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

text:
    WILLIAMS v. STATE.
    No. 13680.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    L. W. Sandusky and R. H. Ratliff,. both of Colorado, Tex., for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is unlawfully transporting intoxicating liquor; penalty, confinement in the penitentiary for a period of two years and. six months.

The appellant was arrested by Hickman,, the chief of police of the city of Colorado. I-Iiekman’s testimony is in substance as follows: He saw the appellant about 11 o’clock at night. The appellant was driving an automobile, and had three other men with him in the ear. Delaney, another officer, said to Hickman: “Look at that car. It is loaded.” It was parked on the street. The appellant started the car and drove of?. He was followed by Hickman and Delaney. From I-Iiekman’s testimony we take the. following: “After he turned down the street we walked across the street and got in my car. * * ⅜ We took after him and headed him off this side of Lonewolf Bridge. * * * We jumped out,and Jack started to stop him, and he began to back up like he was going to try and get away. * * * We asked him where he lived ⅜ * * and who had the key to the car. He said he lived in Sweetwater and that the car belonged to a man in Sweetwater. Jack walked around to the back and raised it up. * * ⅜ I never did see in the back at ail. Jack was just standing there and nodded his head, and I said, ‘How much have you got, pardner,’ and he said, ‘Thirty gallons of red rye whisky.’ ”

Appellant said that the boys with him had no interest in the matter; that he picked them up at Big Springs. He said: “I am the man.” Appellant and the men were all arrested by Hickman and Delaney. After putting the appellant in jail, his car was searched, and a number of jars containing whisky were found in the back of the car. The containers were introduced in evidence.

Appellant introduced no testimony, but contends that the court erred in admitting in evidence the statement detailed above. The grounds of objection are as follows: “For the reason that the defendant was under arrest prior to the search, being detained and stopped by Mr. Hickman and Mr. Delaney, who have testified that they were officers, and further because they had no search warrant to search the said car; nor does the testimony given by both witnesses constitute probable cause, whepeby^ said Hickman and Delaney were justified in searching said car, and the defendant therefore respectfully asks the Court to determine that probable cause did not exist for the search, as has been testified, to here, and therefore said search is contrary to Article 1, Section 9, of the Constitution .of Texas, as well as any and all other laws regarding the searching without a search warrant of the State of Texas and the United States.”

The opinion is expressed that the presence of intoxicating liquor in the. possession of the appellant was learned through a search of his automobile without “probable cause” as that term has been defined. The subsequent admission by the appellant that he possessed intoxicating liquor in the car added nothing material to the knowledge of the officer who, without a search warrant and without probable cause, had lifted up the back of the car in which the appellant was riding and discovered the presence of whisky. At the time the appellant’s car was stopped by the officers, they were guided by nothing more than bare suspicion. One of them said, “It is loaded.” It had four men in it, and it was evidently loaded to that extent. On the subject of stopping an automobile upon the public' highway and searching it without probable cause, Chief Justice Taft of the Supreme Court of the United States, in the case of Carroll v. United States, 257 U. S. 132, 45 S. Ct. 280, 285, 69 L. Ed. 543, 39 A. L. R. 790, said:

“It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. ⅜ * * But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.
“The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported.
“We here find the line of distinction between legal and illegal seizures of liquor in transport in vehicles. It is certainly a reasonable distinction.” Odenthal v. State, 106 Tex. Cr. R. 1, 290 S. W. 743, 746.

It is true that the officer who raised the back of the automobile and" discovered the presence of liquor was not the one used by ’ the state as a witness. The two were acting together in stopping the automobile and searching it. After the appellant’s car had been obstructed so that it could not proceed, o,ne of the officers engaged in a conversation with him while the other searched his car. The officer who made the search nodded to the one' in front. The one in front then asked the appellant how much whisky he had, to which he replied that he had thirty gallons. Numerous eases in point will be found in the textbooks and decisions in which the courts of this and other states’have,-under similar facts, held that the stopping of an automobile upon the highway and searching it is illegal. Those cases ‘cited by our own courts are the following: Deavers v. State, 111 Tex. Cr. R. 325, 13 S.W.(2d) 86; Hardiway v. State, 108 Tex. Cr. R. 659, 2 S.W.(2d) 455; Mims v. State, 108 Tex. Cr. R. 313, 1 S.W.(2d) 303; Talley v. State (Tex. Cr. App.) 24 S.W.(2d) 38; Odenthal v. State, 106 Tex. Cr. R. 1, 290 S. W. 743; Gunter v. State, 109 Tex. Cr. R. 408, 4 S.W.(2d) 978. Many recent cases are collated in Cornelius on Search & Seizure (2d Ed.) § 64, beginning at page 200. The evidence introduced against the appellant was the result of an unauthorized search, and is therefore inadmissible under article 727a, C. C. R. 1925, which reads as follows: “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the ■State of Texas, or of the Constitution of the United States of America, shall be admitted in evidence against the accused on the-trial of any criminal case.”

The facts in the present case distinguish it from that of Carter v. State, 113 Tex. Cr. R. 433, 22 S.W.(2d) 659, 660, and Young v. State (Tex. Cr. App.) 27 S.W.(2d) 801. In Carter’s Case an officer entered the appellant’s automobile and was a trespasser. Carter would have had the right to have ousted the officer from the car. Instead of doing so, however, he voluntarily told the officer that he had whisky in the car. Acting upon that information, the officer searched the car and found whisky. The officer’s testimony thus obtained was held not violative of article 727a, C. C. P. 1925, but was admissible upon the ground that the liquor was.found as a result o'f the voluntary declaration of the accused, and therefore admissible under ■the terms of article 727, C. C. P. In its opinion the court said: “The declaration of the appellant that he had the whisky in his car was one that he was not forced to make by any of the circumstances proved. * * * Instead, however, he -made to the officer a declaration that there was whisky in his car, which statement was found to be true, and proof thereof was authorized under the statute mentioned.”

In Young’s Case, supra, an officer, in the capacity of a trespasser, stepped upon the running board of the appellant’s car. The officer discovered nothing in the car. Appellant got out of the car, however, and, after walking some distance, threw some bottles into a ditch. This was observed by the officer, who went to the ditch and got the bottles which contained whisky. His testimony was held admissible, for the reason that it was not the result of the trespass, and he had not put the accused under arrest at the time. In each of the cases mentioned above the discovery of the liquor was the result of the acts or declarations of the accused, and "was not the result of the illegal search. The same may be said of the case of Owens v. State, 112 Tex. Cr. R. 1, 13 S.W.(2d) 837, in which, after .a collision between the appellant’s ear and that of the officers, the appellant got out of his car and carried the whisky on his person. After he got out of the car, he dropped a bottle of whisky in the presence of the officers. Observing this, the of-fleers acted upon probable cause for searching the car in which they found a quart of whisky.

The case of Swanson v. State, 113 Tex. Cr. R. 104, 18 S.W.(2d) 1082, is somewhat ■analogous to that under consideration. It is conceived that the principle applicable is analogous to that which has been applied to the qperation of article 727, C. C. P. In that article the confession of one accused of crime is excluded, unless the confession complies with the law requiring that it be voluntarily made and reduced to writing under certain formalities. If the confession is not so made, but is obtained by force or persuasion, it is not available to the state. There is an exception, however, embraced in the statute whereby the confession of one accused of crime, though obtained by threats, persuasion, or other illegal means, is nevertheless admissible against him if the confession results in the finding of the fruits of the crime or instruments used in its commission. The same principle is conceived to apply to any illegal search. If an illegal search is made, and coincident with it the accused makes a declaration which leads to the finding of the contraband article, proof of the finding of the contraband upon information obtained by the declaration of the accused becomes admissible, but where, as in the present case, the search was illegal, and the liquor was observed as a result of the search before the declaration was made, the finding of the liquor must be attributed to the illegal search and not to the subsequent declaration. Other cases somewhat in point are Pena v. State, 111 Tex. Cr. R. 218, 12 S.W.(2d) 1015; Elms v. State (Tex. Cr. App.) 26 S.W.(2d) 211; Law v. State (Tex. Cr. App.) 27 S.W.(2d) 174; Mireles v. State (Tex. Cr. App.) 23 S.W.(2d) 727.

The judgment is reversed, and the cause remanded.

HAWKINS, J.

(concurring).

The rule is well understood and often recognized by the court that a bill of exception containing a general objection to testimony, part of which is admissible, is insufficient to-manifest error, if it does not single out the-inadmissible portion of the testimony. However, the rule is not thought to be applicable here. The question involved is, Was the criminative testimony of the officers admissible? This question turns upon whether the officers searched appellant’s car without probable cause. To present the question of probable cause, all the recitals of facts contained in the bill are deemed necessary. After'setting out the evidence in detail in the bill, it recites that the evidence was objected to, “for the reason that the defendant was. under arrest prior to the search, being detained and stopped by Mr. Hickman and Mr. Delaney, who have testified that they were.of-fleers, and further because they had no search warrant to search the said car; nor does the testimony given by both witnesses constitute probable cause, whereby said Hickman and Delaney were justified in searching said car, and the defendants therefore respectfully ask the court to determine that probable cause did not exist for the search, as has been testified to here, and therefore said search is contrary to Article 1, Section 9 of the Constitution of the State of Texas, as well as any and all other laws regarding the searching without warrant of the State of Texas and the United States.”

1 It has been held that, “ * * * when the court has determined that ‘probable cause’ existed for the search of an automobile, the facts upon which he predicated his ruling should be brought before this court in proper manner if a review of such action is sought.” McPherson v. State, 108 Tex. Cr. R. 265, 300 S. W. 936, 937.

In drawing the bill of exception under consideration, appellant was evidently attempting to bring himself within the rule last announced. The bill would have been defective if it had not set out, not only the evidence upon which probable cause was thought to be predicated, but also thé evidence which was secured as a result of the search.

Being in accord with the conclusion announced by Presiding Judge MORROW in his opinion reversing the judgment, I record my concurrence therein.

LATTIMORE, J.

(dissenting).

I cannot agree to a reversal of this case.

B.ut one witness testified. His testimony fully made out a case of transporting intoxicating liquor on the part of appellant. Same showed appellant to have been driving on a public road in a ear which contained sixty half-gallon fruit jars of whisky. Appellant offered no testimony.

We find in the record only one bill of exception which sets out and complains of the , following testimony:

“I stated that myself and Jack Delaney were standing in front of the Colorado National Bank, and Jack called my attention— he says, ‘Look at that ear coming yonder,’ he says, ‘It is loaded.’ After he turned down the street we walked across the street and got ■ in my car. The ear was headed east and my car was parked over by the City National Bank, so When we saw this car going down the street we went across the street and got in my car and took after him and headed him off right this side of Lonewolf bridge, and he was just barely going, on the Bankhead highway, and we jumped out and Jack started to stop him and he began to back up like he was going to try and get away, and about that time I got out, about that time we jumped out and asked him where he lived and he said ‘Sweetwater,’ and we asked him who had the key to that turtle back and he said, 'A man at Sweetwater,’ I says, ‘Who does the car belong to,’ and he says, ‘To the man in Sweetwater.’ And Jack walked around to the back and raised it up, and I was still standing there talking to him — I never ■ did see in the back at all, and Jack was just standing there and nodded his head, and I says, ‘How much have you got, pardner,’ and he said ‘Thirty gallons,’ I asked him and Jack nodded his head and I says, ‘How much have you got, pardner,’ and he says, ‘Thirty gallons of red rye whiskey.’ And he said, ‘These boys in here with me, they have not got anything to do with it,’ he says, T picked them up either at Big Springs or right this side of Big Springs,’ he says, T just picked them up’ and he says, T am the man.’ That was ¿he defendant that made that statement. The defendant was driving the car. I do not believe there was anything else said right there at the time by the defendant, not that I recall. I then got my handcuffs and shackled the two boys that were with this fellow, and Jack brought them on in my car, and I took' Williams and brought him on to jail and locked him up. I did not say that Jack Delaney brought the car the defendant was driving, no. He drove my car and the two boys that were with him. I came in the defendant’s car. As to what we did when we got to jail: I forgot to say that we searched them for a gun, after he said he had thirty gallons, and when we got over to the jail house, when they got out of the ear, I said, ‘Is there anybody you want to notify,’ and he wrote a name down and told me to notify this fellow at Sweetwater — I believe his name is Curtis Tidwell, Sweetwater, Texas, that is, I know he wanted me to notify Curtis Tidwell, Sweetwater. We did make a search of the car the defendant was driving, after we got to the jail. When we searched the car we found containers — I think it was twelve of those fruit jars to the box, and there was .five of those containers packed back in the back and close up to the seat, fruit jar containers. There were five of those boxes, yes. As to how much each contained: I just looked at two, they were full up, every one. I turned the stuff in the car over to Mr. Kuykendall. The size of those fruit jars I think is two quarts, a half gallon. The size of a fruit jar counsel exhibits to me is the size of the fruit jars I testified were in the car, yes. There was twelve of those fruit jars per ease, and five cases. Sixty half gallon fruit jars were contained in that car. The four fruit jars that are upon this table here were in that car. They are full. I have smelled and tasted the contents of those jars. The contents of those jars smelled and tasted like whiskey. Those jars contained whiskey. The remainder of that whiskey is in, the jail. The. defendant was arrested and stopped near the Lonewolf bridge and the whole transaction that I have testified about occurred in Mitchell County, State of Texas.”

No particular part of 'said testimony was pointed out or specified in said bill. That said bill of exception was too general, and that'considerably more than half of the testimony objected to was patently competent and admissible, is apparent from a reading of said bill.

There is no better settled rule of practice, nor one that has been more consistently upheld by every judge who has been on this bench from the beginning, than that a bill containing a general objection to testimony, a part of which is admissible, is insufficient to manifest error, if it does not single out the inadmissible portion of the testimony. In Gaines v. State (Tex. Cr. App.) 37 S. W. 331, 333, Judge Hurt says: “The next bill of exceptions is to the introduction by the state of a conversation between McAllister and the defendant after and concerning the difficulty. Part of the conversation between McAllister and appellant was clearly admissible. A part of it may not have been admissible. When this is the case it devolves upon the party objecting to specify that part to which he objects. A general objection will not reach it.’’

In Payton v. State, 35 Tex. Cr. R. 510, 34 S. W. 615, 616, Judge Henderson says: “It was admissible for the state to show that some of the lost property was found on the ground where they had arrested the defendant the night before. This part of the testimony was certainly admissible. If the bill in question had pointed out that portion of the testimony which was inadmissible, and had stated the grounds therefor, it might have been excluded by the court; but this was not done.”

In Ortiz v. State, 68 Tex. Cr. R. 526, 151 S. W. 1056, 1057, Judge Davidson says: “A bill of exceptions is too general for consideration if it includes a number of statements, some oí which are clearly admissible, and there is nothing in the objection directly pointing out the supposed objectionable portions of the evidence.”

In Tubb v. State, 55 Tex. Cr. R. 623, 117 S. W. 858, 868, Judge Ramsey says: “But the objection interposed went to the whole testimony, and the rule seems to be well settled that where an objection, such as this, involving a number of statements given, a part of which are admissible, and some portions of which may be inadmissible, and there is nothing in the objection to directly challenge or single out the objectionable testimony, such a bill ought not in fairness to be considered. This proceeds upon the principle that it is not fair to a trial court, for that it must be assumed that, if the objectionable testimony were directly challenged by pointing it out and'singling it out for decision, same would be sustained; and where counsel content themselves in a case where much of the answer and testimony is admissible, and only some features of it inadmissible, to make a general objection, this is not good practice or fair to the trial court.”

In Rucker v. State (Tex. Cr. App.) 47 S. W. 1014, 1015, Judge Davidson says: “Where some of the evidence objected to is admissible, and some not, it is necessary that the bill of exceptions point out that portion of the evidence which is objectionable. If the objection is of a general nature, and to all of said testimony, irrespective of whether or not it is objectionable, this court will not make the selection for the objecting party.”

In Smith v. State, 92 Tex. Cr. R. 302, 244 S. W. 138, 139, Judge Hawkins says: “Second, because many of the questions were proper and answers elicited thereby clearly admissible, and the bills are therefore too general. See rule announced and authorities collated under section 211, Branch’s Ann. P. C, p. 135.”

Again in White v. State, 113 Tex. Cr. R. 257, 20 S.W.(2d) 196, 197, Judge Hawkins says: “The rule is -well settled that a bill of exceptions will not be held to show error, when part of the matter objected to is competent, even though there be other parts embraced within such objection which are not competent.”

In Solosky v. State, 90 Tex. Cr. R. 538, 236 S. W. 742, 743, citing Tubb v. State, supra, Judge Morrow says: “The bill of exceptions are inadequate to present the exclusion óf a part of the testimony adverted to for the additional reason that the objection was addressed to the proof of all the acts of the appellant, some of which were clearly admissible. Under such circumstances the objection made should point out the part of the testimony which is deemed objectionable. When the attack is against the whole, the court is not in error in overruling the objection where he would have been authorized to exclude only a part. See Tubb v. State, 55 Tex. Cr. R. 623 [117 S. W. 858], wherein the reason for the rule is stated. Other illustrations of this application will be found collated in Branch’s Ann. Texas Penal Code, § 211.”'

Again in Dixon v. State, 91 Tex. Cr. R. 223, 238 S. W. 227, 230, Judge Morrow said:' “As these bills are drawn, no error is shown. Much of the testimony involved was manifestly admissible. It is a general rule that, where a part of a statement is admissible, and a part subject to objection, a bill complaining of the ruling of the trial court in admitting the whole is too general. It should segregate and point out that which is claimed should have been excluded. When the objection is directed to the whole statement, a part of which is admissible, it is not the duty of the trial judge to segregate it, but he has the privilege to overrule the objection. Branch’s Ann; Texas Penal Code, § 211.”

Opinions of Judge Martin of our Commission, on the same subject, will be found in Jones v. State, 112 Tex. Cr. R. 625, 17 S.W. (2d) 1059, and Green v. State, 108 Tex. Cr. R. 666, 2 S.W.(2d) 274, in which the opinion on rehearing was upheld by Presiding Judge Morrow. Opinion of Judge Christian along the same line will be found in Black v. State, 111 Tex. Cr. R. 372, 13 S.W.(2d) 100, 101. Of Judge Baker of our commission in Vaughn v. State, 102 Tex. Cr. R. 623, 280 S. W. 772, upheld by Judge Hawkins upon motion for rehearing, and Vargas v. State, 104 Tex. Cr. R. 286, 284 S. W. 564, upheld by Judge Morrow writing upon the motion for rehearing.

The writer of this opinion has himself in many cases upheld what he regards as the well-settled law of this state of too long standing to be disturbed. Instances of his opinions are Collier v. State, 110 Tex. Cr. R. 510, 9 S. W.(2d) 265, upheld by Judge Hawkins on motion for rehearing, and Mauney v. State, 85 Tex. Cr. R. 184, 210 S. W. 959; Tracy v. State, 111 Tex. Cr. R. 160, 12 S.W.(2d) 205. "

There being but the one bill of exception, and it being in such "condition as that it should not he considered, I see no reason why this judgment should not be affirmed. My, brethren being of a different mind, I have no option but to record these conclusions and note my dissent.


source: Caselaw Access Project

author: CALHOUN, J.

license: Public Domain

text:
    REED v. STATE.
    No. 14558.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    M. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Appellant was convicted of the theft of property, to wit, an automobile, of more than the value of $50, and his punishment assessed at two years in the penitentiary.

The record fails to show that notice of appeal was given. Without proper notice of appeal, this court is without jurisdiction. Hollifield v. State, 111 Tex. Cr. R. 93, 10 S.W.(2d) 101; Davidson v. State, 104 Tex. Cr. R. 607, 285 S. W. 831.

The appeal is dismissed.

PER CURIAM.

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


author: CHRISTIAN, J.

text:
    SCHAFER v. STATE.
    No. 14374.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    Ed C. Meek, Erank P. Taylor, and Baskett & De Lee, all of Dallas, 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.

The state’s testimony was, in substance, as follows: Appellant and deceased, Dorothy Jones, had been sweethearts. On an occasion shortly prior to the killing appellant and deceased had quarreled, and appellant had struck deceased with his fist. Deceased stated to appellant, in effect, that she would not go with him any more. On another occasion appellant had passed the home of deceased and fired a shot from a pistol through the transom. Again, at another time, appellant, on passing deceased and some companions in an automobile, had fired his pistol. On the night of the homicide appellant and one Mu-sick brought the body of decease_d in an automobile to a hospital in the city of Dallas. Appellant stated to the officers and to hospital attendants that he had accidentally shot deceased while playing with a pistol. A gunshot wound had entered the right arm of deceased and passed out of her body through the left arm. Appellant stated to the officers that deceased was shot on the road between three and four miles from the hospital. Deceased’s body was cold and stiff when the parties reached the hospital. A nurse expressed the opinion that deceased had been dead 40 or 50 minutes when the parties reached the hospital. The weapon with which deceased was shot was an automatic pistol. It could not be fired by pressing the trigger unless the safety was released.

Appellant did not testify in his own behalf. His witness, Musick, who had accompanied him and deceased in an automobile on the night of the homicide, testified that he was sitting in the car under the steering wheel by the side of deceased when the shot was fired; that he did. not see appellant with a pistol in his hand; that the shot struck him (the witness); that he told appellant that he was shot; that appellant got in the car, and they immediately started to the hospital, driving approximately 70 miles per hour; that, after driving a short distance, they discovered that deceased had been shot; that appellant and deceased had had no quarrel on the trip that he knew anything about. An undertaker testified that the body of .deceased was warm when brought to the hospital. Appellant offered witnesses who testified that he and deceased were on good terms shortly prior to the homicide.

While the jury were deliberating, they sent to the trial judge a written communication as follows: “The jury wants to know ifa 99 year sentence can be pardoned.” This communication was received by the court in his office. Two of appellant’s counsel were present at the time. Appellant was in jail and not aware of the communication. The court advised appellant’s counsel that it would be necessary to bring appellant into the courtroom a.nd have the jury report in open court before the question could be answered. Upon reading the question, appellant’s counsel stated to the court that they would prefer to have the question answered and delivered to the jury by the sheriff without bringing the jury into open court. At the suggestion of appellant’s counsel, the court permitted counsel to write out the answer to the question. This answer, being signed by the court, was sent to the jury room by the bailiff. The substance of the answer to the question was that any sentence, whether carrying confinement in the penitentiary or death, could be relieved by pardon, but that the jury should not be concerned about the question of pardon. After the jury had returned a verdict assessing the penalty at 99 years, appellant filed his original motion for new trial. He failed therein to set up as error the action of the court in communicating with the jury. At the time the original motion for new trial was acted upon by the court; appellant had no desire to give notice of appeal; it being his intention to accept sentence. After sentence had been pronounced at the request of appellant, appellant’s relatives insisted that he give notice of appeal. Several days after the pronounce-” ment of sentence, upon motion of appellant, the sentence was set aside, and appellant permitted by the trial court to file his amended motion for new trial. In this motion, appellant alleged that the trial court committed er,ror in communicating with the jury in the manner heretofore stated. The court asked appellant’s counsel if they desired to offer any testimony upon the motion. They answered in the negative. The amended motion for new trial was overruled, and appellant excepted and gave notice of appeal. A proper bill of , exception brings before this court appellant’s complaint.

Article 676, O. O. P., reads as follows: “When the jury wish to communicate with the court, they shall so notify the sheriff, who shall inform the court thereof; and they may be brought before the court, and through their foreman shall state to the court verbally or in writing, what they desire to communicate.”

Article 677, O. O. P;, provides: “The jury, after having retired, may ask further instruction of the judge as to any matter of law. Eor this purpose the jury shall appear before the judge .in open court in a body, and through their foreman shall state to the court, verbally or in writing, the particular point of law upon which they desire further instruction ; and the court shall give such instruction in writing, but no instruction shall be given except, upon the particular point on which it is asked.”

Article 678, O. O. P., reads as follows: “If the jury disagree as to the statement of any witness, they may, upon applying to the court, have such witness recalled, and the judge shall direct him to repeat his testimony as to the point in dispute, and no other, and as nearly as he can in the language he used on the trial.”

We quote Article 679, C. C. P.: “In felony but not in misdemeanor cases, the defendant shall be present in the court when any such proceeding is had as mentioned in the three preceding articles, and his counsel shall also be called.”

This court has held in numerous cases that the presence of the accused, which is specifically required by the article last above quoted, cannot be waived by the attorneys for the accused. Shipp v. State, 11 Tex. App. 46; Mapes v. State, 13 Tex. App. 86; Granger v. State, 11 Tex. App. 454; Crow v. State, 89 Tex. Cr. R. 149, 230 S. W. 148, 151; Sullivan v. State, 90 Tex. Cr. R. 170, 233 S. W. 986. In Crow v. State, supra, Judge Hawkins, speaking for the court, quoted the language used by Judge Winkler in Shipp v. State, supra, as follows: “The right of the defendant to be present in court when the jury having charge of a case of felony return into court for additional instructions is clearly guaranteed to him by law. It' is true that many of the rights guaranteed to a defendant by law may be waived by him. It is provided by the Code of Procedure, art. 23/ that the' defendant in a criminal prosecution for any offense may waive any right secured to him by law, except the right of trial by jury. In the case before us we are informed by the record that, though the defendant’s counsel was present, the defendant was not present in court, as he had a right to be under the law, as we have seen. But we are not informed by the record that the subject of a waiver of his right to be present in court when the additional charges were asked by the jury and given by the court was ever mentioned by the court or by the defendant, or by any one having authority to speak for him.. We are of opinion further that the defendant’s counsel, though present, was not obliged to see that the defendant was present, and that it could not be inferred from his silence that the defendant had waived his right to be present when the proceeding in question was being had against him. It was the duty ■ of the ■court and the prosecuting attorney to see to it that the rights guaranteed to him by law when his liberty is involved were guaranteed to him on the trial, and that he is present in court when by law he is entitled to be present. The defendant’s counsel could not waive for him tho right to be present in court when a charge was being given to the jury; and hence the presence and silence of his counsel \^annot be construed into a waiver by the defendant of his legal right to be personally present in court on so important an occasion. If it had been sought to bind the defendant by a waiver, the record should have shown in plain and unmistakable language that the defendant, in person and in open court, his attention being specially directed thereto by. the court or under its direction, formally, waived his right to be present in court. His counsel could not in his absence make such waiver as would be binding on the defendant. The defendant could not be bound by an implied waiver of his legal right to be personally present, even though the subject was called to the attention of the court for the first time in the motion for a new trial.”

. After quoting from Mapes v. State, 13 Tex. App. 89; Gibson v. State, 3 Tex. App. 437; Rudder v. State, 29 Tex. App. 262, 15 S. W. 717; and Hill v. State, 54 Tex. Cr. R. 646, 114 S. W. 117, Judge Hawkins, in Crow v. State, supra, used language as follows: “Fr'om the foregoing review of the authorities it appears plainly that the court cannot act upon matters in the absence of the defendant without committing error which would result in the reversal of the case on trial. In the instant case the learned judge realized that the proper .practice would have been to have"had the defendant brought back into the courtroom and the jury returned, and in open court proceed in a regular and orderly manner in the discharge of the juror Harper, but he seems to have been misled by assurances of counsel for appellant that it was not necessary to do this, as the question would never be raised. Notwithstanding this, it has been raised, and this court must hold that it was error on the part of the trial court of such a character as will necessarily result in .the reversal and remanding of this case. Court was not in session at the time the jury" was not in the courtroom, but in the sheriff’s office, when the juror Harper was notified that he might be excused, and the appellant was in-jail. We cannot even presume that the action of his counsel in agreeing to the excuse of the juror was authorized by the appellant, because it affirmatively appears from the bill of exceptions that they were acting without his authority or knowledge. No action on the part of the court subsequent to the excuse of the juror in the absence of the appellant would have cured the error already committed; the appellant had a right to be present in court, where he had a right to presume that all proceedings incident to his trial would occur.”

In Hart v. State, 95 Tex. Cr. R. 566, 255 S. W. 414, in the absence of the accused, the jury communicated in writing with the court, stating that they could not agree, and asking to be excused. The court wrote on the back of the written request, which was returned to the jury, the following: “This court will be in session until August 5, 1922,” which communication was signed by the district judge. The date of this communication was July 6,-1922. In reversing the case, Judge Latti-more, speaking for the court, referred to the statute under discussion here, and quoted with approval the language used by Judge Davidson in Booth v. State, 65 Tex. Cr. R. 659, 145 S. W. 923, as follows: “This court has held, in all the decisions construing these articles, that when the trial is for a felony, the presence of the defendant is necessary whenever any proceeding mentioned in any of .the preceding articles is had in the case. For collation of authorities, see White’s Ann. Code Crim. Procedure, §§ 874, 875, 876, 877, 878, and 879. The decisions have been har7 monious and unbroken to the effect that violations of these articles constitute reversible error. In fact, it is a plain provision of the statute enacted by the Legislature. In the very recent case of Cowart v. State [65 Tex. Cr. R. 482, 145 S. W. 341], decided during the present month, the judgment was reversed for a violation of one of these statutes in an opinion by Judge Harper.”

In Cartwright v. State, 97 Tex. Cr. R. 230, 259 S. W. 1085, 1086, Judge Hawkins, speaking for the court, used language as follows: “Where the record shows the absence of accused during any important step of the trial, or even raises the question of possible injury from something occurring in his absence during the trial, this court would not feel called upon to speculate upon the matter, but the record in the instant case presents no such state of affairs. It affirmatively shows that no injury could or did result to appellant, and the reasoning by Judge White in the Powers Case, supra [23 Tex. App. 42, 5 S. W. 153], applies with equal force to the question now before us.”

In Vaughn v. State, 102 Tex. Cr. R. 207, 277 S. W. 646, 647, a controversy arose concerning the effect of the suspended sentence. This .controversy related to the term “good behavior” as contained in the court’s charge. A written communication was addressed by the jury to the court, reading as follows: “Does it take a felony in order to be taken up under suspended sentence?” The communication was delivered to the district judge, who received it without calling the jury into open court in the presence of the accused. Over objection by the accused, the court answered the communication as follows: “Yes, and convicted before .taken up.” After quoting the statutes relating to the subject of communications between the court and the jury, Presiding Judge Morrow used language as follows:

“Under the terms of these statutes and the previous interpretation of them, it is essential that the procedure by which additional instructions are requested and given shall be in open court and in the presence of the accused. Conn v. State, 11 Tex. App. 390; Cowart v. State, 65 Tex. Cr. R. 482, 145 S. W. 341; Booth v. State, 65 Tex. Cr. R. 659, 145 S. W. 923; Osborne v. State, 93 Tex. Cr. R. 54, 245 S. W. 928. It is conceived that these provisions of the statute were intended to give effect to the provision of the Bill of Rights guaranteeing a public trial. At all events, communications between the court and jury touching the law of the case should be in open court and in the presence of the, accused. * * * Obviously, there was a failure in the present instance to follow the mandatory provisions of the statutes quoted, in that the additional instructions given to the jury by the court were not in open court; nor were they requested in open court as required by law. The request was not made in the presence of the accused, nor was the additional charge given to the jury in his presence. The error is of a nature from which injury is presumed. In the present record, there are found some facts tending affirmatively to support the presumption of injury and none, so far as we are able to judge, to the contrary.”

In the present case there was a failure on the part of the .court to follow the mandatory provisions of the statute. Appellant did not waive the right to be present in court when the trial judge communicated with the jury. His counsel could not waive such right for him. The error is of a nature from which injury is presumed. It becomes our duty, in giving effect to the holding of this court, to order a reversal of the judgment.

The judg&ent 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: CHBISTIAN, J.

text:
    REEVES v. STATE.
    No. 14541.
    Court of Criminal Appeals of Texas.
    June 17, 1931.

      Kirby, King & Oversbiner, of Abilene, for appellant.
    Lloyd W, Davidson, State’s Atty., of Austin, for the State.
   CHBISTIAN, J.

The offense is transporting intoxicating liquor; the punishment, confinement in the penitentiary for five years.

Officers drove out the Abilene State Hospital road to see about an automobile wreck. They found a Hudson sedan which had been turned over. Appellant was near the car. According to, the testimony of the officers, appellant said the ear belonged to O. C. Bloss, a friend of his, but that he had been driving the car. The officers asked him if he had any whisky in the car, and he answere,d in the negative. They found a five-gallon keg with something over four gallons of whisky in it in a pasture about 75 yards from the car. There was no liquor in the wrecked car. State’s witness Mrs. McDaniel testified, in substance, as follows: She approached the car shortly after it had turned over and saw a man getting out from under it. This man picked up a keg and star.ted out to the pasture. He was a heavily built man and wore an old gray coat. She could not identify appellant as the man she saw at the car. Mrs. Parramore, who accompanied Mrs. McDaniel, gave testimony substantially the same as that of Mrs. McDaniel. In addition to the matters contained in Mrs. McDaniel’s testimony, Mrs. Parramore stated that she saw two people come up to the automobile after it turned over. She was unable to identify appellant. On being ^called by the state, Mrs. McDaniel testified that she saw a man at the city hall shortly after the wreck who was dressed just like the man she had seen in the car. She expressed the opinion that the man she saw at the city hall was the same man she had seen carrying the keg into the pasture. An officer testified that the man the witness had seen at the city hall was appellant. Appellant did not testify in his own behalf.

Bill of exception No. 1 presents the following occurrence: After Mrs. McDaniel had testified that she could not identify appellant as the man she saw taking the whisky into the pasture, appellant’s counsel requested one L. B. Weathered, who was sitting inside the rail to stand up. Mr. Weathered complied with the request. At this juncture the trial court addressed appellant’s counsel in the presence and hearing of the jury as follows: “You know that is not the man at all. He came in here (referring to the man who stood up) and sat down inside this' rail. I am not'going to have any such monkey business inside this court. You (referring to Mr. Weathered) just he seated. Don’t you stand up any more unless I tell you to.”

Appellant properly objected to the remarks of the court. It appears that Mr. Weathered and O. O. Bloss, who were friends of appellant, had seated themselves inside the rail near appellant. According to the testimony, the wrecked car belonged to O. 0. Bloss. We do not understand that appellant’s counsel violated any rule of procedure when he asked Weathered to stand up for the purpose of testing Mrs. McDaniel’s ability to identify the man she saw at the wrecked car. There was testimony that the car belonged to O. 0. Bloss. Moreover, there was testimony that there were other persons at the scene of the wreck. The court charged on circumstantial evidence; there being no direct testimony identifying appellant as the man who carried the whisky into the pasture. The trial judge’s remarks to the effect that he was not going to have any “monkey business” in the court, and directing Mr. Weathered to be seated unless he was asked by the court to stand up, were calculated to impress the jury with the view that counsel had done something reprehensible in calling upon Mr. Weathered to stand up. In the case of House v. State, 42 Tex. Or. B. 125, 57 S. W. 825, 826, the state relied upon circumstantial evidence. One of the strongest facts relied upon by the state was the finding of what witnesses thought to be blood on one of the barrels of the shotgun. Some hair was connected with this blood. The accused was tried several times. Upon the last trial one of his attorneys, in order to test the ability of the witnesses to identify the hair found in the blood as being human hair, secured several hairs from the tail of a stuffed squirrel and others from the mane and tail of a horse. One of the Witnesses testified that the hair from the squirrel was - human hair. Counsel for the accused proposed to hand the jury the hair and let them personally inspect if. The court declined to permit this to be done and in such manner as to reflect upon the counsel who had obtained the hair. In reversing the casé, Judge Davidson, speaking for the court said: “The contention of appellant was thati if blood and hair were found upon the gun, it came from squirrels killed a day or two prior to the homicide. If this was true, one of the most potent facts, if not the most cogent fact, in the case was elucidated and eliminated. This was very important evidence for the appellant. The action of the court with reference to the matter should not have so occurred. It was error. The judge may violate the provisions of the procedure as well by actions as by words, and lie must not convey to tbe jury any criticism calculated to injure the rights of the accused any more by acts than by words in regard to the testimony of the witnesses; hence his reflections upon counsel should not have been indulged.”

Article 7Ó7, G. O. P., reads as follows: “In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; . nor shall he, at any stage of the proceedings previous to the return of a verdict, mate any remark calculated to convey to the jury his opinion of the case.”

We think the remarks violative of the statute. The court overruled appellant’s objection to the remarks and declined to instruct the jury not to consider them. We are unable to reach the conclusion that the remarks did not contribute to the assessment of a penalty four years in excess of the minimum.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


author: MORROW, P. J.

text:
    HAM v. STATE.
    No. 14296.
    Court of Criminal Appeals of Texas.
    June 10, 1931.
    J. M. Parker, of Gorman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Violation of one of the provisions of article 666, P. C., 1925, is the offense; penalty assessed at confinement in the penitentiary for one year and six months.

In the count of the indictment upon which the conviction rests, it is charged that 'the accused “did then and there unlawfully transport a still for the manufacture of intoxicating liquor.” The statute declares that it shall be unlawful to “knowingly” transport a still for the manufacture of intoxicating beverages. The omission of the word “knowingly” is deemed fatal to the sufficiency of the indictment. The word “knowingly” is one of the essential elements of the offense denounced. When the word “knowingly” is an essential element of the offense, it is necessary that the indictment declare that the. criminal act was “knowingly” committed. Such is the announcement in Branch’s Ann. Tex. P. C., §§ 498-500. The cases of State v. Stalls, 37 Tex. 440; State v. Arnold, 39 Tex. 75; Tynes v. State, 17 Tex. App. 127; Morris v. State, 93 Tex. Cr. R. 99, 245 S. W. 915, are regarded as directly in point. By analogy, those in which the indictment has omitted the word “wil-fully” are in point, see Johnson v. State, 101 Tex. Cr. R. 217, 275 S. W. 714; Moore v. State, 112 Tex. Cr. R. 414, 16 S.W.(2d) 1089; Woolsey v. State, 14 Tex. App. 57; Decker v. State, 4. Tex. App. 234. The word “unlawfully” as used in the indictment is not equivalent to the word “knowingly” as used in the statute. See State v. Stalls, supra, and other cases cited above. One might be' unlawfully transporting a still for the manufacture of intoxicating liquor, and yet\ not knowingly doing so. Modica v. State, 105 Tex. Cr. R. 39, 285 S. W. 823.

The insufficiency of the indictment in the present instance is conceded by the attorney representing the state.

In affirming the case of Clark v. State, 111 Tex. Cr. R. 384, 12 S.W.(2d) 792, dealing with an attack upon an indictment for transporting intoxicating liquor, an analysis of the statute was made showing the distinction therein between the offense of transporting intoxicating liquors, and the offense of transporting a still. From the opinion, we take the following quotation: “It is obvious that the term ‘knowingly,’ as contained in the statute, refers to the words that follow it, and not those that precede it. The point was specifically decided against the appellant in the case of Cox v. State, 107 Tex. Cr. R. 19, 294 S. W. 564.”

In this connection, see the case of Morris v. State, supra.

The judgment of conviction is reversed, and the prosecution ordered dismissed.


author: LATTIMORE, J.

text:
    DAVIS v. STATE.
    No. 14366.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    T. T. Thompson, of Clarksville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

This judgment' was affirmed at a previous day of this term, apparently without observation of the fact that the record contained no notice of appeal. No statement of facts was then on file, and the judgment was affirmed for lack of showing of error upon the trial. .

Without the giving.of notice of appeal and the entry of that fact, in accordance with the statute (Code Cr. Proc. 1925, art. 827), upon the minutes of the trial court, this court is without jurisdiction. Appellant filed in the court below a motion for new trial, but, if any order was ever made thereon, it does not appear in * the record. Nor did appellant give any notice of appeal in connection with his sentence.

The judgment of affirmance will be withdrawn, and the appeal will be dismissed because this court is without jurisdiction; no notice of appeal having been given.

The appeal is dismissed.


text:
    PEDDY v. STATE.
    No. 14526.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    J. W. Ellington and Maurice Short, both of Center, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is robbery as an accomplice; the punishment, confinement in the penitentiary for 99 years.

Appellant filed an application for a severance, showing that ten others were by separate indictments charged with the same offense for which he was being placed on trial. The affidavit accompanying the application appears to be in compliance with statutory requirements. It appears that one Dewey Parker also filed a like application. Three of those named in the application were fugitives from justice. It appears that Hancock, Bowen, Richardson, and Riley, who were also named in the application as being under indictment for the same offense, were ready for trial. They would have given material testimony for appellant. When two or more persons are charged with the same offense and their eases are pending in the same court, the duty to grant a' severance when properly sought is imperative, unless a continuance would result. Vargas v. State, 104 Tex. Cr. R. 283, 284 S. W. 564. The court qualified appellant’s bill of exception with a statement as follows: “Every ..other day of this term of court had a case already set and some of them more than one, which would have necessitated a continuance of the Ped-dy Case, had the motion been granted for Hancock, Bowen, Richardson and Riley.” It is observed that appellant’s case was tried on March 6, 1931, and that the term of court at which appellant was tried would not have expired until March 19 of the same year. In any event, we do not understand that the trial judge is warranted in refusing to grant a severance solely because he has theretofore set apart certain days of the term for the trial of other cases and that by reason of such settings of other cases a continuance of the case in which the severance is sought will result. However, we do not deem it necessary to decide this question, as the circumstances are such as that we feel constrained to consider the bill of exception as if the same had not been qualified. Giving effect to the precedents, we are constrained to hold that the application for severance should have been granted.

It was alleged in the indictment that Dewey Parker committed the offense, and that appellant, not being present at the com.mission of said pífense, and prior to its commission, did unlawfully and willfully furnish arms and aid to- said Dewey Parker. It was incumbent upon the state, in order to meet the allegations of the indictment, to prove beyond a reasonable doubt that Dewey Parker committed the offense in the manner alleged in the indictment, and that prior to the commission of said offense, appellant prepared and furnished arms and aid to said Parker for the purpose of assisting in the commission of the offense. Waybourn v. State, 113 Tex. Cr. R. 50, 19 S.W.(2d) 60. In an attempt to support the allegations of the indictment, the state used three accomplice witnesses, none of whom entered the bank when the offense was committed. They testified to the fact that appellant and his coconspirators made preparation for the commission of the offense, and to the further effect that after the offense had been committed they were present with appellant and Parker when the spoils were divided. Moreover, they testified that they aided Parker in making an escape. Other than in the testimony of the accomplice witnesses, Parker’s name seems to be referred to but one time in the statement of facts. State’s witness Murphy, who was outside of the bank at the time the robbery was committed, testified that he saw two men come out of the bank with a sack' and enter an automobile which was parked near by. This witness said: “Parker took the steering wheel and the other fellow got in. I had never heard of Parker before that time and have not seen him since, until the other day when I went to the jail and talked to him.” Upon objection being made, the court withdrew from the consideration of the jury the statement of the witness that he went to the jail and talked to Parker. The witness did not even refer to the man as Dewey Parker. He said that he could not see how the two men were dressed and that he did not pay much attention to them. No effort was made to have him' identify Dewey Parker as one of the men who came out of the bank and entered the automobile. The employees of the bank were unable to identify the parties who entered the bank and held them up at the point of a pistol. We call attention to the insufficiency of the corroboration of the accomplice witnesses in view of the fact that the state may be in position upon another trial to offer further evidence touching the identity of Dewey Parker as a principal in 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 Crminal Appeals and approved by the court.


text:
    SMITH v. STATE.
    No. 14459.
    Court of Criminal Appeals of Texas.
    June 17, 1931.

      John R. Francis, of Houston, for appellant.
    O’Brien Stevens, Or. Dist. Atty., and E. T'. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

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

It was shown for the state that shortly after seven o’clock on the date of the alleged offense, complaining witness, Windham, was trying to procure a car and driver to take him to Humble, Tex., from Houston, after having'cashed a check for $52, and after having asked the appellant in this case if he had change for a “twenty.” One witness testified that he saw appellant and the complaining witness get in a car together in Houston, and drive off. The complaining witness testified that he had been drinking, and, on the road out of Houston, fell asleep; that he was suddenly awakened by the driver of the automobile hitting him over the head and throwing him out into the road and into a ditch; that he was robbed of the money he had in his pockets. He further testified that he made his way to a house, where he inquired as to a telephone; that he was directed to the house next door; and that latgr an ambulance came out and got him. He testified that the car he rode in on the night of the robbery was a Model A Ford with a commercial body; that they left on the trip to Humble about seven-thirty o’clock at night; and that he was not in the car over ten or fifteen minutes. He could not positively identify the appellant as the driver of the car.

One witness, a Mrs. Cours, testified that she lived about four and a half miles out of Houston, about a block off of the Humble road; that about eight or eight thirty she heard a car drive up in front of her house; that she was expecting her husband, and went to the door and looked out, without opening it; that she saw a man in a light suit and hat hit a bareheaded man who was in the car with him, and who appeared to be intoxicated, and throw him from the car into the road; that he left the man there, and turned around and started towards Houston. She further testified that the injured man came to her door and asked for a telephone, and that she directed him to the house next door, without opening her door, and that she could not tell whether he was bleeding or not. She testified that the injured man told her he had been robbed and thrown out of the ear. She further testified that she went to the jail later and identified appellant as the man who was driving the car and threw complaining witness from the car. She identified him by* “the left side óf his face.” She also testified that there was a light in the car, and that she could plainly see the man who struck the other man and threw him out. She also identified appellant on the trial of this case.

The deputy sheriff testified that he got the key to appellant’s car from him at the Five Brothers Cafe in Houston on the night of the robbery; that the ear was a Ford truck with the name New Methods Cleaning Company or the New Way on it;- that the key fit the ear, and he drove it. He further testified that appellant’s clothes were bloody, that the ear was bloody, and that a jack in appellant’s car was bloody and had hair corresponding to that of Windham, the complaining witness, on it. It is shown that appellant admitted to the deputy sheriff that the bloody car was one which he had been driving, and that he was the only one who had driven it that night, and that he had charge of it. A bloody newspaper in which the jack was wrapped was also found in the ear. The deputy sheriff positively identified a coat, bearing blood spots, as the one worn by the appellant at the time he arrested him. To substantially the same effect was the testimony of the state’s witness R. R. Myers, an investigator in the district attorney’s office, who, with the deputy sheriff, arrested appellant. Other witnesses agreed on the attire of the appellant on the night of the alleged offense.

Appellant did not testify in the case. His defense was that of an alibi.

By certain witnesses who worked in the Five Brothers Cafe, it was shown that appellant was in said restaurant and drank several cups of coffee from between seven and eight o’clock until the time of his arrest, with the' exception of about fifteen or'twenty minutes. One witness testified that appellant left, saying he was going to see his girl, but that he returned in about fifteen minutes. Another witness testified that he took appellant in his, witness’, car to see a girl who lived at 601 Polk avenue in Houston, and that appellant went in and stayed about ten minutes, and that he was not with appellant more than fifteen or twenty minutes altogether. The girl and her aunt and uncle, with whom she lived at 601 Polk avenue, testified that appel- ( lant called at their place, which was a lunch room, and remained ten or fifteen minutes, and that he drank a cup of coffee. All of the witnesses testified that appellant had been drinking, and that he was talking loud,.and that they did not see him driving a Ford truck with a cleaner’s sign on it. One witness testified that he had seen appellant drive a Ford truck before with a cleaner’s sign on it, and he thought it was the New Method Cleaners. It was shown that appellant had on a gray suit, hut that he did not have o'n a coat. Employees of the restaurant testified 'that they did not see any blood on appellant’s clothing when he returned to the restaurant. The girl upon whom he called testified that she believed the coat offered in evidence, with blood spots on it, was appellant’s coat.

One witness testified that he heard complaining fvitness make the statement that the man who took him out the I-Iumble road was a “big heavy set, dark complected, -kind of woppish looking man, who wore a blue suit and a big white hat.” Complaining witness testified that he did not recall making a statement to any one that the man who slugged him was “a dark-complected person.”

There is no complaint as to/the admission or rejection of any evidence, nor to the manner in which the issues were submitted to the jury. The sole question raised is as to the sufficiency of the evidence to support the conviction. The evidence of the state’s witnesses in this case, if true, is sufficient to establish the guilt of the appellant. The credibility of the witnesses, and the weight to be given to their testimony, is within the province of the jury; and where there is sufficient evidence on the part of the state to sustain a conviction, this court has never assumed the right to set aside a verdict because there might be evidence offered by the appellant conflicting therewith. See Lockhart v. State, 3 Tex. App. 567; Turner v. State, 37 Tex. Cr. R. 451, 36 S. W. 87; Ray v. State, 84 Tex. Cr. R. 262, 207 S. W. 990; Johnson v. State, 83 Tex. Cr. R. 61, 200 S. W. 832.

Believing the evidence sufficient to support the verdict, the judgment is affirmed.

PER CURIAM.

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


text:
    ANDERSON v. STATE.
    No. 14329.
    Court of Criminal Appeals of Texas.
    April 29, 1931.
    Rehearing Granted June 17, 1931.
    Francis M. Chaney, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for theft of property of the value of more than $50; punishment, two years in the penitentiary.

Officer Nowland testified that he had the description of a Chevrolet car and found it at the residence of Mrs. Barnes on San Jacinto street in Dallas, and took same and returned it to its owner, Mr. Coleman of Ferris, Ellis county, Tex. He said he arrested appellant and one Finch at the used car garage of Mr. Hale on Monday following the loss of the car on Saturday night; that he arrested said parties for their connection with the taking of said car. Mr. Coleman testified that he lived in Ferris, Ellis county, Tex., and that about August 10th he lost a car from his garage which he recovered in Dallas. Mrs. Barnes testified that she lived on San Jacinto street in Dallas, and had a rooming house; that Finch roomed with her. She testified that on the evening before the Saturday night of the loss of the car mentioned appellant came to her place late in the evening, and she heard him say to Finch: “Let’s be going, we have a long ways to go, and it is getting late.” She said the next morning there was a Chevrolet car standing in her driveway, and that Finch said to her to come out and look at “oür car.” She said she did not know who he referred to in his use of the word “our.” She further testified that later appellant came to her place and told Finch to come on and let’s go down and collect for that car that Finch sold to Mr. Hale. Mr. Hale testified that he had a used car garage in Dallas, and that on Sunday morning about the 10th of August he saw appellant and Finch at his place where they were asking about the getting up of some papers relative to a Chevrolet car. He did not aid them in getting up any papers, and had made no trade with them for any Chevrolet car. He said that both appellant and Finch tried to sell him a Chevrolet car which they said they had and which they claimed to have left at some domino parlor; they did not bring the car down to his place. He further testified that they were both arrested at his place the next morning. While the evidence is not as closely connected as might have been had a few more questions been asked Mr. Coleman and some of the other witnesses, still we think it sufficient to connect appellant with the theft of the Chevrolet car.

There are no exceptions to the charge of the court, or complaint of same in such way as that we can consider it. There are five bills of exception, all of which have been scrutinized. The first complains of the refusal of the court to give a peremptory instruction in favor of the appellant. What we have above said demonstrates our opinion that the refusal of this charge was not erroneous. Another bill complains of the fact that appellant was asked by the state while a witness in his own behalf, if he had not been charged with certain felonies prior to the time of his testifying. This practice is usual with us as affecting the credibility of the witness.

There is complaint by another bill apparently of the refusal of a new trial on the ground of newly discovered evidence. The affidavit of one of the newly discovered witnesses attached to the motion appears not to be sworn to before any official, and the other affidavit seems to relate to a matter of no materiality. The bill of exception is insufficient to bring before us the matters complained of in the motion, which has nevertheless been inspected by us, and we are not impressed with the fact that diligence to discover the evidence is shown or that the court erred in overruling same. Bills of exception 4 and 5 present alleged error in regard to the testimony of Mrs. Barnes which seems to us of no materiality.

In his brief appellant’s counsel; upon appeal, devotes most of his time to an insistence upon the insufficiency of the testimony. As above indicated, the case might have been more closely connected up, but there seems to be sufficient testimony to support the finding of the jury.

No reversible error appearing, the judgment will be affirmed.

On Motion for Rehearing.

We stated in our original opinion that this ease did not appear to have been very carefully tried. Appellant by a forcible motion for rehearing challenges the correctness of our conclusion that the testimony, as it appears in this record, is sufficiently connected to show beyond a reasonable doubt his guilt. We have again reviewed the facts in the light of appellant’s motion, and feel constrained to agree with his contention. It may be. easily possible that the state upon another trial will be able to better present its testimony, and to connect the testimony of the various witnesses in such way as ought to appear when a man is on trial for his liberty,

Being impressed with the fact that we erred originally, the motion for rehearing is granted) the judgment of affirmance is set aside, ajld judgment of the trial court is now reversed and the cause remanded,


author: CHRISTIAN, J. LATTXMORE, J.

text:
    SULAK v. STATE.
    No. 14160.
    Court of Criminal Appeals of Texas.
    May 13, 1931.
    Rehearing Denied June 24, 1931.

      Roáe & Sampie, of Edna, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the -State. .
   CHRISTIAN, J.

The offense is making a false entry in a hook of a state bank; the punishment, confinement in the penitentiary for 6 years.

As shown by bill of exception No. 1, appellant moved to quash the indictment on the ground that it was not returned by a legally constituted grand jury. We quote the qualification of the court appended to the bill of exception as follows: “At the time defendant’s motion to quash said indictment was called to the attention of the court and overruled by me, I learned for the first time that the clerk had not then entered on the minutes of said court the written order which I had actually issued and signed, directing the reconvening of the grand jury, whereupon, said term of court still being in session and the minutes for the term not having _ been at the time signed by me, I directed the clerk of the court to complete the minutes, whereupon he entered in the minutes of said court in Volume T, at page 472 of said minutes, the following written order of said court, duly signed by me, and made prior to the reassembling of said grand jury, to-wit: ‘The grand jury for the Fall term, 1930, of the district court of Jackson County, Texas, having been discharged by the Court on September 23, 1930, and it now appearing to the court that there are matters of great importance to the public welfare which should be investigated immediately by the grand jury, it is ordered by the Court that the order of this court entered at a previous day of this court, to-wit, on September 23, 1930, discharging said grand jury for the term be and the same is set aside; and it is further ordered that said grand jury shall reassemble as such on the 2nd day of October, 1930, at 9 o’clock A. M., at the courthouse in this county, in Edna, Texas, for the purpose of a further discharge of their duties as such grand jury; and the clerk of this court will issue process to the sheriff directing him to summon said grand jurors to reassemble in accordance herewith.’ This order was actually made and signed by me, and handed to the clerk at. the time I ordered grand jury reassembled.”

It appears from the bill of exception that two of the members of the grand jury did not reappear in response to the order of the court. One of said members was too ill to do further service, and the other was out of the county. The court ordered the sheriff to summon two new jurors in their stead. When the new members appeared, the court examined the grand jury under oath touching their qualifications, and the ten members of the original grand jury, together with the two members summoned to take the place of those who had failed to reassemble, were duly sworn and impaneled. The specific contention seems to be that the grand jury returning the indictment was composed of 14 members. We deem appellant’s position untenable. Article 372, C. O. P., reads as follows: “A grand jury discharged by the court for the term may be reassembled by the court at any time during the term. If one or more of them fail to reassemble, the court may complete the panel by impaneling other men in their stead, in accordance with the rules provided in this chapter for completing the grand jury in the first instance.”

It is clear from the bill of exception that the grand jury had been finally discharged for the term. When the grand jury has been discharged for the term and reassembled during the same term, the statute itself authorizes the court to impanel other men in the stead of those failing to reassemble. Millikin v. State, 107 Tex. Cr. R. 332, 296 S. W. 547.

The opinion is expressed that the failure of the clerk to enter up the order of the court, reassembling the grand jury, until after the motion to quash had been overruled, did not have the effect of rendering the grand jury an illegal body. The trial judge actually prepared a written order reassembling the grand jury, and this order was entered in the minutes of the court at the same term at which it was made. See Ex parte McGraw, 102 Tex. Cr. R. 105, 277 S. W. 699.

Further, in his motion to quash the indictment, appellant averred that the law under which he was prosecuted was unconstitutional, in that the caption of chapter 95, Acts of the 40th Legislature at its First Called Session (Vernon’s Ann. P. C. art. 545), amending article 545, Penal Code, is misleading and insufficient. The title reads as follows: “An Act amending Article 545, Revised Criminal Statutes, 1925, and creating an emergency.” The specific contention is that the caption is misleading, in that we have no Revised Criminal Statutes, 1925. We deem it unnecessary, to determine whether the caption is sufficient. The sole effect of the amendment was to reduce the minimum penalty for the offense defined in article 545, Penal Code, from 5 to 2 years. The definition of the offense was in no wise changed. The penalty assessed against appellant was 6 years’ confinement in the penitentiary. We are unable to see how any possible injury could have resulted to appellant from a misstatement in the charge of the minimum penalty. If it should be conceded that the act amending article 545, Penal Code, is unconstitutional, and this is not conceded, appellant would have been amenable to prosecution under article 545. If appellant had received less than 5 years, he would be in a better position to question the constitutionality of the act. This court stated in Thompson v. State, 91 Tex. Cr. R. 234, 237, S. W. 926, that a mistake in the charge as to the penalty was such an error as that, no matter when raised, we should consider it. In the same connection, however, it was said that the spirit of article 666, O. O. P., should control in determining whether any injury could or did result from the error. We quote article 666, in part, as follows: “Whenever it appears by the record in any criminal action upon appeal that any requirement of . the eight preceding articles has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not ¿ad a fair and impartial trial.”

Bill of exception No. 3 sets forth the copy of the charter of “The Citizens State Bank of Ganado.” The name of the bank was alleged in the indictment as “Citizens State Bank of Ganado, Texas.” Appellant objected to the reception in evidence of the charter on the ground that there was a variance between the name of the bank set forth therein, and that alleged in the indictment. The objection was not well taken. Appellant was advised by the averments in the indictment that the bank transacted its business in the town of Ganado, Jackson county, Tex. While a part of the name, the term “Ganado, Texas” would be commonly understood as referring to the place where the corporation was transacting its business. Appellant could have been in no manner misled as to the bank intended by the pleader. It is our conclusion that the variance is not fatal. Putnam v. United States, 162 U. S. 687, 16 S. Ct. 923, 40 L. Ed. 1118; King v. State, 113 Tex. Cr. R. 130, 19 S.W.(2d) 52.

We think it was proper for the state to prove that appellant had stated that he had unlawfully taken approximately 834,000 from the bank. The fact that appellant’s declaration disclosed the commission of another offense did not preclude its use by the state to prove that appellant knew the entry was false when he made it. Appellant was not under arrest or in custody at the time he made the admission.

Bill of exception No. 12 reflects an objection to the' testimony of T. N. Mauritz and W. W. Dees touching the total individual deposits of the bank on January 9th and 10th, 1930. The bill contains a mere statement of grounds of objection. A mere statement of a ground of objection is not a certificate on the part of the trial judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Branch’s Annotated Penal Code, section 209; Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569. It may be added that Mr. Mauritz testified, without objection, that he discussed the shortage of $34,000 with appellant; that is, the fact that the entry of ,$151,157.36 made on January 9, 1930, did not properly reflect the! individual deposits. According to his version, appellant stated to him that the item of $184,433.61 determined upon by the witness Mauritz as the individual deposits on the date in question was correct. We quote the testimony of the witness, at this point, as follows: “At the time that Mr. Sulak (appellant) was there alone with me we discussed this shortage and we discussed the amount of it as it had been determined by Mr. Dees and myself and he said to me that that was correct, that he had taken about $34,000.00 from us. He also told me that he had covered up this shortage by carrying the wrong balance into the general ledger, under the account of individual deposits. He did not at that time state how long he had been carrying this wrong amount but he did at a later date. He told me at a later date, I believe, in January or February, that he had taken about $34,000.00. ⅜ * * As to how he protected himself on the books, he stated he had carried false accounts forward into the general ledger, so this general ledger did not show the true figures. We only discussed this individual ledger item. I did not discuss the other items with him that I recall. I just discussed with him concerning the individual deposits; this large difference here.”

The admissions of appellant testified to by the witness carried substantially the same information to the jury as did the statement by the witness that the individual deposits on the date in question were $184,433.61, instead of $151,157.36.

Appellant objected to the charge of the court on the ground, that it failed to embrace an instruction covering the law of circumstantial evidence. We are unable to reach the conclusion that the objection was well taken. The evidence was direct that appellant made the entry of $151,157.36 in the book described in the indictment, and that such entry was intended to convey the impression and indicate that on January 9,1930, the total arpount of individual deposits with said bank was $151,157.36. In discussing this entry with Mr. Mauritz, appellant admitted that it was false. He said that he had taken about $34,-000 of the bank’s money, and had carried false amounts forward into the general ledger in order to cover up the shortage. Mr. Mau-ritz testified: “We only discussed this individual ledger item.. I just discussed with him concerning the individual deposits; this large difference here.” Appellant admitted to Mr. Mauritz that a correct entry would have been $184,433.61, which amount would have correctly reflected the individual deposits on the date in question. Appellant was assistant cashier and agent of the bank. It was his duty to keep the book in which the entry was made. He offered nothing to controvert the state’s proof that he had embezzled $34,000 of the bank’s funds, and had made the false entry in question to cover up the shortage. We deem appellant’s confession of guilt to be unequivocal. Hence the charge on circumstantial evidence was not required. Section 1874, Branch’s Annotated Texas Penal Code; Barnes v. State, 53 Tex. Cr. R. 628, 111 S. W. 943.

Appellant makes the contention that there is a variance between the proof and the allegation to the effect that the entry was made “under the heading Thursday, January 9, 1930, Dr. Balance.” He takes the position that the proof shows that the figures occur under the heading “Or. Balance.” The bill of exception, bringing the matter forward, is qualified as follows: “The page of the general ledger under discussion was divided into several columns, each column representing a different day’s business. The column, which was headed, at the top of the page, ‘Thursday January 9, 1930, Dr. Balance’ ran clear through to the bottom of the page, and tho from the middle of the page down it became the Or. Balance, and the page there so read, but the general head of the column, at the top of the page, did read as stated above. And it was further proved by the district attorney that this book was kept by the defendant, and that he was thoroughly familiar with it, and that he could not have been misled by the evidence offered. And the figures $151,157.36 appeared only once on said page, and that was in this column which did have the heading ‘Thursday January 9, 1930, Dr. Balance’ at the top of the page, and upon a sheet in the general ledger, Yol. 7, showing the total of individual deposits with said bank for January 9, 1930, and upon line 15 of the section of said page dealing with liabilities of said bank, as alleged in the indictment.”

The qualification of the court is supported by the evidence. We find no fatal variance.

Other bills of exception are contained in the record, which we deem it unnecessary to discuss. A careful, examination of all of appellant’s contentions leads us to the conclusion that reversible error is not presented.

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.

LATTXMORE, J.

In his able and courteous motion for rehearing, appellant insists that we were wrong in declining to reverse this case, because of the fact that the trial court in stating the penalty to the jury gave to appellant, as the court below evidently thought, the benefit of a new statute, by the terms of which the minimum penalty for the offense charged had been reduced from five years to two. It is true that at the time the court gave this charge appellant objected and excepted to the giving of same, upon the ground that the law changing the penalty was unconstitutional. We have followed the interesting discussion in appellant’s motion of the mutations of what is now our article 666, C. C. P., but are constrained to hold that we are bound by the proposition contained in said article of the statute that a case shall not be reversed even for an error in the charge, unless such error be one calculated to injure the rights of the defendant. Whether the amended statute changing the penalty be constitutional or not, it still seems impossible to conceive that an instruction to the jury, 'to fix the penalty in case of guilt at not more than ten nor less than two years, could have hurt appellant, conceding for the argument that the trial court should have instructed the jury to fix the penalty, in case of a verdict of guilty, at not more than ten nor less than five years. The verdict fixed by the jury was within either statute, the old or the new. We think Judge Hawkins’ discussion of the matter in Thompson v. State, 91 Tex. Cr. R. 234, 237 S. W. 926, presents a correct view. As said by Judge Davidson in Ramirez v. State, 43 Tex. Cr. R. 455, 66 S. W. 1101, in which the penalty was incorrectly stated, but the lowest penalty was fixed: “Under the decisions of this court construing article 723 [now article 666], Code Or. Proc., this error was not calculated to injure appellant’s rights.”

We have again examined bill of exception No. 12 presenting objection to the testimony of Messrs. Mauritz and Dees. The bill states that the appellant objected to the testimony of these gentlemen as to the total individual deposits shown by the individual deposit ledger of the bank in question, on the ground that the individual ledger deposit accounts themselves were the best evidence of the amounts of such deposits, and that the testimony of said witnesses, as to the total of such several balances, was merely the conclusion of the witnesses. The bill states no facts supporting or making clear the validity of such objection. For aught we know from the bill, the witnesses may have had the individual deposit ledger before them, and may have been stating their contents from a then examination. It is necessary for a bill of exception to state facts from which this court may know that the objections taken are true and supported.

It is also insisted' that the' fcdurt below, erred in declining to grant a continuance. We would not be inclined to bold that one representing a person accused of crime, might depend upon the court quashing the indictment, and offer this as a reason why he had not procured subpcenaes for absent witnesses, or taken active steps to inform himself about matters material to his defense. As far as we are informed by the record, no effort was made by appellant in any way to show by an examination of the books of the bank during the trial, that the individual deposit ledger, whose contents were offered in evidence, did not properly reflect the facts. No effort seems to have been niade to cause the books to be produced by a subpoena duces tecum, if indeed the books were not present. The testimony for the state, to the effect that appellant admitted that he had falsely kept the individual deposit ledger so that he might thereby defraud the bank, seems not to have been disputed by any testimony. We see no error in the action of the court in declining to grant the continuance, which was asked in order that appellant might have time to examine the books of the bank. We do not think the court abused his discretion in the matter.

The charge against appellant was making a false entry, which consisted in the entry of .an aggregate sum in the individual deposit ledger purporting to show the amount of the assets of the bank as of a certain date. We do not see just how the court below could be deemed to have committed an error, following the admission of testimony of the false entry showing a wrong total of assets on that day, in permitting it to be shown that on a particular day about this time appellant received a deposit of $650, which was entered on said ledger as a deposit of $65.

We believe the case correctly decided, and the motion for rehearing will be overruled.


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

text:
    LAMAR v. STATE.
    No. 14196.
    Court of Criminal Appeals of Texas.
    May 20, 1931.
    Appeal Reinstated June 17, 1931.
    J. G. Minkert, of Bryan, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for murder; punishment being five years’ confinement in the penitentiary.

In order to secure his enlargement pending appeal, appellant, after adjournment of the trial term of court, entered into an appeal bond which was approved by the sheriff only. Article 818, C. C. P. specifically requires such bonds to be approved by the sheriff and the court trying said cause. On account of the defect in the bond, the appeal must be dismissed.

If appellant desires to further prosecute his appeal, he may have fifteen days from this date to furnish an appeal bond ih compliance with the statute and forward same to this court by supplemental transcript in connection with a motion to reinstate the appeal.

The appeal is dismissed.

On Motion to Reinstate Appeal.

MORROW, P. J.

A perfected appeal bond having been filed, the appeal is reinstated.

There is presented for review no complaint of the ruling of the trial court save that with reference to the overruling of the motion for new trial.

The state’s case is summarized as follows : The appellant shot and killed Lee Gaitor. He claimed that Gaitor had taken possession of certain articles of personal property belonging to him. This Gaitor denied. The appellant declared that he would kill Gaitor if the property was not returned. The state’s evidence describing the homicide was such as to show an unprovoked killing.

The appellant, through his testimony and that of his witnesses, presented the issue of self-defense. The evidence, including the appellant’s confession, presented an issue of fact; that is, whether the appellant acted upon malice or in defense of his- life. Upon that issue the jury was fully, and apparently accurately, instructed, in a charge against which there is no exception addressed. The jury was also instructed upon the law of suspended sentence, but declined to recommend it.

In entering the judgment and sentence, the court failed to take note of the indeterminate sentence law as set forth in article 775, C. C. P. The judgment is reformed so as to provide that the appellant shall be confined in the state penitentiary for a period of not less than two nor more than five years. As so reformed, the judgment is affirmed.


author: LOONEY, J.

text:
    MILFORD v. CULPEPPER et al.
    No. 10840.
    Court of Civil Appeals of Texas. Dallas.
    May 30, 1931.
    Rehearing Denied June 27, 1931.
    Currie McCutcheon, of Dallas, for appellant.
    Niblo & Dodd, of Dallas, for appellees.
   LOONEY, J.

C. W. Milford conveyed a lot in Kessler Square addition in the city of Dallas to E. J. Culpepper and wife, Mary Ella Culpepper, in consideration, among other things, of two notes executed by grantees, payable to the order of the grantor, one for $3,150 and the other for $1,350, each secured by an express lien retained on the land. The first was further secured by a deed of trust in the usual form, in which W. L. Thornton was made trustee; the second was also further secured by a deed of trust in the usual form, in which Hugh January was made trustee. Milford transferred, without recourse, the note for $3,150 to the Mercantile Bond & Mortgage Company, agreeing that it should have priority in payment over the note for $1,350. The, Bond & Mortgage Company transferred the note to Jacob Green, who caused Thornton, trustee, to sell the land under the trust deed, and at the sale Green became purchaser, and thereafter conveyed the land to defendant- Roland B. Culpepper. In this status, Milford brought suit for debt and foreclosure on the $1,350 note against E. J. and Mary Ella Cul-pepper, makers, Roland B. Culpepper, holder of the legal title, and Green was also made a defendant, but as to him the case was dismissed on demurrertherefore his relationship to the ease will not be noticed further.

Plaintiff's petition contained allegations usual to an action on a note for debt and foreclosure, but in addition alleged that defendants entered into a conspiracy to extinguish or cut off the lien that secured the $1,350 note, and to this end the land was sold under the trust deed, was bought in by Green, and by him conveyed to Roland B. Culpepper, brother of E. J. Culpepper, who was holding the legal title for the use and benefit of the said E. J. Culpepper and wife.

The material allegations involving Roland B. Culpepper are these: “That while the deed proposes to be to Roland B. Culpepper, in truth and in fact the same was in furtherance of the scheme and device and conspiracy to cheat and defraud plaintiff, as aforesaid, and that the said Roland B. Culpepper is holding same (land) in trust for the defendants, E. J. Culpepper and, or, Mary Ella Culpepper, * * * and that although same (deed) is in the name of the said Roland B. Culpepper, same is a mere subterfuge and scheme, and that the said Roland B. Culpepper is holding said property in trust for the said E. J. Cul-pepper and, or, Mary Ella Culpepper, and that they are the true owners of same.”

Defendants were duly cited and all answered, except Roland B. Culpepper, against whom an interlocutory judgment by default was entered. On final trial, as before stated, the suit was dismissed as to Green, and judgment was rendered for plaintiff against E. J. and Mary Ella Culpepper for the amount of the note, principal, interest, and attorney fee, with foreclosure of the lien upon the land, but plaintiff was refused judgment of foreclosure against Roland B. Culpepper. As to him the judgment reads: “And it further appearing to the court that an interlocutory judgment by default with a writ of inquiry was rendered against the defendant, Roland B. Culpepper, on July 25,1927, but that no testimony was introduced on' the trial of this cause in support of same: It is therefore the order, judgment and decree of the court that the plaintiff, C. W. Milford, recover nothing against the said Roland B. Culpepper and he go hence without day, and that he recover of the plaintiff his costs in this behalf expended.” Plaintiff excepted to the action of court in refusing foreclosure as to Roland B. Cul-pepper, gave notice of perfected appeal, and by appropriate assignments and propositions presents for .revision the action of the court in this respect.

In view of the default judgment against Roland B. Culpepper, was it necessary for plaintiff to introduce evidence to entitle him to foreclosure, as held by the trial court? We do not think so. The truth of plaintiff’s allegations was admitted by the default, and the allegations should have been accepted as established facts without evidence. It is only in instances where the cause of action is based upon an unliquidated demand, or not proven by an instrument in writing that evidence is required; that is, if the nature of the suit requires the assessment of damages. In all other cases and on all other issues, allegations of the petition must be taken as established. This is the construction and operation of a default judgment given in repeated decisions. The identical question was- before us in Citizens’ Bank v. Brandau (Tex. Civ. App.) 1 S.W.(2d) 466, 470 (writ refused). We quote what was said in that case in point, viz.: “This contention in effect involves the proposition that, after default, a judgment may be reopened and set aside because evidence or sufficient legal evidence was not introduced as a basis for its rendition. We do not understand this to be the law. On the contrary, we understand the thoroughly well-established rule to be that evidence is not required when default is made, except where the cause of action is unliquidat-ed, or is not proved by an instrument in writing, and in either of such cases the court shall hea,r. evidence only as to the damages. Article 2157, Revised Statutes 1925, makes provision for such a situation as follows: ‘If the cause of action is unliquidated or be not proved by an instrument in writing, the court shall hear evidence as to damages and shall render judgment therefor, unless the defendant shall demand and be entitled to a trial by jury in which case the judgment by default shall be noted, a writ of inquiry awarded, and the cause entered on the jury docket.’ In all instances not provided for by this statute and on all other issues, the allegations of the petition are to be taken as proved and admitted. This is the legal consequence of a judgment by default. Long v. Wortham, 4 Tex. 381; Ricks v. Pinson, 21 Tex. 508; Niblett v. Shelton, 28 Tex. 548; Tarrant County v. Lively, 25 Tex. Supp. 399; Union Central Life Ins. Co. v. Lipscomb (Tex. Civ. App.) 27 S. W. 307; Wandelohr v. Grayson Nat’l Bank (Tex. Civ. App.) 102 S. W. 746.”

Applying this doctrine to the case at bar, we must accept as established plaintiff’s allegations, to the effect that Roland B. Culpep-per holds legal title to the land as trustee for the use and benefit of E. J. and Mary Ella Culpepper, the real owners. The case presented is as though Green had conveyed the land to E. J. and/or Mary Ella Culpepper, and the question for decision is, Could they in such circumstances hold the land relieved of plaintiff’s lien? If not, it follows necessarily that Roland B. Culpepper cannot hold the land relieved of the incumbrance.

As part consideration for the land, E. J. and Mary Ella Culpepper agreed to pay both notes, and an express lien existed on the land for the security of each. We are of opinion therefore that they could not take title under a sale made to satisfy the note having priority, and hold the land without discharging the $1,350 note which occupies the position of a second mortgage.

In the case of Beitel v. Dobbin, 44 S. W. 299, 301 (writ refused), the San Antonio Court of Civil Appeals, through Judge Neill, used the following language in point: “It is elementary that a purchaser of property, who agrees, as a part of the consideration, to pay off two mortgages upon it, cannot suffer a sale to take place under the prior one, and, without discharging' the .junior mortgage, claim title against it. Jones, .Mortg. § 740; Birke v. Abbott, 103 Ind. 1, 1 N. E. 485, 53 Am. Rep, 474; Conner v. Howe, 35 Minn. 518, 29 N. W. 314; Allison v. Armstrong, 28 Minn. 276, 9 N. W. 806, 41 Am. Rep. 281; Maxfield v. Willey, 46 Mich. 252, 9 N. W. 271.” To the same effect, see Kerr v. Erickson (Tex. Com. App.) 24 S.W.(2d) 21; Tompkins v. Halstead, 21 Wis. 118; 41 C. J. 893 (§ 1116) 6.

We think the- court erred in not foreclosing plaintiff’s lien on the land against Roland B. Culpepper; hence the judgment below in that respect is reversed, and judgment, here rendered in favor of plaintiff.

Reversed and rendered.