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

text:
    Ex parte PERKINS.
    No. 14431.
    Court of Criminal Appeals of Texas.
    May 20, 1931.
    State’s Rehearing Denied June 24, 1931.

      O. M. Lord and David E. O’Eiel, both of Beaumont, for appellant.
    Hollis M. Kinard, Co. Atty., of Orange, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

This appeal is from a judgment denying bail in a habeas corpus proceeding.

From the evidence it appears that the deceased, White, and Leonard Carr, went about midnight to .the home of the appellant. He was in bed. The parties were admitted, however, and after some friendly conversation, Carr went for some cigarettes. Upon his return, White was dead. Appellant said that he had killed White in defense of his own life and gave the details of the killing. These matters were introduced by the state, that is, the appellant’s admission that he killed White and his declaration of exculpatory facts were introduced upon behalf of the state. By circumstances the state undertook to rebut the testimony of innocence and self-defense introduced by it and establish the offense of murder upon malice aforethought.

The appellant testified in his own behalf, claiming that he was assaulted by White, was fired upon by him, and that he killed White in self-defense while the latter was trying to kill him. There were circumstances showing that White was shot twice. There was evidence of bullets having struck parts of the building which coincided with the theory advanced by the appellant in his testimony.

The evidence before the court is not deemed such as to justify the refusal of bail. In the Constitution, art. 1, § 11, it is said: “All prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident.”

It has been said in many cases: “ ‘Proof is evident’ if the evidence is clear and strong, leading a well guarded and dispassionate judgment to the conclusion that the offense has been committed; that the accused is the guilty agent; and that he would probably be punished capitally if the law is administered, and in such ease bail is not a matter of right. Ex parte Smith, 23 Tex. App. 100, 5 S. W. 99.”

The judgment denying bail is reversed, and the appellant is ordered discharged upon bail, with good and sufficient sureties, in the sum of $10,000.

On Motion for, Rehearing.

LATTIMORE, J.

This court must take the record in any case as it appears here and base its judgment upon same. When the question involved is the right to bail, this court must grant bail, unless we are impressed with the belief that on the facts presented, a fair jury would inflict the death penalty. Our opinion granting bail is no prejudgment of the testimony which may be introduced upon the trial hereafter had, and merely expresses our view of the testimony heard before the trial court appearing in the record. We are of opinion the case was correctly decided.

The state’s motion for rehearing is overruled.


source: Caselaw Access Project

author: CALHOUN, J.

license: Public Domain

text:
    IRLBECK v. STATE.
    No. 14057.
    Court of Criminal Appeals of Texas.
    June 10, 1931.
    See, also (Tex. Cr. App.) 26 S.W.(2d) 276.

      Dennis Zimmermann, of Tulia, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Ofiiense, aggravated assault; punishment, a fine of $250 and thirty days in jail.

Mrs. C. H. Onthank, the person upon whom the assault was alleged to have been committed, testified substantially as follows: That she .lived on a farm of 160 acres southwest of Happy, Tex., in Swisher county; that they had just finished milking two cows and one of the children said, “Yonder comes Mr. Irl-beek”; that she looked and saw the car coming in at the gate with Ludwig Irlbeck, John Irlbeck, and Gerhard Ackfeld in it; that the car was being driven by appellant; that she left the cow lot and went to where they had stopped the car; that as she approached them she said, “Good Morning, Mr. Irlbeck”; that he said “What kind of business is this, you running a man oft the place with a rifle. Don’t you know a rifle will kill a man?” She testified further that she told him it was not a rifle, but a shotgun, and that she would do the same to him if he did not get oft of-her place. She said she informed the appellant that she had a lease contract on the premises until the 15th day of September, 1929, and he said that didn’t matter, that he had a lease contract for the next year, and he was going to farm that land; that she told him he could not get the land until the 15th day of September; that she told him this before he went into the field to plow the land, and he said he was going to go to plowing as he had a lease to, and that she told him that he couldn’t do it, but he said he was going to do it anyway. She further testified that about that time Gerhard Ackfeld came up close to her with both fists doubled up and shaking them at her, and said, “We come for the rifle, we come for the rifle, we come for the rifle”; that all the time appellant kept getting closer to her; that she said, “You are not going to get my gun,” and started to her car, where her gun was; that the appellant saw the gun in the car and started for the car also; that they reached the car about the same time and grabbed the gun about the same time; that appellant got hold of the gun by the barrel and she by the guard; that during the struggle that followed Ger-hard Ackfeld got hold of her arm with one hand and grabbed her by the throat with the other and choked her and mashed her down on the ground and put his knee on her chest, while appellant held on to the gun; that with his knee on her chest and choking her, Ack-feld made her release the gun, and then they went to the car and got in it and left, taking the gun with them. She further testified that while the appellant held to the gun with one hand he hit her with the other, striking her shoulder and knocking her back about two feet; that her shoulder was bruised and had a blue place on it from said lick. She testified on cross-examination that she would have shot them with the gun if they did not leave her place.

She was corroborated by her son, Donald Onthank, a boy about ten years of age.

The state also proved by Dr. Webb that, about a week or ten days after the difficulty, Mrs. Onthank came to his office and complained about her side; that he examined her and found that her left side about her lower ribs had been bandaged by adhesive tape, and that the bandages had slipped out of place; that she had a sore place on her ribs and he could not tell whether it had been fractured or not; that he did not X-ray it; that in his opinion it could have been a green stick fracture and could have been caused by a man’s knees. Dr. James W. Stevens testified for •the state to substantially the same effect.

Dr. Crawford testified for the appellant that, about the 16th day of July, the sheriff brought Mrs. Onthank to his office, and that he found she had an injury on her lower ribs; that he measured it and it was seven inches long and not more than one inch wide at any place; that it was not black and blue; that it was more of a red welt across her body; that he did not X-ray it and could not tell whether or not it had or had not been fractured; that it did not look like ⅜ place that would be made by a man putting both his knees together there; that it could have been caused by the butt end of a shotgun by jerking it back against or skidding it across her ribs; that it looked to him like it was made by the barrel of a gun striking her; that it was possible that the marks on her body could have been caused by a man’s knees on her body if the sharp part of the knee had skidded across the same.

The appellant testified substantially as follows: That, on the morning of the difficulty testified to by Mrs. Onthank, he went up to the house in his car, accompanied by his son, John Irlbeck, and Gerhard Ackfeld; that when they stopped the car and got out, Mrs. Onthank, came to meet them and he asked her, “What kind of business is this, you running a man off a place he’s got leased, with a rifle? Don’t you know that a rifle will kill a man?” that she said it wasn’t a rifle, but a shotgun; that about that time he looked around and saw the gun in her car, and that she made a start for the gun and he went for-it too; that she got hold of it first by the butt or trigger end, and he caught it by the barrel, with both hands; that, during the scuffle that ensued, he did not touch her in any way, but kept hold of the gun to keep it from shooting him. He testified that Ack-feld did not catch hold of her in any way except to catch hold of her arms to get her to turn loose of the gun; that they did not throw her down or knock her down, and he did not catch her by the throat or get on her with his knees; that as soon as she turned the gun loose they quit and brought the gun to town and turned it over to the sheriff.

He was corroborated in his testimony by the witness Gerhard Ackfeld and his son, John Irlbeck.

Appellant complains of the action of the court in refusing to allow the witness, Ackfeld, while testifying through an interpreter, to answer the following question: “Ask him what his intentions were that morning as to whether he intended to hurt Mrs. Onthank or not,” and also the refusal of the court to let him answer a question, while testifying in his own behalf, the question being as follows: “State what your intentions were that morning as to whether you intended to hurt Mrs. Onthank or not.” Said bills show that the county attorney objected to said questions because they were leading, and that the court sustained the county attorney’s objections to said questions and refused to permit the answers of said Ackfeld and of the appellant. The bill further shows that if they had been allowed to answer the question, they would have answered that they had no intention to hurt the said Mrs. Onthank.

We do not think that the objection to the questions asked should have been sustained. The appellant and Ackfeld both testified that Mrs. Onthank made the first move to get the gun; that she started for the car and they thought she intended to shoot them with it, and that they merely caught hold of her and of the gun to disarm her. They both testified that they never struck her or pushed her, and that no one got on her with their knees and no one choked her, and that, as soon as she turned the gun loose, the struggle ceased. Mrs. Onthank herself testified that she would have shot them with the gun if they had not left her place. We quote from Lozano v. State, 83 Tex. Cr. R. 174, 202 S. W. 510, 512:

“Appellant offered to prove by himself while on the witness stand the intent which actuated him during the difficulty, in substance, that he did not intend to kill, but only used the knife as a means of defense and for the purpose of freeing himself from the attack of his four assailants. The court refused to permit this testimony. This was error. A defendant, testifying in his own behalf, has a right to state his intent. The authorities sustain this proposition.”

By a number of bills of exception appellant complains of the court’s refusal to give special instructions on the question of intent of the appellant. The court, in his main charge had over the objection of the appellant, charged the jury: “When an injury is caused by violence to the person, the intent to injure is presumed, and it rests with the person inflicting the injury to show the innocent intention.” Appellant objected to same because it assumed that defendant intended to inflict the injury on the prosecuting witness, whereas it was a disputed fact as to whether the injury was accidental or self-inflicted, or whether she was injured at all, as claimed. The court, in his charge, in no way submitted the defendant’s defense. The appellant, • his son, and Gerhard Ackfeld all positively testified that they did not in any way choke, strike, or throw the prosecuting witness down or get on her, but merely caught hold of her and the gun to make her turn loose of the gun, so that she could not shoot them with it, and that they did so because of the fact that they were afraid she would shoot them, and that, as soon as she turned the gun loose, they turned loose of her. Such special instructions, while differently worded, were, in effect, a request to instruct the jury that if they should find and believe from the evidence that the appellant did not assault Mrs. Onthank, as alleged, and did nothing more than to disarm her of a shotgun, with no intention to injure her, that they would acquit him and say by their verdict not guilty.

In the case of Yarborough v. State, 66 Tex. Cr. R. 311, 147 S. W. 272, this court in part held that “where all the evidence shows that one charged with a specific offense is guilty of wrongful conduct, and perhaps some offense against the law, and the defendant asks a special charge in regard to the offense for which he is then being tried, presenting affirmatively his defense to that offense, it should be given.” If the intent to injure is a vital issue in the case, it is error to refuse to give instructions affirmatively submitting the defensive theory. Branch’s P. C., § 1534; Floyd v. State, 29 Tex. App. 345, 15 S. W. 819; Stermer v. State, 46 Tex. Cr. R. 183, 78 S. W. 1072; Atkinson v. State, 62 Tex. Cr. R. 419, 138 S. W. 125; Perkins v. State, 62 Tex. Cr. R. 508, 138 S. W. 133; Calliham v. State, 67 Tex. Cr. R. 658, 150 S. W. 617; Warner v. State, 74 Tex. Cr. R. 209, 167 S. W. 1109.

The complaint and information in this case charged that the appellant committed said assault by then and there pushing with great force, and did, by using said force and-violence, cause the said Mrs. C. H. Onthank to fall to the ground, and did cause her to be bruised and wounded. In his charge to' the jury the court instructed them as follows: “An assault or battery becomes aggravated when committed by an adult male upon the person of a female, and may be committed by acting together with another! Now if you believe from the evidence beyond a reasonable doubt that the defendant Ludwig Irlbeck did commit the offense of aggravated assault aa charged, then you will find him guilty and assess his punishment,” etc. The court also instructed the jury that the injury intended may be either bodily pain, constraint, a sense of shame, or other disagreeable emotion of the mind. The exception was directed to that part of the court’s charge which instructed the jury .that the injury intended may be constraint, a sense of shame, or other disagreeable emotion of the mind, because it submitted an issue not made by the information or the evidence, there.being no testimony and the prosecuting witness not claiming any constraint, sense of shame, or other disagreeable emotion of mind, but merely that she received personal injury from the appellant.

In our opinion, the giving of this charge was erroneous. A charge of the court to the jury should only submit the question of guilt predicated upon an assault committed in the manner and by the use of the means set out in the indictment or information. We are constrained to believe that the giving of the charge above referred to was manifestly erroneous, and may have been of material injury to the cause of appellant. See Maloney et al. v. State, 57 Tex. Cr. R. 435, 125 S. W. 36; Martin v. State (Tex. Cr. App.) 28 S.W. (2d) 140.

There are a number of exceptions to the argument of the county attorney. In view of the evidence as a whole, we cannot say that said arguments were entirely justified, but we deem it unnecessary to discuss them in view of our conclusion in this case.

For the errors discussed, the judgment is reversed, and cause remanded.

PER CURIAM.

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


author: CHRISTIAN, J.

text:
    DECKARD v. STATE.
    No. 14229.
    Court of Criminal Appeals of Texas.
    June 10, 1931.
    J. Q. Henry, of Mission, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

■ Appellant resided on a small farm about three miles from town, where he had a crop of cotton, corn, and melons. The stock law prohibiting the running'at large of animals was in force in the community. Appellant had been poundmaster, but had been discharged six months prior to the homicide. A short time prior to the homicide appellant had taken up two head of mules belonging to deceased, O. H. Latham, and had placed them in his pens, claiming that the animals were running at large in his field and.damaging his crops. After some argument, deceased had paid for the release of the animals. About five days prior to the homicide appellant had again taken up about three head of stock belonging to deceased. Deceased came for his stock, but refused to pay the amount of damages appellant claimed. Deceased left, saying that he would return later. On the morning of the homicide deceased drove to appellant’s premises and again demanded his stock. Appellant refused to release the stock unless deceased would pay him $3 for caring for the animals and damage they had done to his crop. The pen in which the animals were inclosed was locked. Deceased took an iron bar, broke the gate, and entered the pens. While deceased was breaking the gate, appellant went to his house and got a shotgun, which he brought back to the pens. At this point we quote the dying declaration of deceased as follows: “I went to the home of E. Deckard who claims to be poundmas-ter for the county at Mission. 1-Ie had put up my mules, never notified me that he had them. He wanted to charge me two prices for them. I offered to pay him a reasonable price. He refused to release them to me. I picked up a piece of iron to pry off a slat and turn my mules out. His wife closed the gate upon me. He was standing there with a shotgun. I begged him not to shoot me but he did. I never threatened him or offered to strike him at any time during the time we talked before he shot me or after he had done so.”

Touching the circumstances immediately surrounding the homicide, a witness for the state testified, on his direct examination, that deceased told appellant to unlock the gate; that appellant left the pens and went away; that while appellant was away deceased picked up an iron bar (meat bar) and pried a piece of board off the gate and slipped the chain out; that while deceased was engaged in opening the gate appellant approached with a shotgun, telling deceased to get out of the pen; that at this time deceased had already gotten the stock and was leading them out of the pen; that as deceased backed away appellant shot him.

Appellant testified, in substance, that deceased had threatened to do him bodily injury for taking up his stock; that on the occasion when deceased came to his pens he ordered him (appellant) to open the gate; that he refused to open the gate unless deceased paid him the amount he was asking for damages and caring for the stock; that deceased cursed him, seized an iron bar, and broke the gate open; that he tried to prevent deceased from leading his stock out of the pen; that he got his gun for the purpose of frightening deceased into leaving the gate alone; that when he returned deceased was coming towards the gate leading a mule, and holding the iron bar in his right hand. At this point, we quote the testimony of appellant as follows : “I come on back and shoved the screen open and gets my gun and starts on out there and' he come right on up to the gate and asked my wife to get back from the gate. She says ‘No, don’t come through’ and she kept holding her hand on the gate and he asked her in rough language to let him through, ‘G-— d— you, let me through.’ She says ‘No’ and he shoved her hands off of the gate and shoved the gat.e back and knocked her down and he come on through leading the mule and the other mule and the horse follows. As he came on straight towards me I asked him to stop. He says ‘No, I am not going to stop, I’m coming on through.’ I stepped backwards two or three steps and asked him to stop again: he says ‘No, G— d— you, you get out of my way, I’m coming on through.’ I stepped on back a few feet further backwards and as I done that he dropped this rope out of his left hand and he had this iron something like this in his right hand and the rope in his left hand as I asked him to stop, but instead of him stopping he dropped the rope and grabbed the iron and as he made the motion with the iron of course the shot fired. I fired the shot to keep him from hitting me with the iron and killing me and preventing him from taking the stock only by law. When the shot was fired we were something like five or six feet apart, something along there. I had a double barrel sawed-off sixteen gauge shotgun; I expect a half foot had been sawed off of the barrel. As I fired the shot the iron came out of his hands over towards the toe of my shoe on the ground.” Appellant’s wife gave testimony substantially the same as that of appellant.

The court correctly charged on self-defense and defense of property. The charge on the defense of property was qualified by the court as follows: “If, on the other hand, the defendant impounded said animals from other premises than his own, if you so believe and find from the evidence beyond a reasonable doubt then his posesssion would not be legal and he would not be justified in killing the deceased to prevent the forcible removal of said property from his premises, and you should convict him unless you "find that the killing was justifiable under some other paragraph of this charge.”

Appellant testified on cross-examination by the state that he took up deceased’s stock out of his (appellant’s) field between 7 and 8 o’clock in the morning. 1-Ie said the animals were in his corn patch. In rebuttal the state placed a witness on the stand who testified that he saw deceased’s stock between 7 and 8 o’clock in the morning on' vacant property. On his direct examination the witness stated first that the animals were 1,000 paces away from appellant’s field. He immediately qualified his statement by saying that they were 300 paces from the field, and 'finally stated that he meant feet instead of paces. He testified further that after seeing the animals he left and was gone for about fifty minutes; that upon his return he saw them in appellant’s pen. We think this testimony was insufficient to warrant the court in submitting the legality of appellant’s possession to the jury. The state had assumed throughout the trial that appellant had properly impounded the animals. The state’s contention seems to have been that he was demanding unreasonable compensation for the care of the animals and the damage done to his crops, and that in attempting to prevent deceased from removing the animals from the pen appellant used more force than was reasonably necessary when he fired upon deceased, fee dying declaration of deceased was to the effect that appellant was demanding unreasonable compensation for the release of the animals. Appellant testified that he found the animals in his field. The fact that a state’s witness had seen the animals near the field 50 minutes before they were impounded would not, in our opinion, have warranted the jury in concluding that appellant took the animals from some place other than his field. The -opinion is expressed that the charge had no support in the evidence. It was calculated to impress the jury with the view that the court thought appellant had taken up the animals from land not belonging to him, and that, therefore, his possession was illegal. In the instruction by the court, the legality of appellant’s possession should have been assumed as a fact, as there was no evidence in the record sufficient to raise the issue that appellant did not in fact take the animals from his own field. Sims v. State, 38 Tex. Cr. R. 637, 44 S. W. 522; Sims v. State, 36 Tex. Cr. R. 154, 36 S. W. 256.

Appellant did not claim that he was attempting to act as poundmaster of the city of Mission when he impounded deceased’s animals. Over a proper objection, the state proved that appellant had theretofore been poundmaster of the city of Mission and had been discharged some six months prior to the homicide. This testimony was irrelevant and immaterial. The fact that appellant had been discharged tended to prejudice him in the eyes of the jury.

Over proper objection the state proved that appellant had taken up other people’s stock during a period of time extending back three years prior to the homicide. The state also proved that appellant had taken up stock belonging to people other than deceased after he had been discharged as poundmaster. Under facts reflected by the record, the opinion is expressed that all of 'this testimony was irrelevant, immaterial, and prejudicial.

The judgment is reversed, and the cause remanded.

PER OURIAM.

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


text:
    RODDY v. STATE.
    No. 14327.
    Court of Criminal Appeals of Texas.
    June 10, 1931.
    8. P. Rose, of .Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, the unlawful transportation of intoxicating liquor; penalty, five years in the penitentiary.

J. J. Howell, a witness for the state, testified that he lived four miles north and a mile west of Amarillo and that he was engaged in farming; that he knows a man by the name of Horace Wells and also knew the appellant, Prank Roddy. He testified that he was jointly indicted with the appellant in this case, but had never been tried on this indictment and never expected to be tried on it; that he had been told by the district attorney that he would not be tried if he turned state’s evidence against appellant and the said Wells. He stated that he was renting the premises where he was living at the time of the alleged transaction and that it was his home; that he had charge and control of the premises; that he made arrangements with Horace Wells to keep his premises for the use of storing, receiving, and delivering intoxicating liquor; that he was to get $30 a month for storing this liquor out at his home; that this was the only connection that he had with the liquor; that lie was not selling it to anybody but just permitting it to be stored on bis premises and was keeping it there for the purpose of hiding it; that .the officers found between twenty-five and thirty cases of half-gallon jars of whisky when they raided the premises; that they raided it about the 26th day of June; that about 195 gallons of whisky were brought to his premises on the evening of the 24th. He stated that the appellant came out and said he wanted some of that stuff; that he put it out in a little back room or back porch adjoining the house; and that the appellant came there and put it in his car and drove away. He also testified that liquor had been carried away twice about a month apart; that at one time he buried about ten gallons of whisky in his field.

Appellant’s bill of exception No. 10 complains of the action of the trial court in refusing to charge the jury that the state’s witness’Nowell was an accomplice and that they could not convict the appellant upon his testimony alone. The bill shows that the appellant in due time objected to the charge of the court because of its failure to submit the law .of accomplices to the jury and presented special charges to that effect, which were refused by the court.

We think the learned judge was in error in refusing to charge the jury in this particular and that the evidence introduced.clearly raised the issue of accomplice testimony. Under article 687 of the Penal Code it is made unlawful for any person to “rent to another or keep or be in any way interested in keeping any premises, building, room, boat or place to be used for the purpose of storing, manufacturing, selling, transporting, receiving or delivering, or bartering or giving away intoxicating liquors in violation of this chapter,” and providing a penalty therefor. Evidently the learned trial judge’s refusal to so charge was based upon article 670, P. C., which reads as follows: “Upon a trial for a violation of any provision of this chapter, the purchaser, transporter, or possessor of any of the liquors prohibited herein shall not be held in law or in fact to be an accomplice, when a witness £n any such trial.”

In the case of Cate v. State, 100 Tex. Cr. R. 613, 272 S. W. 210, 211, in construing article 670, it was-said: Such statute must be strictly construed. It cannot to be held to go the extent of freeing a witness who is tainted as an accomplice by reason of any other connection with the transaction or the subject-matter of the crime such as that it would made of him an accomplice but for the application of the terms of section 2c, supra [article 670].”

We believe that the evidence of the state’s witness J. J. Nowell comes clearly under the provisions of article 687, P. C., supra, and falls within the law of accomplices under the decisions of this court. See Dawson v. State, 97 Tex. Cr. R. 408, 261 S. W. 1050; Miller v. State, 97 Tex. Cr. R. 637, 263 S. W. 919. Nowell’s evidence shows that he rented the house to said Wells for the purpose of storing said whisky and that he received it and. concealed part, if not all, of it, after knowing it was being unlawfully handled by others. This would clearly place him under article 687, ¿pplicable to accomplices, and not under article 670 of the Penal Code, supra.

Appellant’s bill of exception No. 8 shows that after all the evidence was in both for the state and for appellant, a written motion was made by appellant to require the state to elect upon which of two transactions it would rely for a conviction. This request was overruled. We think the court erred in such ruling. The evidence showed that part of the liquor was transported about the 24th day of June, 1930, and another portion about, one month prior to the 24th day of June, about May 26, 1930. A conviction might have been predicated upon the transaction on either occasion. By an unbroken' line of authorities it has been held that where more than one felony has been proven by the state upon which a conviction might be predicated, accused is entitled to an election by the'state when it is requested. See Larned v. State, 41 Tex. Cr. R. 509, 55 S. W. 826; Batchelor v. State, 41 Tex. Cr. R. 501, 55 S. W. 491, 96 Am. St. Rep. 791; Crosslin v. State, 90 Tex. Cr. R. 467, 235 S. W. 905; Smith v. State, 101 Tex. Cr. R. 615, 276 S. W. 924; Venn v. State, 113 Tex. Cr. R. 642, 21 S.W.(2d) 727.

For the errors discussed, the judgment is reversed, and cause remanded.

PER CURIAM.

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


text:
    CALDWELL v. STATE.
    No. 14344.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Thomas B. Ridgell, of Breckenridg.e, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, murder; punishment, ten years in the penitentiary.

The testimony for the state showed that the appellant stabbed deceased with a butcher knife and killed her. It was the contention of the state that the killing was unprovoked and was a result of premeditation and of an attack on the part of the appellant after they had had a previous difficulty, which had been abandoned by the deceased.

The appellant’s testimony raised the issue of self-defense from an actual attack, as well as self-defense from threats. The appellant testified that at the time of the commission of the offense, the deceased was advancing on her and striking her with a piece of iron. The evidence on the part of some of the state’s witnesses showed that the deceased had struck the appellant on the head with a rock.

The appellant excepted to the charge of the court on provoking the difficulty because the evidence was not sufficient to raise such an issue or to authorize such a charge, and if it was sufficient to raise the issue, he did not directly apply that issue and unduly restricted appellant’s rights.

We think the court’s charge on provoking the difficulty is subject to the objection raised. It is a more or less serious question as to whether or not the facts are sufficient to raise the issue of provoking the difficulty. It would seem from the evidence more of an issue as to who began the difficulty than as to the provoking of the difficulty. However, the court nowhere in his charge gave to the jury the converse of the proposition of provoking the difficulty. We quote from Mason v. State, 88 Tex. Cr. R. 642, 228 S. W. 952, 955: “Whenever it becomes necessary in the opinion of the trial court to charge the jury upon the law of provoking a difficulty, it is necessary always that the converse of that proposition be also given in charge to the jury. In other words, they should be told' in some appropriate language that if the .appellant at the time of the homicide or difficulty did do or say certain things, but that they were not done or said with the intention of provoking a difficulty, that then the defendant’s right of self-defense would not be impaired or abridged, and he could stand his ground and resist any unlawful attack or threatened attack, which deceased may have made upon defendant’s person.” See also Young v. State, 53 Tex. Cr. R. 416, 110 S. W. 445, 126 Am. St. Rep. 792; Caraway v. State, 98 Tex. Cr. R. 119, 263 S. W. 1063; Kilpatrick v. State, 80 Tex. Cr. R. 391, 189 S. W. 267. See also Branch’s P. C. § 1958.

Appellant also objected to the court’s charge because the court nowhere gave an affirmative charge upon the right of self-defense disconnected and disassociated with any other matter, and presented a special charge on that issue. Appellant had testified that when she left Monroe Bailey on the day of the trouble, she had started home; that the deceased asked her to go with her to see a woman by the name of Kathryn Shelton and prove to her that a man called Chief (Monroe Bailey) was not at her house; that she was on one side of the road and deceased was on the other; that when she started to go, she was back of deceased and would not get close to her; that deceased threw a rock at her, and that she picked it up and threw it back at her but did not hit her; that when she walked up to the place they were going, the deceased said to her, “You black bitch, you you don’t have to prove nothing,” and struck her with an iron pipe. The witness Henry Lee Pointer testified for the state that the first thing he knew, the, deceased raised an iron pipe to hit appellant; that he saw her draw it back. The witness Kathryn Shelton testified that she saw the deceased get a piece of iron and that deceased said the appellant had insulted her and that she was going right over to Monroe Bailey’s house; that the deceased found the piece of iron in a trash pile; and that after she got that iron, she went over to Monroe Bailey’s house. She testified further that the appellant and deceased walked up to where she was; that she walked oft; and that they had started to fight, and that the deceased struck appellant on the head with a rock.

The court seems to have correctly defined the law pertaining to the right of self-defense, but when he came to making the application of the defensive matter in his charge, he associated with that the issue of provoking the difficulty. There is nowhere in his charge a charge on self-defense unassociated with any limitations. The court also charged on the issue of mutual combat and associated it also in connection with his charge on self-defense and the propoking of the combat.

The appellant was entitled to an affirmative charge under the evidence on self-defense. “When self defense is an issue the accused is entitled to an affirmative charge on that theory, and a negative charge is not sufficient.” Branch’s P. O. § 1938, citing Gardner v. State, 11 Tex. App. 273; Haekett v. State, 13 Tex. App. 414; Bonner v. State, 29 Tex. App. 231, 15 S. W. 821; Williams v. State, 61 Tex. Cr. R. 356, 136 S. W. 771. A charge on self-defense should not be mixed with other matters, but that issue should he submitted in an affirmative way untrammeled by unfavorable conditions. McPeak v. State, 80 Tex. Cr. R. 50, 187 S. W. 754; Jones v. State, 86 Tex. Cr. R. 371, 216 S. W. 884; Escobedo v. State, 88 Tex. Cr. R. 277, 225 S. W. 377.

We are constrained to hold that the appellant’s rights under her testimony were not submitted in the case in an affirmative manner and that-the charge of the court presented appellant’s defense in restrictive form and tied it to the theory of the state, and therefore it was not sufficient to meet the requirements of the law and did not properly protect the appellant in her rights under the facts and under the law.

Other bills of exception appear in the record: Some of these bills are in question and answer form, and others are qualified by the court in such a way as to fail to reflect error. Others are such as are not likely to again occur on another trial of the case. We see no necessity of entering into a discussion of same in view of the disposition we make of the case.

The judgment is reversed, and cause remanded.

PER CURIAM.

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


author: LATTIMORE, J. HAWKINS, J.

text:
    CUNNINGHAM v. STATE.
    No. 13642.
    Court of Criminal Appeals of Texas.
    Nov. 5, 1930.
    Rehearing Granted June 17, 1931.
    Crumpton & Crumpton, of Texarkana, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

The indictment in this case charges in a single count that appéllant did unlawfully sell to Ennis Brooks and Harvey Tutt certain intoxicating liquor. There is but one bill of exceptions, which brings forward appellant’s exception to the charge of the court in submitting to the jury appellant’s guilt predicated upon a sale of intoxicating liquor to the two persons named in the indictment; it being insisted that such charge finds no support in testimony, and that the court should have instructed the jury to return a verdict of not guilty.

Appellant did not testify. The state introduced Tutt and Brooks, the two alleged purchasers. Tutt testified that appellant came to where he and Brooks were at work, stopped his car, and called witness out to where he was. He said appellant picked up a pint and held it out, and asked “us if we wanted it.” Witness said he asked Brooks, and Brooks said, “Hell, yes, we’ll take two of them.” Witness said he handed the liquor to Brooks, and that later they drank it, and that it was intoxicating liquor. Brooks testified that he paid for the intoxicating liquor. We quote from his testimony: “Tes, I paid for it. I paid $1.-50 for it. We got one pint. It; was intoxicating liquor. Harvey delivered the liquor to me, and Harvey and I drank it. Both of us drank it.” Harvey was the witness Tutt. We think this testimony sufficient for the jury to conclude that there was a sale of the liquor to the purchasers named in the indictment. We do not think this conclusion negatived by the fact that one of said parties put up all the money to pay for the liquor. The negotiations were carried on by one of the parties to the alleged transaction, and the fruits of the sale were divided between him and the other party, though' the other party paid the price. We do not think the conclusion reached by us in any way in conflict with that announced in Brown v. State, 102 Tex. Or. R. 54, 276 S. W. 908.

The judgment will be affirmed.

HAWKINS, J., absent.

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing appellant insists that we reached a wrong conclusion in holding that the evidence showed a joint sale of liquor to Brooks and Tutt, as was alleged in the indictment.

Brooks and Tutt were working in a sand pit about twenty-five or thirty feet from the road; Tutt testified as to what occurred as follows:

“Mr. Cunningham came up in a Ford roadster and stopped and called me out there —when he stopped he picked up a pint and held it out and asked us if we wanted it. I asked Ennis (Brooks) and he said ‘Hell, yes, we’ll take two of them’ — I went back and started to loading sand — I handed it to Ennis and I guess he paid for it, he was getting his change out. I gave the liquor to Ennis. Tou ask what finally became of it — we drank it. * * * No, I did not buy any, and I did not see Brooks buy any from Hugh Cunningham (appellant). If Brooks bought any I did not see him. I did not buy it. Cunningham handed it to me.”

Brooks’ version of the transaction is as follows: “A Ford roadster came up and the fellow in it called Harvey (Tutt) — I kept on loading, then Harvey called me and held up a pint of whisky and he said, ‘Tou want it?’ and I said, ‘I guess so’ — I knew Harvey didn’t have any money to pay for it and I went to pay for it. Tes, I paid for it. I paid $1.50 for it. We got one pint. Harvey delivered the liquor to me and both of us drank it.”

It is not quite clear whether Tutt carried the liquor back to the sand pit and delivered it to Brooks, who then went to the car and paid for it, or whether Brooks came to the car and Tutt handed it to him there. It is clear, however, that Brooks knew Tutt had no money, and that he had gone back to work and was not at the car when Brooks paid for the whisky. It is not shown that the price was understood or agreed on, or that anything had been said about it until Brooks went to the car. It is not shown that Brooks and Tutt had agreed to buy whisky or knew that appellant was coming there or what he came for until he made his purpose known. It is not shown-that Tutt then or at any other time contributed, or agreed to contribute, anything to the purchase price. The fact that he drank some of the liquor did not make him a purchaser. If, after paying for the liquor, Brooks had gotten in the car with appellant and driven away, and before returning to the sand pit he had consumed all of the liquor, and Tutt had gotten none of it, it would be a far cry to hold that he was a copurehaser with Brooks, and yet the sale was complete when the liquor was paid for. Although Tutt testified that appellant “asked us”'if we wanted the liquor, it nowhere appears that he assented to wanting it, but referred the matter to Brooks, and, while Brooks said, “We’ll -take two of them,” he only took one and paid for it himself.

The writer is unable to distinguish this case from Arnold v. State, 47 Tex. Cr. R. 556, 85 S. W. 18. There the sale was alleged to have been made to one Shufford. Morton and Shufford went into Arnold’s place of business and called for cider. Arnold set out whisky for both of them. Morton paid for it. Shuf-ford paid no part of the purchase price. We quote from the opinion as follows: “The substance of this statement, as well as the other facts in the record, show that the whisky was sold to Morton, and not to Shufford. The mere fact that Shufford drank some of the whisky would not make it a sale to Shuffordi but .the sale would be to Morton, as he paid for it.”

Sec, also, O’Shennessey v. State, 49 Tex. Cr. R. 600, 96 S. W. 790; Sessions v. State, (Tex. Cr. App.) 98 S. W. 243; Ellington v. State (Tex. Cr. App.) 86 S. W. 330; Price v. State, 83 Tex. Cr. R. 322, 202 S. W. 948; Bruce v. State, 39 Tex. Cr. R. 26, 44 S. W. 852; Tippit v. State, 53 Tex. Cr. R. 180, 109 S. W. 190.

The original opinion in this case and the opinion in Arnold’s Case cannot both be correct. The sale in ⅜⅛ case appears to have been made to Brooks, and a fatal variance arises on the proof and the averments in the indictment. Having reached this conclusion from a further consideration of the case, the motion for rehearing should be granted, the judgment of affirmance set aside, and the judgment of the trial court should be reversed and the cause remanded, and it is so ordered.


author: HAWKINS, J.

text:
    Ex parte HUNT.
    No. 14155.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Francis M. Chaney and G. deGraffenried, both of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Relator presents an original application for writ of habeas corpus to this court, contending that he is entitled to bail. The question arises upon the construction of the new statute upon murder, the form of the indictment in the present prosecution, the effect of submitting the case to the jury upon a count of the indictment which omitted the averment that the killing was upon malice aforethought, and the" abandonment of a good count charging murder upon malice aforethought.

Tersely stated, relator contends that he was in jeopardy on the count of the indictment which did allege a killing upon malice aforethought, and that upon another trial he cannot be assessed a punishment of more than five years in the penitentiary; hence that he is entitled to bail as a matter of law.

It will be seen that relator is seeking by habeas corpus proceedings to have this court pass upon the question of former jeopardy which may or may not be pleaded in the lower court upon another trial. It has been held consistently that a habeas corpus proceeding cannot be the basis for such action. Ex parte Crofford, 39 Tex. Cr. R. 547, 47 S. W. 533; Ex parte Mitchum, 91 Tex. Cr. R. 62, 237 S. W. 936; Ex parte Spanell, 85 Tex. Cr. R. 304, 212 S. W. 172, in which many cases are cited.

That the plea of jeopardy is a personal privilege and can be waived by accused is well established. Corpus Juris, vol. 16, § 489; Dunn v. State, 92 Tex. Cr. R. 126, 242 S. W. 1049. If relator does not waive'the plea, it will be available to him when again placed on trial, and he can then invoke a ruling of the trial court thereon; if the ruling is unfavorable to him (which we can not assume will be the case), he may present it upon appeal to this court. Ex parte Mitchum, supra.

The writ is denied.


author: LATTIMORE, J.

text:
    SALINAS v. STATE.
    No. 14356.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Douglass & McConnell, of Pampa, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

There are three hills of exception in the record. The first attempts to bring up for review what is claimed to be a variance between the copy of the indictment served upon appellant while in jail after the indictment was returned, and the indictment upon which the trial was had. No objection was made upon this ground at the time the case was called for trial, or at any time, until in the motion for new trial. Manifestly it comes too late. Richardson v. State, 7 Tex. App. 486; Bonner v. State, 29 Tex. App. 223, 15 S. W. 821.

The second and third bills complain of the reception in evidence of testimpny as to what was found on appellant’s premises upon search thereof by the officers, the complaint being founded upon the proposition that' the affidavit and search warrant were, defective. In view of the fact that the court withdrew from the consideration of the jury all testimony relative to the search of appellant’s premises, and the fact that the case was submitted to the jury upon the third count which charged appellant with the sale of intoxicating liquor, and that he was given the lowest penalty upon plain testimony of a sale, we are of opinion that the error, if any, of the admission of the testimony complained of would be of no injury to the accused.

Mr. Lanning testified for the state that he bought from 'appellant a quantity of whisky, and paid him for same; that the transaction occurred at the Elk’s hotel in Carson county, not far from the date the officers raided appellant’s place. This fact was not denied by appellant. The evidence sufficiently supports the verdict and judgment, and, no error appearing, the judgment will be affirmed.


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

text:
    JOHNSON et al. v. STATE.
    No. 14086.
    Court of Criminal Appeals of Texas.
    April 8, 1931.
    Rehearing Granted as to Appellant Johnson June 24, 1931.
    Vickers & Campbell, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possession of intoxicating liquor for the purpose of sale, punishment being assessed at one year in the penitentiary against each appellant.

The indictment contained two counts. The first charged transportation, and the second possession for the purpose of sale, -of intoxicating liquor. Many 'of the exceptions to the court’s charge are directed at the instructions regarding transportation. As the charge appears in the transcript only the second count of the indictment was submitted to the jury. The court evidently responded to the exceptions ifi so far as submitting the second count was concerned, and omitted altogether any instructions regarding it.

Officers watched Johnson and Edwards leave the town of Brownfield in a ear belonging to Johnson. They lost sight of the car for probably twenty minutes. When they came up with it, it was some two and a half miles out of town, was standing still, and Johnson and Edwards were both out of it. According to the officers’ testimony, just as they came 'up Edwards reached in the car and drew from under a coat two full quart bottles of whisky which he slapped together, breaking one completely and cracking the other so the whisky was leaking from it. Some of the whisky from the cracked bottle was recovered by the officers. The defensive issue arose from the testimony given by one Gaston and the two appellants. Gaston-claimed that earlier in the day he had bought a quart of liquor from one “Mick,” who had taken Gaston to the point where the appellants were later apprehended; that Mick took from under some weeds a quart bottle which contained only a small quantity of whisky which Gaston drank; that Mick then produced from the same bunch of weeds a full quart which'Gaston purchased; both it and the empty bottle were left there. Gaston further testified that after returning to town he met Edwards and went with him to a café operated by Johnson; that Edwards and Johnson wanted a drink of whisky and that he (Gaston) told them where the quart was he had purchased and gave them permission to get a drink from it. Both appellants gave testimony as to Gaston’s permission for them to get a drink of the whisky and as to directions from him as to where it could be found. Both claimed that when they reached the place the empty bottle was first discovered and then the full quart; that they had just tdken a drink and had not had time to again hide the whisky in the weeds before the officers drove up. Both appellants claimed that the bottles were not in the car but on the running board of it. They further claimed their only connection with or possession of the whisky was for the purpose of getting a drink.

The objections to the court’s charge as found in the transcript are very confusing. After the court had amended his charge by omitting any instruction on transportation of the liquor, if appellants had any objections to the revised charge they should have filed written objections thereto. Having failed to do so, we are not called upon to consider the objections directed at the charge as originally prepared. Article 660, C. C. P. (1925); Kincaid v. State, 111 Tex. Cr. R. 1, 10 S.W. (2d) 725; Hall v. State, 97 Tex. Cr. R. 158, 260 S. W. 878; Jackson v. State, 103 Tex. Cr. R. 252, 280 S. W. 808; Butler v. State, 105 Tex. Cr. R. 228, 288 S. W. 218; Martin v. State, 107 Tex. Cr. R. 46, 294 S. W. 595.

In connection with the subject last' discussed, we observe that we discover no vice in the charge in its definition of “prima facie” evidence. In that respect the charge seems to follow approved precedents. The same is true as to the definition of “possession.” No charge on circumstantial evidence was called for under the facts.

The defense was that appellant’s only connection with the whisky was to get a drink of it.' The court pertinently told the jury if they believed or entertained a reasonable doubt that appellants or either of them had the whisky only for the purpose of taking a drink they would be guilty of no offense. The issue of fact thus sharply raised was decided by the jury against appellants, and this court would not be justified in disturbing the verdict of the jury under the circumstances.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

Attached to the motion for rehearing is a paper bearing the signature of the members of the jury who rendered the verdict in this case, in which it is stated that since rendering the verdict there has come to their knowledge facts producing the belief that Johnson is not guilty. The court at which the trial took place adjourned on September 20, 1930. The document mentioned bears date April 14, 1931. It does not purport to be any part of the record, and its incorporation in the motion for rehearing filed in this court is manifestly improper. Its appearance in the motion carries the implication that favorable action upon the appeal is to be obtained from this court through matters which are not part of the record and which the court has no right to consider. The document will be expunged from the record with the hope that one of the same nature will not again be brought to the attention of the court. Such a document cannot benefit the accused. It does counsel no credit and this court no honor.

This appeal, so far as it relates to J. M. Edwards, is dismissed at Ms request.

The sufficiency of the evidence is vigorously assailed in the motion for rehearing. J. M. Telford, the sheriff, and A. T. Fowler,' his deputy, testified upon behalf of the state. A summary of the testimony of the sheriff is as follows: The appellant Johnson, and his companion, Edwards, were seen by the officers traveling in an automobile from Brownfield to a point two and one-half to three miles from Brownfield, where the car occupied by the appellants was parked in a place among the weeds on the side of the road. As the officers approached, Edwards took from his car two quart jars of liquor, one of which was nearly full of whisky. The other jar was broken to pieces but contained the odor of whisky. There were no other persons near by. There were no tracks indicating the presence of any other persons. This occurred about twenty minutes after they left Brownfield.

Fowler’s testimony was in substance the: same as that of Telford, save that from the time the witness came in sight of their car the appellants did not leave it until Fowler got to it at the place described by Telford. Fowler further said that he did not see any persons present besides the appellants.

In his testimony Edwards verified the statement of Gaston with reference to the location of the whisky and the information and permission that was given Edwards by Gas-ton. As Edwards was about to ,go in his car to the place designated by, Gaston, he found that his wife and baby were in the car, and met Johnson, who proposed that they go in his car., Following the directions he had received from Gaston, they went to the point where the arrest was made. Johnson was driving the car, and they drove to the place where the quart of whisky was hid. Edwards got out of the car and Johnson later followed him. He found an empty jar among the tumbleweed, which he put on the running Board of the car. He then found another quart jar which was nearly full of whisky. The jar that had the whisky in it was opened and they each took a drink. About that time .the officers arrived. Edwards was fixing to hide the whisky, but the sheriff arrived before he succeeded in doing so. Edwards testified that the whisky was not brought there by them. They had no trouble in finding the liquor.

Johnson testified that he learned of the presence of the whisky in a conversation between Edwards and his friend. His testimony touching the journey was in substance the same as that of Edwards, that is, that they found one empty jar and a quart jar which was practically full of whisky. They took a drink of the whisky. Edwards smashed the jars together. One of the jars was practically empty and cracked. He denied carrying the whisky to Brownfield. He also denied the possession of any whisky or interest in it further than to take a drink of it.

The quart jar in which the officers found some whisky was produced and identified at the trial.

In support of the proposition that the evidence does not support the verdict, the appellant cites the following cases. Rousey v. State, 110 Tex. Cr. R. 33, 7 S.W.(2d) 557; Veasey v. State, 97 Tex. Cr. R. 299, 260 S. W. 1054; Hester v. State, 97 Tex. Or. R. 510, 262 S. W. 484.

A number of exceptions to the court’s charge are embraced in the document prepared by the appellant, to which the court appended the following statement: “The above and foregoing objections and exceptions of the defendants to the court’s main charge were presented to the court and the district attorney upon conclusion of the evidence and before the main charge was read to the jury, with the request that said charge be corrected and amended so as to conform thereto. The court, however, after correcting'the charge refused to correct and amend the main charge save and except as shown in the charge as given to the jury herein, to which action of the court the defendants then and there excepted, and are allbwed this as their bill of exceptions to the action of the court, which is hereby ordered filed by the Clerk as a part of the record herein, this the 1st day of September, 1930.”

This statement of the judge leaves this court without any information as to what condition the charge was in when the exceptions were addressed to it. The court states that he amended the charge but declined to do so save in the particulars shown by the charge given. There is presented no additional information to this court, and it is without any knowledge as to what parts of the. charge were under criticism at the time the court acted as indicated by his qualification.

The witness Gaston testified that he met Edwards at Brownfield, and together they entered a restaurant, where Edwards indicated that he wanted a drink of whisky and was told by Gaston that he had some whisky at a certain place near the road, at which place Edwards could find the whisky and get a drink; that the liquor had been put there by the person from whom it was purchased by Gaston. The witness disclaimed any relationship with the appellants.

To sustain the verdict the evidence must be such as warranted the jury in concluding, beyond a reasonable doubt, that the appellant Johnson possessed intoxicating liquor for the purpose of sale. See Veasey v. State, 97.Tex. Cr. R. 299, 260 S. W. 1054; Rousey v. State, 110 Tex. Cr. R. S3, 7 S.W. (2d) 557. To meet this burden, reliance is had upon the statute declaring that the possession of more than a quart of intoxicating liquor is prima facie evidence that such liquor was possessed for the purpose of sale. As affecting the appellant Johnson, the evidence is cogent in support of the claim that his connection with the liquor was for use as a beverage. See Hester v. State, 97 Tex. Cr. R. 510, 262 S. W. 484. Rebutting the inference of possession for sale is the testimony of Gaston, an apparently disinterested witness, and of Edwards, who was the main actor in bringing Johnson in contact with the liquor, and who has withdrawn his appeal.

Upon reflection, especially in the aspect in which the appeal stands since the withdrawal of the appeal of Edwards, the conclusion is expressed that as to Johnson, the motion should be granted, the judgment affirming the case set aside, the judgment of the district court reversed, and the cause remanded.


author: CALHOUN, J. LATTIMORE, J.

text:
    RAMIREZ v. STATE.
    No. 13789.
    Court of Criminal Appeals of Texas.
    April 15, 1931.
    Rehearing Denied June 24, 1931.
    Prank Hartgraves, of Menard, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is castration, with the minimum penalty of five years in the penitentiary assessed.

A former appeal of this ease will be found reported in 112 Tex. Or. R. 332, 16 S.W.(2d) at page 814. The prosecution is based under article 1168, P. C.

The undisputed evidence in this case shows that the appellant castrated and removed both of the testicles of the injured party, which was admitted by the appellant. The only difference as to what actually occurred, as shown by the statements of the injured party and of the appellant, was the fact that the injured party contended that the appellant tied him and hung him up by his legs when he castrated him. Appellant admitted that he tied the injured party and' castrated him, but contended that he did not hang him up by his legs.

A great part of the record in this case is devoted to an attack upon the selection of the grand jury which found the hill of indictment, and the petit jury which was called to try the appellant was attached upon the same grounds; it being charged that there had been an unjust discrimination against the Mexican race in Menard county in the organization and selection of these bodies. The appellant by sworn plea ashed that the indictment be quashed in this case, and the same contention was made on the former trial. This contention was that the jury commission selecting the grand jury and also the petit jury purposely selected no person or persons of the Mexican race or of Mexican descent hnown as a Mexican to serve on said grand jury or on any petit jury, but on the contrary did exclude from the list of persons to serve on such grand jury and said petit jury all persons of the Mexican race or of Mexican descent, and that said grand jury was composed exclusively of persons of the white race and persons of the color of the Mexican race and of Mexican descent, although constituting about one-tenth of the population of the qualified jurors in and of Menard county and otherwise qualified to serve as such grand jurors and petit jurors, were excluded therefrom on the ground of their race and color, and that this was a discrimination against the appellant, since he was a person of the Mexican race and of Mexican descent known as a Mexican, and that such discrimination was a denial to him of the equal protection of the laws and of his civil rights guaranteed by the Constitution and laws of the United States. Appellant’s contention as shown by bills of exception is as follows: That before the indictment in this ease was returned, and before the grand jurors who returned said indictment were sworn and impaneled as grand jurors, his wife, who was also charged as a principal with this appellant, challenged the array of said grand jury in her behalf and in behalf of this appellant, he being unable to appear in court by reason of sickness, which said motion was overruled by the court at the October term, 1928; that the appellant moved to quash the indictment herein based on a motion at the October term, 1928, which was again overruled by the trial court; and that said motion was again presented at the term at which he was tried and convicted, the April term, 1930, and was again overruled.

The same evidence was offered by agreement as to all of said motions. The witness Joe Elack testified that he had been county attorney for about four years and practiced law in Menard county and had resided there for more than fourteen years; that during his residence there he had not known of a person of the Mexican race known as a Mexican having been chosen as a grand juror or as a petit juror; that he knew that there had been none since he had been county attorney; that he did not think they were qualified to sit on the jury, as those in the county did not know English well enough and were otherwise ignorant; that he knew of no special discrimination against Mexicans as a race in the matter of their being selected on the jpry; that he had never heard of the court nor any of its officers discriminating against Mexicans as a race. The sheriff and tax collector of Menard county testified that he had been elected to office two years before; that there were about thirty-five or forty Mexican families living in Menard county and about one hundred and fifty Mexican citizens in the county, including women and children; that there was a voting population in the county of about 1,500; that about a dozen Mexicans voted in the last primary election in Menard county; that he did not remember that any Mexicans had ever been chosen on the grand jury list or the petit jury list since he had resided in the county; that he had never summoned a Mexican on the jury when it became his duty upon direction of the court to go out and summon jurors, and that he did not think the Mexicans of Menard county were intelligent enough or spoke English well enough or knew enough about the law to make good jurors, besides their customs and ways were different from ours, and that for that reason he did not consider them well enough qualified to serve as jurors, but that he thought he could select one or more Mexicans in the county who could speak and understand English well enough and who were otherwise well enough qualified to make as good jurors as some of the white jurors that have been on our juries, but that he did not consider those white jurois well qualified; that the court had never at any time by act or otherwise said or done anything that would indicate that he was discriminating with reference to races. Albert Nauwald testified that he was in the jury commission appointed'by the district court that drew the grand jurors who indicted the appellant; that he would not select a negro to sit on the grand jury or petit jury while acting in the capacity of jury commissioner, even though the negro was as well qualified in every way to serve as a juror as any white man; that he was opposed to Mexicans serving on the jury; that he did not consider any individual Mexican’s name in connection with making up the jury list; that he did not consider the Mexicans in Menard county as being intelligent enough to make good jurors, ’ so that the jury commission just disregarded the whole Mexican list and did not consider any of them when making up their jury list; that he had lived in Menard county about fourteen years, and so far as he knew no Mexican had ever been drawn on any grand jury or petit jury list since he had been in the • county; that the court so far as his knowledge went had never said or done anything to discriminate against any race of people because of tbeir race or color, and none of tbe agents or officers of said court bad ever done so in so far as be knew. Appellant’s bill of exception to tbe refusal of the court to quash the indictment and tbe venire for tbe week was approved with tbe following qualification: “Tbe proof did not show that there bad been a discrimination against tbe Mexican race; and, other than tbe proof that about a dozen Mexicans voted in tbe County at last primary election, there was no evidence that there was any Mexican in the County who possessed the statutory qualifications of a juror.”

This same evidence was before this court on the former appeal upon appellant’s motion to quash the indictment and was disposed of in the opinion by Judge Lattimore in the following language: “There are a number of complaints at the formation of the grand jury, and at the action of the court in refusing to set aside certain petit jurors, and of other procedure in the trial, none of which in our opinion presents error. * * * ”

Appellant also complains in this ease, as he did in the former case, of the failure of the court to charge on the issue of aggravated assault and of simple assault. This also was held on said former appeal to present no reversible error. The appellant filed no motion for a rehearing. “A ruling by the appellate court upon a question of law raised on a former appeal will be considered as the law of the case'in all subsequent proceedings in the s,ame ease, unless the ruling was clearly wrong and harmful.” 4 Tex. Jur. par. S78; Vargas v. State, 107 Tex. Cr. R. 666, 298 S. W. 591; Tait v. State, 106 Tex. Cr. R. 642, 294 S. W. 557; English v. State, 87 Tex. Cr. R. 507, 224 S. W. 511; Hollingsworth v. State, 85 Tex. Cr. R. 248, 211 S. W. 454.

There are a number of special instructions asked by appellant and refused by the trial court which were to the effect that if the jury found that the act was committed under the immediate influence of passion arising in the mind of appellant from information from appellant’s .wife that Lufcio Arevalo, the injured party, had had carnal intercourse with her and that such passion was sufficient to render his mind incapable of cool reflection, then such facts might be taken into consideration by the jury as mitigating circumstances in fixing his punishment. Even should it be held that some of these charges should have been given, the appellant having received the lowest punishment fixed by law for the offense, no injury to the appellant is shown by their refusal.

The appellant also complains of the refusal of the court to instruct the jury that they must find beyond a reasonable doubt that the act of the appellant was both willful and malicious-, and further that though they found ■that the act was done willfully, they must also find beyond a reasonable doubt that the act was also done maliciously before they could convict. The trial court charged the jury as to the meaning of the words “willfully” and “maliciously,” as used'in the statute defining the offense with which appellant was charged. He then charged them that if they should find from the evidence beyond a reasonable doubt that appellant did willfully and maliciously deprive Lucio Arevalo of both of his testicles, as charged, they would find him guilty. Axspellant himself testified in substance as follows: That the injured party had gone off with appellant’s stepdaughter, a woman who had been' married and had two children, and had been gone some eight or nine days, when the appellant and his wife went after them and started back home with them in an automobile; that the appellant, who was driving said automobile, left the road and went to a windmill, as he contended, to get some tools that he had left there, but that he did not see any of them and did not look for said tools very much; that he intended to take the injured party and his stepdaughter back to the ranch where he lived so that the injured party could get his divorce fixed up and let them get married, and that he had no intention of castrating the injured party at that time, but that when he started to leave the windmill and get back in his car, his wife said to him, “What do you want to do with this man down there, what are you going to do with that dog?” and he told her that he was going to take them home; that his wife then said to him, “I do not want that dog around the house because he has been making love to me and having intercourse with me and doublecrossed me and then ran off with my daughter and did the same thing.” Then the appellant says he got mad and told Lucio to get out of the ear, and that he did get out of the ear, and that appellant took a rope out of the car and tied him up and castrated him and took his testicles out and threw them on the ground; that after he had castrated him, he turned him loose; that he didn’t kill him because he did not believe in killing. He also testified that he didn’t kill him because his religion calls for “not to kill.” He testified that he then got in the car with his wife and stepdaughter and left the injured party at the windmill; that he neither called the sheriff nor called any doctor; that he did not tell a single soul about it. The evidence further showed that the windmill was about one and a half miles from any place where people lived. He further testified that some hours later he and a white man went back and got the injured party and took him as far as the railroad track near where some Mexican friends of the injured party lived, and that the injured party got out and walked off.

This evidence of appellant shows in our opinion that the act was done deliberately, as well as willfully, and without legal justification or excuse. It was done, according to the evidence, by a mature man of forty years of age upon a boy of nineteen, weighing not over 115 pounds. The manner in which it was done also shows that it was intentionally done, ancj. the charge of the court covered every legal right under his own testimony that he was entitled' to. The court also charged the jury that the burden of proof was on the state to establish by legal evidence beyond a reasonable doubt as to defendant’s guilt, and that in casé they had a reasonable doubt as to appellant’s guilt they would acquit him.

Appellant’s bills Nos. 5 and 6 complain of the remarks of the private prosecutor and the district attorney in their arguments to the jury. While it may be conceded that some of the remarks should not have been made, we do not consider that the arguments complained of in this case showed such prejudice to the rights of the appellant under the evidence as would call for a reversal, especially in view of the fact that the minimum punishment was assessed. “The facts and surroundings of the particular case should be looked to in -determining the effect of an argument complained of. The same language under a certain state of facts might be highly prejudicial, and not so regarded under other circumstances.” Silver v. State, 110 Tex. Cr. R. 512, 8 S.W.(2d) 144, 148, 9 S.W.(2d) 358, 60 A. L. R. 290; McKenzie v. State (Tex. Cr. App.) 11 S.W.(2d) 172.

We have considered the other complaints of error that were not passed on at the former appeal of this case as to the proceedings in the trial complained of, none of which in our opinion present such error as would call for a reversal.

Judgment affirmed.

PER OURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

We were in error in our opinion in stating that the trial court had qualified a certain bill of exception. As part of a bill of exception, appellant had set up another bill of exception taken upon a prior trial, which included bill showed to have been qualified by the court. In the writing of the opinion on this hearing here, attention was attracted to the qualification to the included bill, and it was stated in the opinion as a qualification to the bill now before us. We think, however, the matter of no materiality.

All of the matters presented before the trial court as affecting the grand jury which returned the indictment herein, were reproduced facts which were before the court at the time of the trial of this case when same was appealed and by us reversed. The testimony claimed to support discrimination against, the -Mexican race in the drawing of the grand jury, was the same testimony which was before the trial court and this court upon the former appeal. We think our opinion holding that the matters were decided and correctly decided upon the former appeal, is correct. We might add, however, here that we think the -evidence wholly fails to show any discrimination against the Mexican race in the formation of the grand jury that returned this indictment.

We are not impressed that the court belowH should have charged upon the issue of aggravated assault. The testimony seems clear and uncontradicted that appellant was guilty of the offense here charged in that he castrated the prosecuting witness. We know of no principle of law that would reduce the offense of castration to some lower degree of assault because of the anger, rage, or excitement of the accused at the time.

Appellant again raises the supposed error of the refusal of the court to permit him to ask the prosecuting witness questions relative to his affairs with other women than the daughter of appellant, and to show by testimony that prosecuting witness had been intimate with such women, or that he had attempted to induce them to submit themselves to him. We think such testimony has no proper place in this record.

The motion for rehearing will be overruled.


text:
    HUDSON et al. v. STATE.
    No. 14338.
    Court of Criminal Appeals of Texas.
    June 17, 1931.

      Watson '& Watson, of Crosbyton, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

Before proceeding to dispose of'this case upon its merits, we desire to call attention to the fact that by the agreement of the attorneys, and with the approval of the court, the two cases against separate defendants were consolidated in the court below. There is nothing in the record to show that this action was with the consent of the parties on trial. In fact, one of said parties filed a sworn application for a severance, which was not granted, and the refusal of which is complained of in a bill of exception. The court gave but one charge, and but one judgment of. conviction was entered, and both defendants appear to have been sentenced at the same time. Such attempts at consolidation in cases against different defendants almost inevitably leads to confusion and should be avoided, except where every possible precaution is taken. The application 'for severance made by defendant Smith should- have been granted. Said application evidences his personal objection to being tried coincident with the trial of his codefendant.

Attention is called here to the fact that the indictment in this case appears to have been returned into the district court of Crosby county, although said indictment shows on its face to be the act of the grand jury of Lubbock county, which was duly impaneled, organized, and sworn in Lubbock county, and the allegation in the indictment is that the intoxicating liquor in question was transported in Lubbock county. The original indictment returnecl by the grand jury in Lubbock county and having been filed, in the first instance, in the district court of Crosby county, and the case being tried in Crosby county, and the evidence showing that the offense, if any, was committed in Crosby county, the prosecution must fall. The indictment is invalid, and the proof and the allegation do not correspond.

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