text:
    GRAVES v. STATE.
    No. 13997.
    Court of Criminal Appeals of Texas.
    April 8, 1931.
    Rehearing Denied June 24, 1931.

      B. D. Stroud and Ney Wade, both of Bee-ville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, robbery; punishment, five years in the penitentiary.

The appellant, W. H. Graves, and one Lester White were jointly indicted for the offense of robbery. A severance was granted on the application of said Lester White, and on his application the appellant W. H. Graves was put to trial first.

The appellant contends in his brief that the most important, if not the sole, question, in the case is as to the identity of the appellant as being the robber who entered the store, and centends that the evidence was insufficient as to the identity of appellant to warrant an issue being submitted to the jury.

The evidence showed that on the night of the 4th of January, 1930, one George F. Gil-lam, who is alleged to have been robbed, was in his store in the village of Papalote, located on the main highway between San Antonio and Corpus Christi, and had two guests with him, Bert Hatch and E. S. Underwood, all listening to a radio program. About 9:30 p. m. a stranger to them entered with a drawn pistol and commanded the parties to stick up their hands and face the wall, which command they obeyed. The robber went and robbed the cash drawer and cash register of most of the money and checks it contained, and hastily went out the front door. Gil-lam, then unarmed, went to the door, and saw a stooping figure out in the darkness. He returned to the back part of the store and secured a loaded pistol, and came out through the front door onto the highway and saw the tail-light of a car some yards dis-stant. He also saw a man, whom he claimed to have been in the store, jump on the running board of said car. He fired five shots out of his automatic pistol at the car, on the running board of which he had seen the man jump.

As to the identity of the appellant as the man who committed the robbery, the witness Gillam positively identified hinq and testified the reason he was able to identify him was that, when the appellant went to the cash register, he turned around and looked at him, and he knew that the man went to the cash register because he saw him when he went there; that he did not just take a fleeting glance at the man when he looked around at him, but took a good deliberate look, and had occasion to notice his features when he looked at him. He described him as havilig had on a pair of greasy bibbed overalls; that one leg of the trousers was down too long for him, the other leg being rolled -up; that they looked like they were two or three sizes too long for him; that he had on an old greasy lumber jack that was too big for him and had on a grayish colored cap, which was the same cap that he had on when he was brought back up to the store after he was arrested. Clothing found the next morning near the place where the appellant’s car was at the time of the arrest in a pasture out of which he was seen to come just before his arrest was testified to by the witness Bert Hatch as being clothing that looked very much like the clothes worn by the man who had robbed them. He also identified appellant to the best of his knowledge by the. expression of his eyes.

The witness Underwood, one of the parties who was present at the time of the robbery, testified that the voice of the appellant sounded exactly like the voice of the man who entered the store and told them to stick up their hands and turn their faces to the wall. He also identified the clothes found near the car, meaning the overalls and lumber jack, as the clothes worn by the man entering the store that night.

fresh bullet hole was found on the rear fender of appellant’s car at the time of the arrest, and a bullet was found, in the casing of his ear under said fender, of a .32 caliber, the same caliber of the pistol that the witness shot at the car with.

There was other evidence in the case which tended to establish the fact that appellant was the person who committed the robbery. We deem this evidence sufficient to show the identity of the appellant as the person who entered the store.

Appellant himself testified, denying that he was the man who committed the robbery, or that he was in any manner connected therewith, and also offered evidence tending to prove an alibi.

Bills of exceptions Nos. 1 and 2 complain of the action of the court in permitting the state to introduce the following testimony from the witness Bert Hatch in response to questions propounded by the district attorney by asking him, “How did the expression and features that you saw of the man who entered the store and said ‘Stick ’em up,’ compare with the expression and features of this man that was brought back to the store,” to which the answer was “Very familiar”; and also complains of the action of the court in permitting the district attorney to ask said witness, “How did you identify this defendant when he was brought back to the store that night by the officers as being the man who had entered the store a short time before that and said to you ‘Stick them up,’ ” to which the answer was, “By his eyes.”

This qvidence was not patently and obviously inadmissible per se, and under certain circumstances would be admissible, and said bill does not show the surroundings, antecedent testimony, or .other matters from which we might detect error. A bill of exception, 'to be considered," must sufficiently set out the proceedings and attendant circumstances below to enable tAe appellate court to know certainly that error was committed. A bill of exception to the admission or rejection of testimony should be sufficiently explicit to enable the court to fully understand and know all the facts on which the correctness or error of the ruling depends. Ortiz v. State, 68 Tex. Cr. R. 608, 151 S. W. 1059; Harris v. State, 67 Tex. Cr. R. 251, 148 S. W. 1074; Livar v. State, 26 Tex. App. 115, 9 S. W. 552; Black v. State, 68 Tex. Cr. R. 151, 151 S. W. 1053.

Appellant’s bill of exception No. 7 complains that the witness Leet Gillam was placed on the stand to testify to the finding of certain clothes which the state sought to prove had been worn by the person who had held up and robbed Gillam’s store, on the ground that the witnesses had been put under the rule, and that said witness had not observed the rule that had been invoked. The court qualified the bill as follows: “Said witness had not heard any testimony in the case and was not present when witnesses were placed under rule, and only was present on the day he was placed on witness stand.” Under this qualification no error is shown.

Bill of exception No. 12 complains that on the hearing of appellant’s amended motion for new trial the state, in opposition to said motion, was permitted to offer the oral testimony of Alfonse Kubala, one of the jurors in the case, to which testimony counsel for the appellant then and there objected because the sworn affidavit of Harvey Nelson, one of the jurors in the case, filed in support of appellant’s, amended motion for new trial, had not been controverted in the manner required by law, and hence any testimony offered by the state without first controverting said sworn affidavit was inadmissible. By said bill appellant evidently assumes that under the circumstances the affidavit of the witness Nelson attached to the appellant’s motion for new trial was bound to be considered by the court, and that it established the truth of the averments as to misconduct of the jury, and that therefore the burden was upon the state to rebut the presumption of injury, and that, not having done so by counter affidavit, appellant was entitled to a new trial. Where the motion for a new trial asserts the existence of facts not shown in the record, the burden'is upon the accused to establish the truth of the averments and not upon the state to prove they are untrue. The state may take issue with the defendant upon the truth of the causes of the averment in the motion for new trial (as was done in this case). In such cases the judge shall hear evidence by affidavit or otherwise in determining the issue. He is not bound in such cases by the affidavit attached to the motion. He may try the Issue either by affidavits or oral testimony. Cade v. State, 96 Tex. Cr. R. 523, 258 S. W. 484; Crouchette v. State, 99 Tex. Cr. R. 572, 271 S. W. 99.

By bill of exception No. 13 appellant complains that on the hearing of appellant’s amended motion for new trial, while the juror Nelson was testifying as a witness for the appellant in support of said motion for new trial, he offered to testify to discussions and statements that had been made by the foreman as to personal experiences; that the state objected to such testimony because the allegations set out in the sworn affidavit and in the motion for new trial were too general and did not specifically set out such statements and personal experiences referred to, which objection was sustained by the court, and appellant excepted. This bill does not set out what was expected to be proven by the said juror Nelson, nor what could have been proven by him had he been allowed to testify. It therefore is not complete within itself. We are unable to determine from the bill itself whether the complaint in respect to the ruling is well founded, and therefore it cannot be considered. Nantz v. State, 103 Tex. Cr. R. 285, 280 S. W. 581; Mills v. State, 102 Tex. Cr. R. 473, 277 S. W. 1077; White v. State, 110 Tex. Cr. R. 206, 7 S.W. (2d) 1086.

By bill of exception No. 14 appellant complains of the action of the trial court in refusing to give him a new trial upon his allegation of proof that the jury was guilty of misconduct in discussing the appearance, character, and guilt of Lester White, a co-defendant, who himself was not* present at the trial. There were but two of the jurors offered on said issue, the juror who made the affidavit which was attached to the motion for new trial and the foreman of said jury. The testimony, consisting of more than twenty pages, is set out by permission of the court in question and answer form showing the arguments and contentions of the attorneys and the rulings of the court. The court, upon the conclusion of said testimony, overruled said motion. After a careful review of said testimony, we are not prepared to say that the court abused the discretion lodged with him. The judgment of a trial court sustaining a verdict will be upheld where testimony conflicted as to whether there was misconduct on the part of the jury. St. Clair v. State, 104 Tex. Cr. R. 423, 284 S. W. 571; Eubank v. State, 104 Tex. Cr. R. 628, 286 S. W. 234.

The appellant also excepted to the action of the court in instructing the jury as to the term “principal.” The court in his charge in applying the law to the facts instructed the jury to only convict the appellant if he (the appellant) was the person who committed the robbery. If there was any injury to the appellant by reason of the court’s giving in his charge a . definition of “principal,” it is not shown; he having received the minimum punishment. A charge on the law of principals not authorized by the evidence showing defendant was an actual offender, if error, was not in our opinion in this case injurious to the appellant nor calls for a reversal. Durham v. State, 112 Tex. Cr. R. 395, 16 S.W.(2d) 1092.

There are other bills of exception, none of which we think, if they can be considered, constitute reversible error.

No reversible error appearing in the record, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

Evidence from third parties of the fact that at some given time or place the accused was identified by some one in the hearing or presence of witness is undoubtedly in the nature of hearsay testimony, and this is the effect of the holdings in Turner v. State, 89 Tex. Cr. R. 615, 232 S. W. 801, and the other authorities cited in support of appellant’s motion for rehearing. We have here no such case. The alleged injured party, while a witness, was asked how he identified appellant when he was arrested and brought back to the store on the night of the alleged robbery. The witness answered: “By his eyes.” This called for no hearsay. , The witness was not reproducing a statement made by some other person in his hearing, but was expressing his own judgment or belief. Nor do we see how same was objectionable as calling for an opinion and conclusion. It seems rather a statement of the belief or knowledge of this witness obtained as a result of the use of his own senses. Peculiarities of features are npt unusual, and one who offers to testify that he identified another by his mouth or nose or chin or voice or teeth or eyes merely states the fact upon which he bases his testimony. In a sense, all testimony of identification is, in effect, but the expression of the opinion or conclusion of the witness who, under all the authorities, may testify that, based upon scars, marks, complexion, size, features, defects, voice, or other evidence of conduct by him observed, the person referred to is identified by him. Mr. Branch, in sections 2482 and 2483 of his Annotated P. O., cites authorities holding that a witness may state his belief as to the identity of a given person. See, also, section 108, Underhill’s Criminal Ev. (3d Ed.). Whether the witness tells- the truth, also the sufficiency of his testimony, are questions for the jury. The use of the expression regarding this testimony; “This evidence was not patently and obviously, inadmissible per se,” was probably inadvertent. We are of opinion that the testimony was competent, and are of the further opinion th'at other circumstances in the record strongly supported the proposition of appellant’s identity.

The motion for rehearing will be overruled.


source: Caselaw Access Project

author: LÁTTIMORE, J. HAWKINS, J.

license: Public Domain

text:
    SCOTT v. STATE.
    No. 14253.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    Rehearing Denied June 24, 1931.
    Minton & Minton, of Hemphill, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LÁTTIMORE, J.

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

Officers went to a place where they observed a car sitting out in the street in front of the place where appellant stayed. Appellant was observed coming down the steps and going out of the gate toward said car. After getting outside the gate, arid before reaching the car, he was stopped by the officers. He had two bottles of home-brew in his hand. The officers testified that the home-brew was intoxicating liquor.

The chief complaint seems directed at the proposition that appellant was not shown by such facts to have been guilty of transporting intoxicating liquor. Under the authorities below referred to, we are unable to agree with the contention. See Johnson v. State, 98 Tex. Cr. R. 268, 265 S. W. 588; Black v. State, 96 Tex. Cr. R. 56, 255 S. W. 731; Lee v. State, 95 Tex. Cr. R. 654, 255 S. W. 425; Lamb v. State, 95 Tex. Cr. R. 457, 255 S. W. 424.

Appellant complains of the refusal of a special charge in which he sought to have the jury told that he could' not be convicted if he •had not transported the liquor off his own premises. We think the charge inappropriate and properly refused. One going from his house with intoxicating liquor in his possession, passing through the yard and out the gate toward a waiting car, would be within the scope of many authorities holding that one who has begun a journey, in which he is transporting intoxicating liquor, would be guilty of a violation of the law, even though at the time of his arrest he bad not yet reached a public road or gotten off his own premises. The case is different from those in which the accused was merely moving liquor from one part of the yard to another, or one part of his house to another.

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

On Motion for Rehearing.

HAWKINS, J.

Appellant is under the impression that if the transportation of intoxicating liquor is confined to one’s own premises it cannot be a violation of the law. In support of this contention, he relies, among other cases, on Hill v. State, 96 Tex. Cr. R. 165, 256 S. W. 921; Warren v. State, 94 Tex. Cr. R. 243, 250 S. W. 429; Miller v. State (Tex. Cr. App.) 27 S.W. (2d) 803. In all of the cases cited by appellant, the facts negatived the idea that the transportation was to extend beyond the premises of accused. It was never the intention of this court to lay down the principle that if the transportation was confined to the premises of the party charged therewith'he could in no event be guilty. It must depend' on the facts of each particular case. In Johnson’s Case, 98 Tex. Cr. R. 268, 265 S. W. 588, 589, a still was .being transported. It was accused’s contention that the transportation had all occurred on accused’s farm.- He had the same idea about the law as the appellant has here. In Johnson’s Case, the_ court was requested to instruct the jury that moving the still from one place to another on accused’s farm would constitute no offense. The charge was refused. This court said: “It is deemed a misconception in the cases of Warren v. State, 94 Tex. Cr. R. 243, 250 S. W. 429, and Hill v. State, 96 Tex. Cr. R. 165, 256 S. W. 921, to assume that it is therein declared by this court, as a matter of law, that the statute against transporting equipment would not be violated provided tlie movement took place on tbe premises owned by tbe accused.”

Later on in tbe opinion, referring to tbe two cases just mentioned, tbe court further said:

“Both of the above are fact cases, and, like tbe present, must be measured by tbe evidence adduced upon tbe trial.

^ Tbe motion for rehearing is overruled.


author: CHRISTIAN J.

text:
    FREEMAN v. STATE.
    No. 14277.
    Court of Criminal Appeals of Texas.
    June 10, 1931.
    See also (Cr. App.) 27 S.W.(2d) 162.
    Kirby, King & Overshiner, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for tbe State.
   CHRISTIAN J.

The offense is failure to stop and render aid as ¿jegne(j ⅛ article 1150, Penal Code; tbe punishment, confinement in tbe penitentiary for four years.

Hudson, deceased, and bis wife were riding on a concrete highway toward Abilene, Mrs. Hudson being on the seat behind her bus-band with her arms around him. It was late at night. Mrs. Hudson testified that she had leaned her bead down against her husband and bad just looked up as a truck approached ; that she and her husband were traveling on the right-hand side of the road; that as she saw the lights of the truck her husband threw up his hand and said, “My God” ; that she saw the side of the truck; that her husband was knocked from the motorcycle by the truck; that she grasped the handle bars and went on down the road a piece; that the motorcycle ran into a ditch, throwing her off; that she became unconscious for a short time; that upon returning to the point of the collision she found her husband lying on the road in an unconscious condition; that the truck did not stop, but went on up the road. Hudson died in a hospital shortly after the collision.

In the charge to the jury, the trial court treated state’s witness Richardson as an accomplice witness. Richardson testified, in substance, as follows: In the month of May, 1929, witness was staying at Midland with appellant. Appellant was engaged in running a “wrecking shop,” and used in connection with his business a Ford truck, model A. The back part of the truck consisted of a “stake panel” body. There was a cab on the front of the truck. On the 27th of May the witness and appellant started on a trip in the truck from Midland to Wichita Falls via Abilene. Early in the night, appellant, he doing alj of the driving, had been zigzagging along the road. On one occasion he had barely missed colliding with a car. The witness had gone to sleep several miles out of Abilene. He was aroused by a noise which sounded like something scraping against the truck. We quote his testimony at this point as follows: “I testified that I was asleep when I heard something. I do not know what I heard. It did not make much noise. Something waked me up. It was enough to wake me up, whatever it was. I noticed the location of the truck at that time. At that time it was located on the lefthand side of the road. It was on the north side of'the road, coming towards Abilene. I do' not know exactly how; far we were then fr.om Ahilene. We were not far from Abilene at that time. It did not take long to drive ini I did not say anything then. I do not recollect that Freeman (appellant) said anything then. I did not say anything then from the reason that I had looked back and when I looked back over my shoulder I saw a red tail light going up the road, and I just figured we had sideswiped a car.”

Upon cross-examination by appellant’s counsel the witness testified as follows: “I do know that somewhere between Merkel and Abilene while I was asleep, that I heard a noise, like the scraping of our fender and it roused me. I turned around and looked back through the back curtain of the car. I looked back through the back window of the cab, and going down the pike I saw a rear light. I did not say anything to Mr. Freeman. Mr. Freeman did not say anything to me. I did not suggest stopping. He did not suggest stopping. It did not occur to me that anybody had been injured. From what I saw and heard it did not occur to me that anybody had been injured. If it had occurred to me that anybody had been injured I would have stopped or told Freeman to stop. If I had known that we had run into anyone or had injured anyone I would have stopped and rendered aid. I would have insisted on Mr. Freeman stopping. I would not under any circumstances have driven off and left anybody there who was injured if I had known it”

The accomplice witness Richardson further testified, in substance, as follows: Appellant was driving the truck at the time the witness was awakened by the noise. Appellant did not stop, but drove on into Abilene and let the witness out of the car. A third man whose name the witness did not know was riding in the back of the truck at the time of the collision. The parties had picked this man up on the highway and were giving him a ride into town. The following day the accomplice examined appellant’s truck in Midland at appellant’s place of business. On the left-hand side he found that the middle panel of the middle standard had been cracked. There was some hair driven into the crack under the iron piece on the standard. The iron piece was bent. There was a “smear” just in front of the hair. Prior to the collision the truck was in good condition. The witness took the truck up to O. W. Crowley’s house, and they cut the hair out of the crack in the standard; Crowley keeping the hair. The noise heard by the witness on the occasion of the collision was on the left-hand side of the truck.

As to the time and place of the collision, the witnesses to the accident gave testimony corroborative of that of the accomplice witness Richardson. They further stated that the truck had a cab on it. . Moreover, they testified that the truck was on the wrong side of the road when the accident occurred. Several witnesses who examined appellant’s truck two days after the accident testified to the condition described by Richardson. Whether the hair found on the truck was human hair was not shown. This hair, together with a lock of hair from deceased’s, head, was introduced in evidence for comparison by the jury.

Appellant contends that the,evidence is insufficient to corroborate the testimony of the accomplice witness Richardson to the effect that appellant was in the truck on the occasion of the collision. The burden was on the state to prove beyond a reasonable doubt that appellant was either driving the truck at the time Hudson was struck or that he was in control óf it. As hereinbefore stated, the trial court treated Richardson as an accomplice witness. Although the record does not show whether Richardson was under indictment for the same offense charged against appellant, we assume that he was under such indictment, and, therefore, an accomplice witness as a matter of law. We say this in view of the fact that we are of the opinion that the testimony heard upon the trial fails to stamp the witness as an accomplice as a matter of law. The testimony is deemed to go no further than to raise an issue as to whether Richardson was an accomplice witness. However, in the state of the record, it is incumbent upon this court to consider the testimony of Richardson as that of an accomplice witness. This is the question: Was the testimony of the accomplice witness sufficiently corroborated to the point that appellant was driving the truck or in control of it at the time of the collision?

A conviction cannot be had “upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed”; and. “the corroboration is not sufficient if it merely shows the commission of the offense,” but it must tend to connect the accused with its commission. Article 718, C. C. P.; Durham v. State, 106 Tex. Cr. R. 85, 290 S. W. 1092.

The test as to the sufficiency of the corroboration is to eliminate from the case the evidence of the accomplice witness, and then examine the evidence of the other witnesses with the view of ascertaining if there be in-culpatory evidence; that is, evidence of incriminating character which tends to connect the accused with the commission of the offense. If there be such evidence, the corroboration is sufficient; otherwise, not. Durham v. State, supra; Jones v. State, 59 Tex. Cr. R. 559, 129 S. W. 1118. Applying this test, we observe that appellant’s ownership of the truck Vas the sole circumstance relied upon by the state to corroborate the testimony of the accomplice witness to the effect that appellant was in the truck at the time of the collision. No witness, except the accomplice, testified that appellant loft Midland in the truck; no person who might have seen the parties on the highway or in the towns between Midland and Abilene testified that appellant was in the truck. The man riding in the back of the truck was not called to testify. Those present at _ the time of the accident could not identify or describe the parties riding in the truck. Appellant offered no testimony. In short, the accomplice witness alone testified that appellant was in the truck on the night in question. If it should be held that the facts and circumstances in evidence were sufficient to corroborate the accomplice witness to the point that appellant’s truck struck and killed Hudson, we would still have to look alone to the proof that appellant owned the truck to corroborate the accomplice to the effect that appellant was driving said truck at the time. We are unable to reach the conclusion that proof of the fact of ownership alone, under the conditions reflected by the record, was evidence of an incriminating character which tended to connect appellant with the commission of the offense.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


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

text:
    FERGUSON v. STATE.
    No. 14272.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    Rehearing Denied June 24, 1931.
    Adams & Hamilton, of Jasper, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

The indictment herein charged the burglary of a building occupied by Joe Pollard, with the intent to take from said building property therein being and belonging to said Pollard without his consent, and with intent to deprive him of the value thereof; it being further averred that Pollard was the agent and manager for the Temple Lumber Company. Appellant moved to quash the indictment for various reasons. We do not think the fact that the special owner, Pollard, was described in the indictment as the agent of the Temple Lumber Company would in any wise affect the sufficiency of the indictment. Under all.the authorities, the averment of ownership of the burglarized house and contents may be laid in a special owner as well as a general owner. The testimony showed that Mr. Pollard had a special ownership in the house and property mentioned.

We find in the record some sixteen bills of exception, each of which has been examined, but in the majority of which the questions raised do not seem to call for a discussion of any character.

There is complaint of the reception in evidence of testimony concerning conversations had by the officers with appellant after he was arrested. The objection against the reception of such testimony, that appellant was under arrest, is rendered of no avail by proof of the fact that in consequence of the statements made by him and the information then given the officers thereafter found and located the property alleged to have been stolen from the burglarized house. Under all the authorities and article 727, O. O. P., the fact that the accused was under arrest when he made the statement avails-him nothing.

Appellant makes complaint of the fact that one of the jurors who tried him.was discovered after the trial to be neither a freeholder in the county nor a householder in the state. Evidence regarding this matter was heard when motion for new trial was presented. ■ Conceding the fact that the contention is true and that information of this fact was prevented by reason of the silence of the juror when the general questions upon this point were asked by the court below during the qualification óf the talesmen, still, in view of the fact that the lowest penalty was given, and that there is no showing made of any particular injury resulting, we must follow the authorities and hold the matter of no injury. Leeper v. State, 29 Tex. App. 72, 14 S. W. 398; Lane v. State, 29 Tex. App. 319, 15 S. W. 827; Mays v. State, 36 Tex. Cr. R. 437, 37 S. W. 721; Martinez v. State (Tex. Cr. App.) 57 S. W. 838, 839.

Finding no error for which the case should be reversed, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

The averment in the indictment charging the ownership as follows: “A house therein situated and occupied by Joe Pollard, agent and manager for the Temple Lumber Co., etc.’!—is sufficient. See Thurmond v. State, 30 Tex. App. 539, 17 S. W. 1098; Houghton v. State (Tex. Cr. App.) 32 S.W.(2d) 837; Sogdell v. State, 81 Tex. Cr. R. 66, 193 S. W. 673; De Blanc v. State (Tex. Cr. App.) 37 S.W.(2d) 1024; and precedents cited therein.

The bouse in the possession of Joe Pollard was burglarized twice within a short time. This case relates to the second burglary. A quantity of brass was taken from the building.

Vernon Wilson testified that he, together with Carl Ferguson and Lester Wilson, broke into the house and took therefrom a quantity of brass, which they sold.- Lester Wilson gave like testimony.

Horwitz, á dealer in brass, testified to the purchase of a quantity of brass and the issue of checks in payment thereof,.payable to L. W. White. Horwitz settled for the brass with the Temple Lumber Company. The checks were cashed by the witness Garetto, the keeper of a restaurant. The appellant and two other persons were present at the time the checks were cashed.

An officer who investigated the offense testified that he was told by the appellant, while under arrest, that they brought the brass in and sold it to the Republic Iron & Metal Company; that the brass was taken from the house of the Temple Lumber Company at Pineland. Jonesj the officer, testified further that, after receiving the information mentioned from the appellant, he and other officers went to the Republic* Iron & Metal Works and found a quantity of brass.

The checks were identified by Horwitz, who managed the Republic Iron & Metal Company, as having been given to L. W. White in payment for the brass. The canceled checks were gotten" by the officers from the bank. The checks, indorsed by L. W. White, payable to the Republic Iron & Metal Company, indorsed by the Republic Iron & Metal Company, by Max Horwitz, also indorsed by L. W. White and Rodrigo Garreto, were introduced in evidence.

The accomplices testified that the stolen property was delivered to Max Horwitz, who surrendered it to the Temple Lumber Company. The identity of the stolen property received as that stolen is sufficiently shown by circumstances. The testimony of the witnesses that the building was burglarized, the property stolen and payment with the checks introduced in evidence, while challenged in various bills of exception, was properly received. Some of the bills are in substance in question and answer form. Many of them are 'otherwise deficient in failing to contain averments showing the facts surrounding the introduction of evidence. A discussion of them would serve no useful purpose. The case of Moncrief v. State, 21 S.W. (2d) 1065, and others cited by the appellant, are not analogous to the facts shown by the present record.

The confession of the appellant while ■under arrest resulting in the discovery of the stolen property was admissible under the confession statute. Article 727, C. O. P.

The complaint of the reception of evidence to the effect that H'orwitz, the purchaser of the stolen property, made a settlement with the owner of the property, if improper, was harmless. The complaint of it, however, is not presented in such a manner as to demand consideration. The bill is too meager to intelligently present the point desired. Moreover, it is in question and answer form, which is prohibited by the statute, article 760, subd. 3, C. C. P., 1925. See, also, Beauchamp v. State (Tex. Cr. App.) 32 S.W.(2d) 476.

The motion for hearing is overruled.


author: CHRISTIAN, J. LATTIMORE, J.

text:
    JENKINS v. STATE.
    No. 14216.
    Court of Criminal Appeals of Texas.
    May 13, 1931.
    Rehearing Denied June 24, 1931.
    Dick Young, of Houston, for appellant.
    O’Brien Stevens, Cr. Dist. Atty., Jas. H. Peden, and E. T. Branch, all of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The indictment charged the offense of rape, and contained averments showing that appellant had been previously convicted of a like offense. The punishment was. assessed at death.

Prosecutrix, Lillian Davis, was 12 years of age at the time of the commission of the offense. On the 27th of August, 1930, at 11 a. m., she was going to a store for the purpose of paying a bill for her mother. Appellant came up behind her and grabbed her by the arm, asking her if she wanted a job. She replied in the negative. Appellant said he was going to have a job, and if she made any outcry he would kill her. He told her he hád a pistol in his pocket. Taking prosecutrix to some woods, he made her pull off her underwear. He then threw her to the ground, choking her. She tried to call for help. Appellant choked her and pulled out his knife. After quieting prosecutrix, appellant had sexual intercourse with her, the penetration causing bloodshed and pain. In going to the séene of the offense appellant showed prosecutrix a check for $500. Prosecutrix immediately reported the assault to her mother, and, later, to a policeman. The foregoing constitutes, in substance, the testimony of prosecutrix.

An examination by a doctor disclosed a ruptured hymen. ' We quote the physician’s testimony as follows: “About August 27, 1930, I examined Lillian Davis and found an exudate of semen on her female parts and also an abrasion of the female parts. The abrasion, denuded tissue, was not to. any great extent but you could tell that it was denuded. I also found an abrasion on the right side of her neck. The hymen, commonly called the maidenhead, was broken. Her female parts seemed to have been penetra'ted but I could only examine from the outside. I saw semen on the parts which, in my best Judgment, came from a man; it looked like it.”

The mother and father of prosecutrix testified that she had blood on her clothing when she reported to them that she had been assaulted. Prosecutrix positively identified appellant after having been shown several men. It appears that she described her assailant to the officers before the arrest was made. It was shown that the description suited appellant. The officer arresting appellant found a check for $500 in the sweatband of his hat.

Appellant’s sister and another woman gave testimony tending to show that he had been at home for two weeks confined to his bed with rheumatism. Several witnesses for the state testified that they saw appellant walking on the streets a few days after the assault, and that he did not appear to be suffering from rheumatism. Appellant did not testify in his own behalf. The state offered in evidence a record showing that appellant had theretofore been finally convicted of a separate offense of rape and sentenced to a term in the penitentiary.

As., shown by bill of exception No. 1, after appellant had offered testimony to the effect, that he had been confined to his bed with rheumatism for several days, including the day .the offense, was alleged to have been committed, the state placed the witness Daisy Julious on the witness stand and proved by her that she had seen appellant on the 1st of September, 1930, and had walked with him from the Grand Central Station towards the bayou, a distance of two or three blocks. She testified, in substance, that appellant did not appear to have rheumatism. In addition, she stated that appellant told her he had a check for $500 with him. Appellant objected to the testimony on the ground that it was going to leave the jury in “the dark” as to why the witness was walking with appellant. The court overruled the objection. The testimony was admissible to rebut the testimony of appellant’s sister and another witness to the effect that appellant had been ill with rheumatism for two weeks. In Branch’s Annotated Penal Code, § 97, “relevancy” is defined as follows: “Relevancy is defined to be that which conduces to the proof of a pertinent hypothesis — a pertinent hypothesis being one which, if sustained, would logically influence the issue. Hence it is relevant to put in issue any circumstance which tends to make the •proposition at issue either more or less probable.” McGuire v. State, 10 Tex. App. 127, and Lane v. State, 73 Tex. Cr. R. 266, 164 S. W. 378, 380, are cited in support of the text.

Bill of exception No. 2 brings forward an objection to the testimony of the witness Daisy Julious on the ground that she was incompetent on account of her age. The court qualifies the bill of exception with the statement that he found the witness to be cleárly competent to testify. She was 10 years of age and had reached the seventh grade in school. The witness’ testimony appears to have been intelligently given. There is nothing in the bill of exception to support the objection that she was incompetent. The trial court apparently examined her touching her competency. We find no abuse of discretion vested in the trial judge in admitting the testimony. See McCormick v. State, 52 Tex. Cr. R. 493, 108 S. W. 669.

Appellant contends that the state was not warranted in embracing in the indictment allegations showing appellant’s previous conviction of an offense of like character, his position, being that the averments in the indictment enabled the state Co prove his general reputation before he had placed it in issue, and had the effect of prejudicing him in the eyes of the jury. Article 64, Penal Code, provides: “A person convicted a second time of any offense to which the penalty of death is affixed as an alternate punishment shall not receive on such second conviction a less punishment than imprisonment for life in the penitentiary.” This statute has been held not unconstitutional. Walthall v. State, 109 Tex. Cr. R. 26, 2 S.W.(2d) 442, and authorities cited.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

We recognize the seriousness of dealing with a case the correct disposition of which involves the issue of life or death to a human being.

Appellant was defended by counsel of his own employment. We find two bills of exception in the record. In his motion for rehearing appellant vigorously objects to the qualification attached to both of said bills. We find on examination that the qualifications to neither of said bills of exception were excepted to by appellant. The uniform holding of this court is that in order for the matters contained in the qualifications to a bill of exception to be rejected by us, there must appear an exception taken in the lower court to such qualifications.

However, we are of opinion that whether with or without the aid of the qualifications referred to, neither hill of exception shows error. Appellant did not testify in his own behalf, but relied upon the testimony of other parties to establish an alibi. His witnesses claimed that at the time of the alleged rape he was in'bed ill with rheumatism. As affecting the contention of appellant' that he was afflicted with rheumatism on the day of the alleged assault, to wit, August 27th, the state introduced a 10 year old girl who testified that on September 1st she walked ten blocks with appellant, and that she saw no signs of his haying rheumatism. There is nothing in the record to suggest in the slightest degree that the state attempted to make any improper use of the fact that -appellant walked with said girl. ' Appellant’s entire contention in his said two bills of exception is that the jury would put some improper construction upon the testimony of the girl with whom appellant walked. We think the contention wholly without merit. The issue as to whether appellant was afflicted with rheumatism was, to some extent, affected by the testimony of said girl. She seems neither to have suggested nor thought of any proposition such as attaching a wrong motive to appellant walking with her. It does not appear to be suggested that he had any wrong purpose in such conduct. The testimony as to the rape seems plain and practically uncon-tradicted. The matters of procedure are in conformity with law, and we see no reason for doubting the right of the jury, under the facts, in inflicting the penalty given in their verdict.

The motion for rehearing will be overruled.


text:
    JOHNSON v. STATE.
    No. 13982.
    Court of Criminal Appeals of Texas.
    April 15, 1931.
    Rehearing Denied June 24, 1931.
    W. S. Poston, J. W. Yancy, and R. C. Mus-slewhite, all of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

H. G. Etheridge was engaged in making small loans of money for the Central Finance Company. Appellant, who is a negro, owed the company $6.80, he having executed a promissory note in said sum payable to the company. Upon taking charge of the loan agency, H. G. Etheridge discussed ’ the account with appellant in an effort to collect the amount due the company. Appellant told him that he did not have the money, but would pay it in- a few days. A few weeks later appellant went to Mr. Etheridge and told him that he was preparing to leave town, and if he would drive him to old Lufkin he would get the money and pay off the note. Mr. Etheridge advised appellant that he did not have time to make the trip. Appellant then requested him to get some one else from the office to take him to old Lufkin. Mr. Etheridge got his brother, L. D. Etheridge, to make the trip with appellant. Appellant and L. D. Etheridge, deceased, drove to the home of appellant’s mother, in deceased’s car. Deceased stopped the car in front of the house and appellant got out and entered his mother’s house. In a few minutes he returned to the ear. According to the version of state’s witnesses, deceased got out of the automobile as appellant approached. Upon reaching the' car, appellant exhibited a pistol and shot deceased. Deceased backed around the automobile with his hands up, saying: “Oh don’t shoot me any more; don’t shoot me any more.” Appellant fired two more shots, killing deceased. Appellant disguised himself in woman’s apparel, and fled.

Appellant testified, in substance, that at the time he left with deceased to go to his mother’s house, H. G. Etheridge told de-cfeased to bring back the money or appellant; that after reaching home he entered the house and asked his mother for some money, which she said she did not have; that ,he was afraid to go back outside without arming himself, as he believed that deceased would kill him if he did not bring the money back; that when he went outside and told deceased that his mother did not have the money deceased told him to get in the car and go back to the office with him; that he declined to enter the car, saying that all they wanted to do was to beat him up after they got him i>ack to the office; that deceased seized the automobile crank,' got out of the car and hit him with it; that he dodged and fired two or three shots at deceased; that, at the time he shot deceased, he believed deceased was going to kill him.

There is a great deal of testimony in the record to the effect that the loan company was charging an unlawful rate of interest, and that H. G. Etheridge had at times threatened to whip negroes who were slow in meeting their obligations. Mr. Etheridge denied that he had made such threats.

The court gave an unrestricted charge covering the law of self-defense. No charge on provoking the difficulty was given. Appellant sought to have the jury instructed, in substance, that he had ¿ legal right to arm himself to repel or prevent deceased from executing threats to do him bodily harm. It is the rule that if the court does not limit the right of self-defense by a charge on provoking the difficulty, or otherwise, but gives the accused the perfect right of self-defense from every defensive theory, it is not error to refuse to charge on his right to' arm himself and seek an explanation. Gatlin v. State, 113 Tex. Cr. R. 247, 20 S.W.(2d) 431; Victery v. State (Tex. Cr. App.) 29 S.W.(2d) 787; Williford v. State, 38 Tex. Cr. R. 393, 42 S. W. 972, and cases cited in section 1950, Branch’s Annotated Penal Code. We think the rule applicable here.

In his amended motion for new trial appellant alleged that the jury was guilty of misconduct in that, alter retiring, and before arriving at a verdict, they considered the fact that he was a negro and had killed a white man. We find nothing in the testimony heard on the motion that supports the averment as to misconduct. We deem it unnecessary to decide whether it was proper for the court to hear evidence in support of an averment .of the nature disclosed by the motion.

Appellant urges in his brief that the testimony heard on the motion discloses that, during their deliberations, and before a verdict was reached, the jury received and discussed other testimony of á prejudicial nature. Upon the hearing, the juror Grimes testified, in substance, that he had been acquainted with appellant before the trial, and that on his voir dire examination he had advised appellant’s counsel that he had at one time paid appellant a small amount for having struck his wife' with an automobile; that, at a time during the deliberations when seven of the jurors stood for 99 years and five for the death penalty, he stated to the jury that if they knew appellant like he did they would convict; that he further stated to the jury that he had heard that appellant was a bootlegger and a mean negro; that after he made the statement he and the other four jurors receded from the position that the death penalty should be assessed and voted for 99 years. Only four jurors testified. Two of these stated that other than the evidence received on the trial nothing whs discussed. The other juror testified that the statement attributed to the juror Grimes was not made until a verdict had been finally reached. He declared that the jury were awaiting the arrival of the judge when the statement was made, and that the penalty of 99 years had been agreed upon before Mr. Grimes made his statement.

There was a conflict in the testimony as to when the alleged misconduct occurred. The testimony supported the finding that it occurred after the verdict had been finally reached. The settlement of the conflict in the testimony was a matter for the trial judge. The granting of a new trial for misconduct of the jury is largely in the discretion of the trial court, whose action in refusing a new trial will not be disturbed in the absence of abuse of such discretion. We are of the opinion that an abuse of discretion is not shown. Russell v. State, 109 Tex. Cr. R. 654, 6 S.W.(2d) 760; Williams v. State, 102 Tex. Cr. R. 624, 279 S. W. 462.

The judgment is affirmed.

PER OURIAM.

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.

Appellant makes a number of very general objections to our original opinion, supported by no reasoning or citation of authorities. 1-Ie complains that we erred in not holding it error for the trial court to refuse to instruct the jury in-regard to his right to arm himself just before coming back to the car in which deceased was. t The law is correctly stated in the original opinion. Where the right of self-defense is submitted in the charge unrestricted by any charge on provoking the difficulty, or any other limitation, it is not necessary for the court to submit a special defensive issue based on his right to arm himself and seek his adversary. The authorities will be found collated in section 1950 of Mr. Branch’s Annotated P. C. There seems no deviation from this uniform holding.

There is renewéd complaint at the failure of the court to submit appellant’s defensive theory in an affirmative way. As we read the record, what appears to be appellant’s defensive theory was affirmatively submitted. The court told the jury that if they believed from the evidence, or had' a reasonable doubt thereof, that at the time of the homicide deceased was making an attack on appellant, or that it reasonably appeared to the appellant, from the conduct or acts or words of deceased, as viewed from the standpoint of the appellant at the time, in the light of all the facts and circumstances within his knowledge, that deceased was attacking or was about to attack him, and that such conduct of the deceased, coupled with his words or threats, if any, caused him, appellant, to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such expectation or fear, the appellant killed deceased, he should be acquitted. This appears to cover the defensive theory set up in appellant’s testimony.

In view of appellant’s insistence, we have again reviewed the testimony heard by the court below when the motion for new trial was presented, and are still unable to see any abuse of discretion of the lower court in overruling said motion. The two jurors, whose supposed unfairness and prejudice is made the ground of attack, both seem to have receded from their judgment as to the punishment which should be inflicted, and to have come to agreement with their fellows upon a lower penalty. The undisputed record shows that upon retirement and the first ballot taken thereafter all the jurors voted guilty, and .seven voted for 99 years and five for the death penalty. Among those voting for the death penalty are the two jurors now asserted as having prejudice and ill feeling against the appellant, and to have indulged in statements regarding him outside the record.

There seems no question at all of the fact of appellant’s guilt, and the only question was the penalty. It would not be a very impressive proposition, as supporting prejudice on the part of two jurors, that they came from a higher penalty to a lower, nor are we led to believe that anything was said by any one in the jury room which brought before the jury any material matter affecting the rights of the accused.

The motion for rehearing will' be overruled.


author: CALHOUN, J. LATTIMORE, J.

text:
    MERRITT v. STATE.
    No. 14220.
    Court of Criminal Appeals of Texas.
    May 20, 1931.
    Rehearing Denied June 24, 1931.
    Gordon O. McGehee, of Houston, for appellant.
    O’Brien Stevens, Crim. Dist. Atty., of Houston, and LLoyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The conviction was for theft; punishment, two years in the penitentiary.

The only bill of exception is a complaint that the court refused .to instruct the jury to acquit appellant for waiit of sufficient testimony to support the conviction.

The appellant, David Merritt, and Curtis Stevens and Maurice Owens were jointly in-dieted for the theft of an automobile. The other two defendants not appearing, appellant alone was put upon trial.

The following evidence was offered by the state:

Lloyd Gano testified that he was night manager of the Esperson Garage; that he was such manager on the 26th day of July, 1930; that, as night manager of the garage, he had the care, custody, and control of the automobiles that are placed in the garage and that are in the garage; that on the 26th day of July, 1930, there was a Chrysler coupé in the Esperson Garage from Et. Sill, Okl.; that he had the care and control of said car; that it was placed in said garage to be greased; that the car was not inside the garage, but was on their wash rack just across the street; that the car was stolen or taken from..there about 12:30 at night; that it was about eight hours before it was recovered; that the car was brought back to the garage by their mechanic; that it was the same car that was stolen about eight hours prior to that time. He further testified that the ear stolen was owned by an army officer from Et. Sill, Okl., who got the car after it was brought back. He testified that he did not give the appellant nor any one else permission to take the car off; that it was in Harris county, Tex. He testified, further, that the wash rack was a part of the Esperson Garage, and that he was in charge of the wash rack at night.

Tom Ballard testified as a witness on behalf of the state. He testified that he was a deputy sheriff; that he lived outside of the city limits about seven and one half miles out on the West Montgomery road, or the Tale Street road; that he knew the appellant, David Merritt; that he saw him in the early morning on July 26th; that he recovered the Chrysler automobile with a United States red and white army license on it; that he first saw the appellant at work stripping the ear; that the car was about a mile west of the West Montgomery road in a pine thicket; that there were no houses immediately close around where the Chrysler coupé was; that', when he saw the appellant, it was between 7 and 7:30 in the morning; that therq were two other boys with the appellant; that, when he saw the appellabt, they were taking off the radiator; that some of the other parts of the automobile had been taken off; that they had three tires, the generator and horn loaded into a car when he walked upon them; that the appellant and the others were engaged in taking the radiator off; that he arrested them and brought them to jail and then went back with the mechanic to show where the car was, and that they brought it on into the Esperson Garage. He testified that his son, Rufus Ballard, and a negro named Eddie Robinson were with him; that he was notified about the car by the said Eddie Robinson, who lived in one of the nearest houses to the place where the car was being stripped. He testified that the appellant’s car was parked right behind the car that was being stripped. He further testified that the appellant had grease off of the car on his hands; that he had his sleeves unbuttoned and turned up; that there was a trunk on the back of the army ‘officer’s car and it had been broken open.

Eddie Robinson testified substantially as follows: That he knew Mr. Ballard when he saw him; that he lived about a mile from him; that on the morning of the 26th of July, about 6:30, he was standing on his porch; that he saw two cars pass, and that they went right on to the thicket; that he walked on across the thicket; that he walked within about fifty feet of them; that' one car was right by the side of the other, and that there were three men with the two cars; that he did not know who they were, but he recognized one of them now as being the appellant; that he saw them wrecking the car, but that they did not see him; that they were taking the tires off, three of them; that when he said them, he meant all three of them; that the appellant was one of them who was taking the tires off the Chrysler coupé; that he went and told Mr. Ballard about it; that Mr. Ballard, his son, and the witness came to the thicket, Mr. Ballard driving his car; that they drove up within a quarter of a mile of the thicket, then got out and walked; that, when they got there, all three of the men were standing at the radiator and appeared to be taking the radiator off; that he saw the radiator after that, and it was loosened and leaning over; that they had the hood off of the car; that the tires, generator, and horn had been taken off.of the car and were in the back of the other car, which the evidence showed to belong to the appellant.

■ Appellant offered no explanation of his connection with the car alleged to have been stolen at the time of his arrest.

The appellant, as a witness on the stand, testified that he was working on the 26th day of July; that he was working in the House Lease in Humble and was assisting in drilling a well for said company; that he laid off on the night of July 26th; that his fiancée had a birthday and that was the occasion of his laying off; that he and his fiancée had supper and rode around until close to midnight, and then went back to her house off of the Tale Street road; that he got up the next morning about 6:30; that he went out ^nd started to fix his car and found that the muf-■fier was off of it; that he fixed his car and had not washed up; that in the meantime two boys drove up in a Chrysler coupé and told him that they wanted him to drive them to a filling station, because they did not have much gas in the car; that they just wanted hiña to go along to see that they got there; that they wanted to get some things at the place where' they stayed that night, and that they wanted to drive up there first; that they drove off the Tale Street road about a mile and a half and drove into a pine thicket and stopped; that the boy who was with him in appellant’s car told him to drive up 'by the side of the other car, which he did and they jumped out, took the spare off of their car, the tools out of it and jacked up the rear end, took the two casings off- and started opening up his rumble seat and threw them in there and started to raise up the'hood of the car; that he did not know what to do, so he got out and asked them what they meant and they said, “We just want you to haul this stuff into town for us”; that one of the boys mentioned a firearm that was in the coupé, and that he did not want to start any trouble with him, and that he decided to see about it when he got to the filling station, and about that time Mr. Ballard came up and arrested them; that he had his mother’s car; that he did not want to touch any part of that car at all; that he did not know the boys; that it was the first time he had ever seen them; that one of them told him that it was his father’s car; that he was afraid and frightened when the other boy mentioned the firearm that was in the coupé. ■

The witness Albert Cougot testified that the appellant was working on his car while he was cooking breakfast and saw another car drive up and the two men in said car talked to appellant, and that then they all left, and appellant told him that he would be back and take him to work; that they drove off in both cars; that the appellant was working on the muffler of his car when they came up.

Two other witnesses, Juanita Brewer and Annie Lee Hirsch, testified that .the appellant was with them during the first part of the night; that it was about midnight when they got home, and that appellant went to 'bed, and that they saw him the next morning about 6:30. One of them testified that, when she saw him, he got his cap and went out.

It is admitted by the state in the statement of facts that Curtis Stevens and Maurice Owens, charged jointly with the appellant, David Merritt, were under bond to appear and stand trial on the 25th day of September, 1930, but did not appear and their bonds were forfeited, and that subpoenas were issued on this date for said defendants by the appellant, David Merritt.

We are unable to reach the conclusion that, the evidence is insufficient to support the eon-' viction.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

Appellant again challenges the sufficiency of the testimony. The jury are not bound to accept all or any of the testimony of. the accused, and ordinarily where the testimony for the state, if accepted by the jury, makes out a case of violating the law involved in the prosecution, this court will not disturb the judgment.

. Applying this rule, it is observed that the state’s testimony fully shows appellant and two other boys in possession of an automobile which had been stolen just a few hours, or possibly minutes, before. All three of said parties appeared to have been engaged in the work of stripping the car, many of the movable parts of which had already been detached and placed in appellant’s car, which was the only other car present. His story that he was induced by two strangers to go with them and assist them, and let them use his car in such enterprise, was so improbable that it could hardly be expected that the jury would believe it. We think the testimony entirely sufficient.

The motion for rehearing will be overruled.


author: MORROW, P. J.

text:
    NORRIS v. STATE.
    No. 14333.
    Court of Criminal Appeals of Texas.
    June 10, 1931.
    R. G. Robertson, of Port Arthur, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Unlawfully carrying a pistol is the offense; punishment assessed at a fine of $100.

The testimony of M. B. Word, chief of police, is summarized as follows: He received a telephone message from some person who stated that she was Jeanette Norris, the divorced wife of Whitney Norris; that the person calling him stated over the telephone that Whitney Norris had made threats against the life of Jeanette Norris and was coming to the place where she was staying and would probably have a pistol on his person. The witness went to the place mentioned and was told by the lady with whom Jeanette Norris was living, in the presence of the latter, that Whitney Norris had just passed the house. Word went around the block, and upon his return found Whitney Norris standing in the front of the house. Jeanette Norris was standing in the door with something in her hand. Whitney Norris was immediately arrested.

The appellant’s testimony is, in substance, as follows: A short time before his arrest, he had borrowed a pistol from his divorced wife, Jeanette Norris, to take with him on a trip to an adjoining state. 1-Ie was at the place where he was arrested for the purpose of returning the pistol to her. He had made no threats towards her and had no intention of doing her any harm. He had just arrived at the place, and had not gone in the house, but was standing on the ground at the edge of the porch, waiting for her to come and get the pistol.

The testimony of Jeanette Norris was to the following effect: The pistol belonged to her. She had loaned the pistol to the appellant, who took it with him on a trip to Louisiana; that he was returning the pistol to her. She did not telephone for an officer, but that some other person must have done so; that the lady at whose house she was staying became alarmed when she learned that Whitney Norris was coming to the house, and it was she who sent for the officer.

The state’s ease rests upon- the evidence that some one claiming to be Jeanette Norris had called for an officer and stated that the appellant had threatened her with violence; that the officer found the appellant at the home of Jeanette Norris and in possession of a pistol. No one testified that the appellant had made any threats nor that Jeanette Norris had sent for an officer. On the contrary, both of these matters were denied by her and not verified by any one upon the trial. If the appellant had borrowed the pistol and was returning it, he was within his rights under the law. The court instructed the jury to that effect, but in the opinion of the writer, the evidence does not justify the contrary conclusion. Eor that reason the judgment should be reversed, and the cause remanded, which is accordingly ordered.


text:
    McCULLY v. STATE.
    No. 14309.
    Court of Criminal Appeals of Texas.
    May 20, 1931.
    Rehearing Denied June 24, 1931.

      Murchison, Davis & Murchison, of Haskell, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is rape; the punishment, confinement in the penitentiary for 35 .years.

Appellant, in company with Gula Hinton, prosecutrix,⅜ and other young people, had driven into the country and stopped near the home of W. L. Ray. It was night, and prose-cutrix expressed the desire to return to her home. Instead of complying with prosecu-trix’ request, appellant took hold of her and pulled her down the road. Throwing prose-cutrix to the ground, he asked her, “Are you going to do what> I want you to, or am I going to have to make you?” Prosecutrix released herself from appellant, but he caught her and again threw her down to the ground. Appellant kicked her behind the ear, hit her with his fist, and bit her. She begged him to desist and fought him to her utmost, striking and scratching him. She screamed and cried for help, calling on one of the young men in the party to aid her. Appellant threatened to kill any one who came near them. He choked prosecutrix, saying to her, “If you scream I will just choke you that much harder.” Each time she tried to scream, appellant choked her, saying, “If I had my knife I would cut you up and kill myself.” Prosecu-trix told him that he had almost killed her. He replied that that was what he meant to do, and that it was his intention to kill her little by little. Overcoming her resistance, appellant had sexual intercourse with prose-cutrix ; the act producing pain and bloodshed. The foregoing facts were testified to by pros-ecutrix. Those present in the party testified to substantially the same facts as did prose-cutrix. After getting away from appellant, prosecutrix was carried to her home in the car of a passerby, who testified that prosecu-trix was in a hysterical condition. Her clothing was tom to shreds, she was bruised and scratched, and one of her ears was bitten nearly through. Prosecutrix immediately reported the occurrence to her mother. Physicians were called to examine her. They testified that her hymen had been recently ruptured, and, further, they described the bruises and wounds on her body. An examination of the ground disclosed conditions that indicated a struggle between the parties. Appellant did not testify in his own behalf, but offered his wife and another witness, who testified that they saw appellant immediately after the commission of the offense and that he was “crazy drunk.” State’s witnesses who were present at the time of the transaction denied that appellant was drunk.

It appears that appellant was a married man and prosecutrix an IS year old girl. She had been in appellant’s company on previous occasions, and, according to the testimony of one of appellant’s witnesses, had on one occasion kissed appellant. Prosecutrix deniSd that she had kissed appellant, but admitted that she had been'in his company at dances and at other places.

Appellant .brings forward several bills of exception in which he complains of the argument of the district attorney. Bill of exception No. 2 recites that the district attorney, in his argument, used language as follows: “Mr. Da vis.said ‘Gentlemen of the Jury: You never know when you look into the face of your own child what its end will be.’ I say to you, gentlemen of the jury, that if men like Guy McCully live and that child of yours is a girl you cannot know what her end will be when you look into her blue eyes.”

It appears from the bill of exception that the court sustained appellant’s objection and immediately instructed the jury not to consider the argument. Moreover, it appears that one of counsel for appellant, in his argument to the jury, had said: “You never know when you look into the face of your own child what its end will be.” The remarks of the district attorney were evidently intended as an answer to the argument of counsel for appellant. We deem it unnecessary to determine whether the argument was invited. If improper, and it is not conceded that under the circumstances such remarks were improper, the prompt action of the court in instructing the jury to disregard the argument, in our opinion, obviated the possibility of harm to appellant. We do not deem the argument of such grave character as to render it obviously injurious and prejudicial. Ordinarily, improper remarks of counsel will not present reversible error when withdrawn by the court and the jury are instructed not to consider them. Branch’s Annotated Renal Code, section 362; Alexander v. State, 40 Tex. Cr. R. 395, 49 S. W. 229, 50 S. W. 716.

In his argument, as reflected by bill 'of exception No. 3, appellant’s counsel asked the jury to give appellant a light sentence in order that he might come back to his wife a better man. Iñ reply, the district attorney, in , his closing argument, said, in substance, that, if the evidence in the case was true, appellant had once before stood before a jury on a charge of rape. The court overruled appellant’s objection to the argument. The recitals in the bill show that at the time appellant was attacking prosecutrix she said to him, “You have been in the pen One time for this and that ought to have learned you a lesson.” On cross-examination of prosecu-trix by appellant’s counsel, be elicited from ber tbe following: “I told tbe jury a while ago tbat I said ‘Now you have been sent to tbe penitentiary once before for tbis and tbat ought to teach you a lesson.’ Yes, sir, I bad known tbat all tbe time.” Other witnesses testified tbat they beard prosecutrix tell appellant that be bad been in tbe penitentiary for tbe same thing. Tbis statement was received in evidence without objection. Counsel for either side may properly comment on tbe facts in evidence and may draw reasonable deductions from tbe testimony. Branch’s Annotated Penal Code, section 370; Kelly v. State, 37 Tex. Cr. R. 641, 40 S. W. 803; Morrison v. State, 40 Tex. Cr. R. 473, 51 S. W. 358.

In closing bis argument, the district attorney urged tbe jury to assess tbe penalty at death. Tbe effect of bis appeal was that tbe facts in evidence warranted tbe assessment of tbe death penalty, and tbat tbe protection of tbe young girls of tbe country depended upon tbe assessment of tbe extreme penalty in proper cases. In Curry v. State, 96 Tex. Cr. R. 267, 257 S. W. 269, in which tbe punishment was assessed at death, tbis court held that it was proper for tbe district attorney to argue to tbe jury tbat tbe only way to stop murder was to assess tbe death penalty in proper cases. In any event, tbe death penalty was not assessed in tbis case.

Other bills of exception relating to tbe argument of tbe district attorney have been examined. Tbe opinion is expressed tbat they fail to present reversible error.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

Complaint is made of our refusing to reverse tbis case because of tbe argument of tb.e district attorney in which be expressed it as his opinion tbat at some time under the spell of able men like those now defending appellant a jury bad been misled into letting appellant off for a light sentence. Tbe record shows tbat appeals were being made to tbe jury by defense counsel, in effect, tbat they should give to appellant a light sentence if be was convicted in order tbat he might come home to his family. Inasmuch as tbe testimony substantially showed tbat appellant bad been tried for an offense like tbis before, and tbat be was at large and free at tbe time of trial, and tbat appeals were being made to tbe jury to give him a light sentence, we see nothing seriously objectionable in tbe argument.

Tbe second complaint in tbe motion is of argument also. Tbe testimony sbpwed without contradiction tbe condition of tbe prose-cutrix and ber garments, and ber immediate complaints to ber mother upon reaching home after tbe alleged rape. We do not think tbe argument referred to went outside the facts, or tbat it was such transgression of a fair appeal to tbe jury as should call for any reversal.

Tbe next complaint, also of argument, appears to refer to a matter plainly stated in answer to argument of counsel-for tbe appellant.

Tbe motion for rehearing will be overruled.


text:
    BROWN v. STATE.
    No. 14268.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    Rehearing Denied June 26, 1931.

      Berry, Warlick & Gossett, of Vernon, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is robbery by assault, and the punishment five years in the penitentiary.

The appellant and one Homer Miller were jointly indicted and jointly tried; a sentence of five years being assessed against each.. Only appellant, Brown, appeals to this court from the judgment of conviction.

The state’s evidence showed that one Altiss Blair, on or about the 11th or 12th day of October, 1920, had been to Chieasha, Okl., and was going back home, and that as he was passing through Vernon, he saw the appellant and one Homer Miller driving in a Chevrolet truck; that he was wálking along the road and asked them for a ride; that he crawled in the back of their truck at first and then further on they told him to get in the cab with them and he got in there; that they -drove about two or two and a half miles and got out; that the appellant and Homer Miller asked him if he had any money, and he told them he did not, and that they then searched his pockets and found two knives and a billfold; that they also took his hat; that when they were searching him they 'said they would kill him if he did not give it up; that one of them had a car pump, and they said they were going to knock him in the head with it; that they then took him out in a cotton patch and told him they were going to kill him there; that he got loose from them and ran back to the road; that both of them had hit him with their fists; that he had $6 in money, a five and a one dollar bill; that they took the money, as well as the billfold and the knives; that when he got away from them he telephoned to the sheriff, who a short time later apprehended appellant and his companion and found the knives and billfold that had been taken from the possession of the complaining witness.

The point presented is the alleged error of the court in refusing appellant’s motion for new trial in which it is set up that the appellant, after he was indicted, had not made bond and had not employed counsel, and that the court did not appoint counsel for him, and that he and his codefendant represented themselves in the trial of the case, each pleading not guilty, and each was given five years in the penitentiary; that relatives of the appellant, after his conviction, discovered his plight and employed counsel to prepare a motion for new trial on behalf of appellant, which was prepared for both appellant and the party who was jointly indicted with him; and the appellant complains of the failure of the trial court to give him a new trial so that he might secure witnesses and be represented by counsel. The record shows that appellant was arrested on October 12, 1930, and charged with the crime for which he was tried; that an indictment was returned against appellant and his co-defendant, Homer Miller, on October 29,1930; that appellant was served with a certified copy of the indictment on October 30, 1930. No application was made for any witnesses. It is further shown that on the 15th day of November the case was called for trial, and both the state and appellant announced ready for trial, and appellant and his codefendant pleaded not guilty. No application was then ma de for any witnesses. Both of said defendants cross-examined the state’s witnesses and themselves testified in the case. The sworn statement made in connection with appellant’s motion for new trial shows that he had communicated with his brother, John Brown, and was relying on him to make necessary arrangements for his proper defense. Said affidavit shows that the appellant did not consider himself guilty of any violation of any law, and that he did not think himself in danger of receiving any punishment, and, apparently so believing, he announced ready for trial and did not ask for a postponement of his case in order to employ counsel or obtain witnesses. Appellant sets up in said motion that, if he were given a new trial, he could secure witnesses, whose names he does not know, but would be able to ascertain, and could prove certain facts by them.

The indictment as returned against the appellant did not make it a capital case, and under the statute it is only in capital cases that the court is required to appoint an attorney to represent an accused in a criminal action. Pennington v. State, 13 Tex. App. 44; Mass v. State (Tex. Cr. App.) 81 S. W. 46; Burden v. State, 70 Tex. Cr. R. 349, 156 S.W. 1196. There is no evidence in this case that appellant was denied counsel. On the other hand, he had from the 12th day of October until the 15th day of November to arrange for counsel.

From what has-been said, it follows that in our opinion the court did not commit reversible error in refusing appellant’s motion for a new trial.

The charge of the court appears to have fairly presented to the jury the law applicable to this case, and does not show any fundamental error.

We believe the evidence sufficient to sustain the conviction.

The judgment is affirmed.

PER OURIAM.

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.

Appellant makes an appealing motion. We find in the record no bill of exception complaining of any error of procedure, except the overruling of the motion for new trial. TVre was not an exception taken to the charge of the court. It is not claimed that appellant is mentally deficient, or that he is of such age as not to be able to know how to protect himself.

Appellant complains in the motion of what he is pleased to call a fundamental error in the charge of the court. He supports this contention by citing the cases of Jenkins et al. v. State, 69 Tex. Cr. R. 585, 155 S. W. 208, and Maldonado et al. v. State, 70 Tex. Cr. R. 205, 156 S. W. 647. The court charged the jury that, if they believed from the evidence, beyond a reasonable doubt, that the defendants, or either of them, did unlawfully and willfully make an assault upon the person of Altiss Blair, and fraudulently take from his person and possession $6 in money, etc., they will find the defendants guilty as charged, and assess their punishment at, etc. This paragraph of the charge wound up with the statement: “If you do not find the defendants or either of them guilty under the foregoing charge, then you will find them, or him not guilty and so say by your verdict.” It is urged that this charge authorized the jury to convict both of these defendants upon their belief that either one of them was guilty. Such a charge is manifestly incorrect, and upon facts such as appear in the two cases cited by appellant would seem to be capable of injuriously affecting the rights of at least one of said parties. The instant case entirely differentiates itself - upon its facts from the said two cases cited. In the case before us there was- no claim that the act alleged to have been a violation of the law was in fact committed by one of said parties, and that the other had nothing to do with it. In the case before us both- defendants on trial testified and each denied for himself and his codefendant any guilty participation in the transaction. Each for himself and his eodefendant denied that there was any robbery, or- that any money was taken by either of them from the prosecuting witness. The prosecuting witness affirmed, while on the stand, that both of said defendants assaulted him and both of them participated in the taking of his money, and testified to a state of facts which, if true, showed beyond any possibility of doubt the guilt of both parties. We are forbidden to reverse cases for errors in the charge unless in our judgment, upon review of the record, we are led to believe such errors capable of injuriously affecting the rights of the accused. We do not see how it could be possible that said charge given by the court, though concededly not in proper form, could have, under the aboye facts-, hurt the accused.

This court could not possibly set a premium upon ignorance or carelessness on the part of one accused of crime who failed to use due diligence to .provide for himself an attorney when arrested and charged with crime. Nor can the courts undertake to give to one who has made no effort to procure an attorney any advantage as the result thereof over those who have been diligent in preparing their defense, by setting aside judgments which appear to be on full and sufficient testimony, apparently for the only reason that the accused was not represented by counsel on the trial. The parties, one of whom is this appellant, were not charged with a capital crime, and in such case no duty rested upon the trial court to appoint an attorney to defend them.

We have given due consideration to each of the complaints in the motion for rehearing, but feel constrained to hold that proper disposition was made of the case in the original opinion, and the motion for rehearing will be overruled.


author: CALHOUN, J. UATTIMORE, J.

text:
    PFEIL et al. v. STATE.
    No. 14139.
    Court of Criminal Appeals of Texas.
    April 15, 1931.
    Rehearing Denied June 24, 1931.

      Petseh & Petsch, of Kerrville, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

. This is an appeal by sureties from final judgment on a bail bond forfeiture. It appears from the record in this case that the appellants were sureties on the bail bond of one Joe Wimberly, defendant in cause No. 944, criminal docket of Menard county, Tex., where said Wimberly stands charged with a violation of the liquor law. The bond was in the sum of $1,500, and was given to secure the attendance of Wimberly before said district court, and, upon his failing to appear at the time prescribed in the bond, the same was forfeited, and the judgment made final on the 8th day of October, 1930.

In the trial of the cause on said date, the appellants sought to show, as set out in their original answer, (1) that said bond was' by them executed and delivered in the office of Alfred Klaerner, sheriff of Gillespie county (who at such time had the principal Wimberly under arrest), on the 15th day of June, 1929; that said bond was received by said sheriff, approved and forwarded by him to the sheriff of Menard county; (2) that on the 24th day of June, 1929, appellants desiring to obtain a release from said bond, upon the advice of their attorney, surrendered said Wimberly to said Gillespie county sheriff; that said sheriff thereupon took said Wim-berly into custody, and informed the appellants that they were released upon their bond; (3) that thereafter said sheriff of Gillespie county received a new bond from said Wimberly, approved the same, and forwarded such bond to the sheriff of Menard county, and that such bond was approved by the sheriff of Menard county, and filed among the papers of the case.

The appellants, however, were not permitted to prove the facts set out in their an-«wer, for the reason that the court sustained the general exception of the state to the appellants’ answer and entered final judgment thereon, to which the appellants excepted, and from said action and judgment of the court they gave notice of appeal to this court. These facts are shown by bill of exception No. 1. Bill of exception No. 1 is qualified by the trial court as follows: “The defendant, Joe Wimberly was'never delivered by said sureties to the sheriff of the County where the prosecution against him was pending but was delivered, without authority of law to the sheriff of Gillespie County, who had no authority to receive him, and said bond'was therefore never released and remained in full force.”

The principal contention of appellants is that, ■ by the action above shown, they were released from further liability from said bond because it was in substantial compliance with the provisions of the Code of Criminal Procedure regarding the subject, and that they should have been allowed to prove said facts.

Under our statute, there are two modes by which a principal may be surrendered by his bail. The first is that pointed out in article 282 of the Code of Criminal Procedure, which is as follows: “Those who have become bail for the accused, or either of them, may at any time relieve themselves of their undertaking by surrendering the accused into the custody of the sheriff of the county where he is prosecuted.”

Secondly, under article 285, C. C. P., which provides: “Any surety, desiring to surrender his principal, may upon making affidavit of such intention before the court or magistrate before which the prosecution is pending, obtain from such court or magistrate a warrant of arrest for such principal, which shall be executed as in other cases.”

In the case of Roberts et al. v. State, 4 Tex. App. 129, the appellants, in a sworn answer to the scire facias issued upon the judgment nisi rendered on the forfeiture of the appearance bond in that case, made a motion to quash the bond, which the court overruled. The other portion of the answer, which was sworn to, set forth the fact that, before the finding of the indictment against their principal, one of the sureties had delivered up the principal to the constable who had effected his arrest, and' who had him in custody at the time of the execution of the appearance bond; and they claimed that they were released from further liability upon the bond by virtue of this surrender of their principal. The county attorney in that case demurred to the answer, and the court sustained the demurrer. Judge White, in writing the opinion of the court, after setting out the provisions of the statute, which contained the same provisions as those which are in effect to-day, held that no officer save the sheriff can receive the ac-eused from the hands "of the bail when the surrender is proposed to be made by them of his person; that this is an authority which the law has not conferred upon constables or any other officer; that he must either be delivered up to the custody of the sheriff of the county where he is prosecuted or a written affidavit must be made, and a warrant for his arrest obtained, which will be executed as in other cases, and held that there was no error in the ruling of the court sustaining the demurrer to appellant’s answer and affirmed the judgment.

In the case of Woodring & Howard v. State, 53 Tex. Cr. R. 17, 108 S. W. 371, the principle laid down in the case of Roberts v. State, supra, was upheld as the law in this state as to the surrender of a principal by his sureties on his bail bond, and holds that a strict compliance with one or the other of the modes indicated by the statute is necessary to a valid surrender, and that it was necessary that a manual surrender by the sureties of their principal must be made in order that they be released from his appearance bond, and, because the facts in that case did not show any manual surrender of the principal into the custody of the sheriff of the county in' which the prosecution wasi pending, the sureties were not absolved from the conditions of the bond.

So far as we are able to ascertain, these two cases have never been overruled in this state.

The case of Whitener v. State, 38 Tex. Cr. R. 146, 41 S. W. 595, cited by appellants, merely holds that, where a surety surrenders his principal as is provided by article 285, O. C. P., he may obtain from the court or magistrate before whom the affidavit is made a warrant for the arrest of such principal, and that the statute is not restrictive to the county of the prosecution, but authorizes process to issue to any county in the state.

In the ease of Wells et al. v. State, 100 Tex. Cr. R. 73, 271 S. W. 918, cited by appellants, the court merely passed upon a contention as presented by article 285 and.not any contention that arose under article 282.

The case of Rachel et al. v. State, 102 Tex. Cr. R. 97, 277 S. W. 649, cited by appellants, merely holds that, if a surety whose principal was confined in jail went to a deputy sheriff and stated that he. surrendered his principal, such could be in effect a surrender of the principal under article 282, C. C. P., and that, where there was a controversy over facts as to whether or not the surety surrendered his principal to the deputy sheriff while said principal was in jail, such was a matter the trial court should have submitted to the jury under proper instructions.

The case of Lindley v. State, 17 Tex. App. 120, cited by appellants, holds that, subsequent to the defendant entering into a recognizance, he made his appearance in the district court, was tried and convicted on an indictment for the theft of a mule, and that he appealed from the judgment and sentence to th'e court of appeals, and remained in' the county jail pending his appeal; that after-wards the judgment against him was reversed by the Court of Appeals, and the sheriff refused to release defendant upon his recognizance upon which appellants were sureties and required him to execute a new bail bond, which he did, and the appellants claimed that, on account of these acts and facts, they became and were entirely released from all or any further liability on said recognizance, and said opinion held that it was error to sustain the state’s demurrer to this part of the answer, holding that the answer presented a good defense to the state’s right of action on recognizance if the allegations were true, and that, for the purpose of the demurrer, they must be taken as true.

It is true that in one or two of the cases cited it has been said that the statute is to be liberally construed, but none of said cases cited overrule the holdings of the court in the cases of Roberts et al. v. State, and Woodring & Howard v. State, supra, and we have found no authority contrary to the' doctrine stated in said cases. We believe the same is the law and is .against the contention of the appellants in this case, and that, in order for the sureties to relieve themselves of their obligation upon said bond, they should have surrendered the accused into the custody of the sheriff of the county where he was prosecuted. We are therefore of the opinion that the judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

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.

UATTIMORE, J.

Able counsel for appellants make a well-reasoned and appealing argument in their motion for rehearing, but cite no authorities, which latter fact may be accounted for on the proposition that none can be found. It is true that the accused was in custody of ■the sheriff of Gillespie county by virtue of a capias from Menard county, when the bail bond — liability upon which is the issue here —was executed. The prosecution against said accused was pending in Menard county. It is also true that, purposing to surrender said accused, his bondsmen made manual surrender of his person to the sheriff of Gillespie county.

Said accused was not returned to jail or custody in Menard county, and the only question here is the legality of such attempted surrender to the sheriff of Gillespie county. The statute on the subject, article 282, C. 0. P., is set out in our original opinion, and it in so many words requires that sureties mate manual surrender of their principal, in order to obtain relief from their obligation, into the custody of the sheriff of the county where he is prosecuted. It is appealing to say that these sureties returned this principal to the custody of the same officer by whom he was held when they made his bond, but as stated in U. S. v. Stevens (C. C.) 16 F. 101, 106: “It is a sufficient reply to the very able argument of counsel for the defendants that * * * the statute imposes another rule.” When the statute prescribes the manner in which the principal in a bail bond may be surrendered by his sureties, the statutory method must be strictly followed. Edwards v. State, 39 Okl. 605, 136 P. 577; Cameron v. Burger, 60 Or. 458, 120 P. 10; State v. Tieman, 39 Iowa, 474; Berkstresser v. Com., 127 Pa. 15, 17 A. 680; Perkins v. Terrell, 1 Ga. App. 250, 58 S. E. 133; Lee v. State, 51 Miss. 665; State v. Miller, 109 La. 27, 33 So. 57; State v. Reames, 136 La. 48, 66 So. 393.

Analyzing the Roberts Case, 4 Tex. App. 129, cited in our opinion, and differentiated by appellants in their motion for rehearing, it appears to us to be a case of exact similarity, in principle, facts, and legal announcement, to the case at bar. In that case the accused was arrested by a constable, presumably upon a capias issued by some magistrate in a case whose further progress awaited indictment, for it is stated in the opinion that, after arrest and “before the finding of the indictment,” the accused, was delivered back to the constable who had effected his arrest, and who had him in custody when bond was executed — facts almost identical with those of the instant case. Having manually delivered the accused back to the officer from whose custody he was" released upon their execution of his bail bond, the sureties in that case, when the bond was forfeited and they were called upon to pay or show cause why they should not, pleaded the above facts as a defense. The state’s attorney in said case demurred to the plea, and the demurrer was sustained by the trial court and by this court on appeal. Exactly so in the ease before us. The sureties found the accused in the custody of the sheriff of G. county, he having arrested the accused upon a capias issued from M. county, where the prosecution was pending, but which capias was legally directed to the sheriff of any county in Texas. The sureties made his bond, which was approved by the sheriff of G. county evidently under the provisions of article 288, O. O. P., and said accused was released from custody. Evidently thereafter, when these appellants, sureties on said bond, wished release therefrom, they, as did the bondsmen in the Roberts Case, supra, thought it proper, and that they would be released by returning the accused to the custody of the officer who had him in custody when they made his bond, but this court in the Roberts Case, supra, quoted what is now our article 282, C. C. P., and made emphatic in their opinion the- words “of the sheriff” of the county where he was prosecuted, and further stated in said opinion that the statutory procedure '“must be pursued strictly.”

■In Woodring et al. v. State, 53 Tex. Cr. R. 17, 108 S. W. 371, another method of surrender provided by article 282 of our Code of Criminal Procedure was before the court, and both methods were adverted to with the statement in the opinion. as follows: “A strict compliance with one or the other of the modes above indicated is necessary to a valid surrender.” Such is the holding in the authorities first above cited.

Believing ourselves without right or power to do otherwise than follow the plain mandate of the statute, the motion for rehearing will be overruled.