author: LATTIMORE, J.

text:
    JONES v. STATE.
    No. 13638.
    Court of Criminal Appeals of Texas.
    March 4, 1931.

      Cunningham & Lipscomb, of B-onham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for aggravated assault; punishment, a fine of $50.

The legal points raised will be the only ones discussed. The state offered Mr. Payne as a witness. Appellant asked him if he had not been sent to the penitentiary for robbery, and he said yes, some thirty years ago. The bill of exceptions 'States that the purpose of the question was to establish the incompetence of the witness so that his testimony might be objected to. Upon the answer, Objection was made on the ground that the witness had been convicted o-f a felony and was disqualified. The court overruled the objection, and, as shown by the bill of exceptions, the witness gave material testimony. Said bill is approved with no other qualification than that attention is called to the evidence adduced on the hearing of the motion for new trial. Examining the evidence thus referred to, it appears that Payne was then allowed to state upon said hearing that he was pardoned by Governor Sayers; that he had the pardon some years before but had made no search for it before coming to court; that the pardon was kept in an old trunk at his mother’s who had been dead for several years, and he did not know where the old trunk was. He said he did not.know what was in the pardon, but it was a full pardon.

Appellant’s objection to this testimony was that it was hearsay, secondary, and sought to establish, by hearsay, facts of which the original pardon or a certified copy thereof would have been the best evidence. If the state, in the first instance, had objected to oral proof by the witness that he had been convicted of a felony, when same was offered for the purpose of disqualifying him, the court could have properly sustained such objection. White v. State, 33 Tex. Cr. R. 177, 26 S. W. 72; Price v. State, 66 Tex. Cr. R. 400, 147 S. W. 243; Watts v. State, 67 Tex. Cr. R. 4, 148 S. W. 310; Marshall v. State, 82 Tex. Cr. R. 623, 200 S. W. 836; Brown v. State, 101 Tex. Cr. R. 63; 274 S. W. 588. The rule is otherwise when it is shown that such testimony was sought merely for the purpose of affecting the credibility of the witness. Batson v. State, 36 Tex. Cr. R. 606, 38 S. W. 48; Daly v. State, 72 Tex. Cr. R. 531, 162 S. W. 1152. It plainly appearing from the recitals of this bill of exceptions that the purpose of eliciting such testimony from the witness was to effect his disqualification, and he having admitted without objection that he had been convicted of a felony and thereafter confined in the penitentiary, he stood in the attitude of an incompetent witness — under our present statute, article 708, C. C. P. as admitted by Acts 39th Leg., 1st Called Sess. (1926) c. 13 (Vernon’s Ann. O. 0. P. art. 708), as construed in Underwood v. State, 111 Tex. Cr. R. 124, 12 S. W.(2d) 206, 63 A. L. R. 978 — and the trial court was clearly in error in admitting his testimony.

Could the state cure this error by oral proof, upon the hearing of the motion for new trial, that the witness had been pardoned and the pardon lost? Without discussing this dubious proposition, we note that the state had and offered no certified copy of any pardon of the witness at such hearing, but depended solely on proof orally given by the witness that he had been pardoned and that the pardon was lost or misplaced. Our decisions seem uniformly to hold that proof of loss of the original, pardon authorizes the use of a copy certified by the secretary of state to establish the fact of pardon. In Cooper v. State, 7 Tex. App. 199, appears the following: “In case of loss of original, the proof may be made by certified copy under the great seal of the State.” See Hunnicutt v. State, 18 Tex. App. 520, 51 Am. Rep. 330; Baker v. State, 79 Tex. Cr. 513, 187 S. W. 949. Mr. Underhill, in section 334, Third Edition of his work on Criminal Evidence, speaking of the method of proving a pardon, says: “This must be done by the production in court of the instrument itself, or a certified or exemplified copy.”

There may be confusing statements in some of the opinions, as in Smiley v. State, 80 Tex. Cr. R. 280, 189 S. W. 482, wherein it appears that a question was asked of a witness if he had not been in the penitentiary following a felony conviction, and that the witness having answered yes, a motion was made to exclude his testimony, which motion was overruled, and this court upheld the action of the lower court. In the opinion in that case it is said that such testimony being admissible as 'affecting the witness’ credibility, his oral testimony would not render him incompetent as a witness, and Moore v. Stated 39 Tex. Cr. R. 266, 45 S. W. 809; Bratton v. State, 34 Tex. Cr. R. 477, 31 S. W. 379; and White v. State, supra, are cited. In Moore’s Case, Gaines, a state witness, was asked by appellant, when first offered as a witness, if he had not been sent to the penitentiary and had never been pardoned. He said, “Yes.” The accused then asked a postponement of the case so that he might secure record evidence of such conviction, but at no time made objection to the testimony of the witness. He presented to this court on appeal only the point that the court erred in refusing to postpone. Judge Davidson said that the state having made no objection to the oral disqualification resulting from the testimony of the witness himself, there was no error in refusing to postpone to get record evidence for the same purpose; that what appellant should have done was to object to the testimony of said witness after he had admitted that he was disqualified. It Is observed in said opinion that this examination was not shown to have been resorted to for the purpose of impeachment; that the witness was questioned before he testified and as soon as he was offered.

We find in the opinion in the Bratton Case,: supra, only the following;

“Appellant testified. Upon cross-examination, over his objections, the state proved he had been convicted and sent to the penitentiary for the theft of a horse; the objection .being that the record was the best evidence. For the purpose this evidence was, introduced, namely, to ’impeach the witness, the record was not necessary.”

White’s Case, supra, makes a clear distinction between the rule applicable when the object of such question is disqualification of the witness, and when it is merely to discredit him, holding that in the first instance the opposite party may object to oral proof of conviction of a felony, but that in the latter such oral proof,'from the witness himself, of conviction of a crime imputing morai turpitude, is admissible. In Smiley’s Case, supra, it may have been the conclusion of the member of this court who wrote, based on facts shown in that record, that oral proof of the conviction of the witness Burk for a felony was offered for the purpose of discrediting him as a witness. It does not appear that objection was made to the testimony of the witness in limine, or that any question was raised concerning same till during cross-examination; but the opinion seems to state in effect that as soon as Burk admitted on cross-examination, in answer %o questions asked without objection -by the state, that he had been to the penitentiary, the accused moved to exclude his testimony because he was thus shown to be incompetent to testify. In our opinion if said record contained no other showing that •the fact of such conviction was brought out for the purpose of discrediting the witness, than appears in the opinion, this would not suffice to show that the purpose of the question was to discredit the witness, but would appear to support the proposition that the purpose of same was to disqualify him, in which latter case we would be of the opinion that the motion to exclude the testimony of the witness should have been sustained. The Smiley Case is somewhat like that of Moore v. State, supra, on its facts, but not on its conclusions. We are of opinion that in the instant case the trial court erred oa the hearing of the motion for new trial, in allowing the state, over objection, to prove orally by Mr. Payne that he had been given a full pardon, and that Payne’s testimony should not hq.ve been received in the first instance, after he admitted he had been convicted and sent to the penitentiary. Upon objection thus being made, based on the ground of incompetence, the court should have ascertained at that time whether such witness had been pardoned, and in the absence of some such proof his testimony should not have been admitted.

We are of opinion that it is not a necessary part of a charge on the trial of one indicted for assault to murder, under the law as it now is, to define or submit malice aforethought, unless same has been charged in the indictment. King v. State (Tex. Cr. App.) 30 S.W.(2d) 490, opinion February 25, 1931. It is not necessary that an indictment for assault to murder allege the assault to have been with malice aforethought. The last above observations are made merely to keep the record straight, but have no application here since appellant was convicted only of a misdemeanor.

The right of the officer, the injured party in this case, to arrest without warrant one committing a breach of the peace, was explained to the jury in the first part of the fifth paragraph of the court’s charge, but we are of opinion that the latter part of said paragraph wherein the court said: “However, if you believe from the evidence beyond a reasonable doubt, that the said Ben Jones had not prior to the time of the said arrest, committed a breach against the public peace as that term is hereinbefore defined, then, in that event, you are instructed that the officers would not have had the right to arrest the said Ben Jones, and the said Ben Jones would have had the right to use all necessary means to prevent the said officers from arresting him, or exercising control over him,” was not a correct statement of the law applicable, and placed á greater burden on appellant than he was compelled to bear.

The officer was not on trial, but appellant was. The state had to make out its case beyond a reasonable doubt. Proof that appellant was violating the law, was committing a breach of the peace, if that be relied on as giving to the officer the right to arrest without warrant, would have to be made showing such fact beyond a reasonable doubt. The appellant does not have to prove anything beyond a reasonable doubt.

According to the theory of the state, appellant and his brother were principals in an attack upon the officer, the attempt of the state being to show that they were acting together in such manner as that each became £*nd was liable for the acts of the other. In such case appellant might be guilty of the same offense, if any, as his brother. The charge submitting this phase of the case, should be carefully drawn. The argument complained of will not likely occur upon another trial, if one be had.

The judgment will be reversed and the cause remanded.

HAWKINS, J., not sitting.


source: Caselaw Access Project

author: CALHOUN, J.

license: Public Domain

text:
    FLOYD v. STATE.
    No. 13799.
    Court of Criminal Appeals of Texas.
    March 18, 1931.

      Grover C. Lowe, of Woodville, and R’ M. Briggs, of Kountze, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

" Conviction is for- murder; punishment, ten years in the penitentiary.

On the day of the homicide, appellant and deceased were seen riding together in a car, appellant driving. The ear was seen to suddenly leave the road and run down an embankment and against a stump before it stopped. Deceased was seen either to fall out or jump out of the car when it left the road. He was laying on the road when the car stopped against the stump. He got up and went to the car, and, as appellant got ■out of the car, they got into an altercation, during which time about five shots were fired by appellant! some of which struck the deceased1 and he'fell. Appellant went up the embankment to where the state’s witnesses, who had witnessed the transaction, were .in the road. The deceased, dragging himself through 'some brush, followed appellant. Appellant went off down the road and deceased followed him. The eyewitnesses then drove off. Appellant went on down the road and there met a party who carried him to town. Appellant stated to the party that carried him to town that he had just had a shooting scrape, and that he was afraid *of the man and that he did not want to go in the direction where he had left him. Deceased was found a short time afterwards laying in the road dead.

As we gather from appellant’s contention based on his bills of exception Nos. 1 and 2, it is his contention that the transfer ■ papers from the several courts did -not show jurisdiction in the trial court, it being con-•terided that no order was shown in the Fifty-Eighth judicial district transferring the case to the criminal district court of Jefferson county, and, by reason thereof, no jurisdiction was shown in the trial court. Appellant seems to base his reason for this upon the failure of the record to show an order of the court transferring the case, the record only showing that the clerk of the court made the order. The offense was alleged to have been committed in May, 1926, in Hardin county, Tex. It 'seems that a trial in that county resulted in a mistrial. The venue was changed from the district court of Hardin county to the district court of Jefferson copnty, the Eifty-Eighth judicial district.' From that court transfer was made to the criminal district court of Jefferson county, and from that court to the district court of Tyler county, where the trial was had, resulting in a conviction and from which this appeal is made. By an act in 1929 (Acts 41st Leg. c. 170), the Legislature created the criminal district court of Jefferson county, which act became article 52— 160, "Vernon’s Ann. O. G. P. Section 14 of said act provides: “From and after the taking effect of this Act, the District Courts of Jefferson County as now constituted, shall be, and they ar.e hereby deprived and divested of all jurisdiction in all criminal cases, and of all jurisdiction given the Criminal District Court of Jefferson County by this Act, and all criminal cases pending in said District Courts at the time of the taking effect of this Act, and all matters pertaining to criminal cases pending therein over which the Court herein created is given jurisdiction, shall be, by the Clerk of the District- Courts transferred to and entered upon the docket of said Criminal District Court, and when so entered upon the docket, the judges of said Criminal District Court shall try and dispose of same" in the same manner as if such cases were originally instituted' therein.” This act made it the duty of the clerk to make the transfer, as he did in this case. Therefore there was no order necessary by. the court itself. The record shows jurisdiction in the trial court, and there was no error in overruling appellant’s contention as to tlie jurisdiction.

Appellant by bills of exception Nos. 3 to 12, inclusive, objected to the introduction of the several orders and transcript showing the several changes of venue, on the ground that the same was inadmissible, immaterial, irrelevant, and prejudicial and because the judge presiding at this trial was the same judge who made the orders of transfer in said cause, and personally, as well as judicially, knew about the transfer and orders and papers embraced in said transfer, because the introduction of such transcript of transfer would naturally tend to and did lead the jury to believe and become convinced that this was a bad case, that the same had been transferred from the county in which the offense was . alleged to have been committed to the county of Jefferson and from said county to the county of Tyler, which objection was by the court overruled ■ and said record of transfer admitted in evidence. We find in the statement of facts the entire transcript of the proceedings in the transfer of this case from Hardin county to Jefferson county and from Jefferson county to Tyler county, consisting of some thirty pages. In the case of Tyson v. State, 14 Tex. App. 388, where transcripts of a like character and kind to this were offered in evidence, Judge Willson said in part: “This evidence, we think, was clearly irrelevant, and inadmissible for any purpose. It did not prove or tend to prove any issue in the case (Landa v. Obert, 45 Tex. 539), and its only effect could be to prejudice the minds of the jpry against the defendant. Whether it had this effect or not, it is unnecessary for us to inquire. It being incompetent evidence, and having been admitted over defendant’s objections, it will be presumed to have prejudiced him. A defendant in a felony case is entitled to the verdict of a jury upon competent testimony alone.” Citing Draper v. State, 22 Tex. 400; Preston v. State, 4 Tex. App. 186; McKnight v. State, 6 Tex. App. 158; Somerville v. State, 6 Tex. App. 433.

Again in the case of Shamburger v. State, 24 Tex. App. 456, 6 S. W. 540, where, over appellant’s objection, the district attorney read in evidence to the jury the order of the district court of Hunt county changing the venue to Kaufman county, this court held it was error, because it was the province and duty of the court alone to determine the question of the jurisdiction of the district court of Kaufman county to try and determine the case, and holding further that “the fact in issue was the giiilt of the defendant of the crime with which he was charged, and the order changing the venue in the cause in no way related to that issue, and it tended in no degree to prove or disprove said issue.”

In the case of Moore v. State, 46 Tex. Cr. R. 54, 79 S. W. 565, Judge Davidson, in passing upon a similar question, reaffirmed the ruling as laid down in the Tyson and Sham-burger Cases, supra.

Under these decisions the decrees, judgments, and proceedings entered in this cause in Hardin and Jefferson counties in regard to changing the venue were inadmissible and prejudicial to the appellant, and therefore 'their admittance in evidence was reversible error.

Bill No. 13 relates to the state’s interrogating its witness Hermes as to statements made at a former trial. The bill is qualified to show that the state was permitted to ask such question 'because of the surprise then being given by said witness. Where a witness has once testified,-, the party introducing him has a right to suppose that he will swear to the same facts on the present trial, and, upon failure to do so, may inquire of the witness as to what different facts he had sworn to on a former occasion for the purpose of showing surprise at the testimony or for the purpose of refreshing the memory of the witness. White v. State, 10 Tex. App. 397; Bennett v. State, 24 Tex. App. 73, 5 S. W. 527, 5 Am. St. Rep. 875; Blake v. State, 38 Tex. Cr. R. 377, 43 S. W. 107.

A number of bills of exception are reserved by appellant to the introduction of testimony showing the previous relations existing between appellant and the wife of deceased prior to the homicide. Where the state’s theory, as it was in this ease, is that appellant and the wife of deceased were criminally intimate, and that appellant killed deceased to get him out of the way, it is. not error to admit proof of such intimacy, and the testimony was admissible to show the relationship existing between the parties and a motive On the part of appellant to get deceased out of the way. Anderson v. State, 53 Tex. Cr. R. 341, 110 S. W. 54; Millner v. State, 75 Tex. Cr. R. 22, 169 S. W. 899.

There are a number of bills to the action of the court in permitting the state to prove by several witnesses as to how the deceased acted towards and treated his wife. The bills further show that the defendant had in behalf of his defense proven threats, communicated .and uncommunicated, on the part of deceased against the life of appellant. The bills also show that the former wife of deceased while testifying in behalf of appellant, had testified to specific acts of cruelty and mistreatment of her by deceased. The evidence shows that appellant had married the wife of deceased since the killing and only a short time thereafter, and that she testified in behalf of the appellant. The appellant having gone into specific acts on the part of deceased as to his treatment of his wife_during the time they were living together, we do not believe that it was reversible error to permit the state in rebuttal to show how the deceased and his wife conducted themselves as to each other during their marriage.

There are other bills of exception complaining of happenings during the trial which it is not necessary for us to discuss, as they are not likely to occur on another trial of this case.

For the error pointed out, 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:
    CHAPMAN v. STATE.
    No. 13700.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    Rehearing Denied April 1, 1931.
    Fred H. Woodard and R. H. Beville, both of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

Appellant had a garage where he repaired cars, etc., connected with which was a gasoline pump, same being located on a public road. A peace officer who lived not far away from appellant’s place testified that many , people came both in the day and nighttime to said place, and that he had often seen drunk people around said garage, and that that kind of traffic to appellant’s garage was most and nearly every Saturday and Sunday. On . the day in question said officer observed appellant's wife drive his car up in front of ¡ said garage. Witness walked over there. Noticing something like a bulk wrapped up •in a quilt between the seats, he asked appellant if he had any objection to the car being searched, and was told by appellant that he did have such objection; that he did not want witness to search said car. The officer then told appellant to stay away from the car. The officer then phoned to the sheriff who came some half hour later. While waiting for the sheriff appellant came to the car with a hammer, opened the car door, and began breaking what was in the car. Observing the odor of the liquor that ran out of the car when appellant used his hammer, the witness ordered appellant to desist, and finally drew his pistol and told him he must quit breaking the containers. When the sheriff came, the two looked in the car and found there had been ten half-gallon jars of whisky therein, three of which had been broken. The jars were in two sacks — five jars in each sack. While waiting for the sheriff appellant had asked the peace officer Richardson to let him get in the car, drive it out of town, and break the whisky. Witness testified that appellant said: “You have got me; I want to take the whisky out of town and break it.”

Neither appellant nor his wife, nor any other person of the family, or who lived with them or worked in said garage, gave any testimony contradictory of the above. Vernon Monroe swore he was working with appellant on a car that morning at appellant’s garage, putting in new pistons and grinding the valves, and that appellant’s car was taken about 1 o’clock by the officers.

There are eighteen bills of exception, practically all o'f which bring forward objections in some form to the testimony of the witness Richardson, the peace officer above mentioned, or that of the sheriff, both of whom testified to the finding of whisky in appellant’s car when the sheriff reached the scene. It would serve no useful purpose to set said bills out at length in an effort to discuss same in detail.

Officer Richardson was in no sense a trespasser when he went into or in front of appellant’s public garage, and there observed the bulk of something covered with a quilt between the seats of appellant’s car. His request of appellant that he be allowed 'to search, the car was legal and proper. Doubtless the appellant’s refusal to allow the car to be searched strengthened Richardson’s suspicions. He ph'oned for the sheriff. At this point, if appellant had stood on his rights not to have his ear searched except upon probable cause, he doubtless would have had better footing, but he made the mistake of getting a hammer and proceeding to break the containers in the ear. See Carter v. State, 113 Tex. Cr. R. 433, 22 S.W.(2d) 659; Young v. State (Tex. Cr. App.) 27 S.W.(2d) 801. Whisky began to flow out of the car and its odor to pervade the air. The officer's right to search not previously exercised was thus fully established by the two senses of sight and smell. He obtained evidence that a felony was being committed in his view. His search, and that of the sheriff who presently came and observed the same odor, resulted in the discovery of the ten containers of whisky in said car, and said search appears to have been entirely legal. The numerous authorities cited in the well-prepared brief of appellant are reasonably familiar to us and announce no new principles. What we have said as to the legality of the search and the admissibility of the testimony is not contradictory to any of them.

Believing no error appears in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

A deputy sheriff was suspicious that appellant was violating the liquor law. He saw in appellant’s car between the seats a hulk of something wrapped in a quilt. Appellant denied the officer’s request for permission to search the ear, whereupon the officer said he would take charge of the car and hold it, and told appellant to stay away from the car. Appellant was not in the car at. the time and was not under arrest. The deputy telephoned for the sheriff.

Appellant predicates his motion for rehearing upon two propositions: Eirst, that the deputy sheriff was without information amounting to probable • cause, and that his act was an unauthorized seizure of the car. Second, that, this being true, then any act or word of appellant in connection with the car or contents while it was being so unlawfully held was not provable against him. If the correctness of the first proposition be conceded, it does not follow that under all circumstances the second proposition is sound, unless we have fallen into error in prior decisions. The deputy detailed the following incident which occurred before the sheriff arrived: “The defendant made a request of me while I was there waiting for the sheriff: He asked me to let him get into the car and drive it out of town and break the whisky. He says: ‘You have got me; I want to take the whisky , out of town and break it.’ He says, ‘You have got me,’ and he wanted to take it out and away.” Under several cases hereafter cited the above incident would have authorized the deputy to then search the car. •He did not do so. After the foregoing request was refused, appellant came to the car with a .hammer and began breaking containers which were in the car, and continued until he was compelled by the deputy to quit. Whisky from the broken containers ran out of the car. The deputy sheriff never got in the ear until the breaking of the containers occurred, after which he sat in the car until the sheriff arrived. An examination or search of the car after the sheriff arrived revealed two sacks with five half-gallon jars of whis-ky in each sack, three of the jars having been broken.

Upon the facts this case is very similar to Carter v. State, 133 Tex. Cr. R. 433, 22 S. W.(2d) 659. There the officer had information but not sufficient to amount to probable cause for search of Carter’s car; the officer got in the car and directed Carter to drive around on another street. In answer to a question from the officer Carter said he had a gallon of whisky; a search of the car revealed this to be true. It is admitted that the officer took Carter into custody without authority, and that he would have had the right to oppose the arrest. Instead of doing that, or remaining silent, which he could have done, he told the officer whisky was in the car; although under arrest his statement was res gestae, and this court held that the officer was within his rights in searching the car because Carter’s statement showed him to be guilty at that very time of violating the law in the officer’s presence. In the case now before us appellant might have remained silent and inactive. 1-Ie did neither. By his words he admitted the presence in the car of whisky which he desired to take away and destroy; by his acts he demonstrated its presence, breaking containers and letting the contents pour out. Authorities other than Carter’s Case which we deem in point are Young v. State (Tex. Cr. App.) 27 S.W.(2d) 801; Owens v. State, 112 Tex. Cr. R. 1, 13 S.W.(2d) 837. Cases involving somewhat the same principle are Pena v. State, 111 Tex. Cr. R. 218, 12 S.W.(2d) 1015; Elms v. State (Tex. Cr. App.) 26 S.W.(2d) 211; Law v. State (Tex. Cr. App.) 27 S.W.(2d) 174; Mireles v. State (Tex. Cr. App.) 23 S.W.(2d) 727.

The motion for rehearing is overruled.


text:
    DAVIS v. STATE.
    No. 14013.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.
    Rehearing Denied April 1, 1931.
    E. A.-Wallace, of Cameron, for appellant.
    A. J. Lewis, Co. Atty., of Cameron, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder; punishment, ten years in the penitentiary.

The only exceptions in this record are those taken to the charge of the court, and, as presented in appellant’s brief, but two of his complaints are insisted upon, viz. that the court erred in not charging on appellant’s right to defend against an attack, not felonious in its character; also in not submitting appellant’s right to defend against an invasion of his home.

We find nothing in the facts herein relating this case in any way to those cited in appellant’s brief as authority on the proposition that appellant was entitled to a charge on his right to repel an invasion of his home. Appellant was not in his home when he shot deceased, nor was the latter attempting or threatening any entry into such house. Deceased, accompanied by his wife, came up to a point outside the gate to the yard around the house in which appellant was, and called for appellant to come out and talk to him. Appellant armed himself with a pistol, and, accompanied by his wife, went out into the yard to a point near where deceased was standing. Appellant testified that he called deceased to come to the gate. The most that 1 could be gathered from the defensive testimony as to xAat further occurred was that, following verbal accusations, deceased opened the gate and started at appellant in a threatening manner, and was shot by appellant, who claimed that he thought he saw deceased make motions as though to dx-aw a pistol. Appellant did not go or retreat into the house or on the porch, nor did he show by testimony any intent on the part of deceased to enter said house. Appellant cites Moon v. State, 113 Tex. Cr. R. 230, 18 S.W.(2d) 635, a case where a man was destroying the fence of another who shot him. Also Allen v. State (Tex. Cr. App.) 66 S. W. 671, a case where man inside his house shot through the wall, a man who was trying to get in. Also French v. State, 55 Tex. Cr. R. 538, 117 S. W. 848, a case where a man followed another home and was there killed while trying to enter. Also Wells v. State, 63 Tex. Cr. R. 618, 141 S. W. 96, and Mack v. State, 97 Tex. Cr. R. 583, 263 S. W. 912, both of which are similar eases to those above referred to. We find nothing in this contention of appellant.

On the other point set up, the state’s ■testimony shows a killing apparently without excuse or reason other than that deceased approached appellant for an explanation of the conduct of the latter toward the wife of deceased, and was shot by appellant. The defensive theory supported by all the testimony for the appellant was that, after the preliminary conversation, about which all witnesses substantially agreed, deceased opened the gate, and with some statement started at appellant, who backed away and finally shot.

Julia Johnson, a defense witness, swore: “When I got there I saw both parties standing- at the gate. John come on through.that gate. He came through the gate before Marshall shot. He canie in and slammed the gate open and said ‘Drop it,’ he was walking as fast as he could. When John came through the gate fast Marshall was backing up getting his gun as quick as he could and when he got his gun he commenced shooting. John Turner just rushed onto Marshall. John Turner was following Marshall coming on him all the time.”

Appellant’s wife testified for him as follows: “He had his hand in his pants and pulled Ms hand out and I said ‘John don’t shoot Marshall’ and when I said that he (John) slammed the gate open and run in the yard and Marshall spolre three times and told him to go back, and he come on in anyway, and Marshall went to shooting.”

She also .testified: “I thought John was doing the shooting. That is what I thought when I left them and broke and run.”

■Also: “I don’t know what John said to Marshall when he started to pull the gun, but I know he said -something to Marshall. I heard him talk but I did not know what he said; I was excited, but when John slammed the gate open Marshall spoke three times and told him to go back. I don’t know what John said. I don’t know why I didn’t hear that, it frightened me to see him running on him.”

Appellant swore in his own behalf as follows: .“He had his hand in his pants, and he out with his hand and throwed open the gate with his other hand and I seen he was trying to do something and I went to backing back and'my wife said ‘John don’t shoot Marshall’ and I lowed three times ‘Don’t come in here’ and he run right up to me and when he run up on me I turned to shoot and run and shot him.”

Also: “It was dark. He was coming in the gate; I don’t know whether the gate was latched or not; he pushed it open; he opened the gate. When he pulled his gun out he broke in the gate. I mean when he reached in his side like he was going to get a“ gun. I had not already pulled my gun and he told me to drop it.”

And again: “I thought he had a gun and was coming on me. Í just kinda glanced back and saw the porch. I had my pistol right ■here all that time (indicating top of britches); I had not pulled it out .and was not holding •it on him. I said I backed back when he broke through the gate. When I backed back and he stuck his hand up here and said he felt like mixing with me I pulled my gun out and turned to run and when he said that I shot him.”

Upon these defensive facts the trial court told the jury that, when a person is attacked, or threatened with attack, so as that there is created in his mind a reasonable apprehension or fear of death or serious bodily injury, he is excused or justified in resorting to any means at his command to prevent such injury, and that it was not necessary that the accused be in actual danger; .that a person has the right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real. The jury were fully told that they must view the transaction from what they believed from the testimony to have been the standpoint of the defendant at the time in determining his right of self-defense.

We would be at some loss to determine, under the facts of this case, what rule or charge .the court could have given to the jury as to their course in the event they believed that there was an attack made upon appellant by deceased but without felonious intent. In this connection, we observe .that no special charge was asked presenting what appellant thought to be a correct exposition of the law applicable to this theory. Deceased made "no threat of any intention to whip or merely assault appellant. He had no weapon of any kind on his person when found after death. Evidently he came to where appellant was because he thought the latter had insulted his wife. Neither appellant nor any of his witnesses gave, •testimony from which the jury, if they accepted the defendant’s theory, might have reached the conclusion that the purpose of deceased was other than to take life or inflict serious bodily injury upon appellant. The killing in this case was not the outcome of a fist fight as in Hathcock v. State, 103 Tex. Cr. R. 518, 281 S. W. 859, cited by appellant; nor one in which the jury on its facts believed the accused to be guilty only of a misdemeanor, as in Britton v. State, 95 Tex. Cr. R. 209, 253 S. W. 519, also cited.

The law applicable in any given ease is dependent on the facts. We see no good reason for believing that in this case a charge should have been given felling the jury what they should do if they did not believe appellant believed that deceased was — in the language of appellant’s exception — “about to commit a felonious attack upon him.” It follows that we are not in accord with appellant’s contention in this regard.

Wé have considered the other matters presented in the record, and deem them not of sufficient importance to call for discussion.

The judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant renews his insistence that he was entitled to have the jury instructed as to his rights in' preventing an invasion of his home; that is, 'the defense of his habitation against deceased. We have not only carefully read the excerpts from the testimony contained in the motion for rehearing which appellant thinks raised the issue, but have again painstakingly examined the entire statement of facts with that particular point in mind. We must adhere to the conclusion announced in our original opinion that the issue was not raised:

In the motion we are referred to Richardson v. State, 7 Tex. App. 486; Wells v. State, 63 Tex. Cr. R. 618, 141 S. W. 96; Newman v. State, 58 Tex. Cr. R. 443, 126 S. W. 578, 579, 21 Ann. Cas. 718; McGlothlin v. State (Tex. Cr. App.) 53 S. W. 869. In our judgment, none of them on the facts furnish any precedent applicable in the present case.

The motion for rehearing is overruled.


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

text:
    TODORA v. STATE.
    No. 13814.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1931.
    State’s Rehearing Denied April 1, 1931.
    W. I-I. Scott and Heidingsfelder & Kahn, all of Houston, for appellant.
    O’Brien Stevens, Crim. Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. 'Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of a still for the purpose of manufacturing intoxicating liquor ; the punishment, confinement in the penitentiary for four years.

Officers testified that on February 1, 1930, they searched a house at 2218 Morgan street in the city of Houston and found 140 gallons of whisky, a large still, which was in operation at the time, and a quantity of mash. Appellant’s 12 year old son was filling up the mash barrel and pumping mash into the still when the officers appeared. A woman with a baby was present with the boy. The officers testified the woman was appellant’s wife. Appellant was not at the house when the search was made, and was not seen by the officers at the house on any occasion. The young boy was placed in charge of the chief probation officer of Harris county. After the raid appellant went to the probation officer and requested him to release his son to him. Appellant stated to the officer that he lived on Morgan street. The officer was unable to testify as to the number he gave, and further as to whether the house was on the corner, or in the middle of the block. He said he thought appellant said that he lived “in the 2200 block somewhere.” The house searched by the officers was on the corner of Morgan street. In his conversation with the probation officer, appellant promised the officer that he would bring the boy back to him. It appears further from the testimony of the probation officer that he stated to appellant that the boy had been doing what he (appellant) told him to do. Appellant replied that his attorneys had told him not to make any statement about the matter,. The boy was not returned to the officer. State’s witness J. W. Lockett testified that he rented the house at 2218 Morgan street to appellant on November 15, 1929, and that appellant paid the rent for one month at the time; and that appellant came back to his office on December 15th and paid the rent to the middle of January. On the date last mentioned, appellant paid the rent to February 1, 1930. Mr. Lockett testified further that he had seen the appellant inside the house, but did not give the date.

There is nothing in the record to show that appellant was living in the house at the time the raid was made. It is not shown that he had been in the house or near it at a time shortly before the raid was made. In short, it is not shown that he was in the house except on the occasion his landlord saw him there. Some preparation had been made for the manufacture of intoxicating liquor, according to the testimony of the officers, and had it been shown that appellant was in the house shortly before the raid, or that he was living there at the time, a stronger case would be presented than is reflected by the meager testimony found in the record.

On the facts, we are unable to distinguish the case at bar from that of Albaneso v. State, 99 Tex. Cr. R. 108, 268 S. W. 158, 159. In Al-baneso’s Case the officers searched premises belonging to appellant, with the result that they found a still and a quantity of whisky and mash. Albaneso was not at home when the search was made, and was not seen by either of the officers. His wife and daughter, who were present, were arrested. Four or five days later Albaneso surrendered to the sheriff. In commenting upon the fact that the state failed to show that appellant was living upon the premises, or that he had been there shortly before the raid, this court, speaking through Judge Hawkins, said:

“Surely the state could have produced some evidence which would have relieved the barrenness of the. reeórd in this respect. * * * His wife, of course, could not have been called by the state, hut there was no impediment against so using the daughter if she was old enough to testify, and there is nothing in the record indicating the contrary. From the testimony of the officers we may assume that considerable preparation had been made for the manufacture of liquor at the point where the apparatus was discovered, and, if the presence of appellant at or about the place had been shown by the state at a time shortly before the raid, or even had it been shown that he was living at home at the time, a much stronger case for the state would have been presented than the one before us on the meager testimony recited.”

The conclusion was reached that the evidence merely raised a strong suspicion against Albaneso, and that he was not connected with the transaction of manufacturing intoxicating liquor in such a manner as to overcome the presumption of innocence and exclude every other reasonable hypothesis save that of MS' guilt.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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

On State’s Motion for Rehearing.

MORROW, P. J.

While, as stated in the original opinion, there were suspicious circumstances, still to the mind of the writer they are clearly insufficient to support the verdict. They may be summarized as follows: The appellant rented a house several months before the date of the search. At the time he rented it there was no still in it. There was no testimony showing that he ever entered the house again after the day he rented it. He was n-ot present at the time of the raid. However, some stress is laid by the state upon the fact that the appellant was told by the probation officer that the boy did what the appellant had told him to do. The officer did not state the words which were used. This could hardly be regarded as a charge requiring an answer. The house was in a thickly settled neighborhood. According to the officers, at the time of the search, it was obvious from the odor coming from the house that whisky was being made therein. Just when this became manifest, whether recent or of long standing, is not disclosed. In argument, it is urged b.y the state that the want of testimony connecting the appellant with the offense is supplied by the absence of certain evidence, among others, that the boy was not returned. Touching any request to return him or any process for his appearance the record is silent. While the failure to introduce available testimony may be considered against the accused, it cannot support a conviction in the absence of affirmative testimony, such as will prima facie show guilt. Moreover, the failure of the accused to testify cannot avail the state in making out a case of guilt. Such is the statute, article 710, O. O. P. 1925. The only time that the direct evidence shows the appellant to have been in the house was about two and one-half months before the raid, and at that time it affirmatively appears from the state’s testimony that there was no whisky or apparatus in the house.

We are constrained to overrule the motion for rehearing, and it is so ordered.


author: HAWKINS, J. LATTIMORE, J.

text:
    WRIGHT v. STATE.
    No. 13919.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    Appeal Reinstated March 18, 1931.
    Geo. P. Willis, of El Campo, for appellant. Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for theft of cattle, punishment two years in the penitentiary.

The caption of the transcript fails to show the adjourning date of the term of the trial court.

The recognizance' is fatally defective. The requisites of an appeal bond or recognizance on appeal are set out in article 817, O. C. P. The recognizance in the present case is an appearance recognizance only to the trial court. It nowhere requires appellant to abide the, action of this court. On account of such defects the appeal must be dismissed. Appellant will have fifteen days from this date to file an appeal bond under article 818, O. C, P., and bring it forward to this court in connection with a motion to reinstate his appeal if he so desires.

The appeal is dismissed.

On Motion to Reinstate Appeal.

LATTIMORE, J.

At a former day of this term this case was dismissed because of a defective recognizance. An appeal bond, executed in conformity with the statute, having been filed within fifteen days after the’date of said dismissal, the appeal will now be reinstated and considered on its merits.

It is provided by the terms of article 760, O. O.- P., that, when an appeal is taken from the judgment rendered in any criminal action in any court of record in this state, the defendant shall be entitled, with or without an order of court, to thirty days after the day of adjournment of court in which to prepare or cause to be prepared and filed bills of exception; and that upon good cause shown the judge may extend the time in which to file said bills of exception. The trial term of the court below ended in June, 1930. Nowhere in the record do we find any order made during said term allowing appellant more than the statutory thirty days for filing his bills of exception. We do find in the record an order entered on September 4,1930, attempting to extend the time for such filing. This court has often said that the trial courts have no power or authority to enter extending orders after the time originally allowed either by statute or by some order has expired. The bills of exception in this case appear to have been filed on September 4, 1930. We regret that we cannot consider same' because filed too late. Mireles v. State, 98 Tex. Cr. R. 396, 266 S. W. 418; Miller v. State, 98 Tex. Cr. R. 621, 267 S. W. 487.

The statement of facts seems to furnish ample support to .the jury’s conclusion of guilt. Following a conversation had with appellant after the disappearance of the alleged stolen cattle, officers went to a point described by appellant and found there where animals had been butchered. Appellant made a written confession in conformity with the statute admitting his guilt. He denied upon the stand that the facts stated by him were true, but this was a question for the jury, and they have solved it against him.

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


author: CHRISTIAN, J.

text:
    JOHNSON v. STATE.
    No. 13818.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    W. D. R. Owen and Frank Judkins, both of Eastland, for appellant.

      Lloyd W. Davidson, State’s Atty., 'of Austin, for. the State.
   CHRISTIAN, J.

The offense is embezzlement, a felony; the punishment, confinement in the penitentiary for two years.

Appellant was employed by the Oil Belt Motor Company, a corporation, as bookkeeper and cashier in their Parts Department. He ■had charge of the sale of parts, handled the books and records as to automobile dealings, received and paid out cash, and kept'the books. Prior to an audit of the books, the president of the company had on several occasions asked appellant if his cash always balanced. Appellant answered in the affirmative. Being advised by appellant that he was going to leave their employment, the company had appellant’s books audited. The auditor testified, in substance, as follows: He made a cash audit of the business in detailed form, examining every record that had anything to' do with the cash. As of date October SI, 1928, the audit disclosed an entry of $196.32; this being the amount appellant was charged with having embezzled, made to “reverse credit to cash on hand.” This indicated that said sum of money had been paid out. There were no invoices or memoranda to indicate that the cash had ever been paid out. In order to strike a balance, the sum of $196.32 was credited to cash, and charged to account No. 231. Sometimes the total of cash receipts would show a smaller amount than a correct addition of said sums would indicate, and the disbursements would show a larger amount, when totaled, than a correct addition of the same would reflect. In discussing the matter with appellant, the auditor called his attention to th'e discrepancies. Appellant stated that he knew his figures were incorrect; that at one time he missed $350 or $400; that, inasmuch as there had been some misunderstanding between him and his employers. he had changed- the figures to cover up the shortage in order to keep his employers from finding it out. Appellant denied that he had taken any money, although, as stated, he admitted that he had changed the records. The testimony of the state was further to the effect that appellant had, on another occasion, drawn a draft on his brother for $450, which was returned unpaid. This draft had been deposited in the bank as cash, the records reflecting the fact that the Oil Belt 'Motor Company had cashed the draft. After the matter was discovered, appellant repaid- his employers the amount he had received on the draft. As to the $196.32 shown by the books to be short, appellant stated to different parties employed by the corporation, according to the ■testimony of the state, that he knew that the auditor was going to find a shortage; that he had rather be shot than to have his wife know it; that, if the company would give him time, he would repay the amount. It appears that in each of these conversations appellant denied that'he had taken any money belonging; to the corporation. Many citizens of Eastland county testified that appellant’s general reputation for being peaceable and law-abiding was-good. Among these parties were some of the men employed by the Oil Belt Motor Company. - The state did not undertake tó combat appellant’s reputation in the respect mentioned. Appellant did not testify in his own behalf, but offered witnesses who testified that many parties had access to the cash register kept by appellant, and that at times collections were made by other employees of the corporation.

Appellant timely and properly sought to have the Jury instructed, in substance, that he could not be convicted alone on his extrajudicial confession. It is the general rule that, “where there is no doubt that the crime has been committed by somebody, and defendant’s agency with it is shown alone by his confession, it is not reversible error to fail to charge that a conviction could not be had upon a confession alone.” Branch’s Annotated Penal Code, § 75; Willard v. State, 27 Tex. App. 391, 11 S. W. 453, 11 Am. St. Rep. 197; Sowles v. State, 52 Tex. Cr. R. 18, 105 S. W. 178; Mayfield v. State, 92 Tex. Cr. R. 532, 244 S. W. 819. In the present case, aside from the statements made by appellant relative to the shortage, the state relied upon the entries, in the books kept by appellant to show that the offense of embezzlement had- been committed!. In the admissions of appellant, he merely confessed to having made a false entry, and explained his- action in so doing in a manner consistent with his innocence. In short, he made no unequivocal confession of guilt. The only evidence that appellant had appropriated the $196.32 in question is that the auditor failed to find any invoices or receipted bills showing to whom, or for what, said sum of money had been paid. Other than the books, there was nothing to show that the specific sum of money appellant was alleged to have embezzled had ever been received by him. It is the rule that a party cannot be convicted alone upon his extrajudicial confession. Under the facts reflected by the record, we are of the opinion that the holding in the case of Dunlap v. State, 50 Tex. Cr. R. 504, 98 S. W. 845, 846, is applicable here. We quote Judge Davidson’s language in that case, as follows :

“There is no evidence in the record that we have discovered showing appellant’s guilty connection with the burning, except the statement from the witness Massey to the effect that appellant asked him not to tell on him, and the further fact that appellant had an insurance policy on some goods situated in the burned building, unless it be the still further fact that he lived in the little town and not far from the building. It is a rule of universal application that a party cannot be convicted alone upon his extrajudicial confession. In this case there is.no evidence that appellant or anybo.dy else set fire to the building, except as above stated.”

After using the foregoing language, Judge Davidson concluded that a charge substantially the same as that sought in the present case should have been given. The opinion is expressed that under the facts of this case the jury should have been instructed as requested by appellant.

Touching the matter of appellant having drawn a 'draft on his brother for $450, which was charged to the corporation, appellant sought to, have the court limit the effect of such testimony by giving an instrucr tion that appellant could not' be convicted for that offense, and that it could be considered, if at all, only on the question of intent. The opinion is expressed that the learned trial judge fell into error in failing to respond to the exception. Branch’s Annotated Penal Code, § 188; McCall v. State, 14 Tex. App. 362; Bailey v. State, 65 Tex. Cr. R. 1, 144 S. W. 996, 1005.

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

PER CURIAM.

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


author: MORROW, P. J.

text:
    Ex parte LANGFORD.
    No. 14302.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    Homer C. De Wolfe and F. P. Bowman, both of- Goldthwaite, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The appellant is held under a complaint charging him with murder. Apparently the magistrate refused ba-il, and by way of habeas corpus the appellant sought discharge and in the alternative bail. He was denied relief, and this appeal is prosecuted.

The appellant and his father (the deceased) were traveling in an automobile at nighttime. The appellant claimed that the deceased was killed by accident; the state claimed that he was killed by the design of the appellant. The tragedy took place near midnight upon a public road. A justice of the peace was called to the scene, and ’testified in substance that, upon his visit to the body of the deceased, the appellant was present and explained the circumstances .under which the death took place. These were in substance that, while the accused was fixing a puncture in the rear tire of his car, a rock had been placed in front of the wheel to prevent the car from rolling down a hill; that, after fixing the puncture, the rock was removed and the car pushed off the jack, when it jumped in gear and started running; that he ran by the side of the car and endeavored to stop it by the use of the brake, but before it could be stopped his father was run over by the car. The injuries upon the deceased were described by the state’s witnesses and by a doctor who was. called in behalf of the state. The doctor who examined the deceased found a scalp wound over the right ear about three inches long, but no fracture there. There was a triangular scalp wound on the left side of the head and a fracture there. There were scratches upon the shoulder and on the knee, and the skin had been injured, apparently by coming in contact with the ground. The fracture on the left side of the head was one.that could have been made by contact with a tap or nut under the car. Such injury was one which did not appear to have been inflicted by a blunt instrument but such as would have been inflicted by having been run over by an automobile.

Another doctor gave his opinion that the injuries were inflicted by a sharp instrument and could not have been inflicted by being run over by an automobile.

There was testimony that insurance had been carried upon the life of the deceased by some of his relatives but that it had been permitted to lapse.

From the agreement between the state’s attorney and the appellant’s counsel, it appears that the appellant’s circumstances were such as would not enable him to make bond in a large sum. That he was entitled to hail is ■deemed clear.

The judgment denying bail is reversed, and the appellant is ordered discharged from custody upon the execution of a good and sufficient bail bond in the sum of .$2,500.


text:
    WHATLEY v. STATE.
    No. 13712.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    Miller & Price, of Waco, for appellant. Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder; punishment, twenty-eight years in the penitentiary.

Appellant and -deceased were good friends; their places of business were about a block and a half apart, and each regularly patronized the other. The wife of appellant was employed to drive a ear for the wife of deceased, The latter came into appellant’s place one day some little time before this homicide, and told appellant that his wife and her husband were too friendly with each other. Later both deceased and appellant’s wife seem to have made explanations to appellant which were accepted by him. Appellant’s wife sued him for a divorce some weeks before the killing. On the afternoon of the homicide about 5 o’clock appellant and one Roberts walked into the restaurant kept by deceased,- and appellant drew a pistol, said to deceased, “I am going to kill you,” and shot deceased some five times. Appellant emptied the automatic pistol had by him, killing another man and wounding still another. A police officer, who had seen appellant and Roberts walk down the street and heard the shooting, came at once, and appellant surrendered to him, telling him that deceased had broken up his home. Appellant testified that Roberts came into his barbershop about 5 o’clock, and in the course of a conversation he (appellant) said to Roberts that it did not look like things were going right — that he thought deceased had come between him and his wife. He further testified that Roberts then said to him that he and his wife had seen deceased and appellant’s wife riding'together in East Waco, and that Roberts said he would stand by him. Appellant got the automatic pistol, which had been left in the shop by a customer, and he and Roberts walked at once over to the restaurant of deceased where the killing immediately occurred. We find nothing in the record showing any motive for the killing, save the one claimed and testified to by appellant, viz. that he believed deceased had come between him and his wife and caused their separation.

Appellant wanted to prove by McAthan that he was frequently at appellant’s barbershop prior to the homicide and after the. divorce suit was instituted by appellant’s wife, and that he heard appellant on each occasion talking of the divorce, and of his belief that a man who was a' friend of his had broken up his home, and that at such times appellant appeared* greatly disturbed and concerned over the matter. The state of mind of one accused of felonious homicide is specifically made a point of consideration for the jury by article 1257a of our Penal Code, which is a part of the new law of murder as enacted by chapter 274 (section 2), Acts Regular Session, 40th Legislature (1927). It seems held that such testimony as that sought to be introduced, if relating to a matter reasonably near to that of the homicide, would be relevant as showing the state of mind of the appellant at the time. Cole v. State, 48 Tex. Cr. R. 439, 88 S. W. 341; Burnam v. State, 61 Tex. Cr. R. 51, 133 S. W. 1045; Poole v. State, 45 Tex. Cr. R. 348, 76 S. W. 565. We think the learned trial judge fell into error in refusing to hear this testimony.

We have examined each of the other bills of exception in the record, and think them not to reflect error, except that we are of opinion the court should have granted a new trial because of the showing in regard to newly discovered evidence. The trial court seems to have declined to grant this upon the hypothesis that the newly discovered testimony was cumulative of that of a witness who testified on the trial. It .is true that a Mrs. Swift testified that she had seen deceased and appellant’s wife go together into a room at a rooming house, which room was rented by deceased, and, after locking the door, remain in said room thirty or forty minutes. It is also true that this is substantially the testimony of the newly discovered witness. We observe, however, that Mrs. Swift, the witness who testified to these facts upon this trial, was impeached by the state, which introduced witnesses to testify that her reputation for truth and veracity was bad. In such case we would not be inclined to apply the rule wit'h reference to cumulative testimony when the newly discovered witness is free from the taint which attached to the witness who was present and gave testimony.

The judgment will be reversed and the cause remanded.


author: CHRISTIAN, J.'

text:
    GLAZENER v. STATE.
    No. 13866.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    C. L. South, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.'

The offense is willfully neglecting and refusing to provide for the support and maintenance of his'minor children; the punishment, a fine of $100 and confinement in jail for thirty days.

Appellant was a tenant farmer and lived in the country. His wife lived in town, where she ran a boarding house. Three children of appellant and his wife lived with the mother. These children were under the age of sixteen years. On July 9, 1929, appellant’s wife secured a divorce and was awarded the exclusive custody ■ of the children. In the settlement of property rights the wife was awarded a voucher of insurance in the sum of $250, payable to her husband, and a sewing machine. Appellant received the balance of the community property, which consisted of some horses, cattle, and farm implements. Appellant married again on the 19th day of September, 1929. Thereafter, on the 27th day of the same month the indictment herein was returned. After his wife had been awarded a divorce, appellant did not contribute to the support of his children. It was uneontrovert-ed that during such time the property held by appellant was worth approximately $3,000, and that it had long been mortgaged. Appellant owed $9,000. He had no money. The banks required him to pay the money he made on his indebtedness, only permitting him to retain about $20 a month for his living expenses. Appellant testified that he could have managed to feed his children if he could have had them on the farm with him, and that he had at all times been willing to keep the children wdth him.

In order to support the allegation of willfulness in the failure to support, there must be some showing in 'the testimony that the accused is so situated that he.can support his minor children. West v. State, 110 Tex. Cr. R. 544, 9 S.W.(2d) 737. The burden is upon the state to show that failure to support is willful. O’Briant v. State, 113 Tex. Cr. R. 327, 21 S.W.(2d) 520. In the case of Mercardo v. State, 86 Tex. Cr. R. 559, 218 S. W. 491, 492, 8 A. L. R. 1312. Judge Lattimore, speaking for the court, defined the term “willful” as follows: “The term ‘willful’ has been often defined .by our courts, and as applied to this statute we think means not only with evil Client and malice, but that it also implies a set purpose and design.”

We are of the opinion that the state failed to discharge the burden of showing that appellant’s failure to support his children was willful.

The judgment is reversed, and the cause remanded.

FEE CUEIAM.

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: CHEISTIAN, J. LATTIMORE, J.

text:
    BIBLE et al. v. STATE.
    No. 13994.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    Rehearing Denied April 1, 1931.
    E. C. Hill, of Houston, ánd C. B. Master-son, of Angleton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHEISTIAN, J.

Under an indictment charging assault with intent to murder, appellants were convicted of an aggravated assault, and their punishment assessed at a fine of $750 each.

Gregorio Flores was brought to the farm of Mr. Butler, which was near the town of Angleton, under a contract, to operate a tractor. He testified that he and his wife were ordered away from the place by some unknown parties on their first night on the farm. Thereafter, according to his testimony, while he was at work in the field, he was approached by appellants. Appellant P. W..McNabb asked him for a cigarette, and, as he handed him the cigarette, appellant Estes Bible struck him on the head with some instrument and knocked him to the ground. He testified further that he became uneonscious; that, after several hours, upon regaining consciousness, he found that his feet and hands were wired and that his shoes were gone; that he was able to make his way to a house nearby; that thereafter he was taken to a hospital in Houston, where he underwent an operation. It was uncontroverted that the injured party was in a serious condition. The doctor testified that he had a bad wound on the head and that his intestines were severely bruised. -We quote the doctor’s testimony as follows;

“In treating him, I performed an operation on him; we cut him open, opened him up and drained him — his intestines; he had been bruised, either through some blow or kick. It was not necessary to remove any part of his intestines; we just opened him up and drained the gas out. The man was in a seri-' ous condition when I first saw him and treated him; we told him that he was in a serious condition, and I had D'r. Maxey called in in consultation and Dr. Maxey said that the. man would die, and I said that if he was going to die anyway we might as well take him to Houston and operate. The idea was we took him up to Houston and took the chance of his dying from the operation, but he lived. • At the time, it was my opinion, as well as Dr. Maxey’s, that the man would die. We just took a chance and saved his life.”

The appellants relied upon testimony raising the issue of an alibi. According to their testimony, they were not at the place where the offense was committed, but in the town of Angleton at the time the injured party testified that he was attacked. Several witnesses in behalf of the appellants gave testimony in support of their theory. The injured party having positively identified appellants as his assailants, it was the province of the jury to accept his testimony and disregard the testimony supporting the defensiye theory. We would not be warranted, under the facts, in disturbing the judgment of conviction.

One bill of exception is found in the record. It is entirely in question and answer form, with no certificate on the part of the trial court showing the necessity for such form. It is the rule that hills of exception in question and answer form are not entitled to consideration, unless the certificate of the trial judge shows the necessity for such form. Stillwell v. State (Tex. Cr. App.) 28 S.W.(2d) 812; Govance v. State, 109 Tex. Cr. R. 47, 2 S.W.(2d) 853.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

It is specifically provided in article 760, C. O. P., that bills of exception shall not contain questions and answers, save when in the opinion of the judge it is necessary to set out such questions and answers in order to elucidate the fact or question involved. This court, endeavoring to give effect to the statute, seems to have uniformly held bad bills of exception in question and answer form, except when the trial judge, in approving such bill, notifies us by the form of his approval that his purpose in allowing a bill containing questions and answers was that he deemed it necessary in order to make clear the fact or question involved. Smith v. State, 95 Tex. Cr. R. 581, 255 S. W. 173; Hanson v. State, 96 Tex. Cr. R. 110, 255 S. W. 743; McCroy v. State, 96 Tex. Cr. R. 354, 257 S. W. 566; Morris v. State, 96 Tex. Cr. R. 605, 258 S. W. 1065; Dunne v. State, 98 Tex. Cr. R. 7, 263 S. W. 608; Taylor v. State, 98 Tex. Cr. R. 185, 265 S. W. 152; Redwin v. State, 99 Tex. Cr. R. 78, 268 S. W. 1118; Snitz v. State, 100 Tex. Cr. R. 259, 272 S. W. 464. In order to agree with the contention of appellant in this case that we ought to consider his bill of exception, which is in question and answer form, simply because it was approved by the trial court — without any statement thereon by the trial court that it was necessary to put it in that form in order to elucidate the fact or question involved— we would have to overrule the above cases and many others. This we do not feel inclined to do.

We have less compunction in holding this bill of exception bad in view of the fact that it complained of certain questions propounded to a witness on cross-examination by the state seeking to elicit certain information, each of which questions was answered in the negative.

The motion for rehearing will be overruled.


text:
    POLOUS v. STATE.
    No. 14206.
    Court of Criminal Appeals of Texas.
    March 18, 1931.

      Phillips & Mandell, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, fcr the State.
   CHRISTIAN, J.

The offense is adultery; the punishment, a fine of $100.

In the first count in the information, appellant was charged with the offense of adultery with Raymond Hixen, a married man, by the parties living together and having carnal intercourse with one another. In the second count it was alleged that appellant committed the offense of adultery with Raymond Hixen by having habitual carnal intercourse with him. Both counts were submitted to the jury. Appellant was convicted under the first count. Hence it is unnecessary to discuss the motion to quash the second count.

Appellant contends that the evidence is insufficient to support the conviction. The testimony on the part of the state was to the effect that Raymond Hixen, who had a wife then living, had lived in appellant’s home for several weeks ; that on one occasion appellant and Hixen were seen in the same bed, Hixen being on top of appellant; that on a second occasion they were discovered in the same bed with the cover pulled up over them; that after complaint had been filed against appellant, she went to a city in another state, and-that Hixen was in said city at the same time, where the parties met. Appellant admitted that Hixen resided in her home, but testified that she permitted him to sleep in a room separate and apart from hers while he was working for her in her store. Appellant did not testify that Hixen paid her board, but a witness for appellant, without objection on the part of the state, testified that Hixen had told him that he paid appellant board.

We think the testimony is sufficient to show that appellant and Hixen lived together. It was not necessary that they live together as man and wife. It was only necessary that they live together and have sexual intercourse. Shaw v. State, 49 Tex. Cr. R. 379, 91 S. W. 1087. The term “living together,” as used in the statute (Pen. Code 1925, art. 499) defining adultery, has been held to mean that the parties must dwell or reside together, abide together in the same habitation as a common or joint residing place. Bird v. State, 27 Tex. App. 635, 11 S. W. 641, 11 Am. St. Rep. 214. We are also of the opinion that the evidence is sufficient to show that appellant and Hixen engaged in acts of sexual intercourse. Carnal intercourse can be proved circumstantially. Counts v. State, 49 Tex. Cr. R. 329, 94 S. W. 220.

It appears from bill of exception No. 2 that one of the witnesses for the state who had been placed under the rule with the other witnesses remained in the c'ourtroom and heard all of the evidence offered by the state and appellant. Thereafter this witness was called to testify for the state. It is recited in the bill of exception that she testified against appellant. Appellant objected on 1;he ground that the witness had violated the rule. The objection was overruled,, and the witness was permitted to testify. The bill of exception fails to set out the testimony given by the witness. We are unable to determine from the bill whether the trial judge abused the discretion with which he was vested in permitting the witness to testify. In his Annotated Penal Code, § 344, Mr. Branch states the rule as follows: “The admissibility of witnesses who have violated the rule, or who have not been placed under the rule, is a matter addressed to the sound discretion of the court, and, until the contrary appears, it will be presumed on appeal that such discretion was properly exercised.” Among the cases cited in support of the text are Cook v. State, 30 Tex. App. 607, 18 S. W. 412; Rambo v. State (Tex. Cr. App.) 69 S. W. 163. The object in placing witnesses under the rule is to prevent one witness from being influenced by the testimony of another witness. Blackwell v. State, 29 Tex. App. 194, 15 S. W. 597; Cook v. State, supra. It is further stated by Mr. Branch in his Annotated Penal Code, § 344, as follows: “Where a witness had been in court while other witnesses testified, or by some omission had not been placed under the rule, the court may permit him to testify where the other witnesses did not testify on the point to which this witness was called.” See Blackwell v. State, 29 Tex. App. 194, 15 S. W. 597; Roberson v. State (Tex. Cr. App.) 49 S. W. 398, 399.

A witness for the state, as shown in bill of exception No. 4, testified that she saw appellant and Raymond Hixen in bed together. Appellant objected to the testimony on the ground that it tended, to show habitual carnal intercourse, and was not relevant to the charge in the first count that the parties lived together and had carnal intercourse. We deem it unnecessary to discuss the question attempted to be raised by the bill. The testimony was obviously admissible as a circumstance tending to show that the parties copulated.

Bill of exception No. 5 brings forward three requested charges appellant sought to have submitted to the jury. The bill is multifarious, and not entitled to consideration. If the bill should be considered, it is observed that the court properly declined to submit the charges to the jury.

Bill of exception No. 6 brings forward appellant’s objection to the argument of the assistant district attorney, in •which he, in substance, stated to the jury that they should not let the question of the amount of the fine involved worry them; that, if appellant did not have any money, she should go to jail. The argument, if improper, was not calculated to bring about appellant’s conviction. The minimum fine was assessed against her.

Failing to find reversible error, the judgment is affirmed.

PER CURIAM.

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


text:
    PETRONELLA v. STATE.
    No. 14210.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    Rehearing Denied April 8, 1931.
    Earle Adams, Jr., of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for theft of an automobile; punishment being two years in the penitentiary.

The record is here without statement of facts or bills of exception. Nothing is presented for review.

The motion for new trial avers misconduct of the jury, but the motion is not sworn to. If any effort was made to sustain the averment, the record fails to reveal it.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant brings forward no showing of any attack made upon the judgment of the court upon his plea of guilty, wherein it is stated that he was found to be of sound mind at the time of the entry of such plea. Giving the customary presumption of correctness to the orders of the trial court, we find no merit in appellant’s motion, and same will therefore be overruled.


author: ’ CALHOUN, J. LATTIMORE, J.

text:
    CASH v. STATE.
    No. 14211.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    Rehearing Denied April 8, 1931.
    . Clarence Kendall, J. E. Winfree, and Heid-ingsfelder & Kahn, all of Houston, for appellant.
    O’Brien Stevens, Crim. Dist. Atty., of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   ’ CALHOUN, J.

Offense, possession of intoxicating liquor for the purpose of sale; punishment, one year in the penitentiary.

The record is before us without any bill of exception or statement of facts, and nothing is presented for review.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

The judgment of the court below, rendered upon appellant’s plea of guilty, recites that it plainly appeared to the court that said defendant was sane and uninfluenced-in makIng Ms plea of guilty. TMs court presumes correctness in the records, judgments, and orders of trial courts until the contrary is made to appear in some legal way. Appellant’s complaintjn his motion that there is no evidence in the record showing that he was sane at the time he entered his plea of guilty has no merit.

The motion for rehearing will be overruled.