cr.R. 623, 259 S.W.2d 225; Bradshaw v. State, 167 Tex.Cr.R. 469, 320 S.W.2d 833; and Sadler v. State, Tex.Cr.App., 364 S.W.2d 234. See also Caballero v. State, 172 Tex.Cr.R. 140, 354 S.W.2d 940, and cases cited.

We are unable to agree that the record herein is wholly barren of facts or circumstances from which the jury could reasonably conclude that the appellant intended to kill Gutierrez. There was evidence from which they could find that the letter opener, in the manner of its use, was a deadly weapon and that the stab wound inflicted was a serious injury.

There was also evidence that this was not the only wound which the appellant attempted to inflict upon Gutierrez. He testified that he attempted to stab Gutierrez several times. We also point out that Gutierrez testified that he forced the knife from the hand of the appellant. Had he not done so, there is nothing in the record to indicate that the appellant would not have continued his assault.

The remaining ground for reversal presented relates to the court’s charge, for failure to insert “and not in his own self-defense, as herein defined,” in the paragraphs of the charge applying the law to the facts from the standpoint of the state.

Later in his charge the court gave an unrestricted charge on self-defense. Ekern v. State, 150 Tex.Cr.R. 319, 200 S.W.2d 412; Huntsman v. State, 140 Tex.Cr.R. 62, 143 S.W.2d 587; and Griffin v. State, 150 Tex.Cr.R. 27, 198 S.W.2d 587, are authority for overruling appellant’s claim of error in the charge.

The judgment is affirmed.

MORRISON, Judge

(concurring).

I concur in the affirmance of this conviction because appellant testifying in his own behalf stated, “I just got angry, got my knife out and stabbed him. * * * because he pushed me.”

ON APPELLANT’S MOTION FOR REHEARING

McDonald, judge.

Appellant’s able counsel urges in his Motion for Rehearing the alleged failure of this Court to give due weight to paragraphs 6, 7, 8 and 10 of Article 1147, Vernon’s Ann. P.C., which is the statute defining the offense of Aggravated Assault. Appellant takes the position that these provisions urged by him are to be construed as: “making an assault only an aggravated assault when a serious bodily injury is inflicted upon the person assaulted,” and “when committed with premeditated design, and by the use of means calculated to inflict great bodily injury”, and “when committed with (a knife or) deadly weapon under circumstances not amounting to an intent to murder or maim” ■—-that such is only aggravated assault.

It is obvious to us that there is no omission on our part in not considering the sections of this statute brought to our attention by appellant. Clearly, the aggravated assault statute has no application in fact situations such as presented in the case at bar. That statute specifically excludes from its terms acts which amount to an intent to murder or maim.

We did not belabor our original opinion by discussing the holdings of the various cases cited, and we shall not do so here.

We reiterate once more that there was competent medical testimony from Dr. Cig-arroa to the effect that such an instrument as the letter opener shown him may have caused the wound, and that a penetrating wound with such type of weapon can be calculated to produce death.

The early case of Franklin v. State, 37 Tex.Cr.R. 113, 38 S.W. 1016, opinion by the eminent Judge Henderson, seems to correctly set forth the rule in cases of assault with intent to murder. In that case the weapon used was a sound bois d’arc stick three or four feet long, and about one and a half inches in diameter. The prosecutor was struck on the back of the head with the stick and struck several additional blows. He was stunned and dazed from the blows and confined to his bed for several days. Judge Henderson, speaking for this Court, said: “In passing upon the intent of the party, the jury should look to the character of the weapon. If the weapon was a deadly weapon, and likely to produce great bodily harm, the jury may infer, from the use of such weapon, the intent to kill. If the weapon was not such a weapon, the jury may arrive at the intention of the party from the surrounding facts. If it was possible that death might have been inflicted by the weapon, and the defendant intended to take life, though the weapon was not a deadly weapon, still he might be guilty of an assault with intent to murder”.

We have carefully reconsidered the facts in the present case and weighed them against the holdings in the cases originally cited. We remain convinced that a correct disposition was made in our original opinion ; accordingly, appellant’s motion for rehearing is overruled.


author: DICE, Commissioner.

text:
    Natividad RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 36355.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1964.
    Rehearing Denied Feb. 26, 1964.
    Theo. Pat Henley, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., James E. Hope, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Upon his plea of guilty, a jury being waived, appellant was convicted of assault with intent to murder with malice and his punishment was assessed at confinement in the penitentiary for seven years.

At the trial, evidence was introduced by the state which showed that on the date alleged appellant was drinking beer at the Longhorn Ice Station in the city of San Antonio. The injured party and others were also at the place, drinking. After causing a disturbance and stating that he had “something to. hurt somebody with,” appellant was requested by the owner of the place to leave the premises. Appellant thereupon went outside to his automobile, secured a gun, and fired a shot into the ice station, the bullet striking the injured party in the head. From the scene, the injured party was taken to the.hospital where he remained twenty-four days and, as a result of the gunshot wound, was paralyzed.

As a witness in his own behalf, appellant stated that on the night in question he was drinking beer at the ice station and that he was drunk; that someone jumped on him and he went to his automobile, obtained the gun, and fired the shot into the ice house, which shot struck the injured party.- Appellant further testified that the allegations contained in the indictment were true and correct.

Appellant’s sole contention on appeal is that the evidence is insufficient to support his conviction for assault with intent to murder with malice, but, at the most, could only sustain a conviction for assault with intent to murder without malice.

With such contention we do not agree.

By his own sworn testimony, appellant admitted that the allegations of the indictment of assault with intent to murder with malice aforethought, were true and correct. This was a judicial admission by him that the assault to murder was with malice. Also, the proof that appellant shot into the ice house, with a gun, where there were several people, is sufficient to sustain the conviction for assault with intent to murder with malice. Escobar v. State, 162 Tex.Cr.R. 115, 282 S.W.2d 873. Proof that appellant shot the injured party in the head with a gun was sufficient to authorize a finding that the shooting was actuated with malice. Muckleroy v. State, 165 Tex.Cr.R. 629, 310 S.W.2d 315; Flores v. State, 168 Tex.Cr.R. 629, 331 S.W.2d 219.

The judgment is affirmed.

Opinion approved by the court.


author: WOODLEY, Presiding Judge.

text:
    David THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 36518.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1964.
    Edward D. Michalek, Jr., Houston (On Appeal Only), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Thomas C. Dunn, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is murder; the punishment, life.

The deceased, Dorothy Mae Freeman, referred to in the record as the common-law wife of the appellant, was found dead in the home she and the appellant had moved into that day when Detective C. E. Reynolds arrived. Her body was lying in the doorway of the bathroom.

Dr. Jachimczyk, who performed an autopsy on the body, testified that he found two gunshot wounds, one entering the chest and the other in the back, each of which would have been fatal, and a third gunshot wound that would not have been fatal. He also testified that there were cuts and lacerations from some blunt instrument on the top side of the scalp, a bruise over the left cheek bone and scratch marks on the neck of the deceased.

The appellant’s confession was introduced in evidence which reads, in part: “I have been living with Dorothy Mae Freeman since March 13, 1962, we lived at 1711 Cush-ing until yesterday and then we moved to 1207 O’Neal. Dorothy went to work around 7:00 A.M. and I started moving the things shortly after she left for work. I got through around 10:00 or 11:00 A.M. Then I went and got some paint and varnish to paint the floors, I painted until around 2:00 P.M. and then I went down the street to my baby brother’s house and sent him across the street to get some beers, I stayed at his house and drank beer until about four or five o’clock. Then I went home, when I got home she was there, I mean Dorothy, I started an argument about the house and this and that. Then she said ‘Why don’t you shut up’, then she said, ‘You don’t know what you are talking about.’ That is when I started slapping her around, after that I told her to get the gun, that I was going to kill her. That is when she broke and got the gun. From the bedroom to the bathroom, that’s where we were tussling. It was during this tussle that I got shot, it was during this tussle that she got her first shot, we were at the bathroom, then I got the gun all the way from her and I shot her again. I think I shot her four or five more times, I believe I shot her in the head, then I started hitting her in the head with the pistol. I must have hit her six or seven times with the pistol, I guess it was through passion or drunftidness or something.”

The appellant testified at the trial that the deceased was in the bathroom when he came to the house around 7 o’clock and as he walked in she was bending over reaching for something behind the bathroom door; that he pulled the door to him to see what she was doing and “ * * * when she straightened up I was looking down the barrel of a .38 and she shot me in my left side.”

He also testified that she got shot the first time “ * * * in the tussle over the gun”; that there was no argument; that he had no trouble with her before he was shot and that he did not hit her with the pistol at any time.

On cross-examination he testified, in part:

“Q. You never had possession of the gun?
“A. At the time the tussling was going on I did not have the gun.
“Q. When did you get the gun ?
“A. The only time I got the gun, it . went off, and when it went off, I felt her . body jerk. When her body jerked that is the time that she loosened her grip, and she fell on the floor, and' the gun slipped out of her hand into my hand, in a split second. That’s when I shot her again and again and again.
“Q. Why did you shoot then?
“A. Because I was afraid and excited. I didn’t know how bad I was shot.”

Mrs. Elvina Bryant testified that her house was six or eight feet from the house where she saw the appellant and the deceased about 8 P.M. on December 10, 1962; that she heard a woman scream and heard her say “Please don’t kill me. Please don’t. * * * I am a hard working woman. I haven’t done anything,” and “Somebody, please don’t let him kill me” — and “Go get some help — He’s on one of his rampages like he was last week.”

She testified that the appellant hit the -deceased and she fell and that he said “Go get my gun, you dirty S. O. B., I am going to kill you. You don’t deserve to live,” and she said “Please don’t. Please don’t. Don’t you see you done beat me,” and that he was still beating her when she went into the kitchen.

The witness testified that she moved so she could see in the kitchen and the appellant hit the deceased on the side of her head and she fell, and as she was trying to pull herself up he hit her again and said: “I’m going to kill you”; that the appellant and the deceased then left the kitchen and she could not see them but could hear “the rambling”; that she then heard “something like ‘Pow Pow’ ”, and “a horrible scream” —a woman’s scream, then a sound “like something when you hit the floor, and the pistol said ‘Boom, Boom, Boom’, and I never heard no more.”

Wallace Sears, son-in-law of Elvina Bryant, gave similar testimony but his version was that the appellant told the six year old daughter of the deceased to go get the gun and said “I’m going to kill her."

Fred Lee Kelly, who lived nearby, also gave testimony similar to that of Elvina Bryant. He testified that he heard the deceased tell the little girl to go get help and heard the appellant tell the deceased to go get the pistol.

H. L. Livingston, a mechanic, testified that as he drove up to the house he heard a noise like some kids hollering, heard a shot and a woman’s scream, another shot and a shorter scream, then three more shots.

The pistol taken from the appellant after the shooting was introduced in evidence. The testimony shows that it was a .38 Smith and Wesson revolver and that it was not in working condition because the trigger guard had been bent and was touching the trigger.

Records of the Jefferson Davis Hospital were introduced to show that the appellant was treated for a gunshot wound after the shooting.

Officer J. H. Jones testified that he gave the warning which appears at the head of appellant’s confession; that the statement was voluntarily given; that it was reduced to writing and signed; that the appellant was not threatened.

The appellant testified that he was given no warning and the statement was made through fear, and from threats on the part of the officers.

Officer Jones denied that any threats were made.

The issues as to the confession were submitted to the jury.

In his brief the appellant complains that photographs were admitted showing a blood stain on a sheet, a doll and the general condition of the front bedroom of the house.

The photograph is not found in the record and the complaint that it was prejudicial cannot be appraised. We observe, however, that the appellant denied that there was any trouble or argument before the shooting whereas the state’s witnesses testified to seeing the appellant striking and cursing the deceased. The condition of the room, including blood spots, would appear to be relevant on the issue made by such testimony.

The evidence is sufficient to sustain the jury’s verdict and we find no reversible error.

The judgment is affirmed.


author: DICE, Commissioner. McDonald, judge.

text:
    Bob Granville POINTER, Appellant, v. The STATE of Texas, Appellee.
    No. 36347.
    Court of Criminal Appeals of Texas.
    Dec. 18, 1963.
    Rehearing Denied Feb. 12, 1964.
    Orville A. Harlan, Houston (On Appeal Only), for appellant.

      Frank Briscoe, Dist. Atty., Joe C. Shaffer and Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for robbery; the punishment, life imprisonment.

The. state’s evidence shows that on the night of June 16, 1962, a man who was positively identified as the appellant entered a 7-11 Food Store and robbed the manager, Kenneth W. Phillips, of more than $300.' After obtaining the money, appellant fled from the store and was, observed by Phillips talking to a man at a nearby street intersection. When the officers arrived soon after the robbery, an abandoned automobile with a flat tire and the motor still warm w-as found at the intersection. A police dog, upon being placed in the front seat of the automobile, led the officers to the front of the 7-11 store where the robbery had occurred and then across the street, into a wooded area, to the front yard of a nearby residence, where appellant was standing under the shadow of a tree. A search of appellant’s person, following his arrest, revealed that he had $81 in his billfold, and later $65 was found in his shoe after he had kicked it off in the back of the patrol car.

As a witness in his own behalf, appellant denied having committed the robbery and swore that he had never been in the 7-11 store where the robbery occurred. Appellant' testified that on the night in question he had been with some friends and that while riding in an automobile with them an argument ensued, whereupon he got out of the automobile to avoid trouble and went to.-the house where "he was apprehended after 'he had used a telephone to call a taxi.

The court in his charge submitted appellant’s defense of alibi to the jury.

The jury by their verdict rejected appellant’s defensive testimony, and we find the evidence amply sufficient to sustain their verdict.

Appellant predicates his appeal upon three points of error.

His first contention is that the court erred in permitting the state to introduce in evidence as state’s exhibit #1 a portion of the testimony given by the injured party, Kenneth W. Phillips; at an éxamining trial held in Justice Court, Precinct No. 1, of Harris County, on June 25, 1962, for the appellant and a .co-defendant, Lloyd Earl Dillard.

Appellant insists that a proper predicate was not laid, under Arts. 749 and 750, Vernon’s Ann.C.C.P., to reproduce the testimony, because the state did not show that the witness resided out of the state. . The record reflects that prior to admitting the injured party’s examining-trial testimony in evidence, his sister testified 'that since the date of the robbery he had moved 'to California, where he was employed and had taken up residence, and that he was in California at the time of the trial. Her testimony was sufficient to show that the witness resided out of the state. Conn v. State, 143 Tex.Cr.R. 367, 158 S.W.2d 503; Norton v. State, 148 Tex.Cr.R. 294, 186 S.W.2d 347. It is also contended that the examining-trial testimony should not have been admitted because the proof fails to show that the state attempted to avail itself of the provisions of Art. 486a, V.A.C.C.P., being the Uniform Act to secure attendance of witnesses from without the state.

In Webb v. State, 160 Tex.Cr.R. 144, 268 S.W.2d 136, it was recognized that the exercise of diligence is not required of either the state or an accused before taking advantage of the right to reproduce testimony of a witness out of the state, under the terms of Arts. 749 and 750, supra. In that case, a claim made by the state that an accused should be denied the right to reproduce testimony because he did not avail himself of the Uniform Attendance of Witnesses Act, Art. 468a, V.A.C.C.P., was rejected.

Appellant also contends that, because he was not represented by counsel at the examining trial, the reproduction of such testimony and its 'admission in evidence constituted a denial of due process to him under the Fourteenth Amendment to the Constitution of the United States.

With this contention we do not agree. The examining trial was held prior to return of the indictment against appellant and was not a part of the trial in which he was convicted. An examining trial, under Arts. 245 to 266, V.A.C.C.P., is for the purpose of determining whether the defendant is to be discharged, committed to jail, or admitted to bail.

Art. 494, V.A.C.C.P., provides for the appointment of counsel for an accused charged with a felony, when it is made known to the court, at an arraignment or any other time, that he is too poor to employ counsel.

Art. 10a, V.A.C.C.P., provides for the appointment of counsel for an accused in a prosecution for an offense less than capital, upon entering a plea of guilty or plea of nolo contendere and waiving trial by jury.

There is no statutory provision in this state for the appointment of counsel for an accused prior to indictment. We have examined the authorities cited by appellant and do not deem them here controlling. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the accused was denied the assistance of counsel at his trial. In Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, and Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, the accuseds did not have the assistance of counsel at the time of their arraignment. In White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, the accused was not represented by counsel when he was arraigned at a preliminary hearing and entered a plea of guilty, which was subsequently introduced in evidence against him upon the trial in which he was-convicted. Such are not the facts presented in the instant case.

Appellant’s second claim of error is that the court erred in permitting the state to show a certain extraneous offense, committed by him, for the purpose of impeaching him, which had not resulted in a final conviction.

An examination of the record reflects that while testifying on direct examination, appellant stated that he had never been in the 7-11 store where the robbery occurred. Thereafter, the witness Jim Stuart Robertson was called by the state in rebuttal, and testified that on May 27, 1962, he was in the store and at such time he observed a man whom he identified as appellant enter the store, produce a pistol, point it at the manager, Phillips, and say “ ‘This is a holdup,’ ” after which Phillips gave appellant some money.

The testimony that the appellant was in the store on May 27, 1962, was properly admitted for the purpose of impeaching appellant’s testimony, on direct examination, that he had never been in the store. Lampkin v. State, 47 Tex.Cr.R. 625, 85 S.W. 803; Kemp v. State, 157 Tex.Cr.R. 158, 247 S.W. 398; Eloms v. State, 159 Tex.Cr.R. 471, 264 S.W.2d 725; Orozco v. State, 164 Tex.Cr.R. 630, 301 S.W.2d 634; Garcia v. State, 167 Tex.Cr.R. 593, 322 S.W. 536; and Jones v. State, 169 Tex.Cr.R. 175, 332 S.W.2d 560.

The appellant is in no position to complain that the witness Jim Stuart Robertson was permitted to testify not only that appellant was in the store on May 27th but that he committed the robbery, the following portion of the testimony of Kenneth W. Phillips at the examining trial having been introduced before the jury after appellant’s counsel stated that he had no objection and that “I want it all in there because the man said ‘I wasn’t for sure’ ”:

[“Q Mr. Phillips, on or about the 16th day of June, did you have occasion to see either one of these defendants?] A Yes sir.
[“Q Was it one or both of them?] A Well, I saw the one in the store and the white headed gentleman, I believe I saw him down the street from the store.
[“Q Will you tell us what happened, please?] A Well, it was about 11 o’clock and we was closing up and the young one walked in and I thought I recognized him from — we had been robbed on the 27th of May, Sunday Morning, and I thought it was him but I wasn’t for sure, he walked by me and went over to the Dairy Cooler and picked up a six pack of beer and came back to the counter and I went over to wait on him and he lifted his shirt and showed me the gun and said, ‘this is just like last time, buddy’ and I gave him all the money.”

Appellant’s remaining point of error is addressed, primarily, to the court's action in refusing to grant a continuance in the case and in overruling a motion made by attorney C. C. Divine to be dismissed as appellant's counsel in the cause.

These complaints to the court’s action are presented by certain purported informal bills of exception appearing in a separate statement of facts of the evidence adduced upon the hearing of the motions.

The motion for continuance appears to have been made orally and not in writing, as provided in Art. 540, V.A.C.C.P. Such motion not being in writing, appellant has failed to preserve his complaint to the court’s action in refusing to grant a continuance. Berry v. State, 165 Tex.Cr.R. 454, 308 S.W.2d 877.

The complaint to the court’s action in refusing the motion of appellant’s attorney, C. C. Divine, to be dismissed as counsel in the case is not such a matter as may be presented by informal bill of exception, under Art. 760e, V.A.C.C.P., and is therefore not properly before us for review.

No reversible error appearing, the judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

McDonald, judge.

Due to appellant’s vigorous brief on motion for rehearing, and his reliance on White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, we feel it desirable to further clarify our position in distinguishing the instant case. In the White case it was pointed out that the “preliminary hearing” under Maryland law was as “critical” a stage as arraignment under Alabama law, citing Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. In the Hamilton case it was stated that under Alabama law arraignment is a critical stage in a criminal proceeding in that, “ * * * the defense of insanity must be pleaded * * * or the opportunity is lost.” Also, “[p]leas in abatement must also be made at the time of arraignment,” and further, “It is then that motions to quash based on systematic exclusion of one race from grand juries- *. * *, or on the ground that the graqd jury was otherwise improperly drawn * ■ * *, must be made.”

The examining trial in Texas is not such a “critical stage” in criminal proceedings as it is under the holdings above cited and quoted. As originally' set forth in our opinion in this cause, “An examining trial, under Arts. 245 to 266, V.A.C.C.P. is for the purpose of determining whether the defendant is to be discharged, committed to jail, or admitted to bail.”

We remain convinced that this cause was correctly disposed of in our original opinion. Appellant’s motion for rehearing is overruled.


author: McDonald, judge. DICE, Commissioner.

text:
    Carlos F. CARSO, Appellant, v. The STATE of Texas, Appellee.
    No. 36295.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1963.
    Rehearing Denied Jan. 29, 1964.
    Second Motion for Rehearing Denied Feb. 26, 1964.
    Alex Guevara, Jr., Houston (On Appeal Only), Ken Reilly, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and James C. Brough, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant stands convicted of Robbery by Assault. The jury found him to be the same person previously convicted of three felony offenses less than capital on which judgments of conviction had become final. The sentence is life imprisonment in the state penitentiary.

The evidence reflects that the victim of the robbery, Ralph R. Holmes, manager of the Houston Country Club, was in his office at the club when appellant, a stranger, entered the office and, at pistol point, robbed him of the country club’s cash box containing $979.45. Mr. Holmes identified the appellant in the courtroom as the man who., robbed him. The cash box which had been recovered, was also identified by Holmes*

R. O. Queen, fingerprint classifier and identifier for the Houston Police Department, after having his expertness stipulated; by the appellant, testified that three finger-! prints found on the door at the scene of the robbery were those of the appellant. Further evidence against the appellant included an oral confession which he made to Houston Police Lt. W. C. Doss, detailing the incidents of the robbery, which enabled Doss to learn of and recover the pistol used therein.

Appellant contends that his rights were violated by allegation in the indictment of three felony offenses less than capital, this being more than necessary under Article 63 of Vernon’s Texas Penal Code.

The indictment, as presented, was read to the jury in conformance with our present procedural requirement and thereafter appellant waived proof by witnesses as to the prior convictions by stipulating that he was the same person convicted of the three felonies less than capital, each being a final conviction.

This court has held that where two prior felony convictions alleged in an indictment were proved in addition to proof of commission of the felony charged, defendant was properly sentenced to life imprisonment as an habitual criminal, notwithstanding proof of a third prior felony conviction. Ex parte Bonds, 148 Tex.Cr.R. 198, 185 S.W.2d 984; White v. State, 157 Tex.Cr.R. 171, 247 S.W.2d 396; May v. State, 171 Tex.Cr.R. 497, 350 S.W.2d 924; Johnson v. State, 155 Tex.Cr.R. 325, 235 S.W.2d 180. Thus appellant’s contention is without merit.

There are no formal bills of exception. The remaining claims of error do not reflect reversible error.

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

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant complains that in our opinion on original submission we did not pass upon the contention that his rights were violated when the indictment alleging the prior convictions was read to the jury and exhibited before them. In his motion, appellant insists that he was denied the right to a fair and impartial trial under the Fifth and Fourteenth Amendments to the Constitution of the United States and like rights guaranteed to him under the Constitution of this State, when the indictment alleging the prior felony convictions was read to the jury and proof thereon was heard by them.

Appellant apparently overlooks the provision of Art. 642, Vernon’s Ann.C.C.P., which reads:

“Order of proceeding in trial
“A jury being impaneled in any criminal action, the cause shall proceed in the following order:
“1, The indictment or information shall be read to the jury by the attorney prosecuting.”

In Redding v. State, 159 Tex.Cr.R. 535, 265 S.W.2d 811, this court held that an accused was not denied due process under the Fourteenth Amendment-to the Constitution of the United States because the indictment against him alleging prior convictions to enhance the punishment under the habitual criminal statute, Art. 63, V.A.P.C., was read to the jury. In the opinion on motion for rehearing, we said:

“The prior offenses were required to be plead and proven, and we can perceive of no deprivation of constitutional rights by these statutes which have been in existence for many years.”

This holding was again followed in Finley v. State, 161 Tex.Cr.R. 458, 278 S.W.2d 864.

The motion for rehearing is overruled.

Opinion approved by the Court


text:
    Walter ANDERSON, C. C. Divine and H. G. Divine, Appellants, v. The STATE of Texas, Appellee.
    No. 36469.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1964.
    Rehearing Denied Feb. 26, 1964.
    C. C. Divine, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and James C. Brough, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal from a bond forfeiture.

Final judgment was rendered against the principal and sureties on July 26, 1963.

The notice of appeal was filed with the clerk on August 23, 1963.

Rule 353 of the Texas Rules of Civil Procedure requires that such notice be filed within ten days after the judgment.

The notice of appeal, not having been filed within the time required, came too late to give this court jurisdiction of the appeal. Becnel, et al, v. Becnel, 336 S.W.2d 221 (Tex.Civ.App.) and Donald, et al., v. John Vinson, Inc., et al (Tex.Civ.App. Error Ref’d.), 344 S.W.2d 751.

The appeal is dismissed.

Opinion approved by the Court.


author: McDonald, judge.

text:
    Roosevelt SMITH, Appellant. v. The STATE of Texas, Appellee.
    No. 36531.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1964.

      Wardlaw & Cochran, Fort Worth (on appeal only), for appellant.
    Doug Crouch, Dist. Atty., Albert F. Fick, Jr., Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is murder; the punishment, life imprisonment in the state penitentiary.

The State’s evidence reflects that the homicide occurred in the Morocco Club, a negro bar located in Fort Worth, Texas. Appellant was playing dominoes with deceased and one other man, identified as “Leonard,” when deceased stood up and looked at appellant in an angry manner. The two men looked at each other for a few moments, whereupon appellant stood up, paid for the game and left the club. He then returned with a shot gun, about ten minutes later, in a rush, kicking the door open and stating to the deceased, “Here I is nigger.” Appellant took a few steps toward the deceased and fired the weapon, it being two feet from the deceased at the moment of discharge. Deceased, who was struck in the chest by the charge, took a few steps and fell on his face. Appellant then turned and left the club.

It appears that appellant then walked home and called the police, stating what he had done and also requesting, that an ambulance be sent.

Several of the State’s witnesses testified that when appellant returned .with the gun, deceased had both hands on a pool table and made no move toward appellant.

Herbert V. Baker, a witness called by the State, shown to be a licensed mortician in Tarrant County, stated that deceased had a wound in his chest two inches in diameter which severed the aorta or main artery from the heart and that in his opinion death was caused by the gun shot wound.

The appellant took the stand and gave his version of the occurrence. He related that on the day in question he (appellant) had gone hunting, that being the reason for his having the shot gun in the car. The witness further related that he went to the club to meet his brother, who was to bring appellant’s check to that place. He had played a few games of dominoes with the deceased and Leonard when deceased jumped up and put his hand in his pocket and told appellant, “Don’t call me nigger,” to which appellant replied, “you is a nigger.” Following this exchange of words appellant put some change on the table and walked out. Upon reaching his car he realized he had left his keys on the table. Appellant further stated that he took his shotgun back into the club with him to get his keys because deceased, “had made a pistol play and I figured he was intending to try to hurt me; had his hand in his pocket. I took it back in for protection.”

Appellant testified that when the shot was fired, deceased had his hand in his back pocket and was coming toward him .and also that he (appellant) was only trying to scare deceased and not kill him.

On cross-examination appellant identified the gun in evidence as the one used in the •shooting and further stated that when deceased jumped up from the domino game 'he stated to appellant, “I will kill you.”

No other witness remembered seeing the keys appellant claimed to have left on the table in the club. The jury resolved any •conflict in the testimony in favor of the -.state.

We find the evidence sufficient to support their verdict. It is first contended by appellant that reversible error was committed upon cross-examination of appellant when the following transpired:

Q: “I believe you told Mr. Cline that you had never had any difficulty with the law with the exception of traffic tickets, is that correct ?”
A: “I think I did.”
Q: “You told him that you had never been fooled with or done anything in the world other than traffic tickets?”
A: “I been picked up on suspicion, something like that.”
Q : “You have been picked up on suspicion, something like that. Now, do you know Rayford Hall?”
A: “Yes, my brother-in-law. I also explained that to him.”
Q: “You and Rayford Hall had a little trouble, didn’t you?”
A: “I wouldn’t say exactly trouble, that’s my brother-in-law.”
Q: “Just your brother-in-law. You never cut a man up with a knife, did you ?”
A: “I never cut him up.”
Q: “Did you stick him with it ?”
A: “No. We was tussling and the knife slipped and cut him across the back.”
Q : “You were scuffling with your brother-in-law and somehow or other the knife came out of your pocket?”
A: “No, it didn’t.”

At this time counsel for the appellant interposed an objection which was sustained and the jury was instructed not to consider this evidence for any purpose. We think the learned trial judge fell into error by his ruling. The appellant not only made a showing that he was eligible under the suspended sentence law, but he went further and virtually made a blanket statement about his exemplary conduct, as may be seen from the foregoing testimony adduced from appellant. By doing so appellant “opened the gate” for the state, and the state then had the . right to refute these statements. In Kemp v. State, 157 Tex.Cr.R. 158, 247 S.W.2d 398, a prosecution for driving while intoxicated, wherein defendant, in response to questions of state’s counsel concerning amount of intoxicating beverage he had consumed, replied that.he had drunk none, and that he and never .drunk any intoxicating liquor of any kind, evidence, by way of questions propounded to defendant, of former convictions for intoxication was properly admitted as rebuttal evidence. In Lampkin v. State, 47 Tex.Cr.R. 625, 85 S.W.2d 803, in a prosecution for using abusive language, where the appellant testified in his own defense that he did not swear on the occasion charged, and that he had never sworn in his life, the State was permitted to prove, in rebuttal, the appellant had used profane language in the presence of other witnesses on another occasion. Also see: Eloms v. State, 159 Tex.Cr.R. 471, 264 S.W.2d 725.

Adelle Williams was called by the appellant as a character witness and testified that appellant’s reputation as to being peaceable, law-abiding, orderly and quiet, was good. She further testified that his reputation in the community as being a truthful person was good. On cross-examination she was asked, “ * * * did you hear about the trouble he (appellant) had with Rayford Hall on May 6, 1953 ?” An objection was made by appellant and overruled by the Court.

Q: “Did you hear about that trouble that he had with Rayford Hall on May 6, 1953?”

A: “Yes.”

Appellant contends that admitting this testimony over objection was error. He contends that allowing such “innuendo” would in effect be allowing a character witness to testify about a mere argument or misunderstanding with Rayford Hall. We cannot agree with appellant’s contention. The State has a right to inquire into and to develop before the jury the extent of the knowledge which a character witness possesses concerning the party for whom he testifies. Wiley v. State, 153 Tex.Cr.R. 370, 220 S.W.2d 172; Wilson v. State, 154 Tex.Cr.R. 140, 225 S.W.2d 565, McCormick and Ray, Texas Law of Evidence, Vol. 2,, Sec. 1492; Pitcock v. State, 168 Tex.Cr.R. 204, 324 S.W.2d 855. Such inquiry is not made to impeach the accused as a witness, but to test the weight and credibility of his character witness. Vance v. State, Tex.Cr. R., 365 S.W.2d 182.

While we do not approve of the form of question propounded as it does imply that the trouble occurred, and the state is prohibited from conducting the cross-examination or framing the interrogatories so as to show specific acts of misconduct on the part of the accused or that he has, in fact, been guilty of such acts, yet we find that this question injected no new fact as the same trouble was before the jury in the cross-examination of the appellant. We find no merit in this contention of appellant.

Appellant’s further contention that the incident in 1953 was too remote to be the subject of a legitimate inquiry is also without merit. Vance v. State, supra; Richardson v. State, 154 Tex.Cr.R. 422, 228 S.W.2d 179. Also, the application of the remoteness limitation must of necessity be left to the discretion of the trial court.

Finding no reversible error, the judgment is affirmed.


text:
    Donald Lawrence ROBERTS, Appellant, v. The STATE of Texas, Appellee.
    No. 36310.
    Court of Criminal Appeals of Texas.
    Jan. 22, 1964.
    Rehearing Denied Feb. 26, 1964.
    A. W. Salyars, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is conspiracy to commit burglary with intent to steal; the punishment, 2 years.

The indictment alleged in the second count that the appellant and Fred J. Shockley conspired and entered into positive agreement between themselves to break and enter a house occupied and controlled by Roy Edwards with intent to fraudulently take personal property therein being which belonged to Roy Edwards without his consent and to deprive Edwards of the value of said property and appropriate it to their own use and benefit.

The sole question presented is the sufficiency of the evidence to sustain the conviction.

The state relied upon circumstantial evidence.

All of the witnesses agreed that there was no burglary committed, and there was no direct evidence that the appellant and Shockley had any conversation or agreement to commit a burglary.

The circumstances relied upon by the state were:

The appellant and Shockley were in the pharmacy owned and operated by Roy Edwards about 6:30 in the afternoon. The store closed about 7:30 P.M.

Mr. Edwards, a pharmacist, went to the store about 10:30 P.M. to see if any prescriptions had been left there to he filled. He heard footsteps on the roof and locked the building and, as he left, he noticed that his ladder had been placed against the air-conditioner so as to lead to the roof.

Mr. Edwards found Deputy Sheriff Heath and they returned to the building. Heath remained while Mr. Edwards went to find Patrolman Van Liew and brought him to the building.

Fred Shockley jumped down from the awning at the front of the building and ran, and Mr. Van Liew pursued him and overtook and arrested him.

After taking Shockley to jail, the officers returned and Van Liew climbed on top of' the building and flushed the appellant who was lying- underneath the neon sign. The appellant jumped off the sub roof and Officer Van Liew’s dog jumped on his back. The appellant escaped, though several shots were fired at him and when one shot was fired by Deputy Heath appellant slumped and hollered. He was returned to Texas by Heath from Artesia, New Mexico, some eleven days later.

The appellant was wearing canvas gloves when he was on the roof under the sign.

After the appellant escaped, Patrolman Van Liew went hack on top of the building and found a sledge hammer, three metal chisels, a screwdriver, a crowbar, a jack handle and lug wrench. The tools were lying on the roof top at the hack some 2 or 3 feet from the edge. He also found a loaded .45 caliber revolver behind the front fire wall * * * where they crawled over this fire wall to get on the awning.”

All of the articles mentioned were found on the roof of the pharmacy. An old black hat was found on the roof of Dorothy Gray’s Store. The stores were separated only by a fire wall and partition.

Evidence was introduced to the effect that the building was erected in 1961; that no repairs had been made on the roof; that the articles found and introduced in evidence had not been left there by the owners of the buildings; and that no consent had been given to the appellant or to Shockley to go upon the roof or to enter the pharmacy or the Gray Store.

No evidence was offered by the defense.

It was not necessary that the state prove that the appellant and Shockley came together and actually agreed in terms to burglarize the building. The evidence is sufficient to sustain a finding, from their acts and conduct, that they were engaged in attaining and effecting the object of burglarizing the pharmacy building, and this was sufficient. Smith v. State, 21 Tex.App. 107, 17 S.W. 552; Marks v. State, 144 Tex.Cr.R. 509, 164 S.W.2d 690.

That the burglary to be committed was to steal is sufficiently shown, the rule being that where the accused unlawfully breaks and enters the house of another at night without the consent of the owner, it will be presumed that the entry was with intent to commit theft. Sikes v. State, 166 Tex.Cr.R. 257, 312 S.W.2d 524.

We find no merit in the contention that the intent to burglarize the clothing store was a reasonable hypothesis which was not excluded. The appellant and Shockley were on the roof of the pharmacy; the ladder was placed against the pharmacy; the tools were on the roof near the ladder and the pistol was on the roof at the front of the pharmacy near where the appellant was hiding. They were together in the pharmacy shortly before closing time and were “looking around”.

Viewing the evidence in the light most favorable to the jury’s verdict, we find it sufficient to sustain the conviction.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Robert Earl CLEMENTS, Appellant, v. The STATE of Texas, Appellee.
    No. 36409.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1964.

      Clyde W. Woody, Houston (On Appeal Only), for appellant.
    Dee D. Miller, Dist. Atty., Patrick H. Mulloy, Jr., Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

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

It is contended that this conviction is based upon a fatally defective count in the indictment. An examination of said count reveals that it fails to allege that the property was taken from the possession of the injured party or from any other party.

In considering the sufficiency of an indictment containing substantially the same allegations in charging felony theft this Court in Webb v. State, Tex.Cr.App., 336 S.W.2d 158, said:

“In view of our disposition of the case, a recitation of the facts will not be deemed necessary. Our attention has been called to a fundamental defect in the indictment in that nowhere therein is it alleged that the stolen property was taken from the possession of the injured party or from any other party.
“This question was before this Court in Ryan v. State, 76 Tex.Cr.R. 510, 176 S.W. 49, wherein this Court said:
“ ‘No motion was made to quash the indictment in the trial court, and the question of the sufficiency of the indictment is raised for the first time in this court; it being contended that the indictment alleges possession in no one, and does not allege that the hogs were taken from the possession of Guy Sutton or any other person. It appears to be the unbroken rule of decision in this court that an allegation of the possession from whom the stolen property was taken is necessary; the statutory definition of theft makes it a necessary ingredient, and such allegation must be proved as made. Littleton v. State, 20 Tex.App. 168; Case v. State, 12 Tex.App. 228; Hall v. State, 22 Tex.App. 632, 3 S.W. 338; Watts v. State, 6 Tex.App. 263; Gadson v. State, 36 Tex.[App.] 350; and other cases cited in section 1483, White’s Ann. Penal Code, 785, and section 785, Branch’s Crim. Law.
“ ‘There being no allegation of possession in any one the indictment is invalid, and the judgment is reversed, and the prosecution is ordered dismissed.’
“See also Taylor v. State, 86 Tex.Cr.R. 463, 217 S.W. 937, and Blevins v. State, 146 Tex.Cr.R. 390, 176 S.W.2d 173, and cases there cited.”

The judgment is reversed and the prosecution under the indictment herein is ordered dismissed.

Opinion approved by the Court.


author: McDonald, judge. MORRISON, Judge.

text:
    Dorothy HILL, Appellant, v. The STATE of Texas, Appellee.
    No. 36222.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1963.
    Rehearing Denied Feb. 12, 1964.
    Dickson & Associates by William M. Dickson, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Joe C. Shaffer and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Upon a plea of guilty before the court, without the aid of a jury, appellant was found guilty of theft from the person; the punishment, two (2) years in the State penitentiary.

Appellant contends that the trial court erred in overruling her motion for new trial based upon newly discovered evidence. This contention is not-properly before this court for review for the reason that it is not presented by a formal bill of exception. See Caldwell v. State, Tex.Cr. App., 364 S.W.2d 242, where this court, speaking through the writer stated, “ * * the rule requiring complaint of failure to grant a new trial based on newly discovered evidence to be presented by bill of exception was not changed by enactment of Art. 760e, supra [V.A.C.C.P.].” Also Young v. State, 156 Tex.Cr.R. 454, 243 S.W.2d 587.

While the motion for new trial is not properly before us, we do observe that the testimony of the witness, Walter Lee Beaver, at the hearing on the motion for new trial was not favorable to appellant and would not have changed the results so as to necessitate the granting of a new trial. Smith v. State, 166 Tex.Cr.R. 574, 316 S.W.2d 750.

The statement of facts filed with the District Clerk on August 7,1963, is not properly before this court for review in accordance with provisions of Article 759a, Sec. 4, which provides that the appellant shall file a statement of facts within ninety days after giving notice of appeal, or within such extended period of time which may be granted by the trial judge, and that the approval by the trial judge of the statement of facts, after the ninety day period, shall be sufficient proof that the time for filing was properly extended. The dates and action of the defendant and the trial judge relative to the statement of facts contained in the record are as follows:

(1) Notice of appeal, January 16, 1963.
(2) Expiration of the original ninety day period, April 16, 1963.
(3) Thirty day extension by the trial judge for good cause shown, April 12, 1963.
(4) Expiration of the 30 day extension period granted by the trial judge, April 12, 1963 — May 16, 1963.
(5) Extension of the time for filing the statement of facts for a period of 52 days after the expiration of the 90 days allowed by the statute, May 9, 1963.
(6) Expiration of the 52 day extension period granted by the Court May 9, 1963 — June 7, 1963.
(7) Order purporting to extend the time for filing for a period of 35 days after the expiration of the previous extension allowed by the statute, signed not by the trial judge, Sam W. Davis, but by E. B. Duggan, Judge Presiding, July 3, 1963.
(8) Date on which the statement of facts was filed with the Clerk of the District Court in Harris County — August 7, 1963.

The period in which the statement of facts could be properly filed was extended only to June 7, 1963. The presumption in Sec. 4 of Art. 759a of the statute applies only when the trial judge approves the statement of facts. There is no such approval in either statement of facts.

The action of the trial court, therefore, on July 3, 1963, was ineffective to properly extend the time for filing in that it was made after the extension period was exhausted on June 7, 1963. See Hoskins v. State, Tex.Cr.App., 373 S.W.2d 248, and cases cited therein.

Had the extension on July 3rd been effective to properly extend the time for filing the statement of facts for a period of 35 days beyond the previous extension period, it would not be effective to extend the period for filing until August 7, 1963, the date on which the statement of facts was, in fact filed, as the time as extended would have expired on July 12th.

The statement of facts is not properly before this Court for review.

Nothing being presented for review, the judgment of the trial court is affirmed.

On Appellant’s Motion for Rehearing

MORRISON, Judge.

Since the rendition of our original opinion herein on December 11, 1963, appellant has tendered a statement of facts approved by the Trial Judge on January 28, 1964.

Under the holdings of this Court in Selvidge v. State, 171 Tex.Cr. 140, 345 S.W.2d 523, and Cunningham v. State, 172 Tex.Cr. 3, 353 S.W.2d 37, our consideration of the same is precluded.

Appellant’s motion for rehearing is overruled.


text:
    Bernice AUSTIN, Appellant, v. The STATE of Texas, Appellee.
    No. 36262.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1964.
    Hugh O. Lea, Hemphill, for appellant.
    James A. Morris, Dist. Atty., Roy Win-gate, Asst. Dist. Atty., Orange, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is murder without malice; the punishment, 2 years.

The appellant was charged with the murder of her husband, Ira Austin, with malice. The jury decided the issue of self-defense against the appellant and found her guilty of murder without malice.

The undisputed evidence, including the confession of the appellant, shows that she shot her husband with a .22 caliber pistol.

Oscar Ray Griffin, M. D., a pathologist, testified that he performed an autopsy on the body of Ira Austin. He described the course of the small bullet which entered beneath the left rib margin about one-half inch below the midline and lodged in the right flank. He testified that the penetration of the arteries and veins by the bullet was the cause of death.

Two grounds are advanced upon which reversal is sought.

The first presents the contention that it was error for the court to permit Dr. Griffin to'testify as to the cause of death as a result of the autopsy without proof of an autopsy being ordered by either the Justice of the Peace or the next of kin. Whitaker v. State, 160 Tex.Cr.R. 271, 268 S.W.2d 172, is cited by the appellant.

Whitaker v. State does not support the appellant’s contention that it was incumbent upon the state to prove that the autopsy had been ordered as a predicate for the admission of Dr. Griffin’s testimony as to the cause of death.

In the absence of any showing that the evidence was unlawfully obtained, the testimony of the pathologist was admissible.

Appellant s remaining claim for reversal is presented by formal bill of exception wherein it is contended that the jury was allowed to separate in violation of Art. 623 Vernon’s Ann.C.C.P.

The bill of exception shows that there was a city election in the City of Orange and one of the jurors desired to vote. He was taken to the polling place in an automobile driven by a deputy sheriff. All of the other jurors went along, some in another car driven by the court bailiff.

Deputy Sheriff Lee Burgess, who drove the juror to the polling place, could see him voting from where he was on the outside.

Our attention is directed to the fact that in amending Art. 623 C.C.P. which provided that when jurors had been sworn in a case they should be kept together and not permitted to separate until a verdict had been rendered or the jury finally discharged, the proviso “unless by permission of the court, with the consent of each party and in charge of an officer” was omitted and in the amended statute, Acts 19SS, p. 795 (Art. 623 V.A.C.C.P.) the only exceptions relate to separation of male and female jurors.

The change in the statute is not here controlling. The question is whether the facts show a separation of the jury within the meaning of the statute.

The temporary separation of jurors in a felony case not out of sight of the officer in charge will not constitute revers-ible error if no injury or probable injury is shown. See 1 Branch’s Ann.P.C. 2d Ed., Sec. 601, and cases cited.

We overrule the contention that a new trial should have been granted because a member of the jury was allowed to go into a polling place while the officer in charge and the remaining jurors watched and waited outside.

The judgment is affirmed.


text:
    Manuel MORENO, Appellant, v. The STATE of Texas, Appellee.
    No. 36537.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1964.

      Abe San Miguel, Carlos C. Cadena, San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is aggravated assault; the punishment, six months in jail.

The complaint alleges that the offense was committed on or about “the 7 day of March A.D. 19663.”

The allegation of an impossible date as the date of the commission of the offense will render the indictment, information or complaint fatally defective. Chadwick v. State, Tex.Cr.App., 252 S.W.2d 165, and other cases cited in 1 Branch’s Ann.P.C.2d Ed., p. 455, Sec. 454.

The complaint being fatally defective the judgment is reversed and the prosecution under the complaint and information herein is ordered dismissed.


text:
    Andrew HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 36494.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1964.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is unlawful possession of a narcotic drug; the punishment, five years in the state penitentiary. Mack Sterling, a police officer for the city of Abilene and witness for the state, testified that he and two other officers (George Morrison and George Maxwell) went to the home of appellant the day in question, without a warrant for his arrest but with a search warrant, a copy of which was given to appellant; that appellant met them at the door, stating that he lived there and gave them permission to search the apartment. Officer Sterling further testified that every room in the apartment was searched and that he found a Prince Albert tobacco can in a dresser drawer containing what appeared to be marijuana, based on his past experience with the narcotic. Also, that the can and its contents were marked by him for identification and remained in his custody and control until mailed to Austin for analysis. The officer also stated that appellant was not under arrest and could have left up until the time the marijuana was found.

C. H. Beardsley, a chemist with the Texas Department of Public Safety, and witness for the state, identified the tobacco can in question as the one whose contents had been examined by him in Austin and found to contain 2.45 grams of marijuana, a narcotic drug.

George E. Morrison, a police officer who had aided in the search of the apartment, testified that he found what appeared to be marijuana seeds behind and underneath the couch and further that the seeds so found were placed in a paper bag, marked by him for identification and subsequently mailed to Austin. Both the paper bag and the tobacco can were identified by the officers as the ones found in appellant’s apartment.

Officer Sterling testified that when appellant came to the door of the apartment, “ * * * I told him that we had information that he had some dope at his house.” Appellant moved for a mistrial which was denied. The jury, however, was instructed not to consider the statement for any purpose.

Appellant’s contention that the court’s failure to grant a mistrial was reversible error cannot be sustained. It has: been well settled since the early case of Miller v. State, 79 Tex.Cr.R. 9, 185 S.W. 29, that error in admitting improper evidence may be generally corrected by a withdrawal and an instruction to disregard it except in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. The evidence in question was not of such import that the court’s instruction to disregard the answer could not have removed its effect on the minds of the jury. Monasco v. State, 172 Tex.Cr.R. 528, 361 S.W.2d 208, McCormick and Ray, Texas Law of Evidence, Vol. 1, Sec. 29. It should also be noted in this regard that marijuana was found in the apartment and no issue was made of the fact that it was marijuana.

Appellant further urges that reversible error was committed when Officer Sterling testified as to the finding of the marijuana. The officer was asked where appellant told him he got the marijuana, to which the officer replied, “at that time he told me he wasn’t sure. He didn’t remember where it had come from.” An objection was made on the grounds that this statement was made while the appellant was under arrest.

Without passing on the question of whether appellant was under arrest or whether the statement was admissible as res gestae, we find the trial court cured an}' error by instructing the jury not to consider the statement for any purpose.

Having thoroughly considered each bill, we find none in which reversible error is shown.

The evidence being sufficient and no reversible error appearing, the judgment is affirmed.


text:
    Ex parte Tommy Gene GREEN.
    No. 36568.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1964.
    Andrew Z. Baker, Galveston, for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Relator, an inmate of the penitentiary, seeks his release by writ of habeas corpus alleging that he has served the sentence against him.

Relator’s application for the writ of ha-beas corpus was filed in the 122nd District Court of Galveston County on August 26, 1963, hearing was held by that Court on November 8, 1963, and petition for the writ was granted, the facts set forth in the petition were found to be true, and the writ and statement of facts adduced at the hearing have been returned to this Court pursuant to Article 119 Vernon’s Ann.C.C.P.

Applicant was sentenced to a term of 2 to 5 years for felony theft on June 28, 1960, in the 122nd Judicial District Court of Galveston County in Cause No. 28,483. Execution of the sentence was suspended and probation was granted. Later, on October 13, 1960, in the 36th Judicial District Court of San Patricio County he was convicted of burglary and sentenced to the state penitentiary for not less than 2 nor more than S years, in Cause No. 2784, which sentence was to commence July 12, 1960. On April 11, 1961, the 122nd District Court of Galveston County revoked the probation accorded relator in Cause No. 28,483 on June 28, 1960 and sentenced relator to serve not less than 2 nor more than 5 years in the state penitentiary, such sentence to begin when the sentence in the 36th Judicial District Court of San Patricio County, Cause No. 2784, shall have ceased to operate.

We agree that applicant’s contention that the cumulation provision is ineffective, sentence having been pronounced June 28, 1960, and the cumulation provision added on April 11, 1961. The imposition of sentence was not suspended. He was sentenced in the first instance on June 28, 1960, and it was the execution of the sentence that was suspended and relator placed on probation. He could not then be re-sentenced on April 11, 1961, in the same case, after his probated sentence had been revoked.

■ The record contains a certificate from the Department of Corrections stating that relator now has credit for five years.

When the term of court adjourned at which the 1960 sentence was imposed, the trial court could not thereafter add further conditions to such sentence which were not and, under the facts, could not have been a part of such sentence at the time it was imposed. Ex parte Hernandez, Tex.Cr. App., 364 S.W.2d 688; Ex parte Downey, 171 Tex.Cr.R. 296, 350 S.W.2d 20; Ex parte Rutherford, 171 Tex.Cr.R. 302, 350 S.W.2d 31; Ex parte Minor, 167 Tex.Cr.R. 170, 319 S.W.2d 114.

The writ is granted, and relator is ordered discharged.


author: MORRISON, Judge.

text:
    Alberto Ornelas CORTEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 36394.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1964.
    Rehearing Denied Feb. 26, 1964.
    Theo. Pat Henley, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., John G. Benavides, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, 20 years.

Felipe C. Adams testified that on the night in question he sat and drank beer at Martin’s Ice Station, that appellant joined him about 9:00 p. m. and remained there until shortly before 11:00, during which interval deceased, who was standing with a group of young men around a telephone booth across the street came across to Martin’s and bought quarts of beer which he took back to the telephone booth. He stated that at about 11:00 p. m. one Garcia and his wife passed the ice station, and appellant left to take them home. He stated that shortly thereafter as he prepared to leave, he heard shots coming from near the telephone booth and went to investigate; that he saw deceased walking toward appellant’s automobile which was parked nearby; that deceased fell and appellant’s automobile drove off. Because of the darkness he was unable to identify appellant as the driver. Deceased was shown to have died as the result of three gun shot wounds.

Police Officers, who arrived upon the scene went to appellant’s home, where the appellant met them at the door and told them that he had shot a boy and instructed them as to where in his house they might find the pistol. He was then arrested and carried to the police station for interrogation.

Detective Salas of the San Antonio Police testified that he interrogated appellant upon his arrival at the police station, and after properly warning him, prepared a confession, which appellant made to him in Spanish, and reduced it to English. Following this, the confession was read to appellant in Spanish by Martin Benavides, a clerk typist employed at the police station, and then signed by appellant.

It recites that while he was drinking beer at Martin’s Ice House on the night in question, deceased came over from across the street and bought beer at one time, giving him a “dirty look”. It recites further that Garcia and wife walked by Martin’s and he took them home in his automobile, and that he returned to an ice house near the telephone booths across the street from where he had been sitting, for the purpose of buying milk and cigarettes. It further states that he discovered that the ice house was closed and before he could drive away, deceased approached his automobile with his hand in his pocket, whereupon he shot him with a pistol which was lying on the front seat beside him and continued to fire after deceased fell. The confession concludes with the admission that he drove home and delivered the pistol to his wife and that the police arrived soon thereafter.

Appellant, testifying in his own behalf, stated that deceased was his wife’s nephew who had recently returned from the penitentiary, and who had been demanding money from him in order to buy marihuana. He stated that he had reported such demands to the District Attorney’s office some months prior to the shooting. He denied certain portions of the confession, such as deceased’s giving him a dirty look, saying that they had not been properly translated to him, but admitted the salient portions concerning the shooting. He testified that deceased made threats in Pachuco terminology as he approached his (appellant’s) automobile, but testified as to no overt gesture other than deceased had his hand in his pocket. He testified that his pistol was in the glove compartment of his automobile and not on the seat beside him. He denied that he bore any ill will against deceased’s family because they had informed on him, resulting in his being deported to Mexico.

The court charged on the law-of self defense and prior threats. The jury resolved such disputed issues as were presented against appellant, and we find the evidence sufficient to support the conviction.

Appellant in his brief urges that the evidence is insufficient to support the conviction for murder with malice. Claxton v. State, 105 Tex.Cr.R. 308, 288 S.W. 444, Villarreal v. State, 140 Tex.Cr.R. 675, 146 S.W.2d 406 and Brewer v. State, 143 Tex. Cr.R. 136, 157 S.W.2d 388, were each ultimately reversed on a question of the court’s charge and since no objections to the charge appear in the case at bar, these cases do not support appellant’s contention. We have concluded that Williams v. State, 135 Tex.Cr.R. 586, 121 S.W.2d 1003, is authority supporting the affirmance of this conviction.

Finding no reversible error, the Judgment is affirmed.