author: WALKER, Justice.

text:
    Helen S. STRAUSS, Petitioner, v. Lewis LaMARK et al., Respondents.
    No. A-9311.
    Supreme Court of Texas.
    March 13, 1963.
    Rehearing Denied April 24, 1963.

      Milton Schwartz, Mabel Grey Howell, Houston, for petitioner.
    Butler, Binion, Rice & Cook, Clyde Bracken, Jr., and John L. McConn, Jr., Houston, for respondents.
   WALKER, Justice.

Helen S. Strauss, petitioner, brought this suit against Lewis LaMark, et al., respondents, to recover for personal injuries alleged to have been sustained when petitioner tripped on an electrical cord in the aisle of a beauty shop owned and operated by respondents. Special Issue No. 1, which inquired whether the cord extended into the aisle, was answered by the jury in the negative. The next five issues were conditioned on an affirmative answer to Special Issue No. 1 and were not answered. These issues inquired whether petitioner tripped and fell on the cord, whether the cord had extended into the aisle for such length of time that respondents knew or in the exercise of ordinary care should have known of it, whether respondents were guilty of negligence which was a proximate cause of the accident, and whether the cord was open and obvious. In response to Special Issues Nos. 7 and 9, the jury found that petitioner did not fail to keep a proper lookout and that her fall was the result of an unavoidable accident. The trial court rendered judgment on the verdict that petitioner take nothing. Petitioner perfected her appeal, and the Court of Civil Appeals held: (1) that the jury’s answer to Special Issue No. 1 is contrary to the great weight and preponderance of the evidence, and (2) that the issue of unavoidable accident is not raised by the evidence. On the basis of these conclusions, it entered a decree reversing the judgment of the district court and remanding the cause for a new trial. Respondents then filed a motion for rehearing in which they insisted that petitioner, by failing to obj ect to the conditional submission of Special Issues Nos. 2 to 6, inclusive, had waived her right to have such issues answered by the jury and that the same must now be deemed to have been found by the trial court in such manner as to support its judgment. The Court of Civil Appeals sustained this contention, granted the motion for rehearing, and affirmed the judgment of the trial court. Tex.Civ.App., 360 S.W.2d S83.

We agree with the Court of Civil Appeals that the issue of unavoidable accident is not raised by the evidence. The ■only remaining question to be decided then is the one considered by the intermediate court on rehearing. Under the provisions •of Rule 279, Texas Rules of Civil Procedure, an independent ground of recovery or defense not conclusively established by the evidence is waived if no issue thereon is given or requested. When some but not all of a cluster of issues necessary to sustain an independent ground of recovery or defense are given and answered by the jury without objection or request, the trial court may make written findings on omitted issues raised by the evidence. If no written findings are made, the omitted issues are deemed to have been found by the court in such manner as to support the judgment.

The presumed finding provisions of the Rule apply when an answer to a controlling issue is prevented by improper conditional submission without objection or request by the party who is entitled to and ■should insist upon a jury finding thereon. In Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, the jury found in response to Special Issues Nos. 15 and 16 that the plaintiff failed to keep a proper lookout but that such failure was not negligence. Under the definition of “proper lookout” given as part of the charge, the answer to Special Issue No. 15 amounted to a finding that the plaintiff was negligent. The causation issue, which was conditioned on an affirmative answer to Special Issue No. 16, was not answered. Judgment was rendered in favor of the plaintiff, and the defendant contended on appeal that its motion to declare a mistrial should have been granted because of the irreconcilable conflict between the answers to Special Issues Nos. 15 and 16. Our opinion points out that the burden was on the defendant to establish its defense of contributory negligence and obtain jury findings thereon, and that it could have insisted that the jurors be permitted to answer the causation issue in the event they found that the plaintiff failed to keep a proper lookout. Since no objection was made to the conditional submission, it was held that the defendant had waived its .right to a jury finding on proximate cause and that the unanswered issue would be deemed as found by the trial court in such manner as to support the judgment.

Respondent also cites Gulf, C. & S. F. Ry. Co. v. Simpson, Tex.Civ.App., 331 S. W.2d 785 (wr. ref. n. r. e.); Duval County Ranch Co. v. Foster, Tex.Civ.App., 318 S.W.2d 25 (wr. ref. n. r. e.); Jenkins v. Hennigan, Tex.Civ.App., 298 S.W.2d 905 (wr. ref. n. r. e.) ; and Whiteside v. Tackett, Tex.Civ.App., 229 S.W.2d 908 (wr. dis.). In each of these cases there was no jury finding on a controverted question of fact because the issue as submitted was conditioned on an affirmative answer to a prior issue which was answered in the negative. Although no objection to the conditional submission was made in the trial court, it was contended on appeal that the affirmative of the issue answered by the jury was established by the undisputed evidence as a matter of law. The prior issue had no place in the charge if it was conclusively established by the evidence, and the appellant could have insisted upon an unconditional submission of the disputed question of fact. It was accordingly held that the unanswered issue would be regarded as having been answered by the court in such manner as to support the judgment. In the Whiteside case the Court of Civil Appeals said that the answer of the jury to the first issue was so against the preponderance of the evidence 'as to be clearly wrong. A reading of the opinion discloses, however, and an examination of the record confirms, that the only contention made by the appellants in that case with reference to such issue was that the same should have been found in their favor by the trial court as a matter of law. The decision does not, therefore, support respondent’s position in the present case. See also Knight v. Stewart, Tex.Civ.App., 282 S.W. 2d 307, 287 S.W.2d 748 (no writ).

Petitioner’s situation is quite different from that of the appellants in the cases cited above. She has not contended that the extension of the cord into the aisle is conclusively established by the undisputed evidence, and the contention would not be sound even if it had been made. The Court of Civil Appeals held that the jury’s answer to Special Issue No. 1 is contrary to the great weight and preponderance of the evidence, and this conclusion was reiterated in its opinion on .rehearing. Petitioner would have accomplished nothing by attempting to raise that question in the trial court prior to her motion for new trial, which came after the entry of judgment. See De Winne v. Allen, 154 Tex, 316, 277 S.W.2d 95; Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.Law Rev. 359, 365. The district judge was required to submit Special Issue No. 1 to the jury even though a negative answer might be contrary to the overwhelming preponderance of the evidence. It is well settled, moreover, that conditional submission of special issues is authorized by our Rules of Civil Procedure. See Hunter v. Texas Electric Ry. Co., Tex. Civ.App., 194 S.W.2d 281 (wr. ref.) ; 41b Tex.Jur.Trial — Civil Cases § 481 and authorities there cited. The practice serves a number of useful purposes and should not be discouraged.

The burden was on petitioner to obtain a jury finding that the cord extended into the aisle, and she could hardly be expected to object to the submission of Special Issue No. 1. If objection had been made to the conditional submission of the succeeding five issues, the trial court would have been justified in overruling the same. There is no basis for saying that petitioner waived jury findings on these issues when she did not have the .right to insist that they be unconditionally submitted. In view of the provisions of Rule 274, Texas Rules of Civil Procedure, it would be rather strange to require that unfounded objections to the charge be made as a predicate for contentions which cannot be urged until after judgment is .rendered. We hold that the failure to make such an objection does not deprive the appellant of the right to a new trial when the Court of Civil Appeals finds that the jury’s answer to a controlling issue is contrary to the overwhelming weight and preponderance of the evidence.

The judgments of the courts below are reversed, and the cause is remanded to the district court for a new trial.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Donald Foster MOBLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 35314.
    Court of Criminal Appeals of Texas.
    April 3, 1963.

      Thos. H. Dent, Galveston, for appellant.
    Ted Schulz, County Atty., Richmond, and Leon B. Douglas, State’s Atty., Austin for the State.
   Opinion on Application for Leave to File Second Motion for Rehearing.

MORRISON, Judge.

Appellant urges that we were in error in not considering the statement of facts which was tendered. Under Article 759a, Vernon’s Ann.C.C.P., a statement of facts may be considered when filed after the expiration of the 90 days provided only when the same is approved by the trial judge because the statute says that such approval shall be sufficient proof that the time for filing was properly extended.

We may not consider what purports to be a nunc pro tunc entry of an order overruling appellant’s motion for new trial tendered in a supplemental transcript because the same was entered while the case was on appeal in this Court and the trial court was without any authority to enter any order during that time. Allen v. State, 124 Tex.Cr.R. 642, 65 S.W.2d 311, and Colbert v. State, Tex.Cr.App., 331 S.W.2d 328.

Application for permission to file second motion for rehearing is denied.


author: WOODLEY, Presiding Judge.

text:
    Ex parte Ben H. ROGERS.
    No. 35748.
    Court of Criminal Appeals of Texas.
    April 3, 1963.
    Ben H. Rogers, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The relator is confined in the penitentiary under a conviction in Cause No. 23345 in Criminal District Court of Jefferson County. The indictment, drawn under Art. 725c Vernon’s Ann.P.C., alleged that he was “addicted to the use of narcotic drugs”, he not being a person who had a medical need for narcotic drugs and not being a person who obtains narcotic drugs required for such medical need in accordance with the laws of the State of Texas and of the United States.

Upon a plea of guilty to said indictment, relator was assessed a term of 5 years. Probation was granted but thereafter revoked, and the term of punishment was reduced to 4 years.

The statute under which this prosecution was had, insofar as it makes it a crime for a person to be addicted to the use of narcotic drugs, is invalid. Salas v. State, Tex. Cr.App., 365 S.W.2d 174; Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758.

The statute being void, the conviction cannot stand.

We observe, also, that the punishment assessed against the relator is in excess of the maximum punishment provided for violation of Art. 725c V.A.P.C., which is 3 years.

The writ of habeas corpus is granted and the relator is ordered discharged from further restraint under the conviction above described.


author: BELCHER, Commissioner.

text:
    Zelda Keeton JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 35259.
    Court of Criminal Appeals of Texas.
    Feb. 27, 1963.
    Rehearing Denied April 10, 1963.

      Chester A. Oehler, Dallas, J. C. Aler, Austin, for appellant.
    Henry Wade, Dist. Atty., Dallas, Robert Maloney, O. H. Harris, Hulen Ford and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, ten days in jail and a fine of $100.

Officer Sebastian of the Dallas Police Department testified that appellant’s automobile weaved back and forth as she drove it along a public street in the City of Dallas. When the appellant stopped at a traffic light Officer Sebastian stopped his car behind her, then he approached and removed the ignition key from her car by reaching through an open window. He identified himself as a police officer and asked her to step out and they walked to a nearby cafe where he telephoned for a squad car which took her to the city hall. Officer Sebastian further testified that she had a strong odor of alcohol on her breath, bloodshot eyes, slurred speech and swayed while walking; that she told him she had had two mixed drinks and was going to her store to get a friend who was operating it; and he expressed the opinion that she was drunk.

Proof was offered that the appellant took an intoximeter test shortly after she arrived at the city hall which revealed that the blood alcohol concentration at that time was 0.280 per cent. The proof further showing that any person having 0.100 per cent concentration of alcohol in the blood would be under the influence of alcohol was substantially the same as that in McGaffey v. State, Tex.Cr.App., 363 S.W.2d 459.

Testifying in her own behalf, the appellant denied that she was intoxicated, but admitted that she was driving the car and she had had three mixed drinks of bourbon; and that a prior injury had impaired her ability to walk. She called one witness who testified that he was with her from about 7 P.M. until shortly before she was arrested and that she was not intoxicated although they took three drinks during this time.

The jury resolved the issue of intoxication against the appellant and the evidence is sufficient to sustain their verdict.

By informal bill of exception the appellant complains of the following argument to the jury by the prosecuting attorney:

“Zelda Keeton Johnson (appellant) has got to come down here and try to disprove these things.”
To which the appellant interposed:
“I object to him saying that Zelda Keeton Johnson has got to try to disprove these things. They have the burden of proof, and until that burden is met, we didn’t have to put any testimony on.”

which was overruled.

The appellant voluntarily testified as a witness in her own behalf and the evidence offered by her was an attempt to disprove the evidence that had been offered by the state. The court charged the jury on the burden of proof, the presumption of innocence and gave application to the law of reasonable doubt. The complained of remarks were not so prejudicial as to call for reversal.

Appellant contends that the trial court erred in refusing his motion for new trial based upon alleged jury misconduct.

The motion was not controverted by the state. The affidavits of the two jurors attached to appellant’s motion for new trial were offered in evidence and they constitute all the evidence before the court when the motion was overruled.

In support of his motion the appellant relies on the following portions of the affidavits which he set out in his brief:

“Another juror, which I believe was Mr. Hurd, made a statement in the jury room that in his opinion it was unusual that the defendant’s sister was not called to the witness stand, in order to prove or disprove the State’s contention that the Defendant was drunk. Mr. Hurd, I believe, also stated that in these type of cases character witness (es) are usually placed on the witness stand.
“That it was unusual that the Defendant on a D.W.I. case would not have character witnesses testify in her behalf that the Defendant was of good character, not an alcoholic, or would not have any one at the trial in her behalf to testify about her personal habits or behavior;
“That it (is) not a matter of fact that the Defendant was involved in an accident but that by being D.W.I. that should there have been a child in the street reflex time due to D.W.I. would have been impaired, and thus a potential killer was on the public streets.”

The appellant testified that in response to her request the arresting officers took her by her store so she could instruct her sister how to close it. It was further shown by a defense witness that appellant’s sister was at the store during this time.

When the appellant testifies on the main trial, it is not error for the jury to discuss his failure to produce other evidence in his behalf. Romero v. State, 109 Tex.Cr.R. 15, 2 S.W.2d 462; Leal v. State, 169 Tex.Cr.R. 222, 332 S.W.2d 729.

The discussion by the jury during its deliberations of the dangers and hazards caused by a drunken driver on the public streets was a reasonable inference and conclusion from the evidence and presents no error.

The alleged misconduct of the jury as a ground for new trial rests in the discretion of the trial judge. Under the facts of this case there appears no abuse of discretion in overruling the motion for new trial.

The judgment is affirmed.

Opinion approved by the court.

On Appellant’s Motion for Rehearing

McDonald, judge.

Appellant’s able counsel earnestly contends that this court committed error and is leaving an erroneous impression in the law as to what constitutes discretion of the trial court in granting a new trial, and insists that the trial court has certified error by not refusing to approve appellant’s bills of exception within the specified time and that his bills of exception shall be considered as approved by the trial court and no other approval thereof is necessary.

We are aware that appellant’s contention is encompassed within the terms of Art. 760d, Vernon’s Ann.C.C.P., pertaining to the approval of bills of exception.

This court has held in McGee v. State, 155 Tex.Cr.R. 639, 238 S.W.2d 707; Watkins v. State, Tex.Cr.App., 239 S.W.2d 107; Mayberry v. State, 156 Tex.Cr.R. 101, 239 S.W.2d 111; McCune v. State, 156 Tex. Cr.R. 207, 240 S.W.2d 305; Hudson v. State, 156 Tex.Cr.R. 612, 245 S.W.2d 259; Sublett v. State, 158 Tex.Cr.R. 627, 258 S.W. 2d 336 ; Hanna v. State, 159 Tex.Cr.R. 2, 259 S.W.2d 570, and Free v. State, 165 Tex. Cr.R. 374, 307 S.W.2d 808, that where the entire matter is before us we will not be bound by the trial court’s certificate of error.

Under the record, we remain convinced that the trial court did not abuse his discretion in refusing to grant a new trial.

Appellant’s motion for rehearing is overruled.


author: McDonald, judge.

text:
    W. B. BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 35556.
    Court of Criminal Appeals of Texas,
    April 10, 1963.
    Franklin R. Navarro, Ralph A. Keen, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Daniel P. Ryan, Jr., and Bill White, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The appellant was convicted in the Corporation Court of the City of Houston for the offense of unlawfully possessing and having in his possession with intent to sell a food product, to-wit: fresh meats to which had been added benzoate, said benzoate being a substance not approved by the Director of Public Health of the City of Houston, Texas. Upon appeal in a trial de novo before a jury in County Criminal Court at Law No. 1, appellant was found guilty and his punishment was assessed at a fine of $200.00.

The conviction was for a violation of Ordinance No. 2922 of the City of Houston.

The caption of this ordinance was introduced in evidence. It gives notice that a penalty for a violation thereof is provided, but that section of the ordinance which prescribes the penalty was not introduced. The State relied upon a general penalty provision, as evidenced by an excerpt from the 1942 Code of the City of Houston, Texas. This provision sets a maximum fine of $200.00, where no other penalty is specified.

We hold that before a general penalty provision of an ordinance may be utilized for a conviction, it is incumbent upon the State to show that a specific penalty is not prescribed.

This essential proof is lacking. Absent a showing of the lack of a specific penalty provision, this conviction cannot be sustained. Jones v. State, Tex.Cr.App., 354 S.W.2d 160.

The judgment is reversed, and the cause is remanded.


text:
    Alvin Charles SUE, Appellant, v. The STATE of Texas, Appellee.
    No. 35660.
    Court of Criminal Appeals of Texas.
    April 10, 1963.
    Stein, Bennett, Shepley & Porto, by Ralph O. Shepley, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Gus J. Zgour-ides and Theodore P. Busch, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal from a conviction in County Criminal Court No. 1 of Harris County for violation of a traffic law, the punishment being a fine of $101.00.

The prosecution was instituted in the corporation court by complaint alleging that the appellant, in Harris County, did unlawfully “operate a motor vehicle, to wit, an automobile, upon a public highway situated in said County and State and did pass another vehicle in a duly marked and designated no passing zone, to wit, operating on State Highway 146 in Harris County, Texas.”

Sec. 58 of Art. 6701d Vernon’s Ann.Civ. St. authorizes the State Highway Commission to “determine those portions of any highway where overtaking and passing or driving to the left of the roadway would be especially hazardous” and provides that the Highway Commission “may by appropriate signs or markings on the roadway indicate the beginning and end of such zones and when such signs or markings are in place and clearly visible to an ordinarily observant person every driver of a vehicle .shall obey the directions thereof.”

There is no allegation in the complaint that the appellant overtook and passed another vehicle or that he drove to the left of the highway in the duly marked and designated no passing zone.

“Passing” another vehicle is not made an uifense under the statute. Passing a vehicle traveling in the opposite direction or passing a vehicle parked on the highway is not unlawful. Nor does Sec. 58 of Art. 6701d attempt to make such passing unlawful.

In the absence of an allegation that the appellant overtook the vehicle he passed in the no passing zone, the complaint is fatally defective and will not support the conviction.

The judgment is reversed and the prosecution is ordered dismissed.


text:
    Ulysses WORMLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 35616.
    Court of Criminal Appeals of Texas.
    April 10, 1963.
    Long, Welsch & Koehler, by Lawrence M. Welsch, El Paso, for appellant.
    Edwin F. Berliner, Dist. Atty., Oscar G. Galvan and Mike J. Thompson, Asst. Dist. Attys., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

Appellant was jointly indicted with Ernest A. Racsumberger and James A. Hughes for burglary. Severance being granted upon his application, appellant was tried before a jury on his plea of not guilty. He was found guilty and his punishment was assessed at 12 years in the penitentiary.

The evidence shows that the warehouse of the Welch Furniture Company, in El Paso, was burglarized at night and a number of portable television sets and stereo sets, in their original cartons, were stolen.

Racsutnberger, a 450 pound white man, was arrested as he was getting out of an automobile which the arresting officers pursued as it sped from the burglarized premises. His two companions, both Negroes, escaped.

Some of the television sets and stereo sets removed from the warehouse were found in the car and others were found near where the officers saw men getting into the car. No witness identified the appellant as one of the Negroes who escaped.

To connect 'the appellant with the burglary the state relied upon his written statement introduced as a confession. In it he said that James Hughes came into Ciro’s bar: “ * * * by himself and told me he had a deal, he wanted to talk with me outside the bar. I went outside of the bar and he told me he had just burglarized the Welch Furniture Warehouse and had two T-V sets stached under some bushes. I walked with James Hughes over to a two-tone green Cadillac, and there was a man sitting in the car by the nickname of Tiny. James told me he had met Tiny while he was serving timé in a Juarez Jail. Tiny was driving the car and he drove to the Welch Furniture Warehouse, where he parked the car close to the railroad tracks close to the alley. Tiny was behind the wheel, and James told me where he had' hidden two T-V sets under some bushes. He told me he was going back inside the building to get some more T-V sets while I was putting the two T-V sets under the bushes into Tiny’s car. I picked up the two T-V sets which were in cardboard boxes and placed them in the back seat of the car, when we saw James coming back with another T-V set. On this trip as he was leaving the building through the loading dock door, I met him and took the T-V set out of his arms and placed it inside the car. I believe there were five T-V sets inside the car. I want to state that I never went inside the building and James Hughes was the only one that went inside the building. Hughes told me that he had hidden inside the building while it was still open, remained inside the building until it closed. Then he had opened the rear loading dock door from the inside. He told me he had taken two T-V sets by himself and stached them in the bushes where I found them. We were getting ready to leave when somebody yelled, ‘Here comes a police car’. I jumped behind the wheel and drove the car for about a block. I stopped and James Hughes and myself took off running.”

The statement, insofar as the offense of burglary is concerned, was exculpatory. If true, it showed that the Warehouse had been burglarized and some television sets removed therefrom before the appellant had any knowledge that such offense was to be committed, and at a time when he was not present.

The state having introduced the exculpatory statement was bound to disprove it. See Medina v. State, 164 Tex.Cr.R. 16, 296 S.W.2d 273, and cases cited.

The conviction herein cannot be upheld upon the theory of a second entry into the warehouse by Hughes while the appellant was loading the car, for two reasons. First, there is no evidence that the second entry was made by force rather than through a door that had been left open by Hughes; and second, there is no evidence to corroborate the appellant’s statement that there was a second entry.

Because the evidence is not sufficient to sustain his conviction of the offense charged in the indictment, it becomes the duty of this Court to set aside the conviction.

The judgment is reversed and the cause remanded.


text:
    Ex parte Raymond LANDERS, Alias Raymond Landis, Alias Nimo Nalto, Appellant.
    No. 35504.
    Court of Criminal Appeals of Texas.
    March 20, 1963.
    Rehearing Denied April 24, 1963.
    Robert C. Benavides, Dallas, for appellant.
    Henry Wade, Dist. Atty., George Milner, James H. Miller and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding the appellant to custody to be extradited to the State of Mississippi to answer an indictment charging Nimo Naito and others with robbery with firearms, alleged to have been committed on November 10, 1959, in Harrison County.

Certified copy of the indictment, capias and affidavits of the persons alleged to have been robbed were introduced at the hearing, the affidavits identifying photographs attached thereto as photographs of the person indicted under the name of Nimo Nai-to, and of one of the persons who committed the robbery.

The application for requisition, the Demand of the Governor of Mississippi and the Executive Warrant of the Governor of Texas were also introduced in evidence at the hearing.

The appellant called his wife and stepdaughter as witnesses whose testimony was to the effect that the appellant was with them in New Orleans, Louisiana on November 10, 1959, and they attended a birthday party on that night at a friend’s home.

The trial judge had before him the photographs, the affidavits and the appellant, and it is apparent that he did not accept the testimony offered by the appellant as sufficient to show that he was not in the State of Mississippi when the robbery was committed, and could not be the person sought to be extradited.

Delgado v. State, 158 Tex.Cr.R. 52, 252 S.W.2d 935; Ex parte O’Connor, Tex. Cr.App., 336 S.W.2d 152, and Ex parte Green, Tex.Cr.App., 340 S.W.2d 821, are deemed authority for our holding that the trial judge was authorized, under the evidence, to remand the appellant for extradition.

The claimed abuse of discretion on the part of the trial court in overruling appellant’s motion for continuance is not sustained. The record shows that the Executive Warrant, Requisition and supporting documents demanded by appellant and his counsel were furnished before the hearing began. The record does not show that a prior demand was made, and there is no showing of injury.

Appellant contends that the record fails to show that he is or was substantially charged with a criminal offense in the State of Mississippi.

This contention is predicated upon the fact that the indictment purports to bear the signature of Boyce Holleman, the District Attorney.

We note that the indictment hears the endorsement: “A TRUE BILL: W. H. Patenotte, Foreman of the Grand Jury”, and the copy offered in evidence is certified by the Clerk of the Circuit Court as a true and correct copy of the original indictment “returned by the Grand Jury of Harrison County, Mississippi at .the December 1959 Term of this Court.”

We note further that although Art. 396 C.C.P. relating to Requisites of an indictment provides, in Section 9, “It shall be signed officially by the foreman of the grand jury,” such signature is not essential to the validity of the indictment. Ex parte King, 156 Tex.Cr.R. 231, 240 S.W.2d 777, and other cases cited under Art. 396, Note 21, Vernon’s Ann.C.C.P.

The order remanding the appellant to custody for extradition is affirmed.


text:
    Ex parte Johnny SENA.
    No. 35747.
    Court of Criminal Appeals of Texas.
    April 3, 1963.
    Gregorio E. Coronado, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The petitioner is confined in the penitentiary in Cause No. 11,172 in the 47th District Court of Potter County, from which sentence an appeal is pending, and appeal bond set at $2,000.00.

The sentence not having become final, the petitioner is ordered released from further confinement in the penitentiary to be delivered to the Sheriff of Potter County, Texas, to be confined in the Potter County Jail to await the decision of this Court on his appeal, or until bond on appeal is given and approved.


text:
    Lloyd GOATS, Appellant, v. The STATE of Texas, Appellee.
    No. 35631.
    Court of Criminal Appeals of Texas.
    April 3, 1963.
    No Attorney on appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

Upon his plea of guilty before the court, appellant was sentenced to serve a term of not less than 2 years nor more than 3 years in the penitentiary for the offense of felony theft. Execution of the sentence was suspended and probation granted, one of the conditions being that he commit no offense against the laws of this state or any other state.

On November 17, 1962, the court granted motion to revoke said probation and ordered that the sentence be carried out.

The record contains no notice of appeal. However, the trial judge has forwarded to this court a petition for habeas corpus on behalf of the appellant and a “Summary of Facts” in which he recites that at the conclusion of the revocation hearing appellant’s counsel “gave oral notice of appeal” but he “subsequently withdrew from the case before the perfection of said appeal.”

Under such facts the appellant is entitled to have his notice of appeal entered of record.

In the absence of a notice of appeal entered of record, this Court has no jurisdiction to enter any order other than to dismiss the appeal. Art. 827 Vernon’s Ann. C.C.P.; Maynard v. State, 168 Tex.Cr.R. 638, 331 S.W.2d 63.

In view of the appellant’s right to have his notice of appeal so entered, and move to reinstate the appeal, we direct attention to the fact that the judgment entered upon the appellant’s plea of guilty, as it appears in the transcript, does not show any definite punishment assessed, though the sentence recites that 3 years was the punishment.

The appeal is dismissed.


author: DICE, Commissioner.

text:
    James Otis HOLLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 35231.
    Court of Criminal Appeals of Texas.
    Feb. 27, 1963.
    Rehearing Denied April 3, 1963.
    Second Rehearing Denied May 1, 1963.
    Appellant represented himself.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

It having been shown that notice of appeal was given and entered of record as required by Art. 827, Vernon’s Ann.C.C.P., our prior opinion dismissing the appeal is withdrawn and the appeal is reinstated.

The conviction, upon a prosecution originating in county court, was for speeding, in violation of Art. 827a, Vernon’s Ann. P.C.; the punishment, a fine of $175.

The state’s evidence shows that on the day in question three state highway patrolmen, Stewart Dowell, Richard Krause, and Wilbert Horstmann, were working as a team in the operation of a radar unit at a location on U. S. Highway 90A, approximately four miles east of Hallettsville in Lavaca County.

Patrolman Dowell testified that before any traffic moved through the radar unit on the day in question it was first set up on the highway and checked for accuracy with a tuning fork, which would cause it to vibrate at sixty miles per hour, and also by driving a patrol car past the unit at sixty miles per hour, and that on such occasion the unit registered exactly sixty miles per hour. The officer testified that while the unit was in operation, appellant passed on the highway, driving a Pontiac automobile, and that the unit registered the speed of his automobile at seventy-six miles per hour and appellant was thereafter stopped by Patrolman Krause, who was in a “pickup car” down the highway. Officer Dowell further testified that where appellant was driving on the highway was in a maximum posted speed zone of sixty miles per hour, and expressed his opinion, independent of the radar findings, that appellant was traveling in excess of the legal speed limit.

Patrolman Krause, testifying as a witness for the state, corroborated Officer Dowell’s testimony relative to his stopping appellant on the occasion in question, and also expressed his opinion, independent of the radar findings, that appellant was operating his automobile over the legal speed limit. Officer Krause further expressed his opinion that a speed of seventy-six miles per hour was not a reasonable and safe speed under the conditions then existing on the highway where appellant was driving.

Patrolman Horstmann testified that it was he who drove the patrol car past the radar unit at sixty miles per hour when it was first set up and tested for accuracy, and expressed his opinion that any speed in excess of sixty miles per hour at the point where appellant was driving on the highway was unreasonable and unsafe.

Testifying as a witness in his own behalf, appellant admitted that while it was possible he was driving over sixty miles per hour on the occasion in question, he did not know how fast he was driving and it did not appear that he was exceeding the speed limit. He further stated that the visibility was clear, that the road was good and it was dry, and that the speed he was traveling did not seem to be unsafe.

While the officer did testify that he checked the unit after the arrest and at the end of the test period, the result was inadvertently not shown. In this respect, the case falls slightly below the standard set forth in Wilson v. State, 328 S.W.2d 311, 168 Tex.Cr.R. 439. But we do have in f ; case, as we did not in Wilson, opinion testimony as to the excessive speed.

We find the evidence sufficient to sustain the conviction.

The record contains nine formal bills of exception. The bills were by the court refused, with the court’s reasons noted thereon. Appellant filed no bystanders bills and took no further action in the matter. Under the record, the bills cannot be considered. Art. 760d, Vernon’s Ann.C.C.P. ; Thompson v. State, Tex.Cr.App., 339 S.W. 2d 209.

By informal bill of exception, appellant complains of the court’s action in excusing the three highway patrolmen from the rule. The bill does not reflect that their presence in the courtroom was not necessary to the transaction of the court’s business. In the absence of such a showing, no abuse of discretion is shown. No reversible error is presented by the bill. Barnes v. State, 168 Tex.Cr.R. 239, 325 S.W.2d 388.

The judgment is affirmed.

Opinion approved by the court.


text:
    Ex parte Julian Epifanio GRIEGO.
    No. 35746.
    Court of Criminal Appeals of Texas.
    April 3, 1963.
    Gregorio E. Coronado, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The petitioner is confined in the penitentiary in Cause No. 11,169 in the 47th District Court of Potter County, from which sentence an appeal is pending, and appeal bond set at $2,000.00.

The sentence not having become final, the petitioner is ordered released from further confinement in the penitentiary to be delivered to the Sheriff of Potter County, Texas, to be confined in the Potter County Jail to await the decision of this Court on his appeal, or until bond on appeal is given and approved.


text:
    Roy MARSHALL, Appellant, v. The STATE of Texas, Appellee.
    No. 35545.
    Court of Criminal Appeals of Texas.
    April 10, 1963.
    H. R. Rolston, Lufkin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

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

The evidence was undisputed that appellant killed the deceased by shooting him with a pistol, the homicide occurring at a motel in the city of Lufkin.

It was shown by the state’s testimony that the deceased occupied a room at the motel with his wife and small child. The room was rented from Mrs. Willie Renfro, who operated the courts. On the night before the killing, appellant was discovered near a window of the deceased’s room. At such time, appellant was in a drunken condition. The deceased and his wife proceeded to take him to the police and, after filing a complaint against him, he was placed in jail. The next morning, as the deceased and his wife were packing their car to leave, appellant, who had been released from jail, came to their cabin and stated that Mrs. Renfro blamed him for their leaving. The deceased replied that they did not blame him. Appellant went to Mrs. Renfro’s cabin, which was locked. When she would not let him in, he unlocked the door and went inside. Mrs. Renfro was then heard to cry out for help, in a loud voice. Thereupon, the deceased, who was packing his car, proceeded to go inside Mrs. Renfro’s cabin, grab appellant by the shoulders, and throw him outside.

While appellant was lying on the ground and the deceased was standing nearby talking to him, appellant produced a gun and fired three fatal shots which struck the deceased in the chest.

The issue of self-defense was raised by the evidence and submitted to the jury. The deceased’s wife, who witnessed the shooting, testified that her husband first tried to kick the gun out of appellant’s hand and that when the first shot was fired he started stepping backward.

Appellant testified that when he shot the deceased, the deceased was coming toward him and it appeared that he was about to do him bodily harm.

Appellant complains of testimony given by Sheriff Leon Jones in which he related certain statements made to him by Mrs. Willie Renfro when he arrived upon the scene some ten or eleven minutes after the shooting. Sheriff Jones testified that after he arrived and had placed appellant in the custody of two deputies, he proceeded to Mrs. Renfro’s cabin and that Mrs. Renfro, who at the time was very excited, said to-him:

“Leon, if you all don’t take Roy and keep him he is going to kill some more of us.”

Mrs. Renfro also said:

“ * * * he has wanted to kill somebody every since he shot at Bourbon and now he has killed * * * ”,

Quoting further from the witness’s testimony:

[“Who is Bourbon?] A Bourbon is her husband.
[“Q All right. Go ahead?] A She said he has killed this boy and .it would have been me if he hadn’t of stepped between us.
[“Q All right. Did she make any further statements ?] A Yes, she said that she couldn’t keep Roy away from her place, that he had worked there previously and that while he was working there that he made pass keys to all of her buildings and that every time she got a customer there and he thought a woman was there that he tried to get into the apartment where she was.”

Appellant objected to the testimony om the ground that the statements made by Mrs. Renfro to the sheriff were outside his presence and hearing and were therefore hearsay.

It was the state’s contention, and the court so ruled, that Mrs. Renfro’s statements were a part of the res gestae and admissible as an exception to the hearsay rule.

In 18 Tex.Jur., Sec. 182, pages 297-298, under the title: Evidence' — Criminal Cases, in treating the subject of res gestae, it is said:

“One of the prerequisites of a res gestae statement is spontaneity * * If the declaration was instinctive and was made under the active influence of the transaction, it is admissible. But if it he only the narration of some former occurrence, and not a spontaneous outcry or statement concerning the thing then done, it is not admissible.”

See, also, 24 Tex.Jur.2d, Sec. 579, page 99, et s.eq., for further treatment of the subject.

In Holman v. State, 92 Tex.Cr.R. 364, 243 S.W. 1093, this court, in holding certain declarations made by a defendant’s wife after the shooting of the deceased inadmissible as res gestae and other statements made by her at the time admissible as such, said:

“Res gestae can never go beyond the facts of the transaction as they spontaneously express themselves through the agency of the acts or declarations of some participant in such transaction. Narration of past events, not so connected with such transaction as to illumine same, is not res gestae. Expressions of personal feelings and opinions, when other than the reflection of the acts or conduct of a party to the offense, would not seem ordinarily to be admissible. To make admissible any statement or act occurring after the transaction has ended, it must be shown by the party offering such testimony, or by the facts in evidence, that the person so speaking or acting was so affected, or is so affected, by the transaction as to render likely the spontaneity of the utterance or act offered, and to exclude the idea that same was or is a mere narration of past events.”

While Mrs. Renfro’s statements to the sheriff which were directly connected with the shooting and tended to explain the transaction were admissible as a part of the res gestae, her statements that if he did not take appellant away he would kill some more people, that he had wanted to kill someone since he had shot at her husband, and that he made pass keys to the apartments where there were women, were narrations of past events and expressions of her opinion, which should not have been admitted in evidence. The sheriff’s testimony relating such statements was harmful to appellant and its admission in evidence requires a reversal of the conviction. See Furrh v. State, 168 Tex.Cr.R. 299, 325 S.W.2d 699, in support of the conclusion reached herein.

Upon another trial, inquiry with reference to certain unrelated clandestine conduct which appellant may have had with a woman should not be made of him.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


text:
    Alvin Martin STROEBEL, Appellant, v. The STATE of Texas, Appellee.
    No. 35690.
    Court of Criminal Appeals of Texas.
    April 17, 1963.
    Richard D. Bird, Childress, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $125.00.

Our able State’s Attorney confesses error, and we agree.

Bill of exception No. 2, filed within the 90 days but not acted upon by the trial court within the 100 days provided by Article 760d, Vernon’s Ann.C.C.P., reflects that appellant who had never before been involved in any criminal transaction, had no experience in the trial of criminal cases, was arrested one evening and brought before the judge the following morning, at which time he requested that the trial court grant him reasonable time to engage and confer with counsel, and the court refused such request and forced appellant to trial.

It is axiomatic that an accused should be accorded a reasonable time to engage and confer with counsel before being required to plead. Henderson v. State, 137 Tex.Cr.R. 18, 127 S.W.2d 902.

The judgment is reversed, and the cause is remanded.


text:
    Fabian C. HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 35456.
    Court of Criminal Appeals of Texas.
    March 20, 1963.
    Rehearing Denied April 24, 1963.

      Arthur L. Lapham, Victoria, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The offense is assault with intent to mur•der; the punishment, twenty years.

The disposition of this appeal makes •a summary of the facts unnecessary except to state that the evidence is sufficient to support the conviction.

Appellant’s formal bill of exception certifies that the County Attorney, in the closing argument, said:

“Therefore, I say this, that I feel con- . fident that when you send him, that when he has been rehabilitated that they will turn him loose.”

To which the appellant objected on the ground that the argument was clearly in error, and asked for a mistrial. The court overruled the motion and charged the jury not to consider the last statement of the County Attorney.

The argument that an inmate will be turned loose when he has been rehabilitated in effect told the jury that it did not matter how long a term was assessed. This was of course an incorrect statement of the law. It is the duty of the jury to assess the punishment which appears to be just and proper according to the evidence and within the limits prescribed by law. Notwithstanding the court’s instruction, the argument was calculated to prejudice the rights of the appellant with the jury.

For the reason pointed out, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.


text:
    Elvis E. DALRYMPLE, Appellant, v. The STATE of Texas, Appellee.
    No. 35392.
    Court of Criminal Appeals of Texas.
    Feb. 27, 1963.
    Rehearing Denied April 17, 1963.

      James H. Martin, Dallas, for appellant.
    Alton R. Griffin, Dist. Atty., Lubbock, James R. Edwards, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., of Austin, for the State.
   McDonald, judge.

Appellant was charged under a five count indictment with the offense of murder, the fifth count charging commission of the offense “by some means unknown to the Grand Jury.” This was the count sub mitted to the jury which resulted in their verdict of guilty and the assessment of thirty years’ confinement in the State penitentiary as punishment.

The State’s principal or star witness was an accomplice by the name of Herman Talley. Almost one-half of the statement of facts reflects the testimony of this witness, Talley.

The careful trial judge fully charged the jury upon the testimony of an accomplice, pursuant to Article 718, Vernon’s Ann. C.C.P., which provides:

“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

Appellant’s primary contention is that the State failed to corroborate the testimony of the accomplice witness sufficiently to sustain the verdict.

In studying the record to determine the sufficiency of the corroborating evidence, we are guided by the statement made by Presiding Judge Hawkins in the case of Story v. State, 153 Tex.Cr.R. 541, 221 S.W.2d 917, wherein he stated:

“The test as to the sufficiency of the corroboration, long recognized as correct by our court, is to eliminate from consideration the evidence of the accomplice witness, and then examine the evidence of the other witnesses with the view to ascertain if there be inculpatory evidence, that is, evidence of incriminating character which tends to connect the defendant with the commission of the offense. If there is, the corroboration is sufficient, otherwise it is not.”

Viewing the evidence in this light, we shall narrate from the testimony of various State’s witnesses in order to determine if it tends to inculpate the appellant with the commission of the offense. The first witness for the State, other than the accomplice, Talley, was Mrs. Charlie Biggs, who testified that she operated the Joy Motel at 814-34th Street in Lubbock. Mrs. Biggs testified that she rented Cabin No. 20 to two men on January 18, 1962, for a week, one of whom identified himself as J. L. Carpenter, and she identified one of them as the appellant. She related that she later took the license number, NC 5580, down on the register sheet; that the automobile was an Olds 88, metallic green; that the two men had rented Cabin 20 on Thursday and that the last time she saw the automobile was on Saturday, the 20th; that it was dark and she could not recognize the man that she saw but she noticed the car. The witness further related that she went out to Cabin No. 20 the next morning, Sunday, and saw the door had been kicked in and the lock lying over in the middle of the room and a bedspread, blanket, a pillow case and three towels missing. Mrs. Biggs stated that the occupants did not return and ask for any of their money back and that she had not seen the appellant since then until she “came to court here today.”

The guest register from the motel was introduced by the State. It reflects that a J. L. Carpenter registered on 1/18 and the car license column of the register contained the number NC 5580 on the same line to the right of J. L. Carpenter’s name.

Richard Tivis was the next State witness. His testimony reflects that he was the owner and operator of the Rendezvous Club; that he knew the appellant and saw him at his club on the night of January 20, 1962, with a boy and a girl; that the girl was June Dalrymple; that he saw Herman Talley “setting at the table with them” (the appellant and this other man and this woman) part of the time; that he did not know the deceased — “I didn’t - recognize him by the picture that was in the paper” —that he had no acquaintance with him whatsoever.

Juanette Cheek next testified for the State, relating that she was cashier at the Rendezvous Club on Saturday night of January 20, 1962; that she saw J. R. Castle (the decedent) ; that he came into the club around 12:00 and that she did not charge him full price because it was so late; that she did not see him leave and she did not know who he left with.

Horace Cook was the next State witness. Mr. Cook testified that he worked at Paymaster Cotton Oil; that he was working the night shift from 12:00 at night until 8:00 in the morning, the Saturday night of January 20 and the early morning hours of the 21st of January; that Herman Talley and another man came up and asked him to take them to get some gas, “they’d run out of gas”; that he did not know this other man but Herman introduced him as Jim Ed; that this was between 2:00 and 4:00; that he got the company pickup and took them to a service station and got the gas and then went back out on Loop 289 to the car; that it was a ’54, ’5 or ’6 model Oldsmobile but he didn’t pay much attention to it, but it was white over green, turquoise or blue, “it was foggy that night”; that the gas was put in the car and that “there was two people setting in the car”; that he did not know them, “all I seen was the back of their heads”; that “it was one male and one female”; that he did not see where the car went after he had put the gas in it and the car started; that he returned to the oil mill. This witness related that he was familiar with that area and that there is a caliche pit near there, just to the right of the car, “it starts just, oh, in 50 yards of where they was parked, and it runs a good 300 yards from there.”

The State’s next witness, Paul Kirk, testified that he was a plumber; that on the morning of January 21, 1962, he was out at the caliche pit to do some target practice at about one o’clock in the afternoon; that he discovered the body of the deceased; that it was clothed as follows: “Oh, it had on one sock, I believe, and underwear, and a sweat shirt,” the sweat shirt was red; that he saw no one else around the caliche pit; that he called the police and then awaited their arrival.

Patrolman Howard Hall of the Lubbock police department testified for the State, relating that he went to the caliche pit the afternoon of January 21 and met Paul Kirk there and remained there until an ambulance came; that he examined the “person there in that pit” and that he “later ascertained the name of the man — whose body that was” and that his name was J. R. Castle.

Dr. Richard Kepler, a State witness, testified that he was a pathologist; that he had examined the body and gave his opinion as to the cause of death. The doctor testified that he removed two pieces of metal from the right femur; that he also took a specimen of blood from the body and that he turned the blood over to the Department of Public Safety and turned the two pieces of metal over to the “law officials who were present there.” It was the doctor’s opinion that “Mr. Castle basically died of shock due to multiple traumatic injuries,” that the “abrasions and contusions about the face were contributory factors.” He further testified: “I believe exposure is a contributory factor. I believe the wound involving the femur of the leg that was fractured, from the foreign materials of the bullets is a contributory factor. I believe the entrance wound of the abdomen with the bleeding within the abdominal cavity was likewise a contributory factor. None of these things individually and of themselves would necessarily be a total cause of death, but all together in summation of the working together was the total cause of death.”

State’s witness Raymond Waters, Captain of Company C, Texas Rangers, testified that as part of his investigation into the death of J. R. Castle on January 21, 1962, he went to Denver, Colorado, and there examined an automobile; that it was a 1957 Oldsmobile sedan, “green or dark green car or blue, more of a green, I believe”; that the license number was NC 5580, Texas license plate, ’61; that he made a search of the automobile and found various articles in it; that the “windshield had a crack or a shattered place on the right-hand — close to the right-hand side of the windshield and it was splattered — and a pretty good spot there"; that the force that had shattered this place on the windshield had come from the inside; that he found a shirt in the trunk of the automobile. The shirt was admitted into evidence as a State’s exhibit. It bore a white tape with lettering on it, “E Dalylple”. The witness further testified that he found a bullet just under the front mat on the right-hand side in the floorboard of the car; that he examined the front and back seats of the automobile and saw stains on the seats. The witness was allowed to testify without objection: “Yes, sir, there was blood stain on the front and back seat and I believe some on the back of the front seat,” in response to an inquiry: “Were there quite a few stains all over the seats, Captain?” Captain Waters related that he took the seats out of the automobile and brought them to Lubbock with him and turned them over to Wayne Anderson, shown to be a chemist for the Department of Public Safety, and he turned the bullet over to the ballistics department of the crime laboratory in Austin, Texas.

Witness Roger Sedberry next testified for the State, relating that he was firearms examiner for the Texas Department of Public Safety and that his office or laboratory was in Austin. After detailing his educational background and experience, the witness told of the procedure in identifying bullets as having been fired from a particular gun. He then testified that State’s Exhibit No. 2 (shown to have been the bullet removed from the body of the deceased) and State’s Exhibit No. 4 (shown to have been the bullet removed by Captain Waters from the floor mat of the Oldsmobile), the two bullets, in his opinion, “were fired from the same particular gun.”

Major L. D. Blakely, Assistant Chief of Police of the City of Lubbock, next testified for the State. He stated that he had made a search of an area just off of the Old Slaton Highway on Loop 289 as part of his investigation of the death of J. R. Castle; that he found a sport jacket or coat; that it was gray, “I would say more medium,” rather than light or dark; that the jacket had some stains on it, “probably as large as a dime”; that the stains were dark and it appeared that they had been put on the jacket in the form of droplets.

Ken Castle, the son of the deceased, testified as a State’s witness. He related that his father had a jacket, and he described it as being a zipper type jacket, waist length, elastic bottom. When asked if he had seen the jacket lately that belonged to his father, the witness stated that he had seen and examined a jacket shown him by the District Attorney, and to the best of his ability he would say that it belonged to his father.

Jack Bryant, deputy sheriff of Lubbock County, testified as a State’s witness. He related that he went to Denver, Colorado, on March IS, 1962, and took custody of Elvis Dalrymple, the appellant, and brought him from the City-County Jail in Denver, Colorado, to the Lubbock County Jail.

Mrs. A. B. Barsh testified as a State’s witness that she was foreman of the grand jury and that an indictment of murder with malice was returned against one Elvis E. Dalrymple; that the grand jury was not able to determine by what means J. R. Castle was killed and for that reason an indictment was returned stating that J. R. Castle had been killed by means unknown.

Mrs. J. R. Castle testified for the State and related that she was the widow of the deceased; that she last saw him alive on Saturday morning, January 20, about 7:30.

Wayne Anderson testified as a State’s witness, relating that he had until “not quite a month ago” been a chemist and toxicologist for the Texas Department of Public Safety at the regional office in Lubbock for four years; that he was presently a sales representative. The witness then narrated his educational training and qualifications and testified to receiving a short type heavy jacket from the Lubbock Police Department; that the jacket had blood on it; that he ran a blood type and the blood on the jacket was “Type A”; that Captain Raymond Waters delivered two car seats, a front seat and a back seat of an automobile, to him; that there were stains on the seats; that he analyzed them and they were human blood stains; that the blood type from the rear seat was “Type A”; that the blood type from the front seat was “Type A”; that the blood typed was human blood from both seats; that he received from Dr. Kepler a blood sample taken from the body of J. R. Castle; that he made a blood type on that blood sample and it was “Type A”; that he made an alcoholic test for blood alcohol content on the blood sample given him by Dr. Kepler; that “the blood contained 1.500% alcohol by weight.” Mr. Anderson testified that the incidence of Type A blood is probably 40% over the United States.

It was agreed and stipulated by and between the State and the appellant that the following people are now charged by indictment with the offense of murder, or accessory to murder, or accomplice, in the matter of the death of J. R. Castle: Mary Virginia Grizzell is indicted as an accessory to murder; Ida Jo Whitten is indicted as an accessory to murder; June Dalrymple is indicted for murder; Jim Edward Ham-monds is indicted in two counts, the first count being murder, and the second count being an accessory to murder, and the appellant, Elvis E. Dalrymple, being indicted for murder, and that these four persons are indicted for this offense growing out of the same death.

Although appellant adduced testimony from several witnesses, we shall only relate the testimony of one of them, Billy Don Dalrymple. He testified that he is a brother of the appellant; that he had seen “an Oldsmobile car, ’57 Oldsmobile car at his home before, say, sometime in January of 1961”; that he drove this car and that the seats in this car had dark stains on them. The witness did not relate who owned the car.

In its brief the State points out correctly that the corroborating evidence does not have to be sufficient of itself to establish the appellant’s guilt and that the corroborating evidence need not extend to every part or element of the offense committed, but that the State need only corroborate its accomplice witness by other testimony which in some degree tends to connect the accused with the crime alleged. It is the position of the State that it has developed a chain of circumstantial evidence which was drawn from direct testimony about physical facts and reasonably led to the conclusion that the appellant committed the offense charged. It is the State’s position that this circumstantial evidence was sufficiently strong and as competent as positive evidence to prove the ultimate fact that the appellant did commit the acts charged in the indictment. The State relates in its brief that the “record has established that the defendant and his party, shortly after the commission of the crime charged, left Lubbock, Texas, and drove to Denver, Colorado. This flight so soon after the crime is a circumstance to be considered in connecting the defendant with the crime charged.” We do not find in the record any testimony to substantiate this contention of the State, other than that of the accomplice, Talley. Captain Waters testified that he conducted an investigation and that as part of it he had an occasion to go to Denver, Colorado, but he did not give any date as to his trip to Denver. State’s witness, Jack Bryant, did testify that he went to Denver on March 15, 1962, and took custody of the appellant. The record reflects that the offense was committed on or about January 21, 1962. We do not think that the State’s testimony is sufficient to establish “flight” as a circumstance to be considered in connecting the appellant with the crime charged.

The State urges in its brief, which it followed pretty closely in its oral argument, that it corroborated the testimony of the accomplice witness, Herman Talley, when the appellant “was placed in possession of the green Oldsmobile automobile two (2) days prior to the date of the crime, and also placed in possession of the automobile between 8:00 p. m. and 9:00 p. m. the night of January 20, 1962.” The State contends in its brief that this “evidence was adduced from Mrs. Charles Biggs when she testified that she had rented a motel room to the defendant January 18, 1962, that he was driving a green Oldsmobile, license number NC 5580.” We have carefully again gone over the testimony of Mrs. Biggs and at no place in it do we find any statement as to the driver of an automobile.

Recapitulating the evidence adduced by the State, and viewing it in the light most favorable to the State, it reflects that Mrs. Biggs placed the appellant as being at her motel when Cabin 20 was rented, but the deceased was not present. Richard Tivis saw appellant in his night club, but the deceased was not present, but Juanette Cheek’s testimony does reveal the presence of the decedent at the Rendezvous Club operated by Tivis. The testimony of Horace Cook does not in anywise implicate the appellant other than to show the presence of an Oldsmobile automobile near the ca-liche pit. The ownership of the automobile was never shown by any testimony. The appellant nor the decedent were neither shown to have been present at the time that Cook delivered the gasoline for Talley. An unknown male and female were in the car at the time the gas was put in the tank. The State did establish that the two bullets, one from Castle’s body, and the other from the floorboard of an Oldsmobile automobile, were fired from the same gun, but it did not produce the gun nor did it establish the ownership of the gun that fired the bullets, nor did it show by any testimony who fired the gun. Chemist Wayne Anderson did show that the jacket, two car seats and the body of the deceased, Castle, all contained the same type blood, Type A, but Mr. Anderson also testified that 40% of the population of the United States had Type A blood and other than the specimen taken from the body of Mr. Castle, the record does not reflect the ownership of the blood samples found on the jacket or the two car seats, nor does it show who spilled the blood. The State views the evidence in its brief differently from our view, as reflected from the record. It is the State’s contention that Texas Ranger Waters testified that “he went to Denver, Colorado, and examined a green Oldsmobile, License Number NC 5580 being the same automobile that defendant was driving the night of the commission of the crime.” We find nothing in the testimony to support this contention of the State.

The accomplice witness, Herman Talley, related that he saw the appellant at the Rendezvous on January 20, 21, 1962, around 9:30 P.M. with his wife, June Dalrymple, and Jim Ed Hammonds. They sat with him at a table and drank beer. Talley testified that he saw the deceased, J. R. Castle, at the Rendezvous and that Castle left with June Dalrymple. Later, Talley left with the appellant and Hammonds and they all got in the Oldsmobile; that June and Castle were sitting on the front seat and that he and Hammonds got on the back seat and the appellant in the front seat; that he rode with them to the Malt Bar, where he and Ham-monds got out and the three remaining occupants of the car drove off. Talley then related that he and Hammonds drank some coffee in the Malt Bar and then went to the Joy Motel, Cabin 20, where they waited for the appellant and June; that about 40 minutes later the appellant and June came in the cabin “with blood all over them” ; that appellant had a pistol about six inches long and that appellant said “they’d had to kill that man.” The accomplice then related the details of accompanying the Dal-rymples back to the caliche pit to find a shoe that June had lost; that he heard the man, Castle, hollering, and he told of the appellant asking for a knife, saying “he would cut the man’s throat,” and that he also quoted the appellant as having left the car and returned within a few minutes, saying that “he killed the man with a rock.” Witness Talley then related the trip by the motel to pick up two girls and the subsequent trip by the six of them to New Mexico and on to Denver. Talley’s testimony is replete with numerous references to his criminal record, but it would add nothing to this opinion to dwell further on his testimony. We find nothing in the record to corroborate Talley’s testimony.

From what we have said, it is our opinion that the evidence adduced by the State is insufficient to corroborate the accomplice testimony.

For that reason, the judgment is reversed and the cause remanded.

Rehearing denied;

WOODLEY, P. J., dissents.


text:
    George James COOK, Appellant, v. The STATE of Texas, Appellee.
    No. 35479.
    Court of Criminal Appeals of Texas.
    March 6, 1963.
    Rehearing Denied April 17, 1963

      Ralph Chambers, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery by assault, with a prior conviction for felony theft alleged for enhancement under the terms of Article 62, Vernon’s Ann.P.C.; the punishment, life.

Pharmacist Doyle of Houston testified that on the day in question appellant and a companion entered his drug store, informed him that their purpose was to rob him and, at gun point, took his available supply of narcotics and the cash from his register.

Taxi driver Aldridge testified that appellant and his companion entered his cab a short distance from Doyle’s Pharmacy and instructed him to drive them to another part of the city but that before he had proceeded any appreciable distance he was signaled to halt by a motorcycle policeman, that shooting occurred, and finally appellant and his companion Brown were taken into custody. The money and narcotics were recovered. Appellant’s confession fully implicating himself and Brown was introduced in evidence. Appellant’s prior conviction for felony theft was established.

Appellant did not testify in his own behalf but recalled one officer in an effort to show that the money which had been taken in the robbery was missing. This he failed to do.

We find the evidence sufficient to support the conviction and shall discuss the contention advanced in appellant’s brief.

While assistant district attorney Hughes was identifying appellant as the person who had been convicted in the prior case alleged for enhancement, he was cross-examined by appellant’s then-counsel as follows :

“Q. Do you recall that that case wasn’t initially filed in this Court?” (the court where the conviction was had)

to which the prosecutor answered:

“A. I would have to check to see whether or not it was filed originally in this Court, or whether or not it was transferred. We do transfer cases when there are more than one case against a defendant. We try to get all those in the same Court.”

Appellant’s objection that the answer was “highly inflammatory” was promptly sustained, and the jury were twice fully instructed to disregard the answer. Following this, appellant’s counsel pursued the matter further by inquiring if the order of transfer appeared among the papers of the case and demanded that the original indictment be produced. We have concluded that if error was committed by the answer set forth above the same was waived when appellant’s counsel continued to question the witness about the matter, especially since he was not attempting to explain away the answer which had been given.

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


text:
    Ira GARRETT, Appellant, v. The STATE of Texas, Appellee.
    No. 35191.
    Court of Criminal Appeals of Texas.
    April 3, 1963.
    A. L. Lowery, Marion G. Holt, Nacog-doches, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is the unlawful possession of intoxicating liquor for sale in a dry county ; the punishment, a fine of $150.00.

The evidence reflects that Deputy Sheriffs B. F. Mayfield and Joe Mitchell and Liquor Control Officers James Toon and Jerry Jones went to the appellant’s home between Chireno and San Augustine, Texas. They informed him that they had “some complaints on him” and requested and received permission to search his farm.

Officer Toon testified that he followed a “jeep trail” that went about three-fourths of a mile down through the appellant’s place past a “gap” toward the river, and then turned off into a heavily wooded area where it crossed a fence line. Approximately 20-30 yards past the fence he found 24j£ths quarts of wine concealed under a tarpaulin. Approximately three or three and a half steps from this, he found a receipt for some chicken feed made out to the appellant.

Another cache of liquor (this time whiskey) was found on the south side of the San Augustine-Nacogdoches highway, approximately 300 yards north and east of the appellant’s house. The whiskey was one-half a mile from the wine in the same wooded area.

Officer Toon testified that he observed jeep tracks leading to the wine, and “the same tracks” coming within 30 feet of the whiskey.

The appellant readily admitted ownership of a jeep, but offered testimony showing that the liquor was not found on his premises ; that the road was used by many people in traveling to the river below his farm; and that there were two other houses between his and the river. It was also shown that at least one other jeep regularly operated in that area, and that a number of people in the vicinity owned jeeps.

The appellant, testifying in his own behalf, admitted that he traded at the feed store from which the feed receipt was issued; that he had many such receipts around his chicken houses; and that this one must have blown from there or from his jeep.

We note in passing that the court did not charge on circumstantial evidence and no objection was levied or requested charge presented by the appellant. Yet this is a case of circumstantial evidence, and “when the evidence shows equal opportunity of others to possess the liquors charged to have been possessed by the accused, the State’s case, in order to be sufficient to convict on circumstantial evidence, must disprove this hypothesis.” 33 Tex.Jur.2d, Intoxicating Liquors, Sec. 124, p. 256.

It is well established that:

“Proof which only amounts to a strong suspicion or mere probability is not sufficient to support a conviction. Each fact in the chain of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt, and all the circumstances taken together must exclude every other reasonable hypothesis except the guilt of the accused.” Linch v. State, 136 Tex.Cr.R. 536, 127 S.W.2d 199, 200. Burris v. State, 168 Tex.Cr.R. 375, 327 S.W.2d 756.

Reduced to its final analysis, the State’s case rests on finding jeep tracks near the two caches of liquor, along with a receipt for chicken feed made out to the appellant.

The testimony as to the tracks is most incomplete. No plaster casts were taken of the tracks and tires of appellant’s jeep, for comparison; no identifying marks were observed to show that they were the same. The tracks were made by “knob-bies,” a mud-grip tire in popular use in that area. The only thing to show a connection between the appellant’s jeep and the tracks was the testimony of Officer Toon that they appeared similar to him. This does not meet the standards long followed by this Court. “ * * * (M) ere similarity of tracks, standing alone, is not sufficient to connect one with the commission of crime.” Dodd v. State, 149 Tex.Cr.R. 278, 193 S.W. 2d 819, 820. See also Harris v. State, 163 Tex.Cr.R. 519, 294 S.W.2d 123; Gilbreath v. State, 158 Tex.Cr.R. 616,259 S.W.2d 223; Thomas v. State, 148 Tex.Cr.R. 526, 189 S.W.2d 621; Kitchens v. State, 145 Tex.Cr. R. 272, 167 S.W.2d 762, 763; Linch v. State, 136 Tex.Cr.R. 536, 127 S.W.2d 199; Ennox v. State, 130 Tex.Cr.R. 328, 94 S.W.2d 473; Powell v. State, 100 Tex.Cr.R. 43, 271 S.W. 913; 24 Tex.Jur.2d, Evidence, Sec. 734, p. 414; 1 Branch’s Ann.P.C., 2d Ed., Sec. 166, pages 169 and 170.

This leaves the question of whether the receipt sufficiently connects the appellant to the liquor to show his possession thereof.

In Hill v. State, Tex.Cr.App., 334 S.W.2d 303, the investigating officers found the appellant in an apartment where six 32-ounce containers of beer were located. Near the apartment they found a quantity of intoxicants in a parked car. At the police station, the officers discovered papers on the appellant’s person which listed certain well known brands of liquor along with notations as to quantity, size and amount. The papers were not shown to be in the appellant’s handwriting, nor was his name on any of them.

It appears that another person was in control of the apartment and the car registered in the name of another. However, the name found on the papers in appellant’s person corresponded to the name of the person shown to have title to the automobile — W. M. Hunter. Additionally, the address given on the title was the same as the apartment where the appellant was found. The Court, in reversing noted:

“We have concluded that the facts, viewed from the standpoint most favorable to the State, are not sufficient to support the jury’s verdict that appellant had the intoxicants found in the automobile in his care, control and custody. This is a circumstantial evidence case, and the State did not overcome the outstanding hypothesis that the unidentified woman who claimed to be in charge of the apartment where the first beer was found may also have been exercising control over the intoxicants found in the automobile or that Washington or Hunter may have possessed it.”

Here, we have a paper with the appellant’s name on it, but not signed or acknowledged by him. The appellant did not positively identify it, but only admitted having many like it on his premises.

The finding of the receipt does cast strong suspicion on the appellant, but it does not meet the legal test in circumstantial evidence cases.

We additionally note that there was no attempt to show that the other residents ■near the area or Mr. Burch, who regularly traveled the road in a jeep similar to appellant’s, did not possess the liquor. See Maddox v. State, 156 Tex.Cr.R. 151, 240 S.W.2d 319. No liquor or empty bottles were found on the appellant’s premises. See Hargis v. State, Tex.Cr.App., 360 S.W.2d 881. Nor was any attempt made to show a sale by the appellant. See Burris v. State, supra.

Finding the evidence insufficient to support the jury’s verdict, the judgment is reversed and the cause remanded.


text:
    Herbert “Cat” BARNES, Appellant, v. The STATE of Texas, Appellee.
    No. 35549.
    Court of Criminal Appeals of Texas.
    April 3, 1963.
    Gilbert M. Spring, Lufkin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The conviction is for assault with intent to murder: the punishment, five years.

A conviction of appellant for this offense was reversed in Cause No. 33,879, reported in Tex.Cr.App., 356 S.W.2d 679, because of the insufficiency of the evidence to show an intent to kill.

There is no more evidence on intent to kill on this trial than in the previous case; there is no material difference in any of the evidence adduced. A reiteration of the facts would serve no purpose.

The evidence is still insufficient to show an intent to kill and to support the conviction.

The judgment is reversed and the cause is remanded.


text:
    Pedro Camacho LOPEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 35267.
    Court of Criminal Appeals of Texas.
    March 13, 1963.
    Rehearing Denied April 24, 1963.
    Joseph Chacon, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, life.

Antonio and Ramona Lozano, husband and wife, were the parents of five children. On Friday night, August 25, the eldest child, Velma, a girl age 9 and three of the other children slept in two beds in a large room in the house, and the youngest slept in another room with the parents. The family always left the light burning in the kitchen. The mother was awakened by her baby about 2 a. m. and when she went to the kitchen to prepare her baby a bottle she saw the appellant leaving and he turned around twice as he ran. She called her husband because she thought the appellant had stolen something. During the search they found Velma lying on her back on the bed dead. There were two street lights near the Lo-zano home. Immediately after she saw appellant running she went to the back porch and called her neighbor and told her that a man wearing khaki pants and a red shirt had killed her daughter. Both Mr. and Mrs. Lozano identified the appellant at the trial as the same person they saw in front of their house immediately before they found Velma dead.

Dionicio Rosales testified that she was a neighbor of Lozanos’ and she heard Mrs. Lozano scream about 2:30 a. m., Saturday, August 26; and that between 9 and 10 a. m. the same morning she saw the appellant wearing khaki pants and a red shirt walking along the street in front of the Lo-zano home.

Dr. Hausman, a pathologist, and the Bex-ar County Medical Examiner, testified that upon his arrival about 3:30 a. m., August 26, at the Lozano home he found blood splotches on a pillow case and a bed sheet which he took into his possession; that he made an external examination of the body of Velma Lozano and later an autospy. He testified that there were fresh lacerations at the opening and deep inside the vagina and marks on the nipples, and that her death was caused by suffocation which could have been done by the use of a pillow, and that she died about 2 a. m. that morning. The deceased had a blood type of “O” RH positive. An analysis of the spots on the sheet showed that they were of human blood.

Detective Foresman testified that immediately after the killing was reported he went to the Lozano home; that the body of the deceased was lying on the bed with the head at the foot of the bed; that at 2:27 a. m., August 26, he lifted some fingerprints from the foot of the bed in which the deceased had been sleeping. The fingerprints of the appellant were taken on September 2 and these known prints were introduced into evidence. Testimony was offered that a comparison of the fingerprints lifted from the bed and the known fingerprints taken from the appellant were identical.

The written statement of the appellant was introduced in evidence and it in part recites that he cashed his pay check after 5 p. m., Friday, August 25, and began drinking beer as he visited numerous taverns until mid-night when he started walking home,

“I walked West on Commerce St. * * * I remember that I looked in the window of some homes on Travis St. I do not know why I was doing this. I do not know or remember if I saw anyone inside of these homes at this time. I continued walking west on Travis it until I reached Picoso St where I turned right going north on Picoso. I went to a house in that first block on Picoso north of Travis St on the left side of the street. The house has a fence and a gate at the sidewalk leading up to the front door. I went thru the front gate and I walked up on the front porch where I looked thru a window and I saw a man and his wife a&eep in a bed. I then walked around the back of the house where I found the back door open. There was a light on in the kitchen. I opened the door and walked in to a small porch. There is another door which was also open leading into the kitchen. I went into the kitchen and I could see the front room and I remember that I could also see a bed in one of the other rooms. I then went into this room where the bed was and I found two children and a girl asleep in one bed. I don’t remember if there was another bed in the room or not. * * * I do remember seeing this older girl with two other children in a bed. I do not remember what happened next or what I did to the girl. I remember that I was leaving the house, I think that I was still in the kitchen when I heard a noise in the house and I went on out the back door. I then went around the front and out the front gate of the yard. Just as I was going out the front gate I heard a voice yell and I believed that they were yelling at me but I did not stop and I went north on Pi-coso to the first corner where I turned right and I went east on this street, I believe it is Salinas, and I then turned north on Hamilton St and went North on Hamilton Jt to Martin it where I turned left or west on Martin to my home. ⅜ * * That morning at about 8:00 or 9:00 A M I heard the newscast on the radio saying that a little girl had been killed and raped on Picoso street. It gave the address. I thought about it that day and I wondered about it. I listened for the news again and when I heard the address again I realized that it was the same house that I had been in the night before. I listened for all the news and I heard that they were looking for a man in a red shirt and khaki pants. I knew that I had worn a red shirt and khaki pants that evening in fact I had put them back on the same Saturday that I was listening to the newscast. * * * I had realized that I had been the one who had killed the little girl.”

The appellant testifying in his own behalf denied the commission of the offense and repudiated his confession; and stated that after he had returned home on the morning of August 26th, Officer Moreno came and asked what kind of clothing he had on a few minutes before and he told him khaki pants and a red shirt. After examining the pants and shirt the officer advised him not to wear them for sometime and left. On September 2, about 10 a. m., Officers Fuentes and De La Garza arrested him at his home, took him to the police station and questioned him until about 9:50 p. m., then placed appellant in jail. The next day Officer De La Garza and Holts took the appellant to Austin and returned about 4:30 p. m. He further testified that they then took him to the investigative office where they beat and abused him until he signed a statement. During this time he said he had nothing to eat, no sleep and that he was tired and exhausted.

Ernesta Briones testified that she had been living with the appellant for about six years; that he had been drinking when he came home about 1:15 a. m., August 26, but he was not drunk, and in a few minutes he was asleep.

In rebuttal the state called as a witness each person mentioned by the appellant in his testimony pertaining to the obtaining of the written statement introduced in evidence by the state, and each witness contradicted the testimony of the appellant that he was beaten or abused until he signed the statement.

The issue of the voluntary nature of the written statement was properly submitted to the jury.

Appellant contends that the admission in evidence of his written statement was reversible error on the ground that it constituted a denial of due process of law guaranteed to him under the Fourteenth Amendment to the Constitution of the United States.

The use in evidence of an involuntary confession against one charged with crime constitutes a denial of due process which may be determined by an independent examination of and from the undisputed facts. Golemon v. State, 157 Tex.Cr.R. 534, 247 S.W.2d 119.

Appellant contends in his brief that the following undisputed facts show that he involuntarily signed the written statement introduced in evidence by the state: that he could not read or adequately express himself in English; that he was arrested without a warrant at 10 a. m., Saturday, September 2; that he was investigated for an offense other than the one charged in this case and when arrested he was taken to the purported scene of the other crime; that he was handcuffed while the police car was parked under a bridge and then taken to the police station where several officers questioned him alternately until 9:50 p. m., and that he was denied a hearing before a magistrate. About 8 a. m., September 3, two officers took him to Austin and returned about 4:30 p. m., the same day. After his return from Austin, he was taken to the investigative office where he was continuously questioned until he signed the written statement about 3 a. m., September 5. During this time he said he had nothing to eat, no sleep and he was tired and exhausted.

The record reveals the following: while the appellant could not speak or read the English language, he was interrogated by Rudy A. Garza, investigator for the District Attorney’s office, who gave the appellant the statutory warning and the statements of appellant were reduced to writing and signed by him. The statement was introduced into evidence and no objections were interposed based upon appellant’s inability to speak, read or write English. Mr. Garza testified that he is of Mexican descent, had a B.B.A. degree, and speaks, reads and writes both English and Spanish, and was experienced in translating from one to the other, and that he translated the statement in Spanish to the appellant before he signed it

The record fails to show that the appellant was arrested without a warrant, or was not immediately taken before a magistrate, but it shows that he was “booked” at the Police Department about 2:30 p. m., September 2. There is no evidence that he was ever denied a hearing before a magistrate, however, the evidence on the hearing of the motion for new trial shows that an examining trial was held. There is no evidence that he at any time requested counsel, a priest or relatives, or if they were notified, but Ernesta Briones was present at 10 a. m. when he was taken into custody at their home. While testifying on the main trial he made no complaint of any mistreatment during the trip to Austin.

From the record as presented, it is concluded that the written statement of the appellant is not shown to have been illegally obtained from him in violation of the due process clause of the Fourteenth Amendment of the United States Constitution and that the same was inadmissible in evidence as a matter of law. McHenry v. State, 163 Tex.Cr.R. 436, 293 S.W.2d 773; Lopez v. State, 171 Tex.Cr.R. 552; 352 S.W.2d 106; Collins v. State, 171 Tex.Cr.R. 585, 352 S. W.2d 841; Fernandez v. State, Tex.Cr. App., 353 S.W.2d 434; Marrufo v. State, Tex.Cr.App., 357 S.W.2d 761.

It is contended that the trial court erred in overruling his motion for a new trial based upon newly discovered evidence.

The original motion for new trial was not sworn to, the first amended motion was sworn to by the appellant before his attorney with an attached affidavit of the allegedly newly discovered evidence. Thereafter a second amended motion was filed which was not sworn to and did not have attached any affidavit. The second motion not being properly verified is insufficient to present for review the claim of error in the overruling of the motion on the ground of newly discovered evidence. Cartwright v. State, 158 Tex.Cr.R. 344, 255 S.W.2d 878; Barnett v. State, 160 Tex.Cr.R. 622, 273 S.W.2d 878; Oliff v. State, 161 Tex.Cr. R. 336, 276 S.W.2d 839; Howard v. State, 165 Tex.Cr.R. 466, 308 S.W.2d 45; Thomas v. State, 166 Tex.Cr.R. 584, 316 S.W.2d 741; Martin v. State, 169 Tex.Cr.R. 423, 334 S.W.2d 796.

The evidence is sufficient to support the conviction, and, no error appearing, the judgment is affirmed.

Opinion approved by the Court.


text:
    R. G. SPARKS, Appellant, v. The STATE of Texas, Appellee.
    No. 35546.
    Court of Criminal Appeals of Texas.
    April 3, 1963.
    Brown & Shuman, by Clifford Brown, Lubbock, for appellant.
    Jack Young, Dist. Atty., Muleshoe, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for rape; the punishment, thirty years.

The testimony of the prosecutrix, age fourteen at the time of the occurrence, is sufficient to support the conviction for the offense of rape. She further testified to separate and previous acts of fondling of her sexual parts by the appellant.

Testifying in his own behalf, the appellant denied that he had ever had intercourse with the prosecutrix, and also denied committing the other acts related by her.

Appellant contends that the trial court erred in admitting the testimony of the prior acts between the appellant and the prosecutrix.

In prosecutions for statutory rape it is permissible for the state to prove that the accused committed other sexual acts upon the female under the age of consent. 4 Branch 2d 288, Sec. 1962; Head v. State, 160 Tex.Cr.R. 42, 267 S.W.2d 419; Earwood v. State, 161 Tex.Cr.R. 171, 275 S.W. 2d 652.

He further insists that the court erred in instructing the jury that they might consider the extraneous acts for the purpose of impeaching the credibility of the appellant.

In response to appellant’s objection to the failure of the court to limit the jury’s consideration of the extraneous acts, the court instructed the jury as follows:

“You are instructed that the evidence of (the prosecutrix) as to prior and extraneous acts of the defendant, which occurred before the alleged offense, if any, charged in the indictment, is limited as to consideration by you, if you consider it at all, and you may consider same only for the purpose of affecting the credibility of the defendant, if it does so affect his credibility.
“You are the exclusive judges of said evidence, the truth or falsity thereof, and whether or not it does affect the credibility. You must not consider same for any other purpose.”

To which the appellant objected on the ground that it was fundamentally erroneous because it instructed the jury that they could consider the extraneous acts testified to by the prosecutrix in passing upon appellant’s credibility as a witness.

The appellant was entitled to an instruction by the court limiting the jury’s consideration of the extraneous acts for the purpose of aiding the jury in determining whether the particular act relied upon by the state was committed. 4 Branch 2d 290, Sec. 1963; Haggart v. State, 77 Tex.Cr.R. 270, 178 S.W. 328; Bates v. State, 165 Tex. Cr.R. 140, 305 S.W.2d 366.

Evidence of specific acts of misconduct against an accused or a witness is not admissible for impeachment purposes. Art. 732a, Vernon’s Ann.C.C.P.; 1 Branch 2d 209, Sec. 190; Tomlinson v. State, 163 Tex.Cr.R. 44, 289 S.W.2d 267. The instruction that the extraneous acts of the appellant in evidence could be considered by the jury for the purpose of impeaching the credibility of the appellant was error which calls for reversal.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: WILSON, Justice.

text:
    Dorothea Sims TORBETT, Guardian, Appellant, v. C. A. McCOY, Administrator, Appellee.
    No. 4088.
    Court of Civil Appeals of Texas. Waco.
    March 14, 1963.
    Rehearing Denied March 28, 1963.

      Robert G. Carter, Marlin, for appellant.
    Robert D. Peterson, Reagan & Welch, Marlin, for appellee.
   WILSON, Justice.

The probate court approved the final account of an administrator with will annexed and ordered sale of realty, determined to be incapable of partition in kind, with distribution of proceeds to the guardian of the estate of a minor and another. The order was dated June 13, 1962. The guardian excepted to the partition order and filed notice of appeal to the District Court. The latter court dismissed the appeal on administrator’s motion asserting the guardian had filed no appeal bond, and his plea in abatement urging that the guardian had filed no pleading, objection or exception in the probate court challenging the order. The guardian appeals from the order of dismissal.

Appellee cites authorities decided before Section 29, Probate Code, Vernon’s Ann. Tex.Stats. became effective, which held a guardian could not appeal without a bond from decisions of the probate court arising out of administration proceedings other than guardianships. These decisions construed Art. 3700, Vernon’s Ann.Tex.Stats., which provided for appeals without bond only by an executor or administrator, and Art. 4318 which concerned only appeals without bond in guardianship matters.

Both Art. 3700 and Art. 4318 were repealed prior to the present proceedings, and Probate Code Sec. 29, then effective, added guardians to the classes of representatives of whom no bond should be required. The application of Sec. 29 was not restricted to guardianship proceedings, and it became applicable to such appeals as this. No appeal bond was required of the guardian in the appeal to the District Court.

The plea in abatement did not authorize dismissal. See Linch v. Broad, 70 Tex. 92, 6 S.W. 751, 754; Beversdorff v. Dienger, 107 Tex. 88, 174 S.W. 576; Texas Land & Loan Co. v. Dunovant’s Est., 38 Tex.Civ.App. 560, 87 S.W. 208, 209.

Appellee’s motion to dismiss the appeal to this court because no appeal bond or affidavit in lieu thereof was filed is overruled. Art. 2276, Vernon’s Ann.Tex.Stats. provides guardians shall not be required to give bond on appeals taken by them, as here, in a fiduciary capacity. King v. Payne, 156 Tex. 105, 292 S.W.2d 331, 335.

The judgment is reversed; the cause is remanded and ordered reinstated.