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

text:
    JOHNSON v. STATE.
    No. 14376.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Rehearing Denied Oct. 21, 1931.
    D. E. O’Fiel, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE,- J.

Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.

Appellant was walking along a public street carrying a package. Officers observed him, and suspected that he was carrying whisky. They stopped him, took the package from him, examined same, and found it to contain a gallon of corn whisky. Appellant defended upon the proposition that as he was going along said street a boy handed the package in question to him, and that he did not know what was in it. The officers testified that, when they asked appellant in regard to the package and its contents, he informed them it contained a gallon of whisky. Appellant took the witness stand, and testified that the boy referred to handed to him said package, and that he did not know what its contents were. The statement made by appellant to the officers would appear to be res gestse of his possession and transportation of the liquor in question, and admissible under that theory. Bills of exception complaining of the admission of testimony are of no avail when it appears from the record that the accused himself gave substantially the same testimony. The proposition as to whether certain liquor is intoxicating is not one which demands expert testimony.

We are not impressed by the bill of exception complaining of the fact that the court lectured another party who had been given a suspended sentence, in the presence and hearing of the jury panel. The jury trying this appellant saw fit to give him the lowest penalty for the offense charged, and nothing manifests any prejudice on their part.

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

On Motion for Rehearing.

MORROW, P. J.

The appellant was arrested by Officers Brown and Davis. Their testimony is thus summarized: The officers were looking for the appellant, and saw him walking on the street carrying a paper bag in his hand. There was a boy with the appellant. The officers had a “pretty good” idea as to what the bag contained, but could not tell its contents. The officers got out, approached the appellant, and said, “What is that, Willie?” He said, “A gallon of whisky.’\ This statement was made after the appellant had been stopped by the officers, who had no warrant for the arrest. One of the officers testified: “When I saw him with this peculiar package, it attracted my suspicion he was carrying whisky. I knew in my mind when we drove up there what was in the package.”

The appellant conducted a cold-drink stand, and the boy with him said that he went to the appellant’s place and ordered a gallon of whisky for a woman. The arrest occurred about a block from the appellant’s place of business.

The appellant’s testimony is in substance as follows: He was traveling on the street and “fell in” with a boy who had a package in his hand. Two officers drove up and said to the boy: “Hey, where are you going, boy?” Appellant and the boy were going in the same direction. When the officers spoke to the boy, he handed the package to the appellant, whereupon the officers said: “Get in the car. ?ou, too, Willie, the Chief wants to talk to you.” Officer Brown took the package, together with the appellant and the boy, to the police station. Appellant denied telling Brown that the ■ package contained whisky, and said that when he got the package he did not know its contents; that he did not carry the package, but was stopped by officers the moment the package was put in his hands,

There were other indictments for felony against the appellant.

There are several bills of exception ■complaining of the testimony of the officers who made the arrest. The bills are almost void of any recitals showing the surrounding facts, and are opfen to the criticism that they merely show .thatobjection was made, and fail to incorporate so much of the evidence as would verify the truth of the objection. See Coleman v. State, 110 Tex. Cr. R. 409, 10 S.W.(2d) 559; Stanford v. State, 103 Tex. Cr. R. 182, 280 S. W. 798, and other cases collated in McKinley v. State (Tex. Cr. App.) 35 S.W. (2d) 148. However, the bills have been considered. In some of them it appeal’s that the objection made by the appellant was sustained. In the main, the bills are addressed to the claim that the testimony of the o'fficers showing that their knowledge of the possession of the whisky by the appellant was illegally obtained. That position seems untenable. From the testimony of the officers it appears that, before any arrest of the appellant was made, he stated that the package in his hand contained whisky. The transaction is analogous to that before the court in Pena v. State, 111 Tex. Cr. R. 218, 12 S.W. (2d) 1015, and Carter v. State, 113 Tex. Cr. R. 433, 22 S.W.(2d) 659. In that connection, it may be added that, the appellant having testified in his owii behalf admitting the possession of the jug of whisky, he is in no position to demand a reversal of the judgment upon the ground- that substantially the same testimony came into the case from the officers who made the arrest. See Bonilla v. State, 108 Tex. Cr. R. 603, 2 S.W.(2d) 248; McLaughlin v. State, 109 Tex. Cr. R. 307, 4 S.W. (2d) 54; Míreles v. State, 114 Tex. Cr. R. 6, 23 S.W.(2d) 727, and authorities there collated; Aggers v. State, 114 Tex. Cr. R. 391, 24 S. W.(2d) 838, and precedents there cited. .

The motion for rehearing is overruled.


source: Caselaw Access Project

author: MORROW, P. J.

license: Public Domain

text:
    BOATRIGHT v. STATE.
    No. 14320.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Rehearing Denied Oct. 21, 1931.

      Murchison, Davis & Murchison, of Has-kell, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for the offense of rape; penalty assessed at confinement in the penitentiary for a period of five years.

The state’s testimony is, in substance, as follows: Nina Swindle, a girl eighteen years of age, was the subject of the assault. She and the appellant, a young man twenty-one years of age, met for the first- time on November 15, 1930, at an entertainment in the home of a neighbor of the prosecutrix. Upon that occasion, an engagement was made to go to a picture show at Lamesa, about six miles distant, on the night of November 17th. The alleged assault took place on their return from the picture show. She was assaulted and ravished while she and the appellant were in his automobile. The car was stopped at a lonely place on the road. After the occurrence, they went together to her home and arrived near midnight. On the following morning, between four and five o’clock, she reported the occurrence to her father and mother. Her clothes were examined and bore evidence of the transaction. The assault was reported to the officers, and an examination of the prosecutrix was made by a doctor, whose testimony was to the effect that his examination showed a laceration of the vaginal outlet and. a lacerated hymen clotted with blood. There was evidence of the entry of the vagina by some foreign object within twenty-four hours previous to the examination. The girl admitted that on the night of their first meeting, she and the appellant sat in his ear near the house, and permitted him to take a diamond ring from her finger, and submitted to his kissing her. It was then that the engagement was made to attend the picture show two days later.

The appellant’s testimony is to the effect that the prosecutrix submitted to the act of intercourse voluntarily; that all he did was with her consent, and that on their way home after the act of intercourse she consented to a subsequent engagement. This she admitted with the explanation that it was through fear.

Such weaknesses in the testimony as would warrant this court in declaring that as a matter of law the evidence was not sufficient to support the verdict have not been perceived in the record.

Each of the precedents cited by the appellant are distinguishable on the facts from the present case.

In Price’s Case, 36 Tex. Cr. R. 143, 35 S. W. 988, the prosecutrix suppressed the alleged assault until her condition advised the members of her family of her pregnancy.

In Arnett’s Case, 40 Tex. Cr. R. 617, 51 S. W. 385, the prosecutrix was without corroboration, and the physical facts combated the accuracy of her story. Her testimony was contradictory. The case was reversed by a divided court.

In the Perez Case, 50 Tex. Cr. R. 34, 94 S. W. 1036, the occurrence was within a few yards of a gang of laborers. The prosecu-trix had two men protectors. It was claimed that these were put under duress. She made no outcry such as would attract the attention of persons nearby, and, according to her own testimony, the prosecutrix made no such resistance as the occasion demanded.

In Rushing’s Case (Tex. Cr. App.) 80 S. W. 527, the evidence was regarded by the court as insufficient to show that there was copulation.

The Rogers’ Case, 88 Tex. Cr. R. 109, 225 S. W. 57, was not reversed upon the insufficiency of the evidence, though in discussing that phase of the appeal, it was shown that the prosecutrix made no report of the assault to her family, and was uncorroborated1..

In the motion for new trial, the claim is made that reversible error occurred in the examination of talesmen by the court in the absence of the appellant. Of the evidence for the accused, the following is a summary: After the state and the accused had announced ready for trial and a special ve-nire of fifty men were exhausted, the sheriff was ordered to summon twelve more. These were seated in the box, sworn and questioned touching their qualifications and with reference to any excuse they might have; to offer. The sheriff was instructed in open court to retire the jurors and call them for examination one at a time. It was not until they were so called or examined individmally that the appellant was brought into the courtroom. When recalled, they were reexamined with reference to their qualifications. On behalf of the state, the judge testified, in substance, as follows: When the twelve men reported, the attorney for the state and the appellant were present. He stated to the attorney for the appellant: “I believe I will qualify these twelve instead of taking them one by one.” The attorney for the appellant said that would be all right as it would save time. The judge then called the twelve men into the courtroom, where they were sworn and interrogated as to their qualifications. They were all qualified. No excuses were offered. They were retired at the command of the court. Upon going to his office, the question occurred to the judge whether the accused was in the courtroom at the time the proceeding above mentioned was had. The judge’s statement is quoted as follows: “Being uncertain of this fact and not making inquiry to ascertain whether it were a fact, when the jurors presented themselves one by one at which time the defendant was present in court, I again asked them the statutory questions relative to their qualifications as jurors before passing them to counsel for further examination.”

In support of his motion, the following authorities are cited by the appellant: Article 580, C. C. P.; Bell v. State, 32 Tex. Cr. R. 436, 24 S. W. 418; Oliver v. State, 70 Tex. Cr. R. 140, 159 S. W. 235; Bullock v. State, 73 Tex. Cr. R. 419, 165 S. W. 196; Porter v. State, 86 Tex. Cr. R. 23, 215 S. W. 201; Crow v. State, 89 Tex. Cr. R. 149, 230 S. W. 148; Littleton v. State, 91 Tex. Cr. R. 205, 239 S. W. 202; see, also, Cason v. State, 52 Tex. Cr. R. 220, 106 S. W. 337; Foreman v. State, 60 Tex. Cr. R. 576, 132 S. W. 937; Sweat v. State, 4 Tex. App. 617; Cordova v. State, 6 Tex. App. 207; Escareno v. State, 16 Tex. App. 85; Bracken v. State, 29 Tex. Cr. R. 362, 16 S. W. 192; Vernon’s Ann. Tex. C. C. P., Vol. 2, p. 6; also Curl v. State, 65 Tex. Cr. R. 431, 145 S. W. 602.

The statutes require that in a felony case the accused must be present at the trial. Articles 580 and 679, C. C. P. The absence of the accused at some stage of the proceedings does not in every instance require a reversal. See Ex parte Cassas, 112 Tex. 100,13 S.W.(2d) 869; also Powers v. State, 23 Tex. App. 42, 5 S. W. 153, 156; Cartwright v. State, 97 Tex. Cr. R. 230, 259 S. W. 1085; O’Toole v. State, 40 Tex. Cr. R. 578, 51 S. W. 244; Sullivan v. State, 90 Tex. Cr. R. 170, 233 S. W. 986; Speegle v. State, 102 Tex. Cr. R. 500, 278 S. W. 437.

In the Powers Case, supra, it appears that five of the talesmen were examined when the jury was called. One of them was examined as to his qualifications, and was peremptorily challenged by the state. When the absence of the accused was ascertained, the proceedings were stopped, and an unsuccessful effort was made to find Adams. It was obvious that no harm resulted from the occurrence. The. court said: “A selection of the jury is beyond doubt one of the mgst important features of a trial for a capital felony, and we can well imagine how important it is ordinarily for a defendant to be present during such proceedings. But in any case, when a rule is invoked for nonobservance, there should at least appear some slight reason why it should have been observed. It is a maxim that, as a general thing where the reason of a rule fails, the rule ceases to be obligatory or operative.”

The rule is exemplified under similar facts by the other cases cited above.

It is thought that no reversible error is disclosed by the procedure.

The judgment is affirmed.


author: LATTIMORE, J. ' HAWKINS, J.

text:
    McDaniel v. state.
    No. 14137.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Rehearing Denied Oct. 21, 1931.

      Loftin & Hall, of Henrietta, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J. '

Conviction for manufacturing intoxicating liquor; punishment, one year in the penitentiary.

. There are three bills of exception in the record. The facts in this case admitted and testified to by the appellant are to the effect that he was employed by a man to work at a still where he engaged in the manufacture of intoxicating liquor for two days, his claim being that the man was to pay him so much per day, and in addition give him a quantity of whisky. His claim was that he wanted the whisky for his wife’s use as medicine.- He was observed in company with another man carrying a keg of whisky across a river, by witnesses who testified to these facts.

Appellant’s first bill of exception complains of the court’s charge, in substance, that it is not unlawful to manufacture intoxicating liquor for medicinal purposes solely, but it is unlawful to manufacture intoxicating liquor for both medicinal and other purposes. Complaint of this was that it was on the weight of the evidence. In view of the facts testified to by appellant himself, we do not regard this objection as serious. This bill is qualified by the trial court, who calls attention to the fact that appellant testified that he and the man for whom he was working were making about sixteen gallons of whisky per day, and there was no evidence as to what the other whisky was being made for. A man could clearly not make a pint a day or week for use as medicine, and go free for the hundred gallons made for other purposes.

Bill of exception No. 2 is in substance the same as bill No. 1. The third bill of exception complains of the refusal of a special charge in which appellant sought to have the jury told that it is -not a violation of the law to manufacture Intoxicating liquor for medicinal purposes, and that if the jury found from the evidence that it was necessary for appellant to keep whisky for his wife’s health, and that he helped make the whisky for the purpose of securing some of same to be used as medicine, they should acquit. This charge is manifestly not the law.

No error appearing in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant testified that he was helping operate the still in manufacturing intoxicating liquor and that for two days’ work he was to receive $4 and a pint of whisky; that he took the employment to get the whisky for his wife who needed it for medicinal purposes. A much greater quantity of whisky was manufactured than the pint which appellant was to receive. There was no evidence that such additional liquor was being manufactured for medicinal or any other of the excepted purposes. The court charged the jury that “it is not unlawful to manufacture intoxicating liquor for medicinal purposes solely, but it is unlawful to manufacture intoxicating liquor for both medicinal and other purposes.” The jury was further instructed that if appellant manufactured the liquor “solely for medicinal purposes he should be acquitted.” In his motion for rehearing appellant assumes that because his testimony raised the issue the court’s instruction had singled out such testimony and that it was a charge upon the weight of the evidence. We cannot so regard the instruction. The court was trying to apply the law to a rather peculiar state of facts presented by appellant.

Appellant further urges that in restricting the defense to manufacturing whisky for medicinal purposes “solely” our original opinion is in conflict with Veasey v. State, 97 Tex. Cr. R. 299, 260 S. W. 1054; Tetmeyer v. State, 114 Tex. Cr. R. 531, 26 S.W.(2d) 266; and Hufstetler v. State (Tex. Cr. App.) 33 S.W. (2d) 461. In all of the eases mentioned the prosecution was for possessing intoxicating liquor for the purpose of sale. Under the statute (article 666, P. C. 1925), it is made unlawful to possess intoxicating liquor for the purpose of sale. Possession for any other purpose is not an offense. Hence, an instruction such as was given in the present case would be a manifest misstatement of the law if given in a case where the offense was possession for the purpose of sale.

The present prosecution was for manufacturing intoxicating liquor. We cannot regard the charge in this case under the facts as either erroneous, confusing, or misleading.

The motion for rehearing is overruled.


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

text:
    ARGOVITZ v. STATE.
    No. 14248.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    Rehearing Denied Oct. 21, 1931.
    Baskett & De Lee, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is embezzlement; penalty assessed at confinement in the county jail for 365 days.

The appellant was allowed forty-five days after the first day of November, 1930, within which to prepare and file the statement of facts. The statement of facts found in the record was. not filed within the time Mentioned, but was filed more than ninety days after notice of appeal. By article 760, C. C. P., this court is forbidden to consider the statement of facts.

The offense is a misdemeanor. The complaint and information appear regular. But two bills of exception are found in the record. Each of them is based upon the contention that the evidence does not justify the conviction. No evidence appears in the bills of exception, and that appearing in the statement of facts, as above stated, is not available upon this appeal.

Einding nothing presented for review; which would warrant a reversal of the judgment, an .affirmance is ordered.

On Motion for Rehearing.

LATTIMORE, J.

In his motion, supported by affidavit, appellant insists that we should consider his •statement of facts, his proposition being that, after the expiration of the time given him by the court’s orders within which to file a statement of facts, his statement of facts was indorsed by the trial court: “Examined, ap-’ proved and ordered filed.” The record shows that on October 30, 1930, the court overruled appellant’s motion for new trial. The trial term of said court ended November 1, 1930. On November 29th of said year, appellant filed a request that he be allowed fifteen additional days in which to prepare and have filed a statement of facts, stating in said application that the time allowed him by law to file said statement of facts would expire on Monday, December 1st.. Said application was presented to the court on the day same was filed, and the court granted said additional time, stating in his order that appellant would be given the additional time, making forty-five days after the adjournment of court in which to file his statement of facts. In his affidavit filed in support of this motion, it is made to appear that no statement of facts was filed within said forty-five days, but that thereafter a statement of facts was presented to the trial judge, and that on Saturday, January 31, 1931', said judge agreed to approve the statement of facts and let the appellate court decide the matter as to whether or not it Would consider the statement of facts. Appellant’s point is, that the statement of facts having been approved by the trial judge and filed, even if it was not within the time allowed by law, this court should consider same, following certain decisions of the civil appellate courts referred to in the motion. This court has declined in many cases collated under Mr. Yernon’s notes to article 760, O. 0. P., to consider statements of facts not filed within the time allowed by said article, and has .uniformly followed the statute therein laid down. The authorities are too numerous to need citation.

The motion for rehearing will be overruled.


author: CHRISTIAN, J. LATTIMORE, J.

text:
    TAYLOR v. STATE.
    No. 14108.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    State’s Rehearing Denied Oct. 21, 1931.

      Collins & Martin, of üillsboro, for appellant.
    Sam H. Allred, Jr., Dist. Atty., of Hills-boro, and Lloyd W. Davidson, State’s Atty., of Austin,, for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one year.* Having procured a search warrant, officers went to appellant’s residence and filling station for the purpose of searching for intoxicating liquors. They first entered appellant’s gasoline station and arrested him. Thereafter they searched his residence and found a number of empty pint bottles and some quart jars. A search of appellant’s garage disclosed 17 pints of whisky under the seat of an unregistered automobile. The officers found in the yard a five-gallon keg with a small amount of whisky in it. A witness for the state testified that he had bought whisky from appellant a short time before the search.

Testifying in his own behalf, appellant denied that he made a sale of liquor to the witness. He declared that he had no knowledge whatever of any whisky being on hie premises prior to the time the officers made the search. He testified that the truck in which the officers found 17 pints of whisky had not been registered and had not been used by him at any time during the year 1930. He said that on an occasion a short time before the search a man by the name of Lennix, who had been previously indicted for selling intoxicating liquor, had borrowed the truck for the purpose of moving his family, and that he (appellant) had not examined the truck when it had been returned to the garage. Appellant further testified that he had found the keg and pint bottles while traveling along the highway. He said he was engaged in buying and selling bottles. Appellant further testified that tne whisky found by the officerk did not belong to him, and that he had no knowledge it was on his premises until the officers discovered it.

Appellant brings forward several bills of exception relating to the action of the court in permitting the district attorney to ask appellant, on cross-examination, in substance; if he made the same explanation to the officers at the time they made the search that he was then making to the jury. Being required to answer the question, appellant replied in the negative. It is certified in the bill of exception that appellant was under arrest during the entire time the officers were making the search and until they removed appellant to the jail. The bills manifest error. The state used the presence of whisky in the truck and the finding of bottles, jars and keg on appellant’s premises as circumstances of guilt. On the trial, as hereinbefore stated, appellant made an explanation of the presence of the whisky and other articles, which, if believed, would have exculpated him. The state could not avail itself of appellant’s silence during the time he was under arrest as. evidence of guilt, or as destructive of his*

explanation given on the trial. Thompson v. State, 88 Tex. Cr. R. 29, 224 S. W. 892; Ripley v. State, 58 Tex. Cr. R. 489, 126 S. W. 586; Johnson v. State, 100 Tex. Cr. R. 215, 272 S. W. 783; Williams v. State, 100 Tex. Cr. R. 143, 272 S. W. 783; Skirlock v. State, 100 Tex. Cr. R. 178, 272 S. W. 782; Russell v. State, 111 Tex. Cr R. 366, 12 S.W.(2d) 1027; Brown v. State, 101 Tex. Cr. R. 421, 275 S. W. 1069, 1070.

The judgment is reversed, and the cause! remanded.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

The state thinks us wrong in holding erroneous those questions set out in several bills of exception which called for testimony from appellant while on the witness stand, in effect, that, after his arrest and while in custody, he did not make to the officers, as to certain criminating matters found in and on his premises at the time same were searched and he was arrested, the explanation now made of same by him while a witness. In the early case of Nolen v. State, 14 Texas App. 474, 46 Am. Rep. 247, we held that acts of the accused, and even his silence while under arrest, might be in the nature of confessions, and hence same would be inadmissible, unless coming under some exception to the statutory rule laid down in what is now article 727, C. C. P. Attention is called to this in addition to the authorities cited in. our original opinion. The rule rejecting such» testimony would seem to be the same whether’ the testimony be offered originally or as impeachment. We think the case of Henderson. v. State, 50 Tex. Cr. R. 604, 101 S. W. 208, 209, and others cited by the state in its motion, easily distinguishable in principle from the one applicable to the case before us. The question asked the accused in the Henderson Case, supra, and held by us proper, did not call for or relate to matters occurring while the accused was under arrest and unwarned. This fact makes sufficient difference. We think it clearly a violation of the rights of the accused to compel him to admit that, after he was arrested and while under arrest and unwarned, he made no explanation 'of the presence on his premises of certain matters deemed incriminating, and whose presence was explained by him while ón the witness stand.

We think the case correctly decided, and the state’s motion for rehearing will be overruled.


author: CALHOUN, J. LATTIMORE, J.

text:
    WINNEGAR v. STATE.
    No. 14285.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    Rehearing Denied Oct. 21, 1931.
    Art Schlofman, of Dalhart, for appellant.
    Lloyd W. Davidson, State’q Atty., of Austin, for the State.
   CALHOUN, J.

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

What purports to be a transcript of the proceedings in this cause is certified by the clerk as follows:

“The State of Texas, County of Hartley.
“I, Noble Thomas, Clerk of the District Court in and for said County and State, do hereby certify that the foregoing Eighty-one pages, numbered from One to Eighty-one inclusive, is made up, partly from the minutes, and partly from copies furnished by Defendant’s Attorney, and that the original papers were taken from my office by Defendant’s Attorney, and he is charged with them, and they have not been returned,, as to the proceedings had in said Court in the Case of The State of Texas, Vs, Jack Winnegar, Numbered 263 on the docket of said Court.
“Given under my hand and seal of office, this the 21st day of February, A. D. 1931. [Signed] Noble Thomas Clerk of District Court, Hartley County, Texas.”

The clerk does not certify to the correctness of the transcript. Such certificate does not state whether the same is a transcript of all of the proceedings in the cause of a transcript agreed upon by the parties'. The certificate does not comply with article 2282, R. C. S. 1925, and with article 841, C. C. P.

The transcript not being properly certified to, we cannot entertain jurisdiction, and the appeal will therefore be dismissed for failure to comply with the law. Ex parte Newman et al. (Tex. Cr. App.) 20 S.W.(2d) 785; Gray v. State, 112 Tex. Cr. R. 179, 15 S.W.(2d) 641; Ray v. State, 89 Tex. Cr. R. 401, 231 S. W, 396.

We wish, to state in passing that there is nothing in the record showing that after notice of appeal had been given the record or any portion thereof had been lost or destroyed, but if such is the case, then the proper procedure is found under article 828, C. C. P. .(1925).

The appeal is dismissed.

PER CURIAM.

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

On Motion to Reinstate Appeal.

LATTIMORE, J.

This court has no desire to indulge in strictures to any unnecessary extent. The certificate of the district clerk, set out in our judgment of dismissal, to the effect that subsequent to the trial appellant’s attorney took from the office of said clerk all the papers in this case and had not returned them so as to enable the clerk to make out a correct transcript, reflects a rather serious proposition. As appears from the date of said certificate, same was made in February, 1931. There is nothing in the record to support any conclusion that the papers ha.d been returned to the clerk’s office, or that any method, in accordance with law, had been sought to haye same substituted. In connection with his motion to reinstate the appeal, appellant presents an unsworn request of his attorney for a writ of certiorari. Same is entirely inadequate. In addition to not being sworn to (see Rule 11 for appellate courts, 2 Texas App. 627, and Ball v. State, 31 Tex. Cr. R. 214, 20 S. W. 363), there is nothing in the motion setting out, in substance or tenor, the missing papers, or any attempt to describe them so that this court might know whether the granting .of a writ could accomplish any result.

The motion to reinstate the appeal is denied.


author: CHBISTIAN, J.

text:
    PREISS v. STATE.
    No. 14655.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    N. T. Stubbs, of Johnson City, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHBISTIAN, J.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for one year.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PEBCUBIAM.

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


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

text:
    CHADWICK v. STATE.
    No. 14462.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    Behearing Denied Oct. 21, 1931.
    O’Brien Stevens, Crim. Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The indictment under which appellant was tried charged the offense of forgery of a land title and contained averments to the effect that appellant had been previously convicted of an offense of like character; because of repetition of offenses, the penalty was assessed at confinement in the penitentiary for twenty years.

The state’s testimony was, in substance, as follows; Appellant forged the name of W. T. Flynn to a deed conveying a tract of land to appellant. The deed was placed on record by appellant in the county clerk’s office, after appellant had acknowledged it before a notary as W. T. Flynn. W. T. Flynn gave appellant no authority to sign his name to the deed. Appellant represented to Mr. Graham, who was in the real estate business, that he wanted to exchange some of his property for land that he could subdivide. Mr. Graham wrote W. T. Flynn about trading his land to appellant. He received a reply wherein he was advised that Mr. Flynn might be interested in appellant’s land. Appellant obtained the letter written by Mr. Flynn, thus getting the signature of Flynn, which he thereafter forged to the deed. Officers arrested appellant in Dallas, where he was going under the name of Smith.' The forged deed was found in his possession.

Appellant. testified that lie had nothing to do with the forged instrument, and denied that it was found in his possession.

No -bills of exception áre brought forward.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

MORROW, P. J.

Appellant, in his own behalf, has filed a motion for rehearing, also a statement that he desires to appeal to the Supreme Court of the United States. The motion for rehearing presents no matter that has not had full consideration on the original hearing. There are no legal questions raised by the record save the sufficiency of the evidence. The evidence given before the jury is deemed quite adequate to support the verdict.

Touching the appeal to the Supreme Court of the United States, the matter is not presented in a manner that can be considered. Since the appellant seems not to be represented by an attorney, we deem it not improper to advise him that the overruling of his motion for rehearing does not impair any right he may have to appeal to the Supreme Court of the United States.

The motion for rehearing is overruled.


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

text:
    R. P. CHADWICK v. STATE.
    No. 14461.
    Court of Criminal Appeals of Texas.
    June 17,1931.
    See, also, 42 S.W.(2d) 429.
    O’Brien Stevens, Crim. Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for forgery; punishment,. seven years in the penitentiary.

The charge in this case is the forgery of a deed. Appellant seems not to have been represented by counsel upon the trial, arid we find in the record no bills of exception complaining of any error supposed to ¿ave occurred during the trial. A motion for new trial was filed by appellant in person. The complaints set out in said motion do not appear to be in such form, or of such substance, as to induce this court to believe any reversible error was committed during the trial.

The judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

This is a companion case to 42 S.W.(2d) 429, in which the motion for rehearing has this day been ■ overruled, and the remarks there made are applicable to the present motion, which is also overruled.


author: CALHOUN, J.

text:
    JOHNSON v. STATE.
    No. 14534.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Rehearing Denied Oct. 28, 1931.
    Wallace Hughston and A. M. Wolford, both McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State!
   CALHOUN, J.

Offense, the unlawful sale of intoxicating liquor; penalty, one year in the penitentiary.

The record in this case is here without either a statement of facts or any bill of exception, and presents nothing for review.

The judgment is affirmed.

PER CURIAM.

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


author: CALHOUN', J.

text:
    ACREE v. STATE.
    No. 14540.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    E. B. Simmons, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN', J.

The offense is murder; the punishment, confinement in the penitentiary for 50 years.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

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


author: CHRISTIAN, J.

text:
    WILLIAMS v. STATE.
    No. 14632.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Rucks & Enlow, of Angleton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. ■
   CHRISTIAN, J.

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

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

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


text:
    RATLIFF v. STATE.
    No. 14626.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Wright Stubbs, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is. forgery; the punishment, confinement in the penitentiary for five years.

The record is before us without statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

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


author: CHRISTIAN, X

text:
    McDANIEL v. STATE.
    No. 14651.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    W. J. Flesher, of Amafillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, X

The offense is theft; the punishment, confinement in the penitentiary for three years. ■ The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

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


text:
    SMALLWOOD v. STATE.
    No. 14542.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Wallace I-Iughston, of McKinney, for appellant. ■ ■
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The .offense is removing mortgaged property ; the punishment, confinement in the penitentiary for two years.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

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


text:
    BATISTE v. STATE.
    No. 14677.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    F. G. Vaughn, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, X

The offense is failing to stop and render aid; the punishment, confinement in jail for 180 days.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

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


author: CHRISTIAN, J. HAWKINS, J.

text:
    JACKSON v. STATE.
    No. 14480.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Rehearing Denied Oct. 21, 1931.
    Y. H. Archer and J. W. Marlow, both of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, death.

The parties involved are negroes. On the morning of the homicide appellant was mov-i g away from Eliza Pinson’s home, where he had been rooming. After placing his effects in a Mexican’s truck, appellant went into the back yard, where deceased was washing. We quote the testimony of a witness to the homicide as follows: At that time she (deceased) had a sheet which was not open, and went to throw that sheet on the line and this Jackson man came around the corner of the house and didn’t say a word to her, because I was standing there. He came around the house and got in front of her and I saw something in his hand. He came on and went to shooting, and didn’t say a word, and he had the ugliest look on his face I ever saw on a human. 1-Ie fired three shots, at which time Eliza Pinson was not doing anything to him, but was washing and fixing to hang the sheet on the line. She never said a word to him. At that time Helen was with her mother and she screamed and asked him not to shoot any more. After Alfred Jackson got through shooting he walked around the house and that was the last I saw of him. When he shot Liza Pinson she screamed and fell back and hollered ‘murder’ and asked him not to shoot her any more.”

The daughter of deceased gave substantially the same version of the transaction. The state’s testimony was to the effect that appellant fled after he had fired the fatal shots. Several weeks thereafter he was apprehended.

Appellant testified, in substance, that deceased’s son had been in the habit of having drinking parties at the house, which disturbed his (appellant’s) rest; that on one occasion he (appellant) had thrown a drunken man out of the house; that after this occurrence the inmates of the house had apparently become angry with him; that deceased’s son threatened to kill him; that he decided to move away from the place in order to avoid trouble; that he had bought a pistol for the purpose of protecting himself against the son of deceased; that on the morning of the homicide as he went around the house to the back yard he thought he saw deceased’s son step off of the porch; that he drew his pistol for the purpose of protecting himself. At this point we quote appellant’s testimony as follows: “I think it was Phillip Pinson, (deceased’s- son) and when I came to the corner of the house where Mrs. Pinson and her daughter were, or rather, where they had a wash bench, here is the window (indicating), I walked from there and pulled the gun and got to the corner and Mrs. Pinson had the hose down there, which ran from the hydrant, and when I pulled that gun and had my hand on the trigger I stumbled over that hose and. it made me make a jerk on the gun and it fired twice in succession, and Helen Pinson screamed, and I said, ‘My God, I have shot that girl.’ I turned and went immediately to the front steps and she went to Mrs. Williams and I waited on away. I remember seeing Mrs. Pinson just beyond the clothes-line, and I did not know at that time that any of these bullets struck Mrs. Pinson as I was under the impression I had shot the girl. After that I left town, but did not do so right away.”

Phillip Pinson, testifying in rebuttal for ■the state, denied that he had ever had any trouble with appellant or that he had threatened him;

Bill of exception No. 1 recites that while counsel for the state was cross-examining appellant he said to him; “Wipe that sweat off of your face.” Appellant objected, and the court sustained the objection and instructed the jury not to consider the remark. The opinion is expressed that the bill fails to show error.

As reflected by bill of exception No. 2, after state's counsel objected to a question propounded to appellant, counsel for appellant stated that he was merely trying to get the truth out of appellant. State’s counsel replied that it was impossible to get the truth from that “lying negro.” Appellant’s objection to the remark was promptly sustained, and the court instructed the jury not to consider it for any purpose. The remark was improper. However, appellant’s version of the transaction was not calculated to impress a reasonable mind with the view that he was telling the truth. The evidence of guilt was direct.- The mere expression of the opinion by state’s counsel that appellant was not telling the truth would not, in our opinion, warrant a reversal of the judgment.

As shown by bill of exception No. 4, state’s counsel stated in his argument to the jury that appellant' had “told one lie after the other on the witness stand.” The court overruled appellant’s objection to the argument, and- declined to instruct the jury to disregard it. Without approving the choice of language by counsel, the opinion is expressed that counsel stated his conclusion drawn from the facts in evidence. The argument contained no statement violative qf a statutory mandate. It must be weighed by the setting in which it occurred. Franklin v. State, 104 Tex. Or. R. 240, 283 S. W. 802. While it is true that counsel for the state should refrain from expressing opinions of guilt, the nonobservance of this rule rarely ever calls for a reversal. We quote from Young v. State, 19 Tex. App. 536, as follows: “While it is true that authors in treating upon this subject say that counsel either for or against the prisoner should never express their opinion as to the guilt or innocence of the accused, yet we would hesitate at this day to reverse a judgment because of a violation of this rule.”

In Marinkovich v. State, 96 Tex. Cr. R. 59. 255 S. W. 734, Judge Hawkins, speaking for the court, quoted the foregoing excerpt from Young v. State, supra, with approval. In Ball v. State (Tex. Cr. App.) 78 S. W. 508, 509, counsel for the state, in referring to the appellant, said: “If ever there was a man who swore a lie on the witness stand, this man Ball swore one.” Further, counsel said: “This defendant is as guilty a scoundrel and liar as was ever tried in a courthouse.” In declining to reverse the judgment this court held that mere expressions of the belief on the part of the prosecuting attorney as to the guilt of accused would not warrant a reversal.

The remaining bill of exception recites that counsel for the state, in argument, referred to apellant as “a beast, a black murderer,” and further said that appellant’s soul was “as black as the hinges on the doors to hell.” No special charge requesting the withdrawal of the argument was presented by appellant’s counsel. His objection was overruled and the court declined to orally instruct the jury not to consider the remarks. In Frizzell v. State, 30 Tex. App. 42, 16 S. W. 751, 752, in which a death penalty was assessed, the district'attorney referred to the accused as “a tramp, a vagabond, and a villain.” Presiding Judge White, in holding that the remarks did not present reversible error, said: “We are of opinion that no injury is shown by this bill of exceptions. It is not shown that the remarks were such that under the circumstances they were calculated to illegally affect the defendant’s rights.” In Borders v. State, 72 Tex. Cr. R. 135, 161 S. W. 483, in which a life penalty for murder was assessed, the prosecuting attorney pointed his finger at the accused and called him a “ ‘coldblooded brute’ and ‘an animal.’ ” In overruling the contention that reversible error was presented, this court said: “While the prosecuting officer ought never to use epithets of any character, yet the killing, as shown by the evidence in this case, was done in rather a deliberate and brutal manner, and under such circumstances the language used would not present reversible error, and especially is this the case where no special charge was requested in regard thereto.” In Marshall v. State, 104 Tex. Cr. R. 619, 286 S. W. 214, 217, in which the accused received a penalty of 25 years for murder, the district attorney, in argument, referred to the accused as “a coldblooded murderer.” Objection was interposed and the court was requested to instruct the jury not to consider the remarks. The objection was overruled and the requested instruction refused. In declining to reverse the case this court, speaking through Judge Lat-timore, said: “The attorney did not state the above as his private opinion. The language used by the attorney in Thomas v. State, 33 Tex. Cr. R. 607, 28 S. W. 534, was that the de-

fendant murdered Farley while asleep, and, after brutally killing him, he robbed him, etc. Also the attorney said: ‘The defendant has committed a brutal murder.’ This court refused to reverse for this language. In the Boxley’s Case [100 Tex. Cr. R. 334, 273 S. W. 592], cited in our original opinion, the killing was referred to as ‘A cold-blooded assassination,’ which was held not reversible.”

It was a fact that appellant was black. In referring to him as a murderer, the language used by the prosecuting attorney was no stronger than that used in Marshall v. State, supra. State’s counsel used a mere figure of speech in referring to the soul of appellant as being ‘'black as the hinges on the doors to-ben.” The reference to appellant as “a beast” was no stronger than the language used in Borders v. State, supra, wherein the accused was referred to as a “cold-blooded brute”; nor was it stronger than in Frizzell’s Case, wherein the accused was called “a tramp, a vagabond, and a villain.” The action of the district attorney in using the remarks complained of is not approved; but the opinion is expressed that in the light of the evidence the remarks were not calculated to illegally affect appellant’s rights. If the state’s testimony was to be believed by the jury, appellant committed an atrocious crime. Having accepted the state’s version of the transaction, it is not strange that the jury inflicted the extreme penalty. The conclusion is inescapable that the jury looked alone to the facts and circumstances in evidence in assessing the penalty. We deem it proper to quote the language of Judge Hawkins in Silver v. State, 110 Tex. Cr. R. 512, 8 S.W.(2d) 144, 148, 9 S. W.(2d) 358, 60 A. L. R. 290, as follows: “Another thing that must be borne in mind is that the facts and surroundings of the particular case should be looked to in determining the effect of an argument complained of. The same language under a certain state of facts might be highly prejudicial, and not so. regarded under other circumstances. This is illustrated in Todd v. State, 93 Tex. Cr. R. 553, 248 S. W. 695; Coates v. State, 98 Tex. Cr. R. 314, 265 S. W. 891; Vineyard v. State, 96 Tex. Cr. R. 401, 257 S. W. 548.”

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing appellant’s attorneys again urge the same points relied upon for reversal in the original submission.

These young men deserve much credit for ■the splendid manner in which they have represented their client. That he has been condemned to suffer the extreme penalty of the law is in no way attributable to them, but is because of the facts in the case, for which they are in no wise responsible. The severe penalty inflicted has prompted a re-examination of the record. The authorities reviewed in the original opinion support the conclusion then expressed. Further investigation leads us to again say that in our judgment nothing which occurred during the trial of which complaint is made can reasonably be said to have contributed to appellant’s conviction or the punishment assessed.

The fact that in the original opinion we said no request had been made for the withdrawal of certain arguments or remarks of the district attorney is not to be construed as a criticism of counsel representing appellant. If the things complained of were thought by us to have been seriously harmful their withdrawal from the jury, or a failure to ask that they be withdrawn, would not affect the matter; they having been objected to at the time of their occurrence. Appellant is the victim of facts of his own making, and the consequences seem to have been deserved.

The motion for rehearing is overruled.


text:
    McDANIEL v. STATE.
    No. 14262.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    Rehearing Denied Oct. 21, 1931.

      Adams & McAlister, of Nacogdoches, for appellant.
    Lloyd W. • Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

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

The appellant shot and killed Elbert Johnson. The following, in substance, comes from the statement of the appellant, who testified in his own behalf: Upon returning to his home after a short absence, he was informed by his wife that Elbert Johnson had entered the appellant’s home while in a naked condition. When the appellant’s wife informed him of the occurrence, she was quite agitated and disturbed. He went to Johnson and had a conversation with him. From the appellant’s report of the conversation the following quotation is taken: “My wife said you broke in on her while I was gone, and what caused you to do that? He said, ‘That’s a lie; I didn’t do it.’ I said, ‘She swears that you were buck naked, and that you pulled your clothes off so she wouldn’t know you. I don’t want you to tell me; I want you to come back here and see what she says.’ And he says, ‘It’s a lie; I didn’t do it.’ I said, ‘She swears it was you, and I want you to come up there and see what she says.’ Then we went up to the house and my wife came out and she says, ‘That is the man that came in on her the 'other night;’ and it just went all over me and got me crazy’and got me so mad I went in the room and got my gun and shot him. I was just crazy and didn’t know what to do; it tore me all to pieces. I don’t know how many times I shot him; to tell you the truth, I couldn’t tell; I was tore all to pieces and went to shooting my pistol.”

Appellant further stated that his wife was crying, that she was very much agitated, and that she immediately recognized the deceased as the intruder. Appellant further testified:

“tVhen I shot him, I shot him because I believed, at the time I shot him, what my wife said about him. I actually believed it to my heart.”

The testimony of the wife of the deceased is, in substance, as follows: The two families used water from the same well. Deceased and the appellant met at the well. After a conversation which she did not hear, they went to the home of the appellant, which was nearby. The son of. the deceased followed them. She heard a gun fire and saw her husband running. She heard him holler, “Don’t shoot.” The appellant fired two more shots. The deceased was dead when the witness reached him. He was unarmed.

Elmer Johnson, son of the deceased, testified that he heard the conversation between appellant and deceased; that appellant told deceased to accompany him, and deceased said, “All right.” When the appellant reached his home he carried a bucket of water into the house and came out with his gun. Both deceased and appellant were upon the porch. Appellant shot the deceased three times. The deceased did nothing. He ran and hollered after the first shot. The witness heard the appellant’s wife say, “That is the man that had been in her house one night when she was left alone.” He did not hear her say that the man was naked. The deceased denied his identity as the person who had entered the appellant’s home.

The wife of the appellant was not a witness in the trial.

The complaint of the refusal of the court to compel state’s counsel to make the opening statement, as permitted by subdivision 3 of article 642, C. C. P., as presented, was not error. Disregard of the provisions of the statute, in the absence of a showing of injury, is not regarded reversible error. See Herndon v. State, 82 Tex. Cr. E. 232, 198 S. W. 788; Brown v. State, 87 Tex. Cr. E. 261, 222 S. W. 252; Wray v. State, 89 Tex. Cr. E. 632, 232 S. W. 808. The bill is accompanied by nothing showing an abuse of discretion in overruling the motion to compel state’s counsel to make the statement.

The relevancy of the testimony of the wife of the deceased that, in so far as she knew, her husband was not in the habit of visiting the home of the appellant, is not perceived, though if is not error.

The subject of the general reputation of the deceased as a peaceable and quiet individual was introduced by the appellant. His complaint of the state’s testimony on the subject is untenable.

Several bills of exception deal with the testimony showing declarations of the wife of the deceased. If we comprehend the facts revealed by the evidence, the appellant and the deceased were.negroes. They were tenants on the farm of Lem Satterwhite and wife. The dwelling place of the appellant and that of the deceased were close together. That of Satterwhite was not far distant. The homicide took place on Sunday evening. Early in the week ending upon that day, the appellant had left his home, returning on Saturday night.

On behalf of the appellant, his sister-in-law, Elsie Anderson, testified that on Friday preceding the homicide, she was informed by Melissa McDaniel, wife of the appellant, that “somebody come in there naked in her house.” Before the time that Elsie Anderson testified, the state called Lem Satterwhite, who testified that Melissa McDaniel had reported to the witness and his wife that “somebody came in her house one night.” However, the witness, on direct examination, made no further statement upon the subject. On cross-examination, Satterwhite testified tb the good reputation for peace and quietude of both the appellant and the deceased.

Mrs. Lem Satterwhite, introduced on behalf of the state, testified that on Friday the wife of the appellant reported to the witness “about somebody being there in her house one night.” She further testified that on the Sunday morning following, the appellant, John McDaniel, and his wife, Melissa, came to the house of the witness and a conversation took place. The witness said: “I will state that Sunday morning she and John came down there. You want to know what Melissa said? John was there and heard the conversation. Melissa said at that time she did not know who it was; that he was either a small man or a boy; that he did not have any clothes on; 'that if he had had any clothes on, she would have known them; if he had had a hat she could have told what kind of a hat; * ⅜ * but that she did not have any way of knowing who it was. * * * John first said that he heard there had been a little trouble since he left, and I told him just what I said. He did not discuss very much, except that he watched Melissa mighty close, when she said what she did. What he said was in answer to something that I said, because Melissa had said the man did not have any clothes on, and she did not know vwho it was, and would have known if he had had on clothes, but that she did not know. John said then that from the way Melissa said he came in, it did not seem he came in to get something to eat.”

On cross-examination, the witness said: “John paid strict attention to what she said. * * * He did not seem to be in any way excited at what was said.”

In bill of exception No. 4 complaint is made of the testimony of Mrs. Satterwhite, quoted, in substance, above, which took place on Sunday morning before the homicide, in the presence of the appellant and his wife. It appears from the record that the conversation to which the bill relates occurred on Sunday morning before the homicide on the same evening. It is thought that the bill shows no error, as the conversation described took place before the homicide, in the presence of the appellant and his wife, and that both of them took part in it.

Bill No. 5 was also approved without objection. So far as it is understood, it is, in substance, like bill No. 4, and deals with the same matter.

Bill No. 6, as prepared by the appellant, was refused by the trial court, and in lieu thereof the judge prepared his own bill. In the bill prepared by the appellant an effort was made to predicate error upon the proof of the declaration of the appellant’s wife made to Mrs. Satterwhite on Friday morning, to which reference is made above. In the bill prepared by the court it is made to appear that the conversation mentioned was repeated by Mrs. Satterwhite on Sunday morning in the presence of the appellant and Melissa McDaniel, his wife. The substance-of the bill, as prepared by the court, is set forth in the statement of facts which is quoted above, to which statement of facts the judge refers in connection with the bill prepared by him. It is apparent from the bill that Melissa McDaniel made the statement to Mrs. Satterwhite on Friday morning, and that on Sunday morning the appellant and his wife came to Mrs. Satterwhite, the appellant seeking to know what his wife had told Mrs. Satterwhite on the previous Friday; that, in response to Ms inquiry, in a conversation in which tlie appellant and his wife both took part, Mrs. Satterwhite related what she had heard Melissa McDaniel say on the preceding Friday. It appears from the bill that on Sunday morning before the homicide Mrs. Sat-terwhite informed the appellant of the declarations made by his wife on Friday, and that the information thus conveyed to him was in the presence of his wife and in a conversation in which both of them took part. The appellant defends on information which is claimed to have come from her identifying the deceased as the person who entered her home. It is conceived that knowledge brought to him before the homicide touching her previous declarations inconsistent with those which he claims she made to him was relevant on thé issue of motive, and that the manner in which her previous declarations were given to him was violative of no rule of evidence.

In view of the verdict, the exceptions to the charge are not discussed:

The issue of suspended sentence was submitted to the jury. In their verdict they made no disposition of that subject. The verdict found the appellant guilty and assessed his penalty at two years’ confinement in the penitentiary.

We fail to perceive any evidence that would require a charge on the law of self-defense. In fact, we perceive no evidence which would justify the jury in acquitting the accused.

Finding no error justifying a reversal, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

We have again examined the testimony for the defense and confess ourselves unable to find, anything calling for a charge on self-defense.

Complaint is again made of the testimony of Mrs. Satterwhite relative to what appellant’s wife, on the morning before the killing that evening and in appellant’s presence, said as to a man coming naked to her house not long before the killing. Without going into detail or extended discussion of the admissibility or relevancy vel non of this testimony, it seems enough to say that there is no such difference between what appellant testified that his wife told him prior to the killing and which he claimed led up to same, and what Mrs. Satterwhite testified appellant’s wife said in her presence Sunday morning, as could possibly have affected the verdict in this case. Appellant’s testimony that what his wife told him tore him all to pieces and so disturbed him as that he did not know what he was doing when he shot deceased, must have been accepted as true by the jury, for they gave him the lowest penalty for murder. As far as we are able to determine, it appears immaterial as to whether his wife told the exact facts to appellant, as testified to by him, or with some difference, as testified to by Mrs. Satterwhite.

No injury being apparently .possible, the motion for rehearing will be overruled.


author: CALHOUN, J. MORROW, P. J.

text:
    HARRELL v. STATE.
    No. 14039.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    Rehearing Granted Oct. 7, 1931.
    De Witt Bowmer, of Temple, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is transporting liquor; punishment, one year in the penitentiary.

The sheriff and deputy testified that they observed appellant in a public street in possession oí intoxicating liquor under circumstances winch justified his arrest under article 212, O. 0. P., authorizing an officer to arrest without a warrant one who commits a felony in the presence of the officer.

The appellant did not testify. His wife testified that appellant’s health had been bad for the last three or four years, and that he drank whisky just before breakfast for ah .appetizer, as it appeared to give him an appetite and caused him to eat more, and that he had been following that habit for the last two or three years.

The record contains two bills of exception. Bill No. 1 sets out in full appellant’s exceptions to the court’s charge: (1) Because the court charged the jury that it was an offense punishable by confinement in the penitentiary for one to five years for any person to transport spirituous liquor capable of producing intoxication, and ignored the appellant’s defense that said whisky was being transported for medicinal purposes; (2) because the court charged the jury that whisky is an intoxicating liquor; (3) because the •charge does not define the word “whisky,” the evidence having raised the issue as to whether the liquor in controversy was whisky or not; (4) an objection to the charge as a whole; (5) an objection to paragraph four of the court’s charge because it wholly ignored appellant’s defense that he was transporting the liquor in question for medicinal purposes, and authorized the jury to convict the appellant, even though the jurors helieved that he was transporting same for medicinal purposes.

There was no contradiction of the ■fact that the liquor the officers found on the -appellant, as well as that which he threw •down on the street, was whisky. The court in his charge to the jury, in substance, told the jury that they would not be authorized lo convict appellant unless they believed that it was intoxicating liquor, and that, if they liad a reasonable doubt as to whether the liquor was whisky, they would acquit the .appellant. The court also defined the words “intoxicating liquor.” Under the law, the .judge may assume that whisky is intoxicating. Aston v. State (Tex. Cr. App.) 49 S. W. 385; Maddox v. State (Tex. Cr. App.) 55 S. W. 832; Hambright v. State, 60 Tex. Cr. R. 253, 131 S. W. 1123; Mayo v. State, 62 Tex. C. R. 110, 136 S. W. 790. The court also • charged the jury that if they found and believed or had a reasonable doubt that appellant was transporting said liquor, if he was transporting it, to drink to stimulate his appetite, or for any other medicinal purposes, -.then they must acquit him, and say by their •verdict, not guilty. Some objection is also ■made to the charge as to the way and manner the court presented the affirmative defense of medicinal purposes. Taking the charge as a whole, every right and defense that appellant was entitled to under the evidence was accorded him, and we cannot see where any injustice or injury to appellant was caused by the manner in which his defense was submitted to the jury.

By bill of exception No. 2 the appellant claims that he should have been granted a new trial because of the misconduct of the jury. He contends that the jury was guilty of misconduct, in that they received other and additional testimony during their deliberations which was material evidence and prejudicial to the appellant and injured him and caused his conviction, and because the jury commented upon the failure of the appellant to testify on the trial of the case. All of the jurors testified upon the hearing of the motion for new trial. We find no evidence to show that the jury received any other or additional testimony during their deliberations. Upon the issue that the jury commented upon the failure of the appellant to testify as a witness in this case, we have carefully considered the testimony of all twelve of said jurors. No one of said jurors admits having referred to the failure of the appellant to testify. Eight of them state that they never heard the failure of the appellant to testify discussed, and those who claimed to have heard some juror mention appellant’s failure to testify all differ as to what was said, and could not give the name of the juror who made the remark. The foreman of the jury testified that he heard reference made to the failure of appellant to testify. “It was mentioned. I don’t know just how it was mentioned. I reached over and took the charge and read it and after that defendant’s failure to testify was not mentioned any more,” This evidence on the part of the foreman is not contradicted. There does not seem to have been any discussion of same, and the matter went no further than being merely mentioned, as heretofore stated. The appellant received the minimum punishment for the offense for which he was tried. This court has held that a mere reference to the fact that the accused failed to testify by a juror accompanied by no discussion of it in their retirement is-not in every case a ground for reversal. Leslie v. State (Tex. Cr. App.) 49 S. W. 73; Mason v. State (Tex. Cr. App.) 81 S. W. 718; Hammonds v. State, 114 Tex. Cr. R. 394, 23 S.W.(2d) 372; Vinson v. State, 96 Tex. Cr. R. 307, 257 S. W. 905; Dyer v. State, 96 Tex. Cr. R. 301, 257 S. W. 902. We do not believe under the interpretation of article 710, Vernon’s C. C. P., given by this court in the cases mentioned, that the mere mention of the failure of appellant to testify in his own behalf, as shown in this case, constitutes such a transgression of the statute as would call for a reversal of the case.

No reversible error appearing in tbe record, tbe judgment is affirmed.

PER CURIAM.

Tbe foregoing opinion of tbe Commission of Appeals bas been examined by tbe judges of tbe Court of Criminal Appeals, and approved by tbe court.

On Motion for Rebearing.

MORROW, P. J.

There seems to bave been no conflict of evidence or contradiction of tbe fact that members of tbe jury, during their deliberation, made comments upon tbe defendant’s failure to testify and explain bis reason for transporting the whisky found in bis possession. To illustrate, tbe testimony of juror Smith is as follows: “I did bear mention of tbe failure of tbe defendant to testify while ■the jury was considering its verdict. I do not remember which juror mentioned it. * * * Some one made tbe statement that the defendant didn’t take tbe stand and was saying that be bad tbe privilege not to do so. * ⅞ * The reference' to tbe failure of tbe defendant to testify was made between tbe first and fourth ballots and was made before I voted for guilty. I tried to decide tbe case according to tbe law and evidence, but tbe argument that tbe defendant did not explain or testify bad some weight with me to vote for ’ guilty. * * * There was some talk about him not doing so — about him not using it for medicine and not taking tbe stand.”

Tbe testimony of juror Sherrod is as follows: “During tbe time that we were considering the case there was a good bit of discussion. * * * Some argument was made by the jurors that if tbe defendant bad not bad the whisky, be would bave testified. I do not know which one of tbe jurors made that argument. * ⅛ ⅜ There was no discussion — just beard the statement. That was all I beard about it — something was said about it.”

Juror Hartrick gave testimony as follows: “I did bear reference made to the defendant’s failure to testify. .It was mentioned, I don’t know just bow it was mentioned. I reached over and took the charge and read it. I do not know who said it — all were talking at once. I looked at tbe charge and read tbe charge and after that bis failure to testify was not mentioned any more. * * * I only beard them talk about bis failure to testify one time. I do not know bow many were in that discussion. There were three or four talking at once. * * * After tbe discussion I picked the court’s charge up and read it over down to tbe place that said tbe defendant didn’t have to testify before I called the jury’s attention to that part of tbe charge. I did not read tbe whole charge out loud.”

. Tbe testimony of juror Carver is as follows: “Tbe jury was not always together. At times there would be two or three in one room and part of the jury in another room. All of tbe jurors could not bear all that was said during such times. ⅜ ⅜ * Mr. Hart-rick read the court’s charge. I don’t remember bearing him read that portion of tbe charge that discusses tbe failure of tbe defendant to testify.”

That of juror Weaver is as follows: “Some one started to say something about deferid-ant not explaining why be bad tbe whisky, and what be was going to do with it. I do not know all of tbe jurors, and we were sometimes separated. I did not bear all that was said.”

In view of tbe statute, article 710, C. C. P. 1925, declaring that the failure of any defendant to testify shall not be taken as a circumstance against him, nor shall tbe same be alluded to or commented upon by counsel in tbe cause, and article 753, subd. 8, C. C. P., relating to misconduct of tbe jury, and the' interpretation and tbe application of the statutes mentioned by this court, we are constrained to regard tbe evidence in tbe present instance as going much beyond tbe bare allusion to tbe failure of tbe accused to testify in bis own behalf. Manifestly, tbe decisions are too numerous to justify any general discussion. Tbe following, however, are regarded in point: Clark v. State, 76 Tex. Cr. R. 645, 177 S. W. 84; Stone v. State, 79 Tex. Cr. R. 219, 184 S. W. 193; Boozer v. State, 82 Tex. Cr. R. 72, 198 S. W. 295; Roberts v. State, 85 Tex. Cr. R. 196, 211 S. W. 219; Walling v. State, 59 Tex. Cr. R. 279, 128 S. W. 624; Hammonds v. State, 106 Tex. Cr. R. 122, 290 S. W. 1096; Laake v. State, 108 Tex. Cr. R. 206, 299 S. W. 643.

Eor tbe reasons stated, tbe motion for rehearing should be granted, the order of af-firmance set aside, tbe judgment reversed, and tbe cause remanded.


text:
    WILLIAMS v. STATE.
    No. 13986.
    Court of Criminal Appeals of Texas.
    Oct. 7, 1931.
    Jones & Jones, of Mineóla, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Conviction is for selling intoxicating liquor ; punishment assessed at one year in the penitentiary.

A deputy sheriff testified that he purchased of the appellant a pint of whisky and two bottles of beer, for which he paid $2.50. The transaction was claimed to have taken place at appellant’s place of business about a mile west of Mineóla. Three days subsequent to the alleged sale, peace officers, armed with a search warrant authorizing the search of appellant’s premises, made a search thereof. As they approached the premises, they saw appellant come out of the house with a carton in his hand containing 17 pints of whisky. A pint of whisky and several bottles of home-brew were found in the house; also evidence that recently there had been broken and spilled on the floor a large quantity of intoxicating liquor. Appellant’s wife was also apprehended in the house with a half-gallon jar of whisky in her hand.

Appellant did not testify. His defense was that of an alibi shown by the testimony of three witnesses, who testified that he was in Alva, Tex., at the time and date the deputy sheriff fixed the time of the sale.

Among other things, the appellant complains of the refusal of the trial court to grant a new trial, because the verdict of the jury as received by the court was contradictory within itself, and therefore a nullity.

The record in this case shows that upon the trial of this cause the jury were given forms for their verdict, and blank spaces were left thereunder for the signature of the foreman. The jury returned in the court the following verdict:

“We, the jury, find the defendant not guilty.
“[Signed] W. O. Bartlett, Foreman.
“We, the jury, find the defendant guilty as charged in the indictment, and assess his punishment at confinement in the penitentiary for one year.
“[Signed], W. C. Bartlett, Foreman.”
Said verdict was received by the court as written, and the judgment entered thereon by the court stated that the verdict of the jury was as follows: “We, the jury, find the defendant guilty as charged in the indictment, and assess his punishment at confinement in the penitentiary for one year.”

This judgment entirely ignored that portion of the verdict which stated that the jury found the defendant not guilty. A verdict is a written declaration by a jury, and their decision of the issue submitted to them. Article 686, C. C. P. Not less than 12 jurors can render and return a verdict in a felony case. It must be concurred in by each juror, and signed by the foreman. Article 687, C. C. P.; the Constitution, art. 5, § 13.

[I] In Horn v. State (Tex. Cr. App.) 35 S.W. (2d) 145, it is stated that while the trial court has the power to correct an informal or contradictory verdict with the consent of the jury, he is not a juror, and cannot render a verdict or any part of it in a felony case, nor can he substitute his judgment for the verdict of the jury. It is well established that the court cannot accept the verdict of the jury and permit it to stand, and yet refuse to abide by it. Baker v. State, 70 Tex. Cr. R. 618, 158 S. W. 998; Essery v. State, 72 Tex. Cr. R. 414, 163 S. W. 17. Coleman v. State, 75 Tex. Cr. R. 66, 170 S. W. 150.

In the case of Champion v. State, 113. Tex. Cr. R. 172, 19 S.W.(2d) 63, 65, Judge Lattimore, speaking for the court, in part said: “The proposition that the court cannot receive a verdict, discharge the jury, and thereafter change the verdict in any material part, has been often affirmed by this court, and is in accord with its uniform holdings.”

See, also, Pritchard v. State (Tex. Cr. App.) 35 S.W.(2d) 717.

To meet just such contingencies as appear in this record regarding the verdict, article 696, C. C. P., was enacted, wherein it provides that if the verdict is informal, the attention of the jury shall be called to it, and, with the permission and consent of the jury, it is proper for the trial judge to correct and reduce it to proper form. It further provides that, if the consent is not given, the jury should be ordered to retire for further deliberation, unless it manifestly appears that the verdict is intended as an acquittal.

The primary issue before the jury under the indictment and appellant’s plea of not guilty was whether or not the accused was guilty or not guilty of the offense charged. The two verdicts presented a plain inconsistency for which there was no certain solution: The evident conclusion of the trial judge in rendering judgment was that the jury intended to find appellant guilty, but this conclusion could not be arrived at from the two verdicts themselves, one finding him guilty, and the other finding him not guilty, considered abstractly. If this be true, the verdict was such as a judgment could not be rendered upon it. We therefore feel constrained to hold that such verdict was a nullity, and that the court should not have received the same, and that the trial court should have set aside the verdict in response to appellant’s motion for a new trial, and, because of his failure to do so, a reversal of the judgment as entered by the trial court must necessarily follow.

Appellant also challenged the sufficiency of the affidavit and search warrant, as authorizing a search of appellant’s premises, for various reasons. We have carefully considered each and all of these objections, and fail to find that the affidavit and search warrant are subject to any of them. The premises sought to be searched is definitely described, and the information upon which it was based was sufficient.

Appellant, by a number of bills of exception, objects to the testimony showing the result of the search of appellant’s house, under a search warrant, three days later than the alleged sale, because it was proving another and extraneous and collateral offense which occurred subsequent to the offense for which the appellant was upon trial. Under the statement of facts, we are unable to see the relevancy of the evidence complained of; it neither connected or tended to connect appellant with the specific offense of the sale of whisky and beer on the 30th day of September, and should not have been admitted.

A number of other bills of exception are found in this record, some of which are exceptions to the overruling of appellant’s application for a continuance, and some to'the argument of counsel. Since this case will have to be reversed on other grounds, we do not deem it necessary to discuss same, as they are not likely to occur upon another trial.

Eor the errors pointed out, the judgment must be reversed, and the cause remanded.

Reversed and remanded.

' PER CURIAM.

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


author: CALHOIUN, .T.

text:
    MEADOW v. STATE.
    No. 14318.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Rehearing Denied Oct. 21, 1931.
    Thomas S. Christopher, of Austin, for appellant.

      Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOIUN, .T.

Offense, theft of chickens; punishment, two years in the penitentiary.

The accomplice, Jack Fancher, testified substantially to the'effect that he spent the night of August 28, 1930, with appellant, and that on the next day the two of them, in appellant’s Chevrolet coupé, which appellant was driving, went out to S. B. Brandenburg’s, near the Wilson school, for the purpose of stealing some chickens. He testified further that arriving there, they looked around to see if any one was at home, and, not seeing any one, they went out to the chicken house, where they stole around thirty or thirty-five white leghorn chickens, which they put in the turtle shell of appellant’s' car, and started to town, leaving the turtle shell raised. He testified that they met Granville Wyatt, the deputy sheriff, but did not stop, but that the deputy sheriff arrested them and put them in jail. He further testified that he and appellant had an understanding as to dividing the money to be derived from the chickens, he getting one-third and appellant two-thirds, and that they were going to take the chickens to Hobbs, N. M., and sell them.

The witness S. B. Brandenburg testified that during the day of August 29, 1930, between 1 and 3:30 o’clock, while he and his wife were away from home, he lost thirty-one white leghorn chickens thirty of which he recovered the next day, after having located them on the evening of the theft at the Tit-man Produce House, and that these chickens were taken without his knowledge or consent. He testified that his chickens were easy to identify and that he had some of them marked and that the first one he pulled out of the coop was marked, having its tail picked and some red paint on it, which his wife had put there, and that he had some other chickens painted. He further testified that the deputy sheriff, Granville Wyatt, was with him when he found the chickens; that he took him around where the chickens wore.

The wife of the said Brandenburg also identified the chickens as being the ones taken from him by the marks that were on them.

The deputy sheriff, Granville Wyatt, testified in substance that he met the appellant and the witness Jack Fancher in a Chevrolet coupé, which appellant was driving, about two miles out on the Stanton road, and that they were going towards Lamesa. He testified that when he met them, he stopped, but did not see any chickens until he turned around and caught up with them, and that the chickens were in the back end of the car in the turtle shell, which was raised up, and that he saw them before he went up to the car. He testified that he had had a conversation with the witness S. B. Brandenburg, and at the time he met the appellant, he was looking for him, and that he arrested appellant and the witness Fancher. The witness further testified that he placed the chickens in a coop that he had borrowed from a produce man, and that he went to this coop with S. B. Brandenburg, who identified them and took charge of them, and that these were the same chickens that he had taken from appellant’s car.

The appellant did not testify nor offer any affirmative defense.

Bill of exception No. 1 relates to the refusal of the trial court.to grant appellant’s motion to change the venue in the case. Upon the hearing of said motion the facts were fully developed and a number of witnesses testified that appellant could receive a fair and impartial trial in Dawson county. The testimony on said hearing was ample and sufficient to authorize the trial court to overrule the motion. We do not believe that any abuse, of discretion upon the part of the trial court is shown. Unless it is clear that the trial court has abused or arbitrarily exercised his judicial discretion, his action in refusing a change of venue will be sustained on appeal. Branch’s Ann. P. C. § 299; Barnett v. State, 76 Tex. Cr. R. 555, 176 S. W. 580; Evans v. State, 110 Tex. Cr. R. 560, 9 S.W.(2d) 360. See, also, Minor v. State, 108 Tex. Cr. R. 1, 299 S. W. 422.

Bill of exception No. 2 complains of the trial court’s action in permitting the deputy sheriff, who it was claimed searched the appellant’s automobile and found therein the stolen chickens, to testify relative thereto; it being claimed that the search was without a warrant and was not made upon probable cause. The trial court qualified said bill to the effect that the witness Granville Wyatt did not in fact testify that he made any search of appellant’s car, but on the contrary his entire evidence showed that there was no necessity for any search and none made, and it was only when appellant’s counsel had put the direct question, “Did you have a search warrant before you searched the car?” that he answered, “I did not have a search warrant.” The qualification further shows that the deputy sheriff was looking for the defend-. ant, and that when he met the defendant, he was traveling in a car, and that he immediately began turning his car after defendant had passed him and plainly saw the chickens in the rear of defendant’s car, the lid covering the turtle back of which being partly propped up and the chickens having their heads in plain view, and further that the only other testimony of the witness relative to the chickens was that upon reaching town he put them in a coop at a produce dealer’s, there being no testimony as to a search of defendant’s car.

This bill as qualified by tbe judge presents no error.

The evidence' is sufficient to support the verdict.

Finding no error in the record, the judgment of the trial court is affirmed.

PER CURIAM.

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


text:
    RIVIERA v. STATE.
    No. 14336.
    Court of Criminal Appeals of Texas.
    June 10, 1931.
    Rehearing Denied Oct. 21, 1931.
    L. D. Stroud, of Beeville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

The indictment in this case contained two counts, the second- of which was submitted in the charge of the court. The state relied chiefly upon the testimony of Mrs. Cano, who swore that appellant brought a quantity of whisky to the home of witness. Same was brought up in a barrel. She affirmed that her husband had nothing to do with the whisky. The state offered the woman’s husband as a witness, but he refused to testify claiming his privilege. The testimony of the woman sufficiently made out a case against appellant. There are other circumstances in the record indicating guilt. Appellant took the stand and denied substantially the testimony of Mrs. Cano. The reconciliation of the testimony is a question for the jury.

Bill of exception No. 1 is lengthy, and is qualified by the trial judge. As we understand said bill, it complains of the refusal of the court to submit the case upon the theory of circumstantial evidence. This is the substanqe of the recitations of the bill. In our opinion the case is not one on circumstantial evidence, and the learned trial judge did not err in this regard.

There is complaint of argument of the district attorney. Without stating same at length, we are of opinion that, on the facts testified to by Mrs. Cano, the district attorney was justified in making said argument. This bill is also qualified by the trial judge.

There is a complaint directed at the validity of the search made of-the premises of Cano by the officers. It is sufficient to say that, since Cano is not upon trial, and it does not appear that the premises searched by the officers belonged to appellant, he is without right under the authorities to complain of the supposed invalidity of the search. McFarlan v. State, 106 Tex. Cr. R. 384, 292 S.W. 885.

The evidence seems to justify the verdict, and the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

A summary of the testimony, as understood by the writer, is as follows: Upon a search of the dwelling of Albino Cano, situated in Beeville, officers found and seized six 10-gal-lon kegs containing an aggregate of 52 gallons of wlpisky. The house belonged to Teo-doro Maldonado, but was the residence of Albino Cano. He and his wife had formerly lived at the Vance place, about four or five miles from Beeville. Cano testified in behalf of the state that, while they lived at the Vance place the appellant brought there a jug which Cano was unable to identify its contents as whisky. Oano’s wife testified that the appellant brought to the Yance place a barrel of whisky, but from her testimony it is manifest that her statement that it was whisky was not from knowledge, but from inferences or conclusions. Cano’s wife also testified that, after she and her husband moved to Beeville and occupied Maldonado’s house, Eiviera came there two or three times to take out whisky which he had stored there. The whisky was in barrels, and Eiviera brought the barrels there. She said: “I think the ofdeers taken those barrels away from the house. There were three or four or five, I guess. ⅜ * ⅜ Domingo Eiviera came and got that barrel that he had left out •at the house on the ranch, but I do not know where he took it to. He brought the barrels to Teodoro’s house — two at one time and four at another. The officers got the six barrels that he brought there.”

The officers who made the search testified that the containers and kegs contained 52 gallons of whisky.

Cano declined to reveal his connection with the whisky under the advice of his attorney. He stated that the whisky obtained' at his house did not belong to him, but refused to disclose its owner, saying: “I don’t know exactly who it belonged to. I don’t believe X can answer your question as to who brought that'there. I don’t want to answer it.”

There is evidence showing circumstances in the ease which it is not necessary to relate. The testimony of Mrs. Cano apparently shows that the appellant brought to the home of Cano and his wife at the Maldonado house in Beeville six kegs — two at one time and four at another — which, while at the home of Cano, were seized and shown by the officers to contain whisky.

In submitting the case to the jury, the court charged on the law of principles, instructing the jury in appropriate language that, if Cano and the appellant were acting together in the possession for sale of the liquor seized at Cano’s house, he would be a principal offender. The evidence that he conveyed the kegs which were found to contain the whisky to Cano’s house is direct. That Cano was aware of their presence there is likewise direct. That the kegs seized were identical with those brought to Cano’s house by the appellant was shown by direct testimony, as the record is understood, and the fact that the kegs contained whisky was proved by the officers. Upon the facts in the record, it is thought that the trial judge did no violence to the law in refusing to instruct the jury that to convict the accused the state relied upon circumstantial evidence alone.

The motion is overruled.