author: BEAUCHAMP, Judge.

text:
    PERRY v. STATE.
    No. 21479.
    Court of Criminal Appeals of Texas.
    March 5, 1941.
    John F. Perry, of San Antonio, for appellant.
    John C. Marburger, Co. Atty., of La Grange, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was charged by complaint and information with the theft of a check of the value of $15 and was assessed a penalty of six months in jail and a fine of $300, from which he appeals.

The complaint and information allege that the said R. L. Perry, on or about the 23rd day of February, 1940, “did then and there unlawfully, wilfully and fraudulently take, steal and carry away certain corporeal personal property, not his own, to-wit: a check of the value of $15.00, the same being the corporeal personal property of George H. Giesber from the possession of the said George H. Giesber without the consent of the said George H. Giesber with the intent to deprive said George H. Gies-ber of the value thereof, * *

It will be noted that there is no description of the check whatever. It does not show by whom it was drawn, its date, amount of the check, the number, nor to whom it is payable. It • merely alleges it was a check of the value of $15. The complaint and information are insufficient for lack of description. Fulshear v. State, 59 Tex.Cr.R. 376, 128 S.W. 134; Gaines v. State, Tex.Cr.App., 77 S.W. 10; Calentine v. State, 50 Tex.Cr.R. 154, 94 S.W.1061, 123 Am.St.Rep. 837; Luce v. State, 88 Tex.Cr.R. 46, 224 S.W. 1095, 1097; Holland v. State, 110 Tex.Cr.R. 384, 10 S.W.2d 561; Burns v. State, 112 Tex.Cr.R. 328, 16 S.W.2d 538; Sasse v. State, 113 Tex.Cr.R. 513, 22 S.W.2d 941; Fuller v. State, 118 Tex.Cr.R. 588, 37 S.W.2d 1034; 41 Tex.Jur. 117, paragraph 73. Carlton v. State, 132 Tex.Cr.R. 537, 106 S.W.2d 279.

That the check must be sufficiently described to identify it has been so frequently considered and the reason for the conclusion so thoroughly discussed that we deem it unnecessary to further treat the subject in this opinion.

The appellant’s father, acting as his attorney, presented for filing in this court what he denominates a brief for appellant. In it he attempts to try the case in this court by statements'of his own as well as affidavits of other parties. His statements are directly in conflict with the record of the case and the greater part of it attempts to bring in matters not in the record and Wholly foreign to any issue in the case. Furthermore, it exhibits a studied attd planned effort to prejudice the court against the parties at interest, the officials of the county from which it' comes, and the jury which was called to service. Such effort is a reflection on the intelligence and integrity of the court and by it considered unworthy of a place in its archives. Accordingly, the same is stricken from the record and the clerk of the court is directed to withdraw therefrom his file mark as from an improper instrument and to return it to the attorney filing it.

For the defects in the complaint and information above pointed out the judgment of the trial court is reversed and the cause ordered dismissed.


source: Caselaw Access Project

author: KRUEGER, Judge.

license: Public Domain

text:
    BUSSELL v. STATE.
    No. 21464.
    Court of Criminal Appeals of Texas.
    March 5, 1941.
    E. T. Miller and Cleo G. Clayton, Jr., both of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.-
   KRUEGER, Judge.

The conviction is for theft of cattle. The punishment assessed is confinement in the state penitentiary for a term of two years.

The first contention made by appellant is that the evidence is insufficient to justify and sustain his conviction. In order that this opinion may reflect the basis for our conclusion, we will briefly state the testimony adduced by the State.

Mrs. C. M. Brown, in the early part of the year 1940, owned approximately 200 head of cattle which were located on her farm in Deaf Smith County. About 160 of these cattle were white-faced steer and heifer yearlings, and they were being fed in a feed pen. Charley Brown, a son of Mrs. Brown, was feeding and taking care of the cattle. These cattle,, with the exception of 46 head, had been purchased by Mrs. Brown and carried different brands. Some were branded a figure “7” with a round top, and some a figure “7” and also a swastika on the left thigh. The cattle broke out of the feed pen and strayed away. About February 14th, Charley Brown rounded them up and placed them back in the feed pen. He then counted them and found that 9 of such cattle were missing.

On the 2d day of February, 1940, W. R. Bussell, a brother of appellant, sold 12 head of one-year-old white-faced cattle through the auction ring at Lubbock. Eight of said 12 cattle were sold to a cattle company in Cedar Rapids, Iowa. Sometime later, the time being left in a state of uncertainty, Charley Brown went to Cedar Rapids, Iowa, and found 5 white-faced steef yearlings bearing the same brand as those which his mother had purchased and had on feed. On the night of May 12, 1940, appellant was arrested by several Texas Rangers and members of the New Mexico State Police, carried to the court house at Farwell, where, after being questioned by the officers for several hours, he made a written confession in which he stated that on the night of February 1, 1940, he and his brother (W. R. Bussell) went to the feed pen of Mrs. Brown, cut out 9 steer yearlings and drove them home, where he and his brother loaded them in a truck. His brother said he was going to take them to Lubbock and sell them. On or about the 6th of February, W. R. Bussell gave appellant a check in the sum of $125 as his part of the proceeds of the sale of said cattle.

Appellant testified in his own behalf upon the trial. He repudiated his 'confession and claimed that he was threatened by the officers with physical violence and as a result of such he made the confession in question. He admitted, however, that he was not mistreated in any manner, but only threatened by the officers, which they emphatically denied. He .testified that the check in the sum of $125 was given him by his brother for labor and services rendered.

Appellant contends that the State relied entirely upon his extra-judicial confession, which under the law, is not sufficient to sustain a conviction. It is true, as claimed by appellant, that one cannot be convicted on his extra-judicial confession alone, but where the facts and circumstances are proven which show that an offense was committed or which, taken in connection with the confession, establish the corpus delicti, and the confession connects appellant with the commission of the offense, the evidence will ordinarily be deemed sufficient to sustain the conviction. See Black v. State, 137 Tex.Cr.R. 173, 128 S.W.2d 406, and cases there cited.

In the present case, we have evidence that Mrs. Brown missed 9 white-faced steer and heifer yearlings from her feed pen on or about the 14th day of February. Appellant’s brother sold 12 head of cattle at Lubbock, 8 of which were sold to some cattle company at Cedar Rapids, Iowa. Charley Brown went to Cedar Rapids and found 5 white-faced steer yearlings bearing the same brand and otherwise corresponding with the description of the cattle which Mrs. Brown missed and which he identified as belonging to his mother. This, when taken in connection with appellant’s confession-, is deemed sufficient to show the commission of the offense of theft and appellant’s connection therewith. Appellant cites us to the case of Zepeda v. State, 139 Tex.Cr.R. 258, 139 S.W.2d 820, as sustaining his contention. An examination of the opinion in that case will disclose that we held the evidence failed to establish the corpus delicti and for that reason the judgment of conviction was reversed. The same is true in the case of Johnson v. State, 117 Tex.Cr.R. 103, 36 S.W.2d 748.

In the case of West v. State, 116 Tex. Cr.R. 468, 34 S.W.2d 253, the facts and circumstances proven established the corpus delicti. However, the facts and circumstances proven in that case are not as certain and conclusive as those proven in the instant case, which are supplemented by the confession of the appellant.

The case of Price v. State, 136 Tex.Cr.R. 357, 125 S.W.2d 574, cited by appellant is readily distinguishable from the instant case on the facts. In that case a Hereford bull yearling disappeared from Perry Taylor’s pasture and was later seen in the pasture of Mr. Coffee with other cattle including a bull belonging to Coffee. Price, the accused, was seen in the Coffee pasture one afternoon apparently driving the bulls and when he observed other persons in the pasture he ran or walked away. There was no evidence which showed that the bull was taken out of the Taylor pasture ' and placed in the Coffee pasture by Price. If some other person had taken the bull out of the Taylor pasture and placed him in the Coffee pasture without some evidence showing Price’s connection therewith, his conviction could not stand and we so held. Had Price made a confession implicating himself with the original taking, a different question would have been presented.

Appellant cites some other cases which he claims support his contention, but, in our opinion, they are not more in point than those which we have discussed. However, it is our opinion that the evidence is sufficient upon which the jury could base their conclusion of appellant’s guilt.

By Bill of Exception No. 1, appellant complains of the introduction in evidence of his written confession. His objection thereto was that a proper predicate had not been laid for its introduction and that it was highly prejudicial. No contention is made that it was improperly obtained. We find from the record that a proper predicate was laid for its introduction. Hence we overrule appellant’s contention. See DeBeauford v. State, 95 Tex.Cr.R. 398, 254 S.W. 572.

By Bill of Exception No. 2, appellant complains of the introduction in evidence of a certain check in the sum of $125 issued by W. R. Bussell on February 6, 1940, and payable to appellant. We are of the opinion that this check became admissible in connection with his confession and was a circumstance sustaining and corroborating that part of the confession which related to the check mentioned and what it was issued to him for.

Bills of Exception Nos. 5 and 6 are deemed to be withoyit merit and are overruled without discussion.

It is made to appear from Bill of Exception No. 7 that while the State was cross-examining appellant, he was asked the following question: “Now, at the time you were picked up over here at the dance hall at Friona, you were drinking' some that night, were you not ? ”

Appellant objected thereto on various grounds which we do not deem it necessary to state here. The record is silent as to whether the question was answered or what action was taken by the court. It might be that the court immediately instructed the jury not to consider the question for any purpose. However, there was testimony from the officers to the effect that appellant was drunk on the night in question; that they prepared coffee and gave him three cups of coffee for the purpose of sobering him up. This testimony was not objected to. The general rule is that when evidence is admitted without objection which is similar to or of like character as that objected to, no reversible error is shown. See Sparkman v. State, 128 Tex.Cr.R. 627, 82 S.W.2d 972; Enix v. State, 112 Tex.Cr.R. 376, 16 S.W.2d 818.

Bill of Exception No. 8 reflects the following occurrence: After Pat Talia-ferro was called by the State as a witness in rebuttal, he was asked if he made the following statement to appellant at the time he mad.e the confession : “How would you like for us to throw your father in ? ” To which the witness replied: “Not to that exact words; it was discussed. ‘We had found some more cattle’.”

Appellant objected to the last sentence, “We had found some more cattle”, on the ground that it was prejudicial to the rights of the defendant. The court sustained the objection and instructed the jury not to consider the same as any evidence in the case. There is nothing in the question or answer which suggests that appellant had anything to do with the other cattle. The question and answer, by inference, might implicate the father, but not the appellant, and since the court immediately instructed the jury not to consider it as any evidence in the case, we fail to see any reversible error reflected by the bill.

Bill of Exception No. 9 is overruled without discussion.

No error having been presented requiring a reversal of the conviction, the judgment of the trial court 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:
    SCHWARTZ v. STATE.
    No. 21476.
    Court of Criminal Appeals of Texas.
    March 5, 1941.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for failing to stop and render aid to a person struck by an automobile driven by appellant. The penalty assessed is confinement in the county jail for a period of five months.

The indictment appears to be in regular form. The record is before us without statement of facts or bills of exception. Appellant entered a plea of guilty to the offense charged and waived a jury upon the trial.

No error having been presented by the record, the judgment of the trial court 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: KRUEGER,. Judge.

text:
    HERRING v. STATE.
    No. 21472.
    Court of Criminal Appeals of Texas.
    March 5, 1941.

      McIntosh & Duncan, of Gilmer, for appellant.
    ■Lloyd W. Davidson, State’s Atty., of Austin, for the State. .
   KRUEGER,. Judge.

The conviction is for the offense of burglary. The punishment assessed is confinement in the state penitentiary for a term of four years.

It was charged in the indictment that on the 26th day of June, A. D., 1940, in the County of Upshur and State of Texas, Marvin Herring did then and there unlawfully, by force, enter a house occupied and controlled by O. S. Loyd, etc. The unlawful entry of the house by appellant and the theft of piston rings are sufficiently shown by the testimony.

Appellant’s defense was that of insanity and in support of said plea he introduced a judgment entered by the County Court of Upshur County on the 14th day of August, 1931, adjudging him to be a person of unsound mind. The testimony shows that under such judgment he was sent to the lunatic asylum at Terrell, Texas. This judgment seems to have been in full force and effect at the time of the commission of the alleged offense as well as at the time of his trial on the charge of burglary. The record fails to show that he was ever discharged as a result of having recovered his sanity. With this testimony before him, the court instructed the jury relative to the law of insanity and in connection therewith charged them as follows: “The defendant is not required to establish his plea of insanity beyond a reasonable doubt; the burden is on him to establish it to the satisfaction of the jury, by a preponderance of the evidence.”

Appellant, at the proper time and in due form, objected to said instruction on the ground that it shifted the burden of proof from the State to the defendant, but the court declined to heed the objection and failed to amend his charge. Under the circumstances, we are constrained to sustain his contention.

While, ordinarily, a defendant who relies upon insanity as an excuse on a crim-inal charge, or in a criminal prosecution, is required to sustain his plea by a preponderance of the evidence, yet, where he has theretofore been adjudged a lunatic and the judgment has not been set aside or vacated, and he has not been discharged from the asylum as fully restored to sanity, a different rule applies. In such cases, the State must establish his sanity beyond a reasonable doubt at the time of the commission of the offense. See Glover v. State, 125 Tex.Cr.R. 605, 612, 69 S.W.2d 136, and cases there cited; also Gunter v. State, 139 Tex.Cr.R. 145, 139 S.W.2d 116.

Bill of Exception No. 1 reflects the following occurrence: While Olan Loyd, the alleged injured party, was testifying at the instance of the State, he testified as to the burglary of his house and theft of the piston rings. He then stated that appellant told him where the rings were and also told him to get them from Skinner Granville. Appellant objected to what he told Olan Loyd because he was under arrest at the time and had not been warned as required by law, which objection was overruled by the court and appellant excepted. It appears from the record that as a result of the information given by appellant to Loyd the rings were found where appellant said he had disposed of them. This being true, it made no difference whether he had been warned or not. Article 727, C.C.P. provides that when stolen property is found as a result of the confession, the confession becomes admissible regardless of whether the accused has been warned or not. See Jones v. State, 50 Tex.Cr.R. 329, 96 S.W. 930; Sampson v. State, 78 Tex.Cr.R. 432, 181 S.W. 193; Freeman v. State, 80 Tex.Cr.R. 20, 188 S.W. 425; Torrence v. State, 85 Tex.Cr.R. 310, 212 S.W. 957; Washington v. State, 86 Tex.Cr.R. 327, 216 S.W. 869. Many other cases might be cited.

The matter complained of in .Bill of Exception No. 2 will most likely not arise upon another trial. Hence, we pretermit a discussion thereof.

For the error hereinabove discussed, the judgment of the trial court 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: BEAUCPIÁMP, Judge.

text:
    SCOTT v. STATE.
    No. 21470.
    Court of Criminal Appeals of Texas.
    March 5, 1941.
    Harvey P. Shead, of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCPIÁMP, Judge.

Appellant was given two years in the penitentiary on a charge of receiving and concealing stolen property, from which he appeals.

The indictment properly alleges the theft of $250 by another party and the receipt and concealing of same by appellant. The only evidence relied upon to support the conviction is the testimony of Bill Maddox, a policeman, who relates that appellant told him that he had received $250 of the money and said he hid it.

By an appropriate bill of exception the defendant attacks the sufficiency of this evidence to support a conviction on the ground that the state has failed to show that the money which appellant admitted he received was acquired by theft. The corpus delicti may not be established by the extrajudicial confession of the appellant alone, which may only be utilized to aid other proper evidence to establish it. Franklin v. State, Tex.Cr.App., 144 S.W.2d 581, and J. T. Patterson v. State, Tex.Cr.App., 146 S.W.2d 993, not yet reported [in State Report],

The judgment of the trial court is reversed and the cause remanded.


author: HAWKINS, Presiding Judge.

text:
    HOGG v. STATE.
    No. 21471.
    Court of Criminal Appeals of Texas.
    March 5, 1941.
    Thomas & Thomas, of Big Spring, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

The conviction is for theft of an automobile, and punishment assessed at two years in the penitentiary.

Appellant was convicted upon a plea of guilty on September 22, 1939, and granted a suspended sentence. Fie was thereafter convicted in Tom Green County, Texas, on the 29th day of November, 1939, of another felony, whereupon the suspension of his sentence in the present case was revoked and the judgment of conviction herein made final, and sentence pronounced against him on September 23, 1940.

There are no bills of exception and no statement of facts brought forward. Nothing is presented for review.

The judgment is affirmed.


text:
    SULTEMIER v. STATE.
    No. 21468.
    Court of Criminal Appeals of Texas.
    March 5, 1941.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from a conviction giving a life sentence on a charge of rape.

The record is before us without statement of facts or bills of exception. The indictment and procedure thereon are regular. No question is presented for the consideration of this court, and the judgment of the trial court is accordingly affirmed.


author: GRAVES, Judge.

text:
    Ben TAYLOR, Appellant, v. STATE, Appellee.
    No. 21564.
    Court of Criminal Appeals of Texas.
    March 12, 1941.
    Alex P. Pope, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

The conviction is for the theft of chickens; the punishment assessed is a fine of $100 and imprisonment in the county jail for five days.

Since his appeal was perfected, the appellant has filed a written request, verified •by his affidavit, asking the privilege of withdrawing his appeal. The request is granted and the appeal ordered dismissed.


text:
    JENKINS v. STATE.
    No. 21475.
    Court of Criminal Appeals of Texas.
    March 5, 1941.

      Williamson & Nordyke, of Stephenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for knowingly passing a forged check; punishment assessed 'being two years in the penitentiary.

Appellant, Trilby Bowden and Clyde-Henson, went from Stephenville to Glen Rose on July 4, 1940, traveling in Bowden’s car. They became short of funds and decided to procure some by means of a check. Appellant filled in the date and amount of a check for $5, making sam,e payable to himself, and drawn on the Farmers First National Bank of Stephenville, Texas; and Henson signed the name of “Felix Dean” to the check. It was passed at a filling station where the said parties got some gasoline and received $4.35 in cash, which was handed to the appellant. He represented that he had been cutting Johnson grass for Mr. Dean and that the check was given appellant in payment for said labor.

The case against appellant was tried on September 9, 1940, but resulted in a mistrial. The trial court called the .case again on September 11, 1940. Appellant filed a motion in which he challenged the array of jurors for the week, averring that all of them were present on September 9th and heard the attorneys state the nature of the case and the questions propounded by said attorneys to the jurors; and further averred that the trial judge had excused a part of the panel in the absence of the appellant. No formal bill of exception is brought forward in which it is certified by the court that the averments in the motion were true; and the motion being a mere pleading in the case, the averments therein do not prove themselves. The trial court appended to the motion a statement that the jurors who had been excused in the appellant’s absence were brought back into court and were again excused in his présence after stating that they had formed an opinion as to his guilt. From such statement we assume that the jurors so excused were the ones who had sat upon the first trial of, the appellant. Nothing is shown to this court which would indicate that the jurors who sat in the present trial were other than fair and impartial jurors. If any of them were in the court room during the first trial and heard the evidence then introduced and from this formed an opinion as to appellant’s guilt, they, of course, would not be proper jurors. If such were the fact, it could easily have been ascertained and the complaint brought forward in a proper bill of exception, but this has not been done. The presumption is that the trial judge acted correctly in the matter, and such presumption has not been overcome by the showing here made.

Bill of Exception No. 1 complains of the admission in evidence of the appellant’s written confession. Said confession has at the beginning a recital that appellant was warned by Clint A. Barham and that the confession was made to him, the warning in all respects complying with the requirements of Article 727, C.C.P. It is stated as grounds of objection in the bill that Barham had not sufficiently warned appellant. There is no certificate in the bill verifying the truth of the objection. There should have been incorporated in the bill sufficient of the evidence to exhibit a basis for the appellant’s complaint. See Branch’s Ann.Tex.P.C., sec. 2D9, and authorities cited thereunder. The point apparently sought to be presented by the bill in question, as we understand it, was decided adversely to appellant in De Beauford v. State, 95 Tex.Cr.R. 398, 254 S.W. 572.

The only other bill brought forward complains of the fact that while the State’s attorney was interrogating the witness Bar-ham concerning the confession, the trial court asked the witness if appellant read the statement, to which the witness answered, “Yes, sir; he did,” before appellant could interpose an objection. The grounds of objection stated are that such question by the court had the effect of inducing the jury to believe that the court thought the statement (confession) had been executed in due formality. We fail to see how the question as framed by the court was calculated to impress the jury with the idea embraced in the objection. The purpose of the question was obviously, to ascertain the facts regarding the making of the confession, and we fail to see the possibility of injury to the appellant therefrom. See Rodrigues v. State, 110 Tex.Cr.R. 267, 8 S.W.2d 149, and cases there cited.

The judgment is affirmed.


text:
    GUERRERA v. STATE.
    No. 21483.
    Court of Criminal Appeals of Texas.
    March 5, 1941.
    Wade & Wade, of Beeville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from a sentence of fifty years in the penitentiary for murder.

Appellant was indicted for the murder of his wife, Juanna Guerrera, on the 20th day of July, 1937, by choking her on and around her throat with his hands. The second count of the indictment alleges that he strangled her with his hands. This is the second appeal of the case, the former one being found reported in 136 Tex.Cr.R. 411, 125 S.W.2d 595. That opinion, however does not give a statement of the facts of the case and the questions before us at this time are different to the one upon which reversal was had.

Appellant and deceased were members of two Mexican families living near Charco in Goliad County, where it appears they had lived all of their lives. The deceased and appellant were the parents of two or three children and were expecting the birth of another in a short while. The two minor children were in the home with their mother at the time of her death, but were too young to give testimony in the case.

It is the contention of the state that appellant and his wife had previously consulted officers and others about domestic difficulties, but it also appears that each desired to live with the other if they could succeed in getting along. There is slight evidence of previous violent conduct of appellant towards his wife, but not of a serious nature. On the day of the death of his wife appellant had been at work. He came home near the close of the day and ate the supper which she had prepared, but there is no evidence of any conversation between them other than a brief statement by one to the other. As soon as appellant had finished eating he responded to the request of his father and went to help him and a brother change or fix some tires on some trucks or trailers. They were only a short distance from appellant’s house. This is the statement of appellant and the only evidence in the case on the subject.

It further details that while they were working they heard a noise at the house (some said children screaming) and rushed to see what it was. They found the wife on the floor between the beds in a condition which they described as being a convulsion. In falling, or in some other way, they stated she had caused some lacerations which accounted for -the bloody condition which she was in. Appellant and his brother went for a doctor arriving at about 10 o’clock that night. Dr. E. R. Young, also a witness for the state, tells of the appellant coming to his house at that time and returning in the car with him to their home where they arrived at 11 o’clock. Upon his arrival he found the wife dead. He picked up her hand and found it warm and flexible, indicating to him that she had been dead some thirty minutes and probably a little longer. At the insistence of some of the parties present, and upon their statement that she had been murdered, he made only a slight examination, hut advised that they get an officer.

Other doctors were called by parties interested and they were produced as witnesses by the state. From the evidence of Dr. W. F. Hinkle, who had died since the first trial and whose evidence was reproduced under the rule, we summarize the following facts: He found marks on the throat that looked like fingerprints. One arm had some marks about the wrist. In his judgment the cause of her death was strangulation. He felt pretty sure that she had been strangled to death. On cross-examination he said there was no autopsy made of the body and no test of the urine was made. On further cross-examination he concluded, “No, I could not say whether she was killed by a lick on the back or not. Rigor mortis had set in and it would be hard to determine positively the exact cause of the death.”

Dr. L. W. Chilton, Sr., another physician called, testified that he found the imprint of fingers on the throat and bruises on the shoulder and one on the back. He thought it was a human hand that caused the marks on her throat. Nothing else could have made the same imprint. He formed the opinion that she was strangulated— strangled to death. She could not have strangled herself to death. No autopsy was performed and no test of the urine made and he found no other evidence than strangulation as a cause of the death. He said, “Well, I feel pretty sure as far as I can go. I think I said to the jury that I could not say positively what caused her death without an autopsy, the same as at the last trial. I testified before,- ‘It is my belief that strangulation caused the death of Juanna Guerrera, but I do not know for sure’, and I still believe it. No, sir, I do not know for sure. I believe it firmly though. Yes, sir, I do not for sure; Yes, sir, that is right.”

The sheriff, the constable, the justice of the peace and others testified, the most thorough evidence being given by the undertaker who examined her body. His description of the injuries did not vary materially from that given by others, but it is observed that no one gave any description of the injuries that would indicate their extent or seriousness. This witness reached the conclusion, as did the doctors, that in his opinion death was caused by strangulation. He formed that opinion .at her house at the time he saw her. He believed that she was choked to death. He says if he had been ordered by the proper authority to take out her windpipe he would have been able to determine whether or not it was fractured or bruised in any way at all. “I could determine positively whether or not strangulation caused her death in that way.” Further asserting on cross-examination that it was his opinion at all times that she had been choked to death, he said, “I would not swear that she had been strangled unless I had an autopsy.”

No one testified to any condition of the room which indicated any struggle and there was nothing given to show that appellant had been involved in any struggle. The evidence is silent on these things and such silence is significant.

This is the strength of the state’s testimony to prove the murder of appellant’s wife. The witnesses had an opinion which was merely an opinion in each case. It was within the power of the state to procure positive testimony by ordering an autopsy, which was not done. If skilled physicians and an experienced undertaker who was educated and trained in his profession, as the evidence shows, could not be certain about their conclusion without an autopsy, the state would be in no position to ask the jury to go further. Wood v. State, Tex.Cr.App., 145 S.W.2d 194.

Furthermore, there is no evidence connecting appellant with the murder even if one is to be presumed, beyond slightly suspicious circumstances. He was her husband and they had difficulties, as others have. It would be an unfortunate conclusion if we should sustain a finding of his guilt under such facts.

As we view the case, the state has wholly failed to prove the corpus delicti, even had the jury been authorized to find from the evidence that she died from strangulation. An essential element is appellant’s connection therewith. Baker v. State, 112 Tex.Cr.R. 254, 16 S.W.2d 248; Harris v. State, 28 Tex.App. 308, 12 S.W. 1102, 19 Am.St.Rep. 837.

Many errors are complained of in this lengthy record, each of which has been ably treated in appellant’s brief, but we do not believe the circumstances of the case warrant a discussion of them as it is altogether unlikely that they will arise again in this particular case.

Because the evidence is insufficient to show murder, and because it i-s insufficient to warrant a jury in finding appellant guilty, even if the proof of death by strangulation was sufficient, the judgment of the trial court is reversed and the cause remanded.


text:
    McKIBBEN v. STATE.
    No. 21059.
    Court of Criminal Appeals of Texas.
    June 26, 1940.
    Fred O. Jaye, of DeLeon, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Appellant was convicted in Comanche County of robbery and his punishment assessed at five years in the penitentiary.

Appellant gave notice of appeal to this court and the record was filed here on the 26th day of February, 1940. It is now shown by proper certified copies of orders and judgments that on May 3, 1940, there was pending in Eastland County, Texas, a prosecution against appellant in which he was charged with a felony, to-wit, forgery.

On the date last mentioned an affidavit was filed in the District Court of Eastland County where the forgery charge was pending averring that appellant was then insane, and requesting that he be first tried on that issue before putting him to trial upon the forgery charge. A jury was impaneled and it returned a verdict finding that appellant was then insane. Said judgment was certified to the County Judge of Eastland County, who by proper orders committed appellant to the asylum at Wichita Falls, where he is now confined.

Art. 925, C.C.P., provides: “Upon the trial of an issue of insanity, if the defendant is found to be insane, all further proceedings in the case against him shall be suspended until he becomes sane.”

Counsel for appellant has filed a motion asking that under the provision of the article quoted further proceedings in the present cause be suspended until this court is properly advised that appellant has become sane. The article in question applies to proceedings in the Court of Criminal Appeals as well as to the trial court. See Williams v. State, 135 Tex.Cr.R. 585, 124 S.W.2d 990; Jones v. State, 137 Tex.Cr.R. 150, 128 S.W.2d 815.

Under the provision of Article 921, C.C.P., as amended in 1931, Acts 42d Legislature, page 82, Chapter 54, Vernon’s Ann.Tex.C.C.P. art. 921, it is Contemplated that the issue of insanity after conviction should be tried and determined by the District Court in which the conviction occurred. Ex parte Milliken, 108 Tex.Cr.R. 121, 299 S.W. 433; Ex parte Davenport, 110 Tex.Cr.R. 326, 7 S.W.2d 589, 60 A.L.R. 1403; Escue v. State, 88 Tex.Cr.R. 447, 227 S.W. 483; Bland v. State, 137 Tex.Cr.R. 486, 132 S.W.2d 274, 130 S.W.2d 292. None of the cases mentioned presents a situation similar to that here present and in enacting the statute referred to the Legislature apparently did not foresee nor contemplate a situation as has arisen here. The judgment of present insanity of appellant was not in the District Court where the instant conviction occurred, hut was in a District Court where another felony charge was pending against appellant. There can be no question, therefore, of the jurisdiction of the District Court of Eastland County to determine the issue of present insanity of appellant as it related to the charge of forgery pending against him in that county. Is the result restricted to that particular case ? In other words, if there were pending against appellant felony prosecutions in six different counties would the law require six different trials in each of the six counties on the issue of appellant’s present insanity, notwithstanding he had been adjudged insane in one county by a court of competent jurisdiction; had been committed to the asylum and was there con-find under a judgment not tainted with fraud, and in full force and effect ?

The question is not free from difficulty. However, without going into a further discussion of the matter at this time we have concluded that no harm can ultimately result to either the State or appellant to direct the retirement of this case from the docket, and the stay of'further proceedings therein until this Court is advised by proper orders and judgments that appellant has been restored to sanity, and it is so ordered.


author: HAWKINS, Presiding Judge.'

text:
    CONVERSE v. STATE.
    No. 21237.
    Court of Criminal Appeals of Texas.
    March 5, 1941.
    , Julian La Crosse, of Del Rio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.'

The conviction is for burglary; the penalty assessed is confinement in the penitentiary for two years.

The judgment of conviction was affirmed at a former day of this term. In his motion for rehearing appellant urgently insists that w? reached a wrong conclusion in our original opinion.

Articles 1389 and 1390 of the Penal Code define ordinary burglary. Article 1391, P. C., defines burglary of a private residence at night, defines a private residence, fixes the punishment, and then as a part of said article, provides: “Such burglary [that is, of a private residence at night] is a distinct offense, and nothing making it such shall alter or repeal the two preceding articles.” Article 1396 of the Penal Code reads: “By ‘daytime’ is meant any time of the twenty-four hours from thirty minutes before sunrise until thirty minutes after sunset.”

The first count in the indictment alleged burglary by force and breaking which was sufficient to charge either a daytime or nighttime burglary. The second count charged a nighttime burglary of the private residence of L. R. Edmerson; and the third count charged the daytime burglary of the private residence of said Edmerson.

The court may take judicial knowledge that at the time of the burglary and in the locality where it occurred the sun set at 22 minutes after 6 o’clock. Thirty minutes later would make the night begin at 6:52 o’clock. The evidence shows without controversy that the house entered was the private residence of Mr. Edmerson. It is not necessary to set out the evidence relating to the time at which the entry occurred. The evidence raised an issue upon this point and leaves it uncertain as to the time the burglarious entry was made. If appellant went into the house before 6:52 o’clock, it was daylight burglary; if he went into the house after 6:52, it was nighttime burglary of a private residence. The trial court woüld have been authorized to submit both the first and second counts to the jury under the evidence. Appellant’s counsel very frankly concedes that if this had been done, the evidence would have supported a finding of guilt upon either count and left appellant without just cause of complaint.

The trial court submitted only the first count, expressly directing the jury to disregard the other counts in the indictment. When the charge was presented to counsel, he filed written obj ections thereto:

“2. Because said charge fails to instruct the jury that if under the evidence they find and believe that the -house alleged to have been burglarized was the private residence of the injured party L. R. Edmerson, that it would be the duty of said jury to acquit the defendant under the first count of the indictment if such burglarious entry, if any, occurred at nighttime, for the purpose of committing theft or other felony.”
“3. Because said charge fails to tell.the jury that if they have a reasonable doubt as to whether the burglarious entry, if any, was of the private residence of the alleged injured party, L. R. Edmerson, at nighttime, for the purpose of committing theft or other felony, (as nighttime should be defined in the charge) then that it would be the duty of the jury to acquit the defendant under the first count.”

Counsel further concedes that if the court had responded to the foregoing objections and given the instructions suggested and the finding of the jury had been against appellant, there could have been no valid complaint under the evidence before them.

The first case involving what is now Article 1391, P.C., was Osborne v. State, 42 Tex.Cr.R. 557, 61 S.W. 491, decided shortly after said article came into our statute. It was there held that when the evidence showed burglary of a private residence, a conviction could not be had under an indictment charging ordinary burglary. This holding was corrected in Williams v. State, 42 Tex.Cr.R. 602, 61 S.W. 395, 62 S.W. 1057, which pointed out that a daytime burglary of a private residence could be sustained under an ordinary indictment for burglary. In Martinus v. State, 47 Tex.Cr.R. 528, 84 S.W. 831, 122 Am.St. Rep. 709, it was pointedly held that where the evidence showed a burglary at night of a private residence, a conviction therefor could not be had under an ordinary indictment for burglary. So far as we are advised, there has never been a departure from such holding. Some of the later cases are: Dodd v. State, 108 Tex.Cr.R. 375, 1 S.W.2d 292; Foster v. State, 110 Tex.Cr.R. 594, 9 S.W.2d 1037; Martin v. State, 123 Tex.Cr.R. 82, 57 S.W.2d 1104; Crawford v. State, 127 Tex.Cr.R. 550, 78 S.W.2d 623. See, also, authorities cited in Branch’s Ann.Tex.P.C., pp. 1289 and 1290; 7 Tex.Jur. p. 802, sec. 52, and authorities thereunder.

The Crawford case last above cited appears to be direct authority supporting appellants contention. There, the charge was ordinary burglary. The evidence raised an issue of the burglary of a private residence at night. The objections urged to the court’s instruction were almost identical with the ones before us in the present case. It was said in the Crawford opinion :

“If the evidence is not conclusive that the house was entered in the nighttime, then unquestionably the evidence would raise such issue, and it should have been submitted to the jury.
⅜ ♦]» ⅜ ⅜ i}c
“It follows that a reversal of this case is demanded whether the evidence only raises the issue of the burglary of a private residence at night, or whether the evidence conclusively shows that the house burglarized was the private residence of Juan Samanigo and was entered at night.”

We are not unmindful of the holding in Hopkins v. State, 61 Tex.Cr.R. 590, 135 S.W. 553, in which the opinion on rehearing seems in part at least to be predicated on the proposition that if the trial court erred in submitting ordinary burglary only, it was to appellant’s advantage and therefore no ground of complaint existed. We think such a position is not sound, and in so far as the Hopkins case holds contrary to the views herein expressed, the same is overruled.

In the present' case, the evidence raises an issue of fact which the jury alone has the right to settle. Instead of permitting the jury to determine it under proper directions as to the law, the court declined to submit the issue to the jury at all and thereby in effect himself passed upon the question of fact. It may be that the court believed it was really to the benefit of appellant, as the penalty permitted under ordinary burglary is much less than that of burglary of a private residence at night. But it is appellant’s contention that if the burglary here under investigation was a nighttime burglary of a private residence, it was a complete bar to any conviction for ordinary burglary. It being beyond dispute that the house entered was a private residence, then it is appellant’s further contention that it was a question of fact under the evidence whether the bur-glarious entry occurred at night and that he was entitled to have the jury determine that issue of fact under an instruction to acquit appellant under the count of the indictment submitted if they found the burglary occurred at night.

The legal question involved appears to be the same as that dealt with in Jarrott v. State, 96 Tex.Cr.R. 239, 257 S.W. 256, 257, where accused was prosecuted for theft from the person and contended that under the evidence he was entitled to an instruction directing an acquittal if the property was taken by robbery. This court said: “We suggest that, in the event of a retrial, if the evidence fairly raises the issue that the money was taken as a result of violence, and after resistance on the part of Kline it should be submitted to the jury under appropriate instructions, as he could not be convicted of robbery under an indictment charging theft from the person.”

Having become convinced on further consideration that we reached an erroneous conclusion originally, the appellant’s motion for rehearing is granted, the judgment of affirmance is set aside and the opinion so announcing is withdrawn and the present opinion substituted therefor, and the judgment of the trial court is now reversed and the cause remanded.


text:
    MILLER v. STATE.
    No. 21377.
    Court of Criminal Appeals of Texas.
    March 5, 1941.

      Walter E. Gates, of San Saba, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

This cause was reversed and remanded on the original hearing herein because of the use a second time of a previous conviction for the purpose of an enhancement of the penalty.

In this motion for a rehearing it is made to appear that the statement of facts and bills of exception herein were filed 103 days after the overruling of the motion for a new trial and notice of appeal in the lower court. This filing was too late. Art. 760, C.C.P. Vernon’s Ann.C.C.P. art. 760, limits the maximum time within which bills of exception and statement of facts may be filed to 90 days after the date notice of appeal is given. See Moore v. State, 11 Tex.Cr.R. 331, 12 S.W.2d 805; Clark v. State, 109 Tex.Cr.R. 377, 4 S.W.2d 973; Crowder v. State, 110 Tex.Cr.R. 572, 9 S.W.2d 1042; McKneely v. State, 110 Tex.Cr.R. 634, 10 S.W.2d 544; Retza v. State, 95 Tex.Cr.R. 491, 255 S.W. 423.

It is worthy of note that the trial judge’s order granting time for the filing of bills of exceptions and statement of facts reads: “ * * * and said defendant is granted 90 days from adjournment of this court to prepare and file bills of exception and statement of facts in said cause.” The order of the county judge was valid only for the time of 90 days after the giving of notice of appeal, and not from the adjournment date of the court. In the case of Moore v. State, supra, we said: “The statute (article 760, C.C.P.1925 [Vernon’s Ann.C.C.P. art. 760] ) precludes the consideration of the billa of exceptions and statement of facts, for the reason that neither was filed within the time allowed by law. The order of the trial judge allowing 90 days after the adjournment of court within which to file the bills of exceptions and statement of facts would not be effective after the expiration of the 90 days from the date upon which notice of appeal was given. See article 760, note 44, Vernon’s Tex.C.C.P.1925, vol. 3, p. 122; Chisholm et al. v. State, 108 Tex.Cr.R. 401, 1 S.W.(2d) 613; Williams v. State, 108 Tex.Cr.R. 124, 299 S.W. 258. The motion of the state to have the bills of exceptions and statement of facts disregarded must be sustained.”

It may be of benefit to again set forth what this court deems to be the meaning of Art. 760, C.C.P.

When an appeal is taken in any court, relative to a conviction for a misdemeanor, if the court term is not longer than eight weeks, the appellant has by virtue of such statute, and independent of any order of the county judge, 30 days after the adjournment of the term of court in which to prepare, have approved and file a statement of facts and bills of exceptions. If further time is desired, the county judge has the power to grant same before the expiration of the original 30 days, but he can not grant a time that will expire more than 90 days after the notice of appeal' was given. In other words, these documents must be' filed before the expiration of 90 days after the notice of appeal was given, regardless of any further time the court may have attempted to grant.

If the term of court is longer than eight weeks, accused has 30 days- after final judgment is rendered to file statement of-facts and bills of exception, and this time may be extended by the court for good cause; but whether the 30 days granted by said statute begins to run from the day of adjournment or from the date of final judgment the court has no authority to extend the time beyond 90 days from the date notice of appeal was given, and any effort to grant additional time is beyond the power of the trial judge.

From this record we find that this notice of appeal was given on June 1, 1940, at which time the court granted the 90 days after adjournment in which to make up and file statement of facts and bills of exceptions. The court adjourned on June IS, 1940. We are furnished with affidavits showing that appellant’s attorney prepared bills of exceptions on August 18, 1940, and statement of facts on August 22, 1940, and gave same to the county attorney for his approval, who promised to look over them. The affidavit then continues in saying that on several occasions appellant’s attorney spoke to the county attorney relative to said bills and statement, who promised to get them out right away. On September 10th the appellant’s attorney went to the county attorney’s office and found that these bills had been mislaid or torn to such an extent that same were not usable, and he immediately went to his own office, and from office copies prepared other bills, and same were on that date approved by the-county attorney, and on the next day, September 12, 1940, same were approved by the county judge and ordered filed as of that date, which was done. This was 103 days after notice of appeal had been given, and 89 days after the adjournment of the term of court at which the trial was had. Evidently appellant was relying on the improper order entered by the county judge in attempting to give 90 days from the adjournment of court, which carried it beyond the 90 days from the notice of appeal.

It is to be regretted that such a mistake in the construction of this statute should have arisen, but the decisions are numerous, as well as the statute is plain, that the judge exceeded his statutory powers in thus granting more than 90 days from the date of the notice of appeal for the perfecting of this record.

It is but fair to the county attorney to state that we are also furnished with an affidavit from him in which he states that immediately upon being furnished with the original bills and statement of facts, that he wrote some corrections to the bills and also to the statement of facts, and then signed such statement of facts. This was some time in the third week of August, which was well within the 90-day period, at which time the county attorney had agreed to the bills and signed the statement as corrected '.by him and the court reporter, which documents were then in the hands of appellant’s attorney. The county attorney was not confronted by the corrected bills and statement until the 11th day of September, when he also agreed to such corrected instruments, they being the ones appearing in the record in this court.

As soon as appellant’s attorney became convinced that his time was about to expire to procure the approval and filing of this record, it took him only a few hours to do so, and we can only say that it is regrettable that he did not earlier exercise such diligence. We fail to see where we could say that appellant was deprived of his record through no fault upon his part.

This matter was not called to our attention upon the original submission of this cause, and we have previously, in the original opinion, considered such statement of facts and bills of exceptions without noticing their late filing. We now withdraw the original opinion herein, and as the record is now presented to us, no error being shown therein, the judgment is therefore affirmed.


text:
    Eddie MILLER, Appellant, v. STATE of Texas, Appellee.
    No. 21376.
    Court of Criminal Appeals of Texas.
    March 5, 1941.
    Walter E. Gates, of San Saba, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

This is a companion case to that of Eddie Miller v. State, No. 21377, 148 S.W.2d 426, in which the State has filed a motion for a rehearing setting forth therein the same grounds that are presented in the motion for a rehearing in this case.

For the same reasons appearing in the opinion granting the State’s motion for rehearing in cause No. 21377, the State’s motion for rehearing in this case is granted, the original opinion is withdrawn, and the judgment of the trial court is now 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:
    GRIFFITH v. STATE.
    No. 21463.
    Court of Criminal Appeals of Texas.
    March 5, 1941.
    Motion for Rehearing Overruled April 9, 1941.
    See 149 S.W.2d 586.
    James E. Faulkner, of Henderson, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for the offense of desertion of wife while in necessitous' circumstances. The punishment assessed is confinement in the state penitentiary for a term of one year.

Appellant first complains of the court’s action in overruling his motion to quash the indictment on the ground of duplicity. The indictment, omitting the formal parts, reads as follows: “ * * * that Albert Griffith on or about the 15th day of June, A. D., one thousand nine hundred and forty, and anterior to the presentment of this Indictment, in the County of RUSK and State of Texas, did then and there unlawfully and willfully desert, neglect and refuse to provide for the support and maintenance of Dotis Griffith, who was then and there • his legal wife, the said Dotis Griffith being then and there in necessitous circumstances, against the peace and dignity of the State.”

Art. 602, P.C., Vernon’s Ann.Tex.P.C., Vol. 1, under which appellant was prosecuted, reads as follows: “Any husband who shall wilfully desert, neglect, or refuse to provide for the support and maintenance of his wife who may be in necessitous circumstances, or any parent who shall willfully desert, neglect or refuse to provide for the support and maintenance ;of his or her child or children under sixteen years of age, shall be confined in the penitentiary for not more than two years, or be confined in jail for not more than six months, or fined not less than Twenty-five ($25.00) Dollars nor more than Five Hundred ($500.00) Dollars, or be punished by both such fine and imprisonment in jail.”

It seems to be the settled rule in this state that where several ways by which an offense may be committed are set forth in the statute, and they are embraced in the same general definition and are punishable in the same manner, and are not repugnant to each other, they are not distinct offenses, only different phases of the same offense and may be charged conjunctively in one count of the indictment. See Branch’s Ann.Tex.P.C., p. 262, sec. 508.

In our opinion, the acts denounced in the statute as an offense may be committed by a husband who willfully deserts his wife and neglects or refuses to support her, she being in necessitous circumstances; or he may commit the offense without deserting her by neglecting and refusing to support her, she being in necessitous circumstances. -The gist of the offense seems to lie in the failure to support her when she is in necessitous circumstances, whether he deserts her or not. Therefore, it occurs to us that it is not two separate and distinct offenses but merely different ways of committing the offense. If we are correct in our construction of the statute, then any one or all of the means by which the offense might be committed may be charged in one count, of the indictment.

In the case of Nicholas v. State, 23 Tex.App. 317, 5 S.W. 239, this court said: “Whether or not offenses are to be treated as distinct depends upon whether or not they are embraced within the same general definition, and punishable in the same manner. If they are, then they are not distinct offenses, and may be charged in a single count in the same indictment.”

The opinion in that case quotes from Bishop’s Criminal Procedure, Section 436, as follows: “It is common for a statute to declare that, if a person does this or this or this, he shall be punished in a way pointed out. Now, if in a single transaction he does all the things, he violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing only one of the things. Therefore an indictment upon a statute of this kind may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction ‘and’ where the statute has ‘or’, and it will not be double; and it will be established at the trial by proof of any one of them.”

In the case of Brooke v. State, 99 Fla. 1275, 128 So. 814, 69 A.L.R. 1173, decided by the Supreme Court of Florida, it will be observed that the accused contended that the indictment charged two distinct offenses: First, desertion of his wife; and second, withholding from her means of support. It was also contended in that case that the indictment charged two offenses in a single count. The same is true of the case of Stedman v. State, 80 Fla. 547, 86 So. 428, 430, where the charge was for desertion of the wife in one count and a withholding of means of support from the wife and child in another count. It was held in both cases that while either the unlawful desertion or the unlawful withholding of the means of support by a husband from his wife may be a distinct act and charged separately, yet where both are done by the same person at the same time and involve both the wife and child, such conduct under the statute may be regarded as constituting one offense 'and charged in one count; the only difference being that, as to the wife, his liability under the statute is contingent upon the non-existence of such cause or causes for his acts as may be recognized as a ground for divorce.

See also Holman v. State, Tex.Cr.App., 90 S.W. 174; Comer v. State, 26 Tex.App. 509, 10 S.W. 106; Prendergast v. State, 41 Tex.Cr.R. 358, 57 S.W. 850; Stevens v. State, 70 Tex.Cr.R. 565, 159 S.W. 505; Outley v. State, Tex.Cr.App., 99 S.W. 95. We therefore overrule appellant’s contention.

Appellant has some bills of exception complaining of the admission of evidence of certain letters purporting to have been written by the District Attorney to appellant advising him of the fact that the wife was in necessitous circumstances. There is no statement of facts accompanying the transcript, in the absence of which we cannot properly appraise the bills. See 4 Tex.Jur. p. 234, § 167, and cases there cited.

Finding no reversible error in the record, 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: BEAUCHAMP, Judge. HAWKINS, Presiding Judge.

text:
    LERA v. STATE.
    No. 21363.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    Rehearing Denied March 19, 1941.
    Marsene Johnson, Jr., of Galveston, for appellant.
    Charles H. Theobald, Co. Atty., and Emmett F. Magee, Asst. Co. Atty., both of Galveston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Leo Lera was given the death penalty for murder and he appeals.

This was the second trial of the case and the second time that a jury has given ■him the death penalty. The former appeal to this court is reported in 138 Tex.Cr.R., 127, 134 S.W.2d 248. The facts as stated in that opinion are herein referred to without being restated, except on the question of the conduct of the jury.

The evidence on the motion for a new trial reveals the fact that the jurors while deliberating on the case discussed that appellant is a notorious character in the city of Galveston; that he was reared by a mother in an atmosphere of crime. No such evidence was before the jury. These statements, together with other aggravating circumstances, make of this one of the most useless and regrettable homicides to be pictured. That he committed the murder there is no doubt; that he presented evidence which would, if given full credit, justify his action, or even warrant an affirmative issue being submitted to the jury, is very doubtful.

Appellant sought a new trial after the jury’s verdict and, as a principal ground therefor, alleged misconduct of the jury in considering his case. A. W. Kestler, the juror examined by the court, testified as touching the several questions raised as to the conduct of the jury that he heard the fact mentioned in the jury room that appellant had been tried and convicted previously and given the death penalty. He said that at the time he was taken on the jury he knew this fact so that it had nothing to do with his changing his vote from a life sentence to the death penalty, which he did during the progress of the jury’s deliberation. It was stated in the jury room that Leo Lera’s mother had been making bootleg liquor. This was after the jury had voted unanimously to find the defendant guilty, but before they arrived at the death penalty. The jury then stood seven for death, some for life and some for terms of years in the penitentiary. Somebody said he bought liquor from her. Some one also said that Leo Lera was a bootlegger and that he had been practically reared in crime. Two or three were talking about it. The juror didn’t know whether these remarks were made by those concurring in favor of the death penalty or by those against it. A juror said that he was influenced to change his vote to a death penalty when- some one made the remark that if Leo Lera got in the penitentiary for life and could get hold of a gun he would kill a couple of men to get out; that he had nothing to lose. Considerable discussion was made on this point which arose by reason of the fact that the juror himself said that he had been robbed and that the man who robbed him said that if he were sent to the penitentiary he would shoot his way out of there. The juror got to thinking about it in the light of his own experience and changed his mind the next morning.

The juror also testified that he heard the remark made in the jury room that Leo L,era had been sent to the federal penitentiary in January, 1933, and that one trip to the penitentiary should have taught him a lesson, but it didn’t. He further says, “there were so many different things brought up that I don’t know in what line of argument they came up.”

The court examined the jurors and made his finding and conclusion. He said he could not conceive of any reasonable man giving the death penalty because of the things which took place in the jury room. If we were permitted to speculate on the effect of unauthorized testimony before a jury during their deliberations, and this were the question before us, we might agree. It is not contended that the jury gave the death penalty because of these statements being made, but only that they were influenced to do so to some degree, the extent of which is immaterial. Neither are we permitted to speculate as to what the extent might have been.

It is our solemn legal duty and that of the trial court to resolve all doubt in such a case as this in favor of the party on trial -and against the state. This duty rests with us regardless of the character of the party or the nature of the offense with which he stands charged. The protective features of the criminal procedure of our state are for the guilty as well as the innocent.

Under the reasoning in Mays v. State, 111 Tex.Cr.R. 35, 10 S.W.2d 1006, and the authorities therein discussed, we must hold that the trial court should have granted appellant’s motion for new trial.

The prosecution says that the discussions were merely casual. This was true in the Mays case. We see no difference in a casual discussion from any other. The harm is in the facts which are brought into the jury room, not the manner of bringing them. True the manner of the discussion may affect the impression created, but we are not permitted to speculate on that any more than on any other question. There is no argument against results. Seven jurors were for the death penalty when this discussion began. Thereafter twelve voted for. death.

Complaint is made also of the court’s charge in that he did not submit to the jury affirmatively appellant’s defense. Inasmuch as this case is being reversed on another question, and in view of the close question involved, we think it well to call-attention to Rodriguez v. State, 109 Tex.Cr.R. 278, 4 S.W.2d 52, which ably expresses the law as applied to the facts of that case. If the question may be eliminated by a proper charge under the facts upon another trial it would appear to be advisable.

Because of the discussions which took place in the jury room during its deliberations, the judgment of the trial court is reversed and the cause remanded.

On State’s Motion for Rehearing.

HAWKINS, Presiding Judge.

In view of the Stale’s motion we have again reviewed the evidence on the issues raised by the motion for new trial and the findings of fact by the very able trial-judge. He realized the seriousness of the question raised by the substantial averments in the motion that, while the jury was divided as to the penalty, some jurors stated in the jury room that appellant’s mother had been making bootleg liquor in the same house where appellant lived; that appellant was a bootlegger and had been practically raised in an atmosphere of crime; that appellant’s mother was a bootlegger ; and some juro-r said he had bought, bootleg whisky from her. The trial court says in his findings that: “This allegation, together with the evidence adduced in support thereof, presents i:q the trial court’s opinion the most serious point raised in said motion. I recognize this to he a close question and have given the matter very careful consideration.”

It is to be regretted that more of our trial judges do not follow the example here found of advising this court of their findings when issues of fact are raised in motions for new trials. We are aided greatly by such finding, and are loath to disagree with the trial judge as to what the evidence established or his conclusions as to the effect thereof. However, under the facts revealed upon the hearing of the motion for new trial, we are inclined to think the averments in the motion heretofore alluded to were sustained. Under the circumstances, we would be unwarranted in permitting a death penalty to stand where the very matters complained of as occurring in the jury room were without support in the evidence and were advanced by some juror or jurors upon the very issue of what penalty should be assessed, and at a time when seven jurors were for the death penalty and the other five for various terms of years. Something caused the five to come over to the seven. Speculation under the facts here present should not be indulged.

The State relies largely upon Henderson v. State, 132 Tex.Cr.R. 596, 106 S.W.2d 291, in support of its motion for rehearing. The opinion in that case reveals some difference in the views of the members of the court. Some of the arguments used by the jurors in the present case are similar to those employed in the Henderson case, and as to such arguments' that case might support the State’s contention, but it is not upon that point the reversal here is predicated. The majority of the court in the Henderson case regarded the controversy among the jurors as purely argumentative and predicated in part upon an incident coming to the jurors’ attention, with which incident Henderson had no connection. Here, the things said in the jury room upon which this reversal is based were statements by jurors which directly affected the appellant and his past conduct about which no evidence was in the record.

The State requests a clarification of the last paragraph of the original opinion in which reference is made to the case of Rodriguez v. State, 109 Tex.Cr.R. 278, 4 S.W.2d 52. It was our purpose to direct attention to said case for guidance of the court in the event, upon another trial, the evidence raised the issue of an accidental discharge of the pistol while handled by appellant in such a manner that there was no apparent danger of causing death of the deceased or some other person.

The State’s motion for rehearing is overruled.


author: CHRISTIAN, Judge. BEAUCHAMP, Judge. HAWKINS, Presiding Judge.

text:
    ALLGOOD v. STATE.
    No. 21370.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    Rehearing Denied March 19, 1941.

      Reynold M. Gardner, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

The state relied largely upon appellant’s confession. Testifying in his own behalf, appellant repudiated the confession and stated, in effect, that he had been forced to make it. It was his version that from the time of his arrest during Friday morning until the following day he was not permitted to sleep and was subjected to constant questioning. He also testified that one of the officers struck him in an effort to force him to answer questions. The officers admitted that appellant was not permitted to sleep and that he was questioned constantly for the approximate period of time testified to by appellant. Also one of the officers admitted that he slapped appellant because he refused to answer some of his questions. In view of the testimony, the opinion is expressed that the court should have responded to appellant’s request and instructed the jury to disregard the confession. Article 727, C.C.P., reads as follows:

“The confession shall not be used if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless made in the voluntary statement of accused, taken before an examining court in accordance with law, or be made in writing and signed by him; which written statement shall show that he has been warned by the person to whom the same is made: First, that he does not have to make any statement at all. Second, that any statement made may be used in evidence against him on his trial for the offense concerning which the confession is therein made; or, unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed. If the defendant is unable to write his name, and signs the statement by making his mark, such statement shall not be admitted in evidence, unless it be witnessed by some person other than a peace officer, who shall sign the same as a witness.”

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.

BEAUCHAMP, Judge.

The state’s motion for rehearing in this cause primarily deals with the contention that the evidence of the confession was admitted without objection and that there is no valid bill of exception thereto. The appellant has filed a supplemental transcript curing the defect, if such it be, there pointed out and disclosing definitely that appellant submitted to the trial court a special requested charge withdrawing this evidence from the jury; that the trial court refused to give the charge and that appellant duly and timely excepted to such ruling.

In approving this bill the trial court states that no complaint was made of this action on appellant’s motion for a new trial and that he did not consider the same in passing on the motion for new trial for the reason that he believed it to be waived and his motion predicated on other and entirely different grounds. It is not necessary to renew the complaint in the motion for a new trial. Texas Jur. Vol. 4, p. 103, § 69, and authorities there cited. The requested charge sufficiently presents the matter to the trial court and it is properly before us for consideration.

Furthermore, it is not intended hereby to hold it was essential that the question be raised in just that manner. The state of the record was not overlooked in writing the original opinion. It appears very clear from the record that the confession was not a free and voluntary one. This court has dealt definitely with forced confessions. When it appears that a written confession is thus tainted it becomes the duty of the trial court and of this court to look cautiously into the status of the confession and deal with it in a positive manner. The Constitution and laws of the State of Texas are plain and’ well understood. Our conception and respect for the Constitution of the United States impels us to so view policies of procedure that we do not offend, “some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U. S. 97, 54 S.Ct. 330, 332, 78 L.Ed. 674, 90 A.L.R. 575; Rogers v. Peck, 199 U.S. 425, 26 S.Ct. 87, 50 L.Ed. 256. No court has power to institute trial by ordeal.

Chief Justice Hughes in Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 465, 80 L.Ed. 682, has said, “And the trial * * is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence. * * *”

Holding that such conviction and sentence constitute a clear denial of due process, Chief Justice Hughes quotes from Fisher v. State, 145 Miss. 116, 110 So. 361, as follows:

“ ‘Coercing the supposed state’s criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief iniquity, the crowning infamy of the Star Chamber, and the Inquisition, and other similar institutions. The Constitution recognized the evils that lay behind these practices and prohibited them in this country. * * * The duty of .maintaining constitutional rights of a person on trial for his life rises above mere rules of procedure, and wherever the court is clearly satisfied that such violations exist, it will refuse to sanction such violations and will apply the corrective.’ ”

Following this, Mr. Hughes asserts: “In the instant case, the trial court was fully advised by the undisputed evidence of the way in which the confessions had been procured. The trial court knew that there was no other evidence upon which conviction and sentence could be based. Yet it proceeded to permit conviction and to pronounce sentence. The conviction and sentence were void for want of the essential elements of due process, and the proceeding thus vitiated could be challenged in any appropriate manner. Mooney v. Holohan [294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406], supra. It was challenged before the Supreme Court of the State by the express invocation of the Fourteenth Amendment. That court entertained the challenge, considered the federal question thus presented, but declined to enforce petitioners’ constitutional right. The court thus denied a federal right fully established and specially set up and claimed, and the judgment must be reversed.”

While this court has not had occasion to announce that the question may be raised for the first time in'the Court of Criminal Appeals, which is a court of review, we cannot close our eyes to the appropriateness of the expressions of Chief Justice Hughes in the Brown case as applied to the facts here before us, particularly as they appeared before the supplemental transcript was filed.

We find no merit in the state’s contention and adhere to the view expressed in the original opinion that it was the duty of the trial court to exclude the confession from the consideration of the jury, without which it appears there was not sufficient testimony to support a conviction.

The motion for rehearing is overruled.

GRAVES, J., concurs.

Concurring Opinion on Rehearing.

HAWKINS, Presiding Judge.

The original opinion disposed of the case correctly, proceeding on the theory that the question regarding the confession was raised in the trial court. The State’s motion for rehearing points out that in the record then before us it did not appear that exception was reserved to the refusal of the trial court to give appellant’s requested charge. On correction of the transcript it was shown that such exception was in fact reserved.

It is stated in the opinion on rehearing, “The requested charge sufficiently presents the matter to the trial court and it is properly before us for consideration.” No further predicate is needed for our action in overrruling the State’s motion for rehearing, and general observations in the opinion on rehearing following the quoted statement are thought to be unnecessary to a decision of the question before us and purely dicta.

We agree to the reversal of the judgment and the overruling of the State’s motion for rehearing on the ground that the confession was not voluntary and that the issue was properly raised in the trial court.

Further than that we express no opinion. Other questions suggested in 'the opinion on rehearing will be considered when and if they arise.


author: KRUEGER, Judge. BEAUCHAMP, Judge.

text:
    RODRIGUEZ v. STATE.
    No. 21438.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1941.
    Rebearing Denied March 19, 1941.
    Arthur C. Gonzalez, of Del Rio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is theft from the person. The punishment assessed is confinement in the state penitentiary for a term of six years.

Appellant’s first contention is that the evidence is wholly insufficient to justify and sustain his conviction.

It appears from the record that on the night of July 3, 1940, Pedro Perez met Maximiano Munoz, Raul Sanchez and the appellant at a saloon in the town of Del Rio, where they engaged in the social drinking of beer and ate a lunch. From there, at the suggestion of Perez, they went to look for a woman who Perez claims to have known for several years. Failing to find her, they went to Calderon’s saloon, where they drank some more beer. From there they went to San Felipe Creek; that upon their arrival at the creek they parked their car, and the appellant and Munoz took hold of Perez and pulled him into the creek, where appellant tried to put his hand into the pocket of Perez; that Perez took his billfold, containing about thirty dollars, out of his pocket. As he had it in his hand, appellant grabbed it and took it away from him. They then got back into the truck and went to town, where they separated, each one going to his respective home.

Munoz testified that while he, the appellant and Sanchez were at the saloon, Perez came and joined .them in a glass of beer; that while thus engaged Perez suggested that they go and look for a woman whom he had known for several years; that when they arrived at the home where this woman was supposed to live, Perez went to the side of the house while appellant and Munoz went to the front and knocked on the door. While they were at the front of the house, appellant said to Munoz: “Let’s rob this man; he’s got some money.” On the way to Calderon’s saloon, Perez was sitting on the lap of the witness; that before they reached the saloon he abstracted some papers from Perez’s hip pocket but did not get any money. Munoz further testified that appellant took the money from Perez after they had gone to the creek and pulled him into the water.

We deem this evidence sufficient to justify the jury’s conclusion of the appellant’s guilt.

Appellant in due time filed two exceptions to the court’s charge. His first objection relates to the court’s instruction to the effect that Munoz was an accomplice. He contends that whether or not Munoz was an accomplice was a question of fact to be determined by the jury; that said instruction was harmful and prejudicial to the rights of the defendant. According to Munoz’s testimony, he makes himself an accomplice as a matter of law. Hence the court was justified in so instructing the jury. See Spencer v. State, 52 Tex.Cr.R. 289, 106 S.W. 386; Adams v. State, 64 Tex.Cr.R. 61, 141 S.W. 527; Sheppard v. State, 63 Tex.Cr.R. 569, 140 S.W. 1090.

Appellant’s second objection to the court’s charge is based on the ground that it failed to instruct the jury that unless they found that a conspiracy existed between Munoz and appellant to rob Pedro Perez, the defendant would not be responsible for the acts and declarations of Munoz; that the question as to the existence of a conspiracy at the time of the acts and declarations of Munoz should be submitted to the jury under an appropriate instruction with directions to disregard such evidence in the event a conspiracy had not been established beyond a reasonable doubt. We are not advised from the objection contained in the record as to what acts and declarations of Munoz the appellant had reference. The fact that Munoz testified that appellant told him, “Let’s rob this man; he’s got some money,” would, in our opinion, be admissible regardless of whether a conspiracy was shown. It was a statément made by the appellant.

From Bill of Exception No. 1 it appears that while the witness, Ysidro Rodriguez, was testifying on behalf of the defendant, he was asked by appellant’s counsel on direct examination if he had not talked to Pedro Perez just outside of the court room on the morning of July 5th, to which the witness replied in the affirmative. Thereupon, counsel asked the witness if he had not talked to Perez about any money that he could have lost or papers or anything like that, to which counsel for the State objected on the ground that a proper predicate had not been laid for the impeachment of the complaining witness Perez. The objection was sustained and the appellant excepted. The bill of exception recites that if the witness had been permitted to answer the question, he would have testified that he had a conversation with Perez on the morning of July 5th, and in that conversation Perez stated to the witness that he (Perez) did not know where the papers, and did not know where the money which he had, had been lost. We think the court’s ruling in this respect was correct. It was incumbent upon the appellant to first have made inquiry of Perez as to whether he had made such a statement to the witness Rodriguez at the time and place stated and if he denied having made such a statement, then a proper predicate would have been laid for the introduction of the testimony sought to be elicited from him. See 45 Tex.Jur. p. 156, sec. 281; Branch’s Ann. Tex.P.C., p. 108, sec. 179, and cases cited.

Bill of Exception No. 2 reflects the following occurrence: While appellant was on the witness-stand testifying in his 'own behalf, he was asked if he, in any way or manner, made an assault upon Pedro Perez, the alleged injured party, to which the State objected, and the court sustained the objection. Appellant contended that if he had been permitted to answer, he would have testified, “I did not assault Pedro Perez.” In his qualification of the bill, the court states that he sustained the objection to the question as shown in the bill, but that neither then nor at any time during the trial did the defendant himself state or testify as to what his answer to said question would have been. We are of the opinion that appellant should have been permitted to answer the question inasmuch as he was charged, with robbery by assault in one count and with theft in another. Iiowevey, since the jury acquitted appellant of robbery by assault and only convicted him of the second count charging him with theft from the person, we think the error became harmless. Hence we overrule his contention.

Bill of Exception No. 3 shows that counsel for the defendant and the State’s witness, Munoz, becam'e involved in a verbal controversy during the cross-examination of the witness by counsel as to whether or not the witness was telling the truth. The fact that the witness contradicted appellant’s counsel as to some previous statement which counsel claims the ■witness had made to him would not justify a reversal of this case. Counsel had a right to ask him if he did not make certain statements to him outside of court, and if the witness denied it, counsel coitld then impeach him.

Bill of Exception No. 4 again complains of the action of the trial court in declining to submit to the jury the question as to whether or not Munoz and the appellant had entered into a conspiracy to commit the offense charged, and that unless the jury so found, the defendant could not be held responsible for the acts and declarations of Munoz. We have heretofore disposed of the question in this opinion and see no need for a further discussion thereof.

Bill of Exception No. 5 .complains of the following remark by the District Attorney in his argument to 'the jury: “Now, gentlemen, we have a bunch of jelly-beans hanging around a beer joint.” Counsel for appellant objected to this argument as being highly prejudicial and inflammatory and not supported by any testimony. Perhaps the argument was not justified by any testimony in the record, but, nevertheless, in our opinion, the same was not of such a prejudicial nature as would require a reversal of the judgment. Finding no reversible error in the record, the judgment of the trial court 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.

BEAUCHAMP, Judge.

We are unable to agree with the contention of appellant in his motion for rehearing that reversible error was committed in any of the matters therein treated. We think the conclusions reached in the original opinion are correct. The holding relative to defendant’s bill of exception No. 1 that no predicate was laid for the impeaching testimony is sound and certainly will require no further discussion than that given.

Appellant’s bill of exception No. 3 complains of the witness Munoz emphasizing his testimony by saying that he was “telling the truth”. Appellant says that this was a voluntary statement by the witness and not called for by a question asked, for which reason they had no opportunity to object to it until it was made. Every witness is required to take an oath that he will tell the truth. This statement he makes before the jury. If he repeats that at any time, or any number of times, we are unable to discover any fact wjiich such statement places before the jury not already before them, or any harm that could come from such statement.

Appellant renews his argument on bill of exception No. 5 complaining of the prosecuting attorney making the argument quoted in the original opinion, but no authorities are cited and no force added to the argument originally presented. It occurs to the writer that the reference as made to one accused of crime is rather mild, so much so that we would class it as something new and different. If we understand what is usually meant by, “jellybean” hanging around a beer joint, drug store or any other place, it would refer to about the most harmless, useless, purposeless aggregation within our conception. In the absence of something in the record indicating otherwise, it is our view that it charges appellant with nothing, and is, therefore, harmless.

Believing that the original opinion reached the correct conclusion, the motion for rehearing is overruled.


author: BROWN, Justice.

text:
    FIRST NAT. BANK IN GRAHAM et al. v. CORBIN et al.
    No. 14254.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 7, 1941.
    Rehearing Denied March 14, 1941.
    Penix & Penix and Marshall & King, all of Graham, for appellants.
    McFarlane & McFarlane, of Graham, for appellees.
   BROWN, Justice.

The motion before us is bottomed on the assertion that the trial court rendered judgment on October 3rd, 1940, and no motion for a new trial was filed, and no appeal bond was filed until November 27th, 1940, by appellant First National Bank and none filed by Continental Supply Company until December 18th, 1940, and that therefore the judgment became final before these appeal bonds were filed; and that the transcript and statement of facts were tendered for filing and were filed more than 90 days after the judgment was rendered and without any motion being made for an extension of time for such filing.

The District Court of Young County is within the 30th Judicial District, which is composed of three counties, viz., Archer, Wichita and Young, and we have applied and must apply the provisions of Article 2093a, Vernon’s Texas Annotated Civil Statutes.

See Traders & General Ins. Co. v. Roberts, Tex.Civ.App., 93 S.W.2d 1203, expressly approved by the Supreme Court in Flanks v. Texas Employers Ins. Ass’n, 133 Tex. 187, 128 S.W.2d 1.

We have read the transcript prepared by the District Clerk of Young County, and find that his certificate certifies, “that the above and foregoing is a true, full and correct copy of the proceedings in cause No. 10,548, styled First National Bank vs. N. B. Crenshaw et al, as the same appears and remains on file in my said office.”

This transcript of the records of the said Clerk’s office does not show nor does it purport to show that the trial court rendered judgment in said cause on October 3rd, 1940, as is contended for.

The judgment (which is long and complicated because of the number of parties litigant and controverted claims) begins with the words: “On this the 3rd day of October, A. D. 1940, coming on to be heard the above entitled and numbered cause, etc.”, and then recites that a jury was impaneled and that certain issues were submitted to the jury, and that: “Upon return of the verdict of the jury into open court, and the court having been informed that the jury had not and could not agree upon their answer to special issue No. 1, the court discharged said jury, and thereafter upon further hearing and consideration of said cause, the report of said Master in Chancery, exceptions and pleadings of all parties thereto, as well as the evidence in this cause, finds as follows:

Then follows the judgment, which bears the following pronouncement of the trial court just above his signature: “This judgment entered and signed by the court on November 20th, 1940.”

It is true that we find attached to the motion before us a certificate signed by the District Clerk which asserts, among other things: “That on September 19th, 1940, said consolidated cause came on for trial before a jury and that on October 3rd, 1940, tl;e court rendered a judgment therein * * * and that November 20th, 1940, the judgment theretofore rendered October 3rd, 1940, was signed and filed by the judge of said court and that I as such clerk entered the same.”

It is readily seen that no judgment, pronouncement of judgment or any other record showing that the trial court rendered judgment is shown, or even alluded to, except the judgment that appears in the transcript and portions of which we have copied above.

If the purpose of the clerk’s certificate attached to the motion before us is presented to us to impeach the certificate made by the clerk to the transcript, as well as to impeach the transcript itself, we hold that this cannot be done, as is attempted here.

A transcript may' be impeached, where errors may appear, by a motion for a writ of certiorari to perfect the record, and the certificate of the clerk to the correctness of the record which is to take the place of the erroneous record is necessary; or where there is an omission of some portion of the record, the transcript may be amended, by such writ, and the certified' copies of the omitted portions of the record thus brought up.

The transcript filed in this court-shows upon its face that the judgment was-rendered November 20th, 1940, and the motion before us is without merit, and same is-overruled.

See Cleburne National Bank et al. v. Bowers, 130 Tex. 637, 112 S.W.2d 717, Commission of Appeals adopted by Supreme: Court.


author: TIREY, Justice.

text:
    SHIVERS et al. v. HUNDLEY et al.
    No. 2269.
    Court of Civil Appeals of Texas. Waco.
    Feb. 6, 1941.
    Rehearing Denied March 6, 1941.

      Darden & Burleson, of Waco, for appellants.
    Ñaman, Howell & Boswell, of Waco, and Judge Gambill, of Denton, for ap-pellees.
   TIREY, Justice.

This is an appeal from a judgment of the ■district court of McLennan county, overruling the separate pleas of privilege urged by the appellants. The case was tried to the court without a jury, and to an adverse judgment the appellants excepted and gave notice of appeal to this court, and the questions here presented were raised for the first time on appeal.

The judgment of the trial court is assailed mainly on the ground that the oath to each of the controverting affidavits to each of the pleas of privilege is insufficient, and that by reason of the insufficiency of each of the oaths to the controverting pleas, the appellants’ pleas of privilege were not controverted under oath as required by Art. 2007, Vernon’s Annotated Civil Statutes. We overrule this assignment. The oath to each controverting plea is as follows: “Before me, the undersigned Notary Public in and. for McLennan county, Texas, on this day personally appeared Joseph W. Hale, who being by me duly sworn, on his oath deposes and says that he is one of the attorneys for the plaintiffs in the above numbered and entitled cause, and as such is authorized to make this affidavit; that he has access to the investigation reports growing out of the collision aforesaid, and through such reports, he is informed, and on such information alleges that the facts set forth in the foregoing plea are true.”

Each controverting affidavit was signed by Joseph W. Hale and verified before a Notary Public, whose seal was affixed and whose jurat reads: “Sworn to and subscribed before me, this the 11th day of October, A. D. 1939.”

There was no exception, either general or special, to the allegations of the controverting affidavits nor to the oaths. Appellees, without objection, adduced testimony to sustain the grounds alleged in each of the controverting pleas. It has been repeatedly held that “a controverting affidavit, though defective, is held to be amendable under the same rules and with like effect as other pleadings * * * Paxton v. First State Bank, Tex.Civ.App., 74 S.W.2d 132, 133; Duvall v. Boyer, Tex. Civ.App., 35 S.W.2d 181. Absent exception, “all reasonable intendments must be presumed in aid of the pleading.” Downing v. Southwestern Drug Corp., Tex.Civ.App., 53 S.W.2d 827, point page 828; Southern Casualty Co. v. Morgan, Tex. Com.App., 16 S.W.2d 533. Absent exception and/or-motion to strike, we are of the opinion that the verification of the respective pleas was sufficient. Ruttencutter v. Chapman, Tex.Civ.App., 288 S.W. 283, writ refused; 33 Tex.Jur. p. 627, § 175; p. 579, § 139; Rogers v. Alexander, Tex.Civ.App., 289 S.W. 1070, points 2, 3 & 5, page 1071; Fitzgerald v. Browning-Ferris Machinery Co., Tex.Civ.App., 49 S.W.2d- 489, point page 492.

The judgment is assailed on the ground that “there was not sufficient evidence of a crime or offense or trespass within the meaning of the venue statute.” We overrule this assignment. Appellee sought to maintain venue in McLennan county under the express provisions of subdivision 9 of Art. 1995, Vernon’s Annotated Civil Statutes. We have carefully considered the evidence, and we think it is ample to sustain the judgment of the trial court. It has been repeatedly held that “where an injury is inflicted upon the person or property of another by an affirmative act wrongfully or negligently committed, such act constitutes a trespass * * *See Barnes v. Moro, Tex.Civ.App., 76 S.W.2d 831, 832, and collation of .authorities; Edwards v. Hawkins, Tex.Civ.App., 77 S.W.2d 1098. Since this suit grows out of an automobile collision that occurred in Mc-Lennan county, and since we think the evidence is sufficient to sustain the judgment of the trial court that a trespass was committed in McLennan county, we have pre-termitted a statement of the facts.

•The judgment of the trial court is affirmed.

HALE, J., took no part in the consideration and disposition of this case.