text:
    STUART et al. v. STRAWN INDEPENDENT SCHOOL DIST.
    No. 1417-5618.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.
    J. T. Ranspot and Ritchie & Ritchie, all of Mineral Wells, and P. C. Sanders, of San Antonio, for plaintiffs in error.
    William Pannill, of Port Worth, and Chandler & Chandler, of Stephenville, for defendant in error.
   CRITZ, J.

It appears from the record in this case that Strawn independent school district filed suit in the district court of Palo Pinto county, Tex., to recover delinquent taxes against the lands of J. N. Stuart et al., fully described in the petition, and to foreclose the tax lien.

Stuart et al. answered and attacked the constitutionality of the Special Act of the Regular Session of the Thirty-Third Legislature of Texas, 1913, being chapter 122, page 484, Special Laws of such Legislature, entitled, “An Act to redefine the boundaries of Strawn Independent School District, to validate the corporation thereof, and declaring an emergency.”

In connection with the above, Stuart et al. alleged that the Strawn independent school district was originally incorporated under general law in 1904, with accurately defined territorial limits. It is then alleged that the properties here sought to be taxed were not located in the district as originally incorporated, but were included therein by the special act of the Thirty-Third Legislature. It is then alleged by Stuart et al. that the old Strawn district before the passage of the 1913 act had certain outstanding bonds duly voted, and-that such bonds cannot become a charge on their lands situated outside the original district at the time the bonds were voted. It is also contended by Stuart et al. that the maintenance taxes and bond taxes here attempted to be collected are illegal and void because the 1913 act, which had effect to enlarge the district, is unconstitutional and void for various reasons not necessary to mention here, and because the tax levies are illegal and void for various reasons, among which were that the taxes were never authorized by a vote by the district as changed and enlarged.

The Strawn district by way of replication filed various exceptions to the above answer, and specially pleaded that all taxes here sued for had been duly authorized by a vote of the qualified property taxpaying voters of the district as enlarged and defined by the 1913 act.

The pleadings of the parties are rather extended, and plead many things not germane to the suit, but we think we have stated the pleadings with sufficient fullness to answer the purposes of this opinion.

When the case was called for trial, the parties filed an agreement, which is fully set out in the opinion of the Court of Civil Appeals. 21 S.W. (2d) 713. We do not reproduce the agreement here, but refer to that opinion for its terms.

The agreement is to the effect that, should the court hold the 1913 act constitutional, he should enter a judgment for the district, hut, should he find the act unconstitutional, he should enter a judgment for Stuart et al. The agreement, together with the tax rolls therein mentioned, constituted the entire statement of facts.

The trial court entered a judgment for Stuart et al., both as to the taxes sued for, and enjoining any future levy of taxes on the lands here involved. From the statement we have made it is presumed that the trial court acted on the theory that the 1913 act herein-above mentioned was unconstitutional and void.

The Court of Civil Appeals at Eastland reversed this judgment and remanded the cause' for a new trial, holding in effect that the agreement was insufficient as a statement of facts upon which to present the case to the court.

Since this case was tried in the district court and since the agreement was made, the Legislature of this state has enacted a validating act. The validating act in question is S. B. 384, c. 298, p. 666, General Laws Regular Session, 41st Legislature, 1929 (Vernon’s Ann. Civ. St. art. 2802 a). In view of this act, we hold that the Strawn independent school district is now valid and constitutional. Lyford Independent School District v. Willamar Ind. School District (Tex. Com. App.) 34 S.W.(2d) 854; Young v. Edna Ind. School District (Tex. Com. App.) 34 S.W. (2d) 857; Pyote Ind. School District v. Dyer (Tex. Com. App.) 34 .S.W.(2d) 578; Desdemona Ind. School District v. Howard (Tex. Com. App.) 34 S.W.(2d) 840; and Brown v. Truscott Ind. School District (Tex. Com. App.) 34 S.W.(2d) 837. The above cases are not yet reported [in State reports].

Under the above authorities if the qualified property taxpaying voters of the Strawn independent school district have duly authorized the levy and collection of the taxes here sued for at an election or elections held for such purposes since the passage of the 1913 act, then the district is entitled to collect such taxes.

In view of the fact that the agreement made the statement of facts in this case was entered into and filed prior to the passage of the validating act and the parties could not have had same in view when the agreement was executed, we think it proper to remand this case for a trial upon its merits so that the facts may be fully developed.

We recommend that the judgment of the Court of Civil Appeals, which reverses the judgment of the district court and remands the case for a new trial, be affirmed, but that on another trial the district court shall be governed by this opinion.

CURETON, C. J.

The judgment of the Court of Civil Appeals reversing the judgment of the district court is affirmed, as recommended by the Commission of Appeals.


source: Caselaw Access Project

author: LEDDY, ,T. OURETON, C. J.

license: Public Domain

text:
    ROBERTSON et al. v. CITY NAT. BANK OF BOWIE.
    No. 1236-5615.
    Commission of Appeals of Texas, Section B.
    March 18, 1931.

      Taylor, Muse & Taylor, of Wichita Falls, for appellants.
    Donald, Derden & Donald, of Bowie, for appellee.
   LEDDY, ,T.

This is a certified question from the Court of Civil Appeals for the Second Supreme Judicial District. The certificate is as follows:

“This suit was instituted by the City National Bank of Bowie against W. F. Robertson and C. T. Bryson to recover principal, interest and attorneys fees on a promissory note executed by the defendants on October 13, 1924, in the sum of $2182.60, and to foreclose certain trust deed liens on specified tracts of land.
“The defendants answered, among other things, in substance, that the note declared upon by the plaintiff bank was a renewal of an original note-executed by the defendants for the sum of $2000 on or about the first day of February, 1923; that the original note was executed under the following circumstances, in substance:
“That at that time the defendants W. F. Robertson and Bryson were stockholders in the Guaranty State Bank at Sunset, Texas, W. F. Robertson being its cashier; that at the time, the Guaranty State Bank at Sunset was in a very bad financial condition; that one Charles Hutchinson was a large stockholder in the Guaranty State Bank and was also the cashier of the plaintiff bank at Bowie; that an assessment of 100% upon the stock in the Guaranty State Bank had been made by the bank examiner, and that Hutchinson and both defendants, and others that need not be mentioned, fully paid the assessment upon the stock held by them, but that there were some twenty of the stockholders, who were not notified of the assessment, and upon the suggestion and advice of Hutchinson, with the concurrence of the bank examiner, the defendants had executed said original note for $2000 and said trust deeds to cover the assessments against the non-notified stockholders, this course being pursued as urged by Hutchinson for fear that the non-notified stockholders would, if notified of the assessment, withdraw their deposits in the Guaranty State Bank and thus bring about its immediate dissolution; that defendants Robertson and Bryson, being thus influenced, executed said original note with the distinct understanding and agreement that they were not to be held liable thereon and that the same should be paid out of the proceeds of the charged off paper belonging to the Sunset Bank; that defendants executed said note purely as an accommodation.
“The defendants further alleged and introduced evidence tending to show that until the institution of this suit, they had not been called upon to pay the note or any renewal thereof or any interest thereon; that during the interval between the institution of the suit and the execution of the original note, tlie interest was paid, as had been arranged, out of the proceeds of the Guaranty State Bank at Sunset; that Hutchinson later became president of the Guaranty State Bank of Sunset, and that that bank had in fact collected out of its charged off paper sums sufficient in the aggregate to have discharged the note in question; that on several occasions Hutchinson had reiterated to defendants his assertion that they should not be held personally liable upon the note, and that it would be paid for out of the proceeds of the Guaranty State Bank; that on one or more occasions Hutchinson had promised to re-deliver and release the note in question, but that he had failed to do so, etc.
“A jury was impanelled, but after the introduction and tender of evidence in behalf of defendants, as above outlined, the court sustained the plaintiff's objection to the evidence offered and tendered on the ground that it sought to vary the effect and terms of a written contract, and peremptorily instructed the jury to find for the plaintiff, and judgment was entered in accordance therewith.
“The defendants excepted to the exclusion of this evidence and the court’s peremptory charge, and requested that the issues suggested by the evidence be submitted to the jury (Hutchinson, in his testimony, having denied the agreement relied on by the defendants), and error is assigned to the action of the court in excluding the evidence and in refusing the special issues tendered, and in giving the peremptory instruction.
“We are not entirely agreed as to the proper disposition to be made of the case, because of which and because of the importance of the qúestions presented, we deem it advisable to certify to your Honors the following question, to wit:
“Does the evidence offered and tendered in behalf of the defendants show or tend to show that they were purely accommodation makers of the indebtedness declared on, and, as such, not liable to the plaintiff bank? In other words, did the court err, as assigned, in the rulings complained of and in giving its peremptory instruction to the jury to find for plaintiffs?
“In this connection we refer to the following authorities cited in behalf of appellant, towit: State Banking Board v. James (Tex. Civ. App.) 264 S. W. 145; Chapman v. Southwest National Bank (Tex. Civ. App.) 276 S. W. 731; Central Bank & Trust Co. v. Ford (Tex. Civ. App.) 152 S. W. 700. See also Commonwealth National Bank v. Goldstein (Tex. Civ. App.) 261 S. W. 538. In this connection also we venture to add that we considered the scope of the duty and authority of the cashier of the plaintiff bank as indicated in the cases of Rosenberg v. First National Bank (Tex. Civ. App.) 27 S. W. 897, and First National Bank v. Ledbetter (Tex. Civ. App.) 34 S. W. 1042, and the authority found in 5 Oye. p. 460, to the effect that: ‘A bank is charged with the knowledge acquired by its cashier, president or other offices pertaining to transactions within the scope of the bank’s business although such knowledge be acquired in another transaction than that to which it relates. ⅞ * * And when a bank officer is acting as president or director of another concern, or as trustee or executor of an estate, the knowledge acquired in the latter capacity is imputed to his bank according to the most general rule.’ ”

Section 29 of the Negotiable Instruments Law (article 5933, R. S. 1925) defines an accommodation party as one who has signed the instrument as maker, drawer, acceptor, or indorser without receiving value therefor and for the purpose of lending his name to some other person.

In order that one may avail himself of the defense of an accommodation maker, under the above provisions, he must not be the recipient of any consideration deemed valuable in law. His act in executing the paper must be void of present or anticipated personal profit, gain, or advantage. Commonwealth National Bank v. Goldstein (Tex. Civ. App.) 261 S. W. 538; Exum v. Mayfield (Tex. Civ. App.) 286 S. W. 481; Waller v. Gorman Mercantile Company (Tex. Civ. App.) 141 S. W. 833; Brinker v. First National Bank (Tex. Civ. App.) 16 S.W.(2d) 965; Magill v. MeCamley (Tex. Civ. App.) 1S2 S. W. 22; Skagit State Bank v. Bloody, 86 Wash. 286, 150 P. 425, L. R. A. 1916A, 1215.

The record in 'this case contains the frank admission of appellants that they executed the noté in question for the purpose of obtaining the proceeds thereof for the use of the Guaranty State Bank in order to prevent its closing and consequent loss of the .stock owned by them.

. It has been held that it is no accommodation paper where stockholders of a corporation, for the protection of their interest therein, execute a note in order to obtain funds essential to its continued operation. 8 C. J. § 43, p. 256; Lewisville First National Bank v. Biekel, 143 Ky. 754, 137 S. W. 790; McDonald v. Luckenbach, 170 F. 434, 95 C. C. A. 604.

! It appears that appellants believed that if money obtained by the execution of the note to appellee had not been forthcoming the bank would have been compelled to have : closed its doors and their stock would have become worthless. By reason of the use of the funds procured by the execution of the note, the bank was enabled to continue in business and the makers of the note thereafter disposed of their stock while the bank was a going concern. Under such circumstances it cannot be held that the note was executed without valuable consideration.

The note being executed for a valuable consideration, parol evidence was not admissible to show an agreement on the part of the makers with appellees’ cashier that they would not be required to pay such note but that the same would be paid out of the assets of the Guaranty State Bank. Such evidence tends to vary the unconditional promise of the makers to pay such instrument according to its tenor and effect, which is not permissible in the absence of a plea of fraud, accident, or mistake. Exum v. Mayfield, supra; Ellington v. Commercial State Bank (Tex. Civ. App.) 15 S.W.(2d) 59; Canadian Long Distance Tel. Co. v. Seiber (Tex. Civ. App.) 159 S. W. 897; Dolinski v. First National Bank of Pittsburg (Tex. Civ. App.) 122 S. W. 276; Clark v. Gramling, 54 Ark. 525, 16 S. W. 475; Parker v. Mayes, 85 S. C. 419, 67 S. E. 559, 137 Am. St. Rep. 912; German American State Bank v. Watson, 99 Kan. 686, 163 P. 637.

We recommend that the question certified be answered that the trial court did not err in the rulings complained of or in peremptorily instructing a verdict in favor of ap-pellee.

OURETON, C. J.

The opinion of the Commission of Appeals answering the certified questions is adopted and ordered certified.


author: CHRISTIAN, J.

text:
    RANDOLPH v. STATE.
    No. 14044.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    J. J. Collins and R. W. Fairchild, both of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the-State.
   CHRISTIAN, J.

The offense is burglary; the punishment, confinement in the penitentiary for three years.

Chapter 67 of the Acts of the 41st Legislature (1929) at its First Called Session (Vernon’s Ann. Civ. St. art. 2116b; Vernon’s Ann. P. C. art. 418a) provides for a jury wheel and the selection of juries and drawing of venires by means thereof in all counties in this state having a population of not less than 16,775, nor more than 17,000, as shown by the United States census of 1920. The county of the prosecution (Polk county) is within the classification of the act. Only two other counties are affected by its provisions. Over objection by appellant, timely and properly interposed, he was forced to take a jury drawn in accordance with the provisions of said act. Touching the constitutionality of the act,- it is urged that it is a local or special law, and is therefore within the inhibition of article 3, § 56, of the Oonstitntion of Texas, and, further, that it is discriminatory in undertaking to establish a standard by which the capacity for jury service is determined, which is at variance with the standard provided in the Acts of 1907, p. 269, c, 139, as amended by the Acts of 1911, p. 150, c. 82, and as further amended by chapters 43 and 116, Acts of 1929, 41st legislature (Vernon’s Ann. Civ. St. arts. 2094, 2095). We deem it unnecessary to discuss the first question in view of the fact that we have reached the conclusion that appellant’s second contention should be sustained. We observe, however, that it is not clear that the statute in question does not offend against the provisions of article 3, § 56, of the Constitution of Texas.

Adverting to the question of the act being discriminatory, it is observed that section 2 of said act (Vernon’s Ann. Civ. St. art. 2116b, § 2) provides that the officers charged with the duty of filling the jury wheel shall not select those exempt from jury duty. The act of 1907, as amended, relating to the jury wheel law in counties having a population of 58,000 or having therein a city containing a population of at least 20,000, provides that the officers charged with the duty of filling the wheel shall place the names of all men who are known to be qualified jurors under the law in the wheel. See Acts 1907, p. 269, and Acts 1929, 41st Legislature, p. 263, chap. 116, § 1 (Vernon’s Ann. Civ. St. art. 2095). No provision is made in the acts last referred to for leaving out of the wheel the names of persons known to be exempt under the law. Exempt jurors are not disqualified. They may waive their exemption. Counts v. State, 78 Tex. Cr. R. 410, 181 S. W. 723; Mingo v. State, 61 Tex. Cr. R. 14, 133 S. W. 882; Owens v. State, 25 Tex. App. 555, 8 S. W. 658. The Legislature has the authority to prescribe by general law the qualifications of jurors. There would seem to be no relation between a man’s fitness for jury service and the size of population of the county in which he resides. We quote from Ruling Case Law, vol. 6, p. 378, as follows: “One of the essential requirements as to classification, in order that it may not violate the constitutional guaranty as to equal protection of the laws, is that the classification must not be capricious or arbitrary, but must be reasonable and natural or must be based on some natural principle of public policy. The legislature cannot arbitrarily create a class, and when thus created make it binding on the courts so that they would be bound to accept such classification as a proper one; arbitrary selection can never be justified by calling it classification, and this is forbidden by the equal-protection demanded by the fourteenth amendment.”

We quote from Northern Texas Traction Company v. Bryan, 116 Tex. 479, 294 S. W. 527, 531, as follows: “The Legislature has undoubted authority to prescribe, by general law, the qualifications of jurors. But, since we have been unable to discover any relation between a man’s capacity and fitness for jury service and the size of population of the county in which he resides, or of a city of such county, we should entertain grave doubts as to the constitutionality of a law which undertook to establish a standard, by which the capacity and fitness of men for jury service are determined, which varies in the different counties of the state, with no basis for such variation other than population.”

The act under consideration, not only attempts to make a very small unit of population the basis for a method of selecting jurors which is different from the method prescribed by general law for other parts of the state, but also seeks to make ineligible for such jury service those who may not desire to claim their exemption but who are qualified jurors under general laws. We are constrained to hold that the act is discriminatory, and, therefore, unconstitutional.

In applying the law to the facts the court instructed the jury, in substance, that, if they believed beyond a reasonable doubt that appellant, on or about the 15th day of August, 1929, or at any time within five years before the filing of the indictment, by force, did enter the house in question with intent to commit the crime of theft, the jury would find him guilty of the crime, of burglary and assess his punishment, etc. Appellant filed his written objection to the charge before it was read to the jury, wherein he called the court’s attention to the fact that the jury should be required “to find him guilty of some particular transaction,” and that said charge permitted the jury to consider any one of several transactions as a basis for the conviction. The injured party testified that he had lost merchandise from his store on several occasions. In his written confession appellant stated that he had gone into the store and gotten merchandise about twenty times during the year of 1929. It was alleged in the indictment that the burglary occurred on or about the 15th day of August, 1929. The proof showed that in the early morning of October 15, 1929, one of the doors of the store was found open. Shortly thereafter a quahtity of merchandise was'discovered near appellant’s home. It is thought that the evidence developed more than one separate transaction. It is the rule that the state should be required to elect which transaction it will rely upon for a conviction in the event the testimony develops more than one separate transaction. Section 444, Branch’s Annotated Penal Code; Henderson v. State, 49 Tex. Cr. R. 511, 93 S. W. 550; McKenzie v. State, 32 Tex. Cr. R. 568, 25 S. W. 426, 40 Am. St. Rep. 795; Powell v. State, 47 Tex. Cr. R. 155, 82 S. W. 516, 122 Am. St. Rep. 683. Ordinarily, it is proper to instruct the jury that the state is not restricted to the exact date laid in the indictment, but may prove the offense, if it can, to have been committed at any time within the period of limitation. Mikulec v. State, 07 Tex. Cr. R. 615, 262 S. W. 751. In a case in which the state is required to elect upon which transaction it will seek a conviction, the charge in question is improper, in that it has the effect of depriving the accused of the right to require the state to elect. See Matthews v. State, 57 Tex. Cr. R. 328, 122 S. W. 544. Under the facts of the present case the opinion is expressed that the exception to the charge was well taken.

The main fact to be proved was the breaking and entry by appellant. Winn v. State, 82 Tex. Cr. R. 316, 198 S. W. 965. Although appellant admitted in his written confession that he had gone into the store on several occasions and taken merchandise therefrom, he did not describe the manner of his entry. As far as the confession is concerned appellant may have entered the building on each occasion through an open door. On the morning of October 15th one of the doors of the store building was found open. This door could only be unlocked from the inside. The lock was not broken. While the testimony showed that the door had been closed when one of the employees left the building on the night of October 14th there is nothing to show that it-was locked. Appellant was an employee in the mercantile company, and had free access to all parts of the buildings of said company during the day. At times he was intrusted with the keys. He had served in the capacity of porter and servant for several years, and was serving in such capacity on the night of October 14th and the morning of the 15th of said month. Nowhere in the record do we find any direct evidence that appellant entered the building by breaking or by the use of any force. Appellant presented his requested instruction wherein the jury would have been charged on the law of circumstantial evidence. While probably not entirely accurate, we deem the charge sufficient to have invited the court’s attention to the necessity of a charge on the subject. In the case of Howell v. State, 109 Tex. Cr. R. 42, 2 S.W.(2d) 861, 863, the evidence sho.wed that the screens of a camphouse were torn off of the windows and the house entered. A quantity of personal property was taken from the house, none of it being traced to appellant, except a blanket and pillow. Appellant confessed that he stole the blanket and pillow out of a camphouse at Eake Worth. The burglarized camphouse was situated at Lake Worth. In his confession, appellant did not admit that he broke into the house, but on that point remained silent. In reaching the conclusion that the trial judge committed error in declining to submit an instruction covering the law of circumstantial evidence, Judge Lattimore said: “Giving to this alleged confession its strongest probative force, same falls short of any confession on the part of appellant of a burglary.” The opinion is expressed that the state relied upon circumstantial evidence to prove that appellant broke and entered the house. Beason v. State (Tex. Cr. App.) 63 S. W. 633; Beason v. State, 43 Tex. Cr. R. 442, 67 S. W. 96, 69 L. R. A. 193.

The court instructed the jury that by the term “entry into a house” was .meant every kind of entry but one made by free consent of the occupant or one authorized to give such consent; and that it was not necessary that there should be any actual breaking to constitute nighttime burglary. Under the facts of this case we doubt the propriety of giving this charge. The evidence touching the character of entry effected by the offender was meager. The jury might properly Have concluded that appellant entered the building through an open door. The door could only be unlocked from the inside. The lock was not broken. The remaining doors and windows were intact. No witness testified to having closed and locked the door on the night of the burglary. Moreover, the court charged on the issue as to whether appellant was a domestic servant. There must be an actual breaking by a domestic servant to constitute burglary, the mere lifting of a latch to effect an entry not being an actual breaking. However, where such servant is acting with others in entering the house, an actual breaking is not necessary as to him and as to those acting with him. Notes under article 1401, Vernon’s Annotated Criminal Statutes of Texas, Penal Code; Neiderluck v. State, 23 Tex. App. 38, 3 S. W. 573 ; Alexander v. State, 48 Tex. Cr. R. 531, 89 S. W. 642, 122 Am. St. Rep. 771. In the state of the record the jury might have concluded from reading the charge in question that appellant was guilty of burglary, notwithstanding they might have believed that no force was used; provided the entry was made without the free consent of the owner. Crews v. State, 109 Tex. Cr. R. 545, 5 S.W.(2d) 999; Bates v. State, 50 Tex. Civ. App. 568, 99 S. W. 551.

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.

HAWKINS, J., not sitting.


author: CHRISTIAN, J. HAWKINS, J.

text:
    HOBRECHT v. STATE.
    No. 13741.
    Court of Criminal Appeals of Texas.
    Jan. 28, 1931.
    Rehearing Denied March 25, 1931.
    J. Franklin Spears, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

Appellant was jointly indicted with Lynn Stevens and others; it being alleged that said parties, with malice aforethought, killed Charles Stevens by shooting him with a gun. In his voluntary confession, appellant admitted that he was with Lynn Stevens and the other alleged coconspirators at the scene of the homicide, but stated that he ran away when the shooting began. Further, he stated-in his confession, that he di'd not know what the design of Lynn Stevens and his companions was when he went with them to the place where deceased lost his life. In short, it was appellant’s theory, given support in the testimony, that he did not enter into a conspiracy with Lynn Stevens to shoot the deceased, and that he left the scene of the homicide when the shooting first started, without having fired a shot. On the other hand, it was the state’s theory that appellant, Lynn Stevens, and others entered into a conspiracy to stop deceased and his companions, they being prohibition enforcement officers, for the purpose of using such force as was necessary to take prisoners away from them. In support of its theory, the testimony on the part of the state was to the effect that deceased and his companions were returning to San Antonio with prisoners after having raided a still; that appellant, Lynn Stevens, and others armed themselves and took a position on the road the parties were traveling; that, when they approached, Lynn Stevens drew a gun on the officers; that several volleys of shots were exchanged, in which one of Lynn Stevens’ party lost his life, as well as deceased, Charles Stevens.

Recognizing appellant’s affirmative defense, the court instructed the jury, in substance, that, if they had a reasonable doubt as to the common design or intent of all, including the appellant, to commit the offense, or a reasonable doubt as to whether it was committed by one or more of the party, acting independently of the appellant and without his participation in the design and intent to commit it, he should be acquitted. Over proper objection, the state was permitted to prove by the witness Mathews that he went to Lynn Stevens’ home on the morning after the homicide and had a conversation with him, in which Lynn Stevens stated that he had had some trouble with prohibition agents and had been shot in the foot. Further, the state proved by the witness that Lynn Stevens said: “I guess we wont be here for a while. You will have to look after the business.” The witness testified that he elicited the information from Lynn Stevens by asking him: “Did you people shoot any prohibition agents?” Lynn Stevens replied that he did not know. Appellant was not present when this conversation occurred. The conspiracy, if any, had been completed by the termination of the enterprise. The statement of Lynn Stevens carried the imputation that he, appellant, and others had had a difficulty with prohibition agents which necessitated flight on their part. In view of the fact that the testimony showed that appellant had been present at the time the difficulty occurred, the jury probably inferentially concluded from the statement of Lynn Stevens that he and appellant were eonconspirators, and that, inasmuch as Lynn Stevens had admitted his guilt, appellant was also guilty. It is the rule that “proof of acts or declarations of a co-conspirator done or made in the absence of the defendant on trial after the commission of the offense and after the conspiracy is complete by the abandonment or termination of the enterprise is not admissible against such defendant.” Branch’s Annotated Penal Code, § 695; Draper v. State, 22 Tex. 400; Dawson v. State, 38 Tex. Cr. R. 9, 40 S. W. 731; Gardner v. State, 55 Tex. Cr. R. 394, 117 S. W. 140. The declarations were inadmissible, and we are unable to reach the conclusion, under the record, that their reception was harmless.

For the error 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.

On State’s Motion for Rehearing.

HAWKINS, J.

It is the state’s contention that the bill of exception found at page 104 of the transcript, and upon which the opinion of reversal was based, is insufficient. The bill does contain much evidence given by the witness Mathews which was properly admitted, and the state’s contention would unquestionably be correct if the trial judge’s explanation to the bill did not in our opinion make it clear what part of. Mathews’ evidence was claimed to have been ..objectionable. The qualification makes it reasonably clear, we think, that it was the conversation between Mathews and Lynn Stevens to which objection was being urged; one objection being that it related to matters and things occurring subsequent to the homicide, therefore after the conspiracy had terminated. The state built its case around an alleged conspiracy of which Lynn Stevens was claimed to be the moving spirit, and had connected appellant and others with him in the killing of Charles Stevens. Appellant, without objection from the state, had injected an issue as to the sanity of Lynn Stevens, and the court says he admitted the conversation between Lynn Stevens and Mathews on the issue of Lynn Stevens’ sanity, and that he so stated at the time it was admitted. There is no statement in the bill that the jury was orally told for what purpose it was being admitted. It is doubtful if the injurious effect of the objectionable testimony could have been obviated by such instruction. The question of Lynn Stevens’ sanity was a collateral matter, we judge, as no instruction on the subject is found in the court’s charge. The conversation between Mathews and Lynn Stevens the next day after the killing coupled other unnamed parties with Lynn Stevens in the killing. It was but natural that the jury should appropriate it ¿gainst appellant under other facts before them. It would be too speculative, we think, to say the evidence could have done appellant no harm.

The motion for rehearing is overruled.


author: CHRISTIAN, J. CHRISTIAN, J. DATTIMORE, J.

text:
    HUDGINS v. STATE.
    No. 13881.
    Court of Criminal Appeals of Texas.
    Jan. 14, 1931.
    Appeal Reinstated Feb. 18, 1931.
    Rehearing Denied March 25, 1931.
    Jones & Jones, of Mineóla, and Wynne & Wynne, of Wills Point, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one year.

It is stated in appellant’s brief that he duly entered into an appeal bond after notice of appeal was given. The appeal bond is not brought forward in the transcript. When the accused is enlarged, this court is without jurisdiction in the absence of a proper recognizance or appeal bond. Moore v. State, 112 Tex. Cr. R. 142, 15 S.W.(2d) 617, and authorities cited.

The apxieal is dismissed. Appellant is granted 15 days in -which to perfect his appeal.

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 Reinstatement of Appeal.

CHRISTIAN, J.

A sufficient appeal bond having been filed, the appeal is reinstated, and the case considered on its merits.

Appellant contends that the evidence is insufficient to support the conviction. We are unable to agree with him. The testimony of the state’s witnesses was, in substance, as follows: Having secured a search warrant, officers went to appellant’s residence for the purpose of making a search for intoxicating liquor. While going through the house, the officers heard some noise on the back porch. On making an investigation, they discovered appellant in the act of throwing fruit jars of whisky into the yard. One half-gallon fruit jar full of whisky had already been thrown out, and appellant had another jar of the same size in his hand. The officers found three half-gallon jars full of corn whisky, and one half-gallon jar a little more than half full. Going into an outbuilding near the house, the officers found between 100 and 200 empty fruit jars. They detected the odor of whisky in 20 of the jars. They also found a number of pint bottles which they described as “flask bottles.” Appellant’s automobile, was parked near the house. An examination of the automobile disclosed that there was some hay under one of the cushions. In this hay the officers saw prints of square fruit jars of half-gallon size. The fruit jars in which the liquor was found were square and of half-gallon size.. Also they found under the front seat a number of pint bottles. Near a tree they found a tow sack with pint bottles in it.

Appellant did not testify in his own behalf, but offered his wife and other witnesses on the question • of the purpose for which he possessed the whisky. Appellant’s wife testified that upon the advice of her physician she had been using whisky for a number of years for medicinal purposes, taking it infernally and rubbing her body with it. Khe also said that her children had been afllictea with measles shortly before the raid was made, and that whisky was given to them as a medicine. The physician testified that he had advised appellant and his wife to give the children a little whisky. As to having prescribed for appellant’s wife, he said that he had advised her on one occasion to take whisky for a “smothering spell.” According to his testimony, a do§e would probably have been a tablespoonful or two every 20 or 80 minutes until she was relieved. The physician further testified that he had not seen appellant’s wife in about three years. As to suggesting to her that she rub herself with’ alcohol, he said that he had no recollection of advising her to rub her body with it. Being shown one of the fruit jars, the witness testified that she would not need as much as “is gone from the fruit jar in front of me in one week.” Other witnesses for appellant testified to the fact that his wife and children had been sick.

In his voluntary written confession adduced in evidence by the state, appellant stated that the officers had found four one-half gallon jars of corn whisky on his back porch. Touching the purpose for which the whisky was possessed, the confession was silent.

The motion for new trial was overruled on the 15th day of May, 1930, and notice of appeal given on the same date. Appellant was granted 80 days from the giving of notice of appeal in which to file his bills of exception. The bills of exception were filed on the 11th day of August, 1930, which was 88 days after giving notice of appeal. No order extending the time is found in the record. The bills were filed too late to be entitled to consideration.

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.

DATTIMORE, J.

The only ground of the motion is that we erred in holding that appellant’s bills of exception were filed too late for consideration. The trial term of the court below beginning Monday, April 7th, and under the law continuing 6 weeks, would make the adjournment date May 17th. If we should agree with appellant’s contention, that the language of the court’s order made it appear that he intended to grant 80 days for the filing of bills of exception from the date of adjournment, computation would show that 80 days from May 17th would end on August 5th. The bills of exception in this record were filed August 11th.

Being still of opinion that same were filed too late for consideration, the motion for rehearing will be overruled.


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

text:
    KING v. STATE.
    No. 13819.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.
    Llewellyn & Henderson and Rogers & Rogers, all of Marlin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for assault to murder; punishment, eight years in the penitentiary.

Complaint is made in bill of exceptions No. 6 of the refusal of a special charge, in substance, that a conviction for assault to murder could not be had unless the jury believed .the assault was made with malice. This again raises the question as to whether malice or malice aforethought is an element necessary to prove or submit in the charge in trials for assault to murder. We say again, because the same question was raised ■in Tucker’s Case (Tex. Or. App.) 26 S.W.(2d) 638, that malice is no longer a part of the offense of assault to murder in this state. We have again considered the matter, but without changing our views.

The offense of assault to murder, defined in article 1160, P. C., is there stated'as follows: “If any person shall assault another with intent to murder, he shall be confined in the penitentiary not less than two nor more than fifteen years.”

The only additional light derived from statute on what is assault to murder in this state is what is said in article 1165, P. G., that an assault with intent to commit any other offense is constituted by the existence of the facts which bring the offense within the definition of assault, coupled with an intention to commit such other offense, as murder, etc. What facts, if proved, would constitute murder as now defined? The necessary answer is in the language of article 1256, P. C., as amended by the Acts of the 40th Legislature (1927) Regular Session, chap. 274, § 1 (Vernon’s Ann. P.- C. art. 1256): “Whoever shall voluntarily kill any person within this State shall be guilty of murder.” Testimony establishing an assault, if sufficient to show that there was on the part of the accused in the making of such assault a specific intent to kill, would seem to measure up to the proof necessary in ordinary eases of assault to murder. In certain classes of cases proof of such specific intent is not necessary. Whiteside v. State (Tex. Cr. App.) 29 S.W.(2d) 399, 403.

Malice is not now an essential element of the offense of murder, but a charge on malice aforethought is by statute (chapter 274 § 3a, as amended by Acts 40th Leg., 1st Called Sess., c. 8, § 1 [Vernon’s Ann. P. C. art. 1257b]), made obligatory in murder prosecutions in order that the jury may know how to fix the punishment in accordance with the provisions of chapter 274, supra. Crutchfield v. State, 110 Tex. Cr. R. 427, 10 S.W.(2d) 119; Harris v. State, 111 Tex. Cr. R. 133, 12 S.W.(2d) 211. Stated in different form, a jury may now convict for murder in a case in which the killing is without malice. If this court should hold that, upon the trial of one charged with assault to murder, it would now be necessary to prove malice, and to submit the question of malice to the jury in the charge, we would, in effect, be holding aside from and beyond any statutory direction; and this would be judicial legislation, the effect of which would be to keep in force, in so far as the law of assault to murder is concerned, a definition of murder which no longer exists on our statute books. We do not think ourselves authorized to so overrun the statute.

It is true that prior to the enactment of chapter 274, supra, murder was necessarily a killing upon malice, or under circumstances deemed equivalent, and we therefore held it necessary to prove malice, and submit in the charge the issue of malice in cases of assault to murder, but the purposed omission of malice from murder in the definition thereof in said chapter 274, supra, seems to compel a different rule regarding the charge of th,e court and the proof in assault to murder cases now.

There has been no re-enactment of the la-fa of assault to murder since the passage of said chapter 274, supra; hence no application can be here made of the. well-known rule of construction that legislative re-enactment of a law without change in its verbiage is regarded as a legislative adoption of prior judicial interpretations of said law. We would seriously question the application of such rule of construction in any case where the statute involved be one whose very existence and definition are dependent on the existence and definition of another written law. If the law of murder be repealed, our present law of assault to murder would necessarily fall to the ground for lack of measuring up to the requirement that no act can be enforced except it be definitely framed and so constructed a's that it can be understood from its own language, or that of some other written law of the state, as is laid down in article 6, P. 0.

Our attention is called to the opinion in Small v. State (Tex. Cr. App.) 32 S.W.(2d) 860, 862, in which the indictment for assault to murder charged that such assault was “Will malice aforethought.” In the original opinion, as understood by this writer, said indictment was discussed as if said quoted words were omitted entirely from the indictment, and the conclusion was reached that, since the new murder statute was enacted by the Fortieth Legislature, as was the law before that, an indictment for assault to murder was sufficient which omitted the words “With malice aforethought.” The cases referred to, cited and discussed in said original opinion, were all decided prior to the enactment of said new murder statute, and no announcement was made in said opinion with reference to what is necessary now in the matter of proof or charge of the court, upon the trials of assault to murder cases.

In the motion for rehearing in said Small Case, supra, we were criticised for not discussing the force and effect of the use in the indictment of the words “Will malice aforethought,” and that point was practically the only one in the mind of this writer when he wrote on said rehearing. After deciding that the use of the word “will” in said indictment was clearly intended to be the word “with,” we said in substance that the words “with malice aforethought” were a sort of formula, etc., settled in practice as a necessary element in assault to murder cases. The authorities cited in the original opinion were bef ore us as well as those cited in appellant’s motion, and we did not intend to hold that malice aforethought is now a necessary element in assault to murder eases, nor that it is necessary to use the expression in an indictment for assault to murder, or to define or submit said words upon the trial of an assault to murder case where the indictment omits said expression, nor to require that the jury believe and find upon the proof that such assault was with malice aforethought.

We find nothing in any of the other bills of exception. Bill No. 2 was taken to the court’s action in allowing the prosecuting witness, upon the request of the state’s attorney, to show the scar made by the cut on his breast. Nothing in said bill shows that thig exhibition served no useful purpose. The-statement in said bill that seeing this scar was calculated to influence the minds of the jury against appellant might be literally true even when the exhibition of said scar had much weight on some material issue.- The statement, as ground of objection, that the demonstration was immaterial, was not certified to be correct. Bill No. 3 sets out no surrounding facts from which we .might learn that the matter asked about in the question objected to was not material. Bill No. 4 presents a proposition of law which is not sound, and bill No. 5 was taken to the refusal of a special instruction which does not appear to fit any testimony in the case.

No error appearing, the judgment will be affirmed.

MORROW, P. J.

(dissenting).

The offense is assault with intent to murder ; penalty, confinement in the penitentiary for seven years.

Earl Daniels was stabbed by the appellant. A poeketknife was used, the blade of which was about 2½ inches long. The knife entered the breast of Daniels near the fourth rib. The blade was broken from the knife and afterwards taken out by a physician. The evidence sufficiently shows that the knife used was a deadly weapon. Daniels -hit the appellant over the head with an automobile pump. The evidence is conflicting as to whether the appellant or Daniels was the aggressor. Daniels’ testimony was to the effect that he was assaulted by the appellant without previous notice. According to Daniels, after he was stabbed, he went to the automobile and got a pump from the back seat. After hitting the appellant with the pump, Daniels noticed that he was stabbed and wa.s taken at once to a sanitarium. Touching the beginning or the cause of the difficulty, Daniels said: “One nigger did step on my foot just as I got out of the car.” Daniels said that he ran against him, but did not know that a negro boy had stepped on his foot.

Bill No. 2 recites that Daniels, in his direct examination, testified that he was cut by the appellant with a knife, and while on. the stand exhibited the wound to the jury. In the bill the wound is described as “a ragged cut on the left breast making a jagged and ugly scar.” Nothing has been observed in the bill showing that the appearance of the scar was produced by anything save the cut. Nor is there in the bill any averment that the appearance of the wound did not tend to solve some controverted, issue. In tlie case of Mahaney v. State, 95 Tex. Cr. R. 443, 254 S. W. 946, tlie case of Chapman v. State, 66 Tex. Cr. R. 489, 147 S. W. 580, and Graves v. State, 58 Tex. Cr. R. 42, 124 S. W. 676, and others are reviewed, and the conclusion of ’the court is stated in the following language: “The law does not interdict the exhibition of wounds, but limits their receipt to occasions when they tend to solve some controverted issue. * * * ' It being permissible under some circumstances to exhibit wounds to the jury, it was incumbent upon the appellant in the instant case to show, by bill of exceptions, the conditions which rendered them inadmissible. The bill, in our opinion, is not of that character.” Mahaney v. State, 95 Tex. Cr. R. 446, 254 S. W. 946, 948. See, also, Leal v. State, 112 Tex. Cr. R. 479, 17 S.W.(2d) 1064; Trigg v. State, 99 Tex. Cr. R. 376, 269 S. W. 782.

The definition of assault with intent to murder has never been changed. The statute defining it was passed before the. adoption of the present Constitution, and the courts, then and since, have declared that an indictment charging an assault with intent to murder was sufficient although it omitted an averment that the act was committed with malice or malice aforethought. In the law making malice aforethought an essential element of the offense of murder,' the court considered that an averment that the assault was made with intent to murder was a sufficient compliance with the law touching an indictment for assault with intent to murder. See Martin v. State, 40 Tex. 19; Mills v. State, 13 Tex. App. 487, and other precedents cited in the recent ease of Small v. State (Tex. Cr. App.) 32 S.W.(2d) 860. The re-enactment of a statute without change of its verbiage is regarded by all courts as a legislative adoption of the judicial interpretation. See Lewis’ Sutherland, Statutory Construction (2d Ed.) vol. 2, p. 758, § 399; also Lewis v. State, 58 Tex. Cr. R. 351, 127 S. W. 808, 21 Ann. Cas. 656; Williams v. State, 88 Tex. Cr. R. 97, 225 S. W. 177; Francis v. State, 90 Tex. Cr. R. 67, 233 S. W. 974; Gunn v. State, 95 Tex. Cr. R. 277, 252 S. W. 172; Munoz v. State, 103 Tex. Cr. R. 439, 281 S. W. 857. It has been uniformly held that in the trial the proof must show that the assault was made with “malice aforethought” and the jury must be told that, unless it was so made, there could be no conviction for assault with intent to murder. . From the opinion of Judge White, in the early case of Hodges v. State, 3 Tex. App. 473, we quote: “It follows, as has been repeatedly decided, •that neither in a charge given by a court in a case of murder nor of assault with intent to murder can it be said that the charge presents ‘the law applicable to the case,’ which fails to define or instruct the jury as to the meaning of the term ‘malice.’ ”

In the opinion of the court written by Presiding Judge Davidson in the ease of Thurogood v. State, 87 Tex. Cr. R. 209, 220 S. W. 337, 338, it is said: “If appellant was not actuated by malice aforethought, he could not be guilty of assault with intent to murder.”

The same announcement has been made and applied in many cases. Among them are Daniels v. State, 4 Tex. App. 429; Caruthers v. State, 13 Tex. App. 339; Davis v. State, 96 Tex. Cr. R. 646, 259 S. W. 946. Any assumption that the act of the Fortieth Legislature changing the definition - of murder operated to amend or change the statute defining an assault with intent to murder is a mistaken one. Statutes are at times repealed by implication. It is á rare case that a statute is amended by implication. See Lewis’ Sutherland, Statutory Construction (2d Ed.) vol. 1, § 239.

In the Constitution of Texas, art. 3, § 36, it is said: “No law shall be revived or amended by reference -to its title; but in such case the act revived, or the section or sections amended, shall be re-enacted and published at length.”

In the case of Tucker v. State (Tex. Cr. App.) 26 S.W.(2d) 638, there is an intimation that the new murder statute (chapter 274, Acts of 40th Leg. [1927] Reg. Sess.) would deprive the accused in a case of assault with intent to murder of the right to have malice aforethought defined and applied. The statement is in line with Crutchfield’s Case, 110 Tex. Cr. R. 420, 10 S.W.(2d) 119, in which it was declared that an averment of malice aforethought was unnecessary in charging the new murder statute amending article 1256, P. C. On reflection, the court reached the contrary conclusion which is expressed in Swilley’s Case (Tex. Cr. App.) 25 S.W.(2d) 1098. Tucker’s Case, supra, was reversed on rehearing because the facts failed to exhibit the offense of assault with intent to murder. Our investigation of the subject leaves us clearly of the opinion that, to warrant a conviction for assault with intent to murder, there must be proof that the accused was actuated by malice aforethought and that an appropriate instruction to that effect should be given to the jury by the trial court. This is in accord with the unbroken line of precedents, many of which have been cited above. Others will be found in Michie’s Tex. Digest of Criminal Cases, vol. 3, p. 600; Branch’s Crim. Law, §§ 518, 519, pp. 339-341.

An indictment for assault with intent to murder embraces the lower grades of assault which, in a proper case, would demand appropriate instructions enabling the jury to differentiate between the higher and the lower grades of the offense. On this subject there are many precedents. See Wilson v. State, 4 Tex. App. 637; also Marshall v. State, 40 Tex. 200.

From what has been said it follows that in the opinion of the writer the judgment should be reversed and the cause remanded.


text:
    BUTLER et al. v. STATE.
    No. 13234.
    Court of Criminal Appeals of Texas.
    Jan. 7, 1931.
    Murchison & Davis, of Haskell, E. L. Kuy-kendall and Bouldin & Bouldin, all of Albany, and McLean, Scott & Sayers, of Fort Worth, for appellants.
    Thomas L. Blanton, of Abilene, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

J. C. Raymond v. State (Tex. Cr. App.) 33 S.W.(2d) 192, delivered October 8, 1930, deals with a companion case. Appellant's and Raymond were jointly indicted by the grand jury of Shackelford county. After severance, Raymond was tried and convicted. Thereafter appellants were jointly tried in Taylor county; the court having entered an order changing the venue. The witnesses testifying in Raymond’s Case gave substantially the same testimony on the trial of appellants.

See Raymond v. State, supra.

Appellants, Jones and Butler, each filed an application for a severance. In the order denying the application it is recited that appellants had theretofore filed an application for a severance in Shackelford county, wherein they had requested that their codefend-ant J. 0. Raymond be first tried before they (appellants) were required to face a jury; that a severance having been ordered, J. C. Raymond was tried; that thereafter an order changing the venue to Taylor county was entered in the present case. The order further recites that appellants requested that they be tried jointly after the case against Raymond had been tried. We deem it unnecessary to decide whether the action of the court was erroneous, as appellants reserved no exception. This they were required to do if they desired to have the trial judge’s action reviewed by this court. Plattenburg v. State, 107 Tex. Cr. R. 43, 294 S. W. 549. ,

It appears from bill of exception No. 5 that one Heintz had been employed by appellants as an engineer. On several occasions he had drafted contracts for his employers. Prior to removing to Texas, Heintz had practiced law, and, although he had not obtained a license to practice in Texas, he at times engaged in the practice with an attorney in Dallas. Upon being called by the state to testify as to a communication made to him by appellant Jones, appellants sought to invoke the provisions of article 713, C. C. P., to the effect that an attorney at law shall not disclose communications made to him by his client during the existence of that relationship, nor disclose any other fact coming to his knowledge by 'reason of such relationship. Touching his relationship to the parties, the witness testified, in the absence of the jury, that he had not at any time been employed by appellants to represent them as a lawyer; that he had been employed as an expert gas engineer to perfect a Neon gas bulb; that' he had no license to practice law in Texas; that the relationship of attorney and client had not existed between him and appellants at any time. He related the fact that he had drawn some legal instruments for-appellant Jones and that he had voluntarily suggested to Jones that he appear before the grand jury when the investigation out of which the prosecution arose was under way. It appeared that the contracts drawn by the witness were unrelated to the transaction upon which the prosecution was based. In short, the testimony of the witness was sufficient to support the conclusion that the relationship of attorney and client had never existed between him and appellants and further that he was employed solely as an engineer. Appellant Jones admitted that the witness had been employed as an -engineer, but declared that he had paid him fees for legal services rendered in connection with matters related to the prosecution. It is the rule that to render the communication inadmissible it must have been made to the attorney acting for the time being in the character of legal adviser. Walker v. State, 19 Tex. App. 176. Giving recognition to the rule, its application would necessitate the rejection by this court of the testimony of the witness touching his relationship to the parties, as such testimony was in direct conflict with the statement of appellant Jones. It is beyond the province of this court to determine which version of the matter was true. The conclusion that the statute had no application was supported by the testimony of Heintz.

In his opening argument, the district attorney used language as follows: “Jones tells you he thought he had a charter for the General Neon Sign Corporation because he had told Beverly Thompson to get him the charter. Yet when we brought the said attorney, Beverly Thompson, before this jury to have Thompson tell you the truth about this charter Jones and his attorneys objected to his telling you about it and we were not permitted to hear him testify.”

Appellants objected to the argument on the ground' that it referred to a matter not of record, that it was prejudicial, and not in rebuttal of anything argued by appellants' counsel, and was the unsworn testimony of the district attorney. The court overruled the objection and declined - to withdraw the argument from the jury. While on the witness stand, appellant Jones testified, without objection, to the following: “I saw Beverly Thompson put on the stand here in front of this jury. I did not object to his testimony. I do not know that you can not put Beverly Thompson on the stand unless my attorneys agree to it. I do not know from what has occurred in the court room that you can’t "do it except by my counsel’s permission. I do not know that yet.”

We do not understand that the argument of the district attorney was tantamount to a statement that Thompson would have testified to a state of facts contradictory to the testimony of appellant Jones. The effect of the statement was to call the attention of the jury to the fact that appellants’ counsel had objected when Thompson was placed on the stand. The jury knew this fact. The objection was made in their presence and hearing. The district attorney did not tell the jury what Thompson’s testimony would have been. He merely stated that he was brought to the stand for .the purpose of telling the truth about the charter. It is not shown in the bill of exception that appellant Jones’ opinion that he had a charter for the General Neon Sign Corporation was a circumstance favorable to appellants, or had material bearing on any issue to be solved by the jury. The opinion is expressed that the bill fails to reflect reversible error.

As we understand the record and appellants’ brief, the questions hereinbefore discussed present the only matters not decided in Raymond v. State, supra. Our examination of appellants’ contentions leads us to' the conclusion that reversible error is not presented.

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.


author: CHRISTIAN, J. LATTIMORE, J.

text:
    WILEY v. STATE.
    No. 13831.
    Court of Criminal Appeals of Texas.
    Jan. 28, 1931.
    Rehearing Denied March 18, 1931.

      Carney & Carney, of Atlanta, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

Appellant, Rube I-Iuff, and Drew Wiley, appellant’s son, had engaged in a dice game. Appellant and Rube Huff had a dispute which resulted in Huff knocking appellant down. According to the state’s testimony, appellant aros.e with a knife in his hand. The parties were separated, and appellant left the gathering. It appears from appellant’s testimony that a few minutes later some unknown person shot appellant in the face with a shotgun, injuring him to some extent. It was not shown that deceased, Rube Huff, had anything to do with the shooting. Some time thereafter, according to the testimony of the state, several of the parties present went to appellant for the purpose of bringing about a peaceable settlement of the differences between appellant and deceased. From this point the state’s testimony was, in substance, as follows: Approaching appellant, they found him armed with a rifle. His son was present with a double-barrel.shotgun, and his daughter had a single-barrel shotgun. The parties were not far from the place where the first difficulty had occurred. After some talk, appellant suggested that they call deceased, as he was willing to adjust the matter with him in a peaceable manner. Deceased, being called, approached the gathering, saying: “Boys, put up your guns. Let’s settle it without guns. Peace is what I want.” Appellant said: “There is the s-of a b-. Shoot him.” Appellant’s son, Drew Wiley, fired one shot. Deceased’s hands were in a pleading position when he was shot. It appears that deceased was armed.

Appellant testified, in substance, that some one had shot him in the face shortly before ' the difficulty with deceased; that at the time deceased .was shot he (deceased) had drawn a pistol on Drew Wiley, appellant’s son, and said: “I have got you now, you s-of a b-.” That Drew Wiley shot deceased twice after he had made the demonstration mentioned.

It will be seen from the foregoing statement of the testimony that it was the state’s theory that appellant induced those who were attempting to re-establish friendly relations between him and deceased to bring deceased to the place of the homicide for the purpose of enabling appellant and his son to kill him. As showing malice, the state relied upon the antecedent difficulty deceased and appellant had had, in which deceased had knocked appellant to the ground. On the contrary, it was appellant’s theory that deceased attempted to shoot Drew Wiley as he approached the gathering, and that Drew Wiley fired the fatal shot to save his own life. There being an issue as to who began the difficulty, appellant offered the testimony of his son and daughter to the effect that deceased’s brother went to appellant’s home, in appellant’s absence, immediately after the first difficulty and stated to the witnesses, in substance, that he. had wrestled with deceased until he was worn out; that -he could not hold him any longer; that there was no telling what deceased would do; that appellant and his family should .be on the lookout for deceased.

Appellant alleged in his first application for a continuance that his wife, if present, would testify; in substance, that she heard the firing of the guns at the time it was alleged that deceased was shot; that shortly before the guns fired deceased’s brother had come to her house and told her to be on the' lookout for the deceased; that he had stated further to her that he had wrestled with deceased until he was worn out and could hold him no longer; that if deceased came to her house there was no telling what he would do; that deceased had already knocked her husband in the head and that they had laid him out “back there.” It was further averred in the application that the absent witness would testify that after her husband had had the first difficulty with deceased he had come home wounded and bleeding. Appellant, in part, predicated his motion for a new trial on the action of the court in overruling his application for a continuance, and attached the affidavit of the absent witness wherein it was shown that she would have testified to substantially the facts alleged in the application. Touching diligence, it was alleged that appellant’s wife was too ill to appear and testify. It appears that she was brought, under attachment, to a hotel near the courthouse. One of the doctors who examined the witness-testified that in his opinion she was able to •testify, but declared that she was ill. He was further of the opinion that while her life would not be endangered if she testified, yet that it might aggravate her trouble. In view of the conclusion we have reached, we deem it unnecessary to determine whether appellant was lacking in diligence.

It is not clear that the testimony of the absent witness touching what was said to her by the brother of deceased was admissible in its entirety. The expression by him of the opinion that she should be on the lookout for deceased, as there was no telling what he would do, would not appear to be admissible. Mercer v. State, 111 Tex. Cr. R. 657, 13 S. W. (2d) 689. The fact that the brother of deceased had wrestled with deceased after the first difficulty might be admissible if the brother had been called to testify as to the matter, as tending to show who began the difficulty at the time deceased was killed. It would seem that coming from the absent witness as testimony touching an uncommunicat-ed threat it would be hearsay. The testimony of the absent witness to the effect that her husband came to her home after the first difficulty in a wounded and bleeding condition was relevant and material. In any event, if all of the absent testimony should be held to be relevant and material, it does not necessarily follow .that a new trial should have been granted. It is true that the trial judge’s discretion to determine the probable truth of the testimony of the.absent witness did not operate in view of the. fact that her affidavit, in which it was shown that she would testify to the facts averred in the application for continuance, was attached to the motion for new trial. White v. State, 90 Tex. Cr. R. 584, 236 S. W. 745; Cruz v. State, 100 Tex. Cr. R. 188, 272 S. W. 486; Tubb v. State, 109 Tex. Cr. R. 458, 5 S.W.(2d) 150. As said in White v. State, supra, this should not be understood to necessitate a new trial unless the materiality of the absent testimony be such as that, if true, it would likely produce a different result upon another trial. Moreover, it was said in the same connection that it would not necessarily result in the granting of a new trial when there was other evidence cumulative of the absent testimony present or available to the appellant so that it reasonably appeared that no injury result ed in the absence of such testimony. In the recent case of Walton v. State (Tex. Cr. App.) 34 S.W. (2d) 598, delivered January 14, 1931, the rule laid down in White’s Case was reiterated. Conceding the truth of the absent testimony, -the question is whether, viewed in the light of the facts adduced upon the trial, it is of such materiality, if admissible, as that it would likely produce a different result upon another trial? Appellant’s son and daughter testified to the same facts set forth in the affidavit of the absent witness. Having the same testimony before them, the jury concluded that deceased did not begin the difficulty which resulted in his death. Notwithstanding the jury may have concluded that ■ the brother of deceased may have wrestled with him until he was worn out, and that it was his opinion that deceased was bent on mischief, the jury may have concluded that the matter was of little materiality in view of testimony touching the immediate transaction in which deceased lost his life. The learned trial judge concluded, after hearing ail of the testimony and taking into account the fact that the absent testimony was cumulative, that its production upon another trial would not likely produce a different result. We are unable to reach the conclusion that an abuse of discretion is shown.

Appellant made a motion to quash the special venire on the ground that some of the jurors shown on the list had been drawn one time before at the same term of court to “answer summons to a special venire,” and further.that the same jurors had been drawn into service as regular jurors. The court heard testimony on the motion which was, in substance, as follows; In drawing the special venire the clerk left out of the box members of the regular jury list who had been theretofore drawn on two special venires, and. placed in the box those names which had only been drawn on one special venire. The juror Rhodes was inadvertently drawn on the present venire after his name had already been drawn on two other special venires. It was not shown that he had been summoned, or that he appeared, in either ease.. Only one of the cases in which the name of the juror Rhodes appeared as special venireman had been tried. The other case was continued on the same day the present case was called for trial, and the veniremen discharged. Five men whose names appeared on the special venire list in the case at bar had at the same term of court served in the trial of a murder case, having been drawn on the special venire in that case. They were the only jurors appearing on the list who had served on any special venire. It was not shown that they had served for one week as regular jurors during that term of court.

Article 593, O. O. P., provides, in substance, that no citizen who has served as a petit juror for one week during any term of court shall, during said term, be compelled to answer summons to more than one special ven-ire. It is further provided in said article that no citizen shall be compelled to answer summons to a special venire more than twice during any one term of court. The provisions of the article referred to do not relate to counties under the “Jury Wheel Law” (Rev. St. 1925, arts. 2094-2100). The county, in which the case at bar was tried was not under the “Jury Wheel Law.” In Moore v. State, 49 Tex. Cr. R. 629, 95 S. W. 514, it was held that jurors within the exemption mentioned in the statute might serve unless they claimed their exemption, as the statute did not disqualify them. In Harris v. State, 91 Tex. Cr. R. 446, 241 S. W. 175, 179, on motion for rehearing, in considering a similar question, Judge Lattimore used language as follows:

“We further observe that it is not made to appear that the 29 jurors whose names appeared on both the Cornwall venire and that in the instant case had in fact been drawn, summoned, or served for any week of the term of the court. As we understand the law and its interpretation in Moore v. State, supra, even if the jurors themselves desired to take advantage of the exemption from jury service described in the act of the Twenty-Ninth Legislature, supra, they would have to satisfy the court that they had been summoned twice before being summoned in the matter then before the court. In other words, in order to obtain relief from jury service for a given week, a juror might show that he had served on two special venires; or, if seeking relief from special venire service, he might show that he served one week as a regular juror and on one special venire, but unless some such facts were made to appear he could not claim such exemption. Based on the opinion in the Moore Case, supra, there might be grave doubt as to the right of the accused to complain if he could show no more than that by a mistake of the clerk names had been put on his venire list of men who had the right to claim their exemption, unless it was further made to appear that such men did in fact claim such exemption. If they were present and willing to serve, it would he doubtful whether appellant would have any complaint at all.”

The action of the trial court, in overruling the motion to quash, was sustained in Harris v. State, supra, on the ground that the bills of exception relating to the matter failed to show any right on the part of the jurors to claim the exemption, or any default in the. attendance of qualified jurors in numbers corresponding to the venire ordered and drawn. In the present case the bill of exception fails lo show that the juror Rhodes was summoned to appear as a juror on the other special venires. It is merely shown that his name had been drawn and appeared on the lists. In other words, the bill of exception fails to show that the juror was compelled to answer summons to a special venire more than twice during that term of court. Further, the bill fails to show that any venireman who had served on one special venire had served for one'week as a regular juror during that term of court. Disclaiming any intention of holding that the objection would have been available to appellant had the bill been sufficient io present it, the opinion is expressed that error is not presented.

In charging on self-defense the court failed to take account of the words used by deceased. Appellant testified that deceased drew a gun on Drew Wiley and said: “I have got you, you G-- d-s-of a b-.” We quote appellant’s objection to the charge as follows:'

“Defendant further objects and excepts to paragraph 10 of the said court’s charge on self defense because the same is too restrictive of the rights of the defendant in that the court limits the jury’s consideration of the question of the self defense to an attack made or about to be made by Rube Huff upon Drew Wiley.”

We deem the exception insufficient. Article '658, O. O. P., provides that the appellant or his counsel shall present his objections to the court’s charge in writing, distinctly specifying each ground of objection. There seems to be nothing in appellant’s objection that would have apprised the trial court that' appellant was complaining because of the fact that the jury’s consideration of what might give rise to the right of self-defense was limited by the language of the court to the acts and conduct of deceased. While- no form of objection is prescribed, under the statute, a general objection is not ordinarily sufficient to bring in review the action of the trial court in refusing to amend the charge. Unless the objection is sufficiently definite to make reasonably apparent to the trial judge the fault complained of, when the charge complained of and the objection are considered together, the failure to amend the charge is not subject to review. Gill v. State, 84 Tex. Cr. R. 531, 208 S. W. 926.

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.

On Motion for Rehearing.

LATTIMORE, J.

Without critically analyzing and discussing the application for continuance made by appellant, we think the trial court well within his discretion in overruling same. We are in accord with the things said in the original opinion as to the lack of materiality of most of the testimony of appellant’s wife, the absent witness. Tom Huff, a brother of deceased, who appears to have acted throughout in the role of a peacemaker, after separating his brother and appellant, and after appellant left the party in the nighttime apparently going toward his home some half mile distant, got in his car and went to appellant’s home for the purpose of seeing him and talking the matter over. What he said to Mrs. Wiley, as set out in the application for continuance, appears in line with hi® efforts to prevent further difficulty. There appears nothing suggesting an acting together of Tom Huff with his brother at the time .of the shooting. While the expected testimony of Mrs. Wiley as to the fact that her husband’s head was bloody when he came home would be competent, yet inasmuch as there is practically no dispute as to the condition of his head, we are unable to see the materiality of this testimony in so far as it might tend to bring about a different result upon another trial. Further, in regard to said application for continuance, we observe that when the application was presented setting out the illness of appellant’s wife, the trial court sent two doctors out to her house with instructions to examine her and report. Upon their return and the making of their yerbal report, the court issued an attachment for said witness, sent the sheriff out with same, had her brought to the county seat and taken to a hotel, and, being again advised by the doctors that she was able to attend court and testify, overruled the application for continuance.

The main contention in this motion appears to be that said wife having made affidavit that she would testify as set up in the application for continuance, and appellant having attached said affidavit to his motion for new trial, the trial court should have granted the motion, and that we erred in not so holding.

It is urged that under the terms of sub? division 6 of article 543, G. C. P., as construed by the decisions of this court, the question of the probable truth of the testimony of the absent witness was put beyond the. pale of adverse decision by the trial court by the affidavit of the absent witness attached to the motion for new trial. Many authorities are cited in Mathason v. State, 89 Tex. Cr. R. 136, 229 S. W. 548, and White v. State, 90 Tex. Cr. R. 584, 236 S. W. 745, which seem to support this conclusion. It is also insisted that if the absent testimony, viewed in the light of that before the court below upon the trial be material, then in obedience to the language of said subdivision 6 a new trial should have been granted.

We must not lose sight of. other parts of said statute, nor overlook what has been so often said heretofore by this court upon this subject. While it is said in said subdivision (i, “If an application for continuance be overruled, and the defendant convicted, if it appear upon the trial that the evidence of the witness or witnesses named in the application Was of a material character, and that the facts set forth in said application were probably true, a new trial should be granted,” it is also said elsewhere in the same subdivision: “The truth of the first, or any subsequent application, as well as the merit of the ground set forth therein and its sufficiency' shall be addressed to the sorind discretion of the court called to pass upon the same, and shall not be granted as a matter of right.” In Browning v. State, 26 Tex. App. 432, 9 S. W. 770, 771, after quoting what is first above quoted from said subdivision of the statute, this court proceeds to analyze the absent testimony, and admitting its competence, we observed :

“If Mary Browning should disprove Crisp’s testimony as to this matter, would that fact disprove the other inculpatory facts which are uneontradicted, and which point with unerring certainty to the defendant’s guilt? We think not.
“The rule is well settled that testimony which, if procured, would not tend to disprove the guilt of the accused, is of too immaterial a nature to entitle him to a new trial based upon an application for a continuance to obtain it.”

And our conclusion is announced as follows:

“ ‘It is not in every case, however, even when the absent testimony is material and probably true, that this court will revise the ruling of the trial judge in refusing a new trial, considered with reference to the application for continuance. It is only in a case when, from the evidence adduced on the trial, we would be impressed with the conviction, not merely that the defendant might probably have been prejudiced in his rights by such ruling, but that it was reasonably probable that, if the absent testimony had been before the jury, a verdict more favorable to the defendant would have resulted.’ Covey v. State, 23 Tex. App. 3S8, 5 S. W. 283; Willison v. State, 7 Tex. App. 400.”

In Boyett v. State, 26 Tex. App. 704, 9 S. W. 275, 276, in his usual terse and forceful way Judge I-Iurt says:

“Let us concede for the argument that the diligence used to procure the attendance of these witnesses was perfect, the question remains, was there error in overruling the application, and was there error in refusing a new trial because of this matter? We have no hesitation in saying there was none; because the facts, if true, and adduced on the trial, would not have affected the result of the-trial in the slightest manner. And while competent, the bearing, force and effect, when considered in connection with the facts adduced on the trial, would have been as chaff before the wind.” The italics are ours.

The rule thus referred to seems to have been held from the beginning. Fernandez v. State, 4 Tex. App. 421; Peace v. State, 27 Tex. App. 93, 10 S. W. 761; McFadden v. State, 28 Tex. App. 243, 14 S. W. 128; Hammond v. State, 28 Tex. App. 415, 13 S. W. 605; Abrigo v. State, 29 Tex. App. 143, 15 S. W. 408. In Stacy v. State, 77 Tex. Cr. R. 60, 177 S. W. 114, 119, this court quotes approvingly the statement and citation of authorities laid down by Judge White in his Annotated Criminal Procedure, at page 415, as follows:

“The court on appeal will not reverse a judgment on account of the refusal of a postponement or continuance unless in connection with the other evidence adduced on the trial they are impressed with the conviction, not merely that the defendant might probably have been prejudiced in his rights by such ruling, but that it was reasonably probable that if the absent testimony had been before the jury a verdict more favorable to the defendant would have resulted. Land v. State, 34 Tex. Cr. R. 330 [30 S. W. 788]; Gallagher v. State, 34 Tex. Cr. R. 306 [30 S. W. 557]; Easterwood v. State, 34 Tex. Cr. R. 400 [31 S. W. 294]; Sinclair v. State, 34 Tex. Cr. R. 453 [30 S. W. 1070]; Bluman v. State, 33 Tex. Cr. R. 43 [21 S. W. 1027, 26 S. W. 75]; Goldsmith v. State, 32 Tex. Cr. R. 112 [22 S. W. 405]; Hyden v. State, 31 Tex. Cr. R. 401 [20 S. W. 764]; Hammond v. State, 28 Tex. App. 413 [13 S. W. 605]; Frizzell v. State, 30 Tex. App. 42 [16 S. W. 751]; Pruitt v. State, 30 Tex. App. 156 [16 S. W. 773]; Ellis v. State, 30 Tex. App. 601 [18 S. W. 139]; Browning v. State, 26 Tex. App. 432 [9 S. W. 770]; Boyett v. State, 26 Tex. App. 689 [9 S. W. 275]; Covey v. State, 23 Tex. App. 388 [5 S. W. 283]; Self v. State, 28 Tex. App. 398 [13 S. W. 602]; Phelps v. State, 15 Tex. App. 45.”

This is the same rule adhered to by the court as now constituted in White v. State, 90 Tex. Cr. R. 584, 236 S. W. 745. We might observe that if the trial court was compelled to grant a new trial because he had overruled an application for continuance based on the absence of witnesses whose testimony would be merely competent or admissible, or material to some collateral issue, which fact appeared upon the trial of the case, this would be laying down a rule the effect of which would be to materially hinder the due administration of justice. We are of opinion that the rule laid down in this regard by our predecessors should be adhered to by us, and that when an application for continuance is overruled, and the fact of such refusal is made a part of the ground of the motion for new trial, that such new trial should not be granted unless this court, reviewing the case within its appellate jurisdiction, is satisfied that the action of the trial court in the overruling of such motion for new trial amounted to an abuse of his discretion in determining in the first instance that, had the absent testimony been present-on the trial, no different result would have been likely.

We are not quite able to see the force of the exception leveled at paragraph 10 of the court’s charge, same being on the issue of self-defense. In substance said paragraph told the jury that if Drew Wiley killed deceased, but if the jury believed from the evidence, or had a reasonable doubt of the fact, that deceased had made an attack on Drew Wiley or appellant, or if the jury believed that- it reasonably appeared from the standpoint of either Drew Wiley or appellant that deceased was about to make an attack on either of them, which from the manner and character of it, or the relative strength of the parties, or their knowledge or that of either of them of the character and disposition of the deceased, caused them or either of them to have a reasonable expectation or fear of death or serious bodily injury, and that under such circumstances Drew Wiley killed deceased, or under such circumstances appellant advised or encouraged by words Drew Wiley to do such killing, the jury should acquit. The testimony quoted in appellant’s motion for rehearing, as given’ by himself and his daughter, tended pertinently to support the theory that at the time deceased was killed he had leveled his pistol at Drew Wiley and had accompanied this act by a threat. This would seem to show an attack already made, or at least one about to be made, and this would be covered by the charge excepted to.

We think the motion for rehearing should be overruled, and it is accordingly so ordered.