author: BEAUCHAMP, Judge. GRAVES, Judge.

text:
    McCHRISTY v. STATE.
    No. 21216.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    Rehearing Granted Dec. 18, 1940.
    H. D. Stringer, of Memphis, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from a conviction in the county court of Hall County where a penalty of $25 was assessed on a charge of possessing malt chock beer containing more than one-half of 1 per cent, of alcohol by volume, in a container to which no tax stamp showing the payment of a tax due to the State of Texas was affixed, and on which there was no evidence showing the payment of such tax.

This is the second appeal of this case, the former being reported in 138 Tex.Cr.R. 78, 134 S.W.2d 295. All questions presented in this appeal were before the court and received its consideration in the former appeal, and, though not specifically discussed in the opinion, were decided adversely to appellant. The court has followed the instruction of this court in his charge in the present appeal, and the jury assessed the penalty accordingly. We believe that the complaint properly charges the offense submitted to the jury, and the evidence in the case sustains their verdict.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant complains of many propositions that need not here be written upon as they will not likely occur in a further trial if such be had.

We think that in applying the law to the facts, in paragraph four of the court’s charge, wherein the term “illicit beverage” is defined in the terms of the statute, the court should have confined this definition to the beverage named in the indictment, that is, malt chock beer, and should have made it plain to the jury that in this instance the term “illicit beverage” as used herein could only mean malt chock beer without a proper stamp affixed thereto. The same criticism, we think, is applicable to paragraph six of the court’s charge.

The main difficulty with which we are confronted, however, is the fact that in the information and complaint appellant was charged with the' possession of an “illicit beverage”. This term is. defined by statute, Art. 666—3a, Vernon’s Ann.P. C., as follows: “ ‘Illicit Beverage’ shall mean and refer to any alcoholic beverage * * * on which any tax imposed by the laws of this State has not been paid and the tax stamp affixed thereto * *

Unquestionably there would not be any violation of the law for a failure to affix a tax stamp to every liquid that contained more than one-half of one per cent, of alcohol. It is well known that there are a myriad of liquid preparations containing such an amount of alcohol that are not required to be stamped. The vice lies in not placing the required stamps on a beverage containing such an amount of alcohol. The complaint and information thus allege that this concoction was a beverage, but we confess to having searched the record and not finding there any proof of any kind that this liquid was a beverage, that is, that same was a drinkable liquor capable of use for drinking purposes.

We do not see any conflict in the prescribed penalties for the possession of the different kinds of untaxed liquors, and think these differences were fully discussed in the case of McChristy v. State, 138 Tex.Cr.R. 78, 134 S.W.2d 295.

The testimony of the witness Anderson, as to what the mother of appellant told him relative to the portion of the house which was supposed to be occupied by appellant, was hearsay and should not have been admitted.

On account of the facts failing to show that this malt chock beer was capable of being used as a beverage, the motion for a rehearing is granted, the judgment of affirmance set aside, and the judgment is now reversed and the cause remanded.


source: Caselaw Access Project

author: GRAVES, Judge.

license: Public Domain

text:
    McCHRISTY v. STATE.
    No. 21325.
    Court of Criminal Appeals of Texas.
    Dec. 18, 1940.

      H. D. Stringer, of Memphis, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged by information and complaint with the possession of an alcoholic beverage, to-wit:- “chock”, same being an intoxicating liquor, for the purpose of sale, in a dry area, and upon a trial, was fined the sum of $100.

We find this record supported mainly by facts identical in words with our cause, 145 S.W.2d 872, against the same appellant, and these facts fail, as did the facts in that case, to show that the liquor so possessed was capable of being used as a beverage.

There are further errors complained of herein which we will briefly notice.

Appellant’s requested charge No. 3 stated a correct proposition of law not embodied in the court’s charge, and in our opinion should have been given'. This charge was based on the prima facie evidence statute relative to the possession of intoxicating liquor. In the court’s charge he embodied the statute making the possession of one quart of liquor in a dry area prima facie evidence of possession for the purpose of sale. See Art. 666 — 23a, Vernon’s Ann.P.C., which seems to deal with “liquor,” such being defined by statute as “any alcoholic beverage containing alcohol in excess of four (4) per centum by weight, unless otherwise indicated.” See Art. 666 — 3a. In the present case the pleadings allege the possession of “chock” for the purpose of sale, a beverage containing more than one-half of one per cent of alcohol by volume. It is our opinion that the prima facie evidence statute governing such liquor thus designated as “chock” is found in Art. 667 — 25 (b) of Vernon’s Ann.P.C., and reads as follows: “Possession by any person in any dry area of beer in any quantity exceeding twenty-four (24) bottles having a capacity of twelve (12) ounces each shall be prima facie evidence of possession for the purpose of sale in a dry area.”

Of course, if the liquid was not contained in bottles, then the possession of the equivalent of twenty-four bottles of twelve ounces each could be used as prima facie evidence of possession for the purpose of sale in a dry area. This matter was called to the trial court’s attention in a special requested charge.

We further observe that the State should introduce in evidence, and there should be incorporated in the record, the different orders of the commissioners’ court relative to the local option election wherein the county became a dry area.

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


author: HAWKINS, Presiding Judge.

text:
    SULLIVAN v. STATE.
    No. 21337.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1940.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Attyl, of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for burglary; punishment assessed at five years in the penitentiary.

No statement of facts or bills of exception are found in the record. The indictment appears to be regular and properly charges the offense. Nothing is presented for review.

The judgment is affirmed.


author: CHRISTIAN, Judge.

text:
    COOPER v. STATE.
    No. 21298.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1940.
    Williford, Williford & Bond, of Fairfield, for appellant.
    W. V. Geppert and Renfro Speed, Co. Atty., both of Teague, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is murder; the punishment, confinement in the penitentiary for twenty-five years.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Willie B. Love by stabbing him with a knife.

According to the testimony of the state, the appellant, without justification or excuse, stabbed deceased to death with a knife. It was appellant’s version, given support in his own testimony and that of other witnesses, that at the time he killed deceased he was defending himself against an actual attack deceased was making upon him with a knife. Appellant denied any intent to kilL

In his motion for new trial appellant alleged that, after retiring to deliberate upon their verdict, the jury received other testimony. It appears from the testimony heard by the court upon the motion that, prior to the time a verdict was ‘reached, a member of the jury referred to the fact that a kinsman of appellant had killed a woman in an adjoining county. The juror alleged to have made the statement testified that he merely referred to the fact for the purpose of identifying- appellant. Apparently he did not know and did not state to the other jurors whether the kinsman of 'the appellant was a near relative. As far as the record discloses the matter, the relationship might have been remote. According to their testimony, some of the jurors heard the statement. The testimony heard by the court was uncontroverted to the effect that one member of the jury promptly admonished his fellow-jurors that the subject should be dropped. His advice was followed and no further mention of the matter was made. The trial court was warranted in finding that the reference to the trouble of the kinsman of the appellant was casual, and that no discussion followed relative to the matter after.the jury Had been admonished by one of its members. We would not feel warranted in holding that injury should be presumed merely because mention was made of the fact that some kinsman of the. accused had been in trouble. While Subdivision 7 of Article 753, C. C. P., provides that a new trial shall be granted in cases of felony where the jury, after having retired to deliberate- upon a case, have received other testimony, a transgression against such statute is not ground for reversal of the judgment where it is such that it could not have affected the fairness of the trial. Hallmark v. State, 89 Tex.Cr.R. 257, 230 S.W. 697. In Smith v. State, 52 Tex.Cr.R. 344, 106 S.W. 1161, 1165, 15 Ann.Cas. 357, Judge Ramsey, speaking for the court, said: “We think the true rule is that where, as in this case, the testimony supports the verdict, and the charge of the court properly submits the case to the jury, that a verdict ought not to be set aside for every incidental and casual mention of a former trial or a former conviction, and that, in no case should it be set aside in a case tried according to law where the conviction is supported by the testimony, unless the court may fairly and reasonably see in the light of all the circumstances that such reference and discussion did or might have prejudiced the appellant’s case.”

In the present case, the trial court was warranted in finding that there was only an incidental and casual mention made of trouble a relative of appellant — the relationship' not being shown — had had in an adjoining county which resulted in the killing of a woman. It is true that when the terms of the statute are violated the burden is not upon the accused to show injury. However, in the light of the record, in giving application to the principles controlling, we are of opinion that the trial court was warranted in the finding that no injury resulted from the statement of the juror.

Failing to find reversible error, the judgment is affirmed.

PER CURIAM.

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


text:
    DOYLE v. STATE.
    No. 21314.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1940.
    J. J. Byrne, of Lampasas, and Tom L. Robinson, of Gatesville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is selling. whisky in a dry area. The indictment embraced averments showing two previous convictions of like offenses. Because of repetition of'offenses, the penalty assessed was a fine of four hun■dred dollars.

The state introduced in evidence certified copies of judgments showing that A. G. Doyle had theretofore been convicted in two cases of the offenses of possessing whisky in •a dry area for the purpose of sale. There was a failure, however, to make other proof showing that the present appellant was the •person who had been convicted of the offenses on which the judgments mentioned were founded. In short, in order to identify appellant as the party who had theretofore 'been convicted, the state relied upon the fact alone that appellant’s name was the same as that shown in such judgments of conviction. It was incumbent upon the state to establish the identity of appellant as the person who had been previously convicted of like offenses. Huston v. State, 126 Tex.Cr.R. 355, 71 S.W.2d 876. The mere recital in the certified copies of the judgments in such cases was not sufficient to establish such identity. McCann v. State, 123 Tex.Cr.R. 626, 60 S.W.2d 451.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


author: BEAUCHAMP, Judge. KRUEGER, Judge.

text:
    CLARK v. STATE.
    No. 21181.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1940.
    Rehearing Denied Dec. 18, 1940.
    Shead & Smith, of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was given a penalty of five years for robbery. The notice of appeal was filed on November 16, 1939. Bills of exception were filed February 17, 1940, more than ninety days thereafter. We are unable to consider the bills of exception. Floyd v. State, 133 Tex.Cr.R. 614, 113 S.W.2d 894; Page v. State, 135 Tex.Cr.R. 190, 117 S.W.2d 785. See C.C.P., Art. 760, sub. 5.

We find nothing fundamental in the record. The judgment of the trial court is affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

Appellant has forwarded to this court a written communication purporting to be in his own handwriting and signed by him in which he prays for á rehearing and a reversal of the judgment of conviction. He sets out therein what- he claims are the facts in the case, but we cannot consider it as a correct statement of the facts proven upon the trial of the case for two reasons: First, because it is not approved by the trial court; and second, because it was not 'filed within the time prescribed by law.

On his trial appellant was represented by counsel of his own selection who, upon conviction, gave notice of appeal and who had a statement of facts made by the court reporter, but it, as well- as the bills of exception, was not filed within the time prescribed by law. Hence no questions were presented for review except the sufficiency of the indictment, and its seems to be in due and proper form.

The motion for rehearing is overruled.

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:
    BRITTON v. STATE.
    No. 21316.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1940.
    J. W. Simpson, Jr., and Geo. B. Darden, both of Conroe, for appellant.
    W. ■ C. McClain, Dist. Atty., Ned G. Wallace, Asst. Dist. Atty., both of Conroe, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

Appellant challenges the sufficiency of the evidence to justify and sustain his conviction of burglary.

The testimony adduced by the State, briefly stated, shows that on or about the 21st day of February, 1940, the home of Mrs. U. E. Allen was entered and a .22-caliber rifle taken therefrom. We quote from her testimony as follows: “I have no idea who went in my houjse. I did not give any one permission to take the gun, and it was taken from my possession without my knowledge and without my consent. The gun was taken from my house in Montgomery County, * * * without my knowledge and without my consent. * * * During the time I have lived where I now live, Cax Britton has had occasion to be in my house quite often, and he has done all of my plumbing work ever since I have been in Conroe. He has also come in and rented my apartments several times when I wasn’t at home. Up to the present time, and from the date when I first moved where I now live Cax Britton has had my consent to enter that house at any and all times, and has always gone and come at any time he likes.”

The testimony further shows that appellant was a near neighbor, living just across the street from the burglarized house; that he frequently came there and got hammers, wrenches, and things that he wanted without objection on her part.

The offense charged is burglary. It devolved upon the State to prove beyond a reasonable doubt that the defendant entered the home of Mrs. Allen without her consent, because want of consent is an element of the offense of burglary. It is obvious from the testimony above quoted that the State has failed to meet the requirements of the law since the appellant, according to the testimony of Mrs. Allen (the owner of the burglarized house), had her consent to enter the same at any and all times. Under such state of facts we do not feel that any person should be deprived of his liberty, his citizenship and stigmatized as a felon. The legal rights of an accused must be respected and sustained as well as those of the State. See Wisdom v. State, 42 Tex.Cr.R. 579, 580, 61 S.W. 926. In the case of Lopez v. State, 74 Tex.Cr.R. 135, 167 S.W. 844, 845, the only contested issue was whether or not the accused had the consent of Mrs. Jackson to go into her house and get the money alleged to have been stolen. In its opinion, the court, among other things, said: “If Mrs. Jackson gave appellant permission to go in the house and get the money, he would be guilty of no offense in so doing.” See also Turner v. State, 24 Tex.App. 12, 5 S.W. 511; Miller v. State, 136 Tex.Cr.R. 345, 125 S.W.2d 596.

Having reached the conclusion that the evidence is insufficient to support the conviction, 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: KRUEGER, Judge. BEAUCHAMP, Judge.

text:
    KING v. STATE.
    No. 21248.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1940.
    Rehearing Denied Dec. 18, 1940.
    Taylor, Irwin & Irwin and T. K. Irwin, Jr., all of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is an assault to murder with malice. The punishment assessed is confinement in the state penitentiary for a term of four years.

The record shows that on the 10th day of December, 1939, the appellant and the injured party were both employed at Claudia Ware’s night club. Appellant was a tap dancer and the injured party was the collector of admittance tickets to the dance hall. On the night in question, appellant, who had a courtesy ticket, came to the night club with one, Ozene Ballard, and asked the injured party to admit Ballard .without requiring him to purchase a ticket, which request was refused unless he obtained a special permit from Claudia Ware, the owner. Appellant undertook to shove his companion Ballard through the open doorway into the building. The injured party protested and blocked the door. A scuffle ensued during which appellant drew a pistol and shot the injured party in the lower part of the abdomen.

Appellant’s only complaint is that the court erred in overruling his motion for a new trial based on what he claims was newly discovered evidence. He set up in his motion that he was confined in jail from the 8th day of Janitary (the day the indictment was returned) to the 26th day of January, when he was tried; that he did not know Ozene Ballard’s name, did not know where he lived or where he worked. However, he made no effort to ascertain his name or whereabouts from any of the parties present at the scene of the difficulty or to locate him and have process issued for him; that he made no application for a continuance by reason of the absence of said witness; that within a short time after his trial appellant’s attorney located the witness, interviewed him and discovered that he was a material witness in his behalf. In our opinion, appellant has failed to exercise that degree of diligence required by law to entitle him to a new trial upon the ground of newly discovered evidence. See Art. 753, note 25, Vernon’s Ann.Tex. C.C.P., Vol. 3, pages 13-15.

His next ground in his motion for a new trial is also based on what he claims to be newly discovered testimony of the witness, Bonita Laporez, who claimed to have been at the night club on the night in question and saw something “shiney” in the hands of the injured party during the altercation. This party was summoned by the State as a witness. She appeared at court, was placed under the rule with other witnesses, but neither appellant nor his attorney made any effort to ascertain what she saw or knew about the assault. The court overruled the motion and appellant excepted and brings to this court for review by two separate bills of exception the court’s ruling on his motion for a new trial.

The first bill is qualified by the court and in his qualification he states that appellant failed to use proper diligence to secure the attendance of Ballard as a witness; that if he had used the same degree of diligence before his trial as he did thereafter he would have found the witness.

' The testimony of Bonita Laporez is in substance and effect similar to the •testimony given by other witnesses, was cumulative and would not have changed the result We think that the qualification to each of the bills stating the court’s conclusion for his action in overruling appellant’s motion for. a new trial finds ample support in the testimony offered on the hearing thereof. Bonita Laporez testified at the hearing of the motion for a new trial that she was called as a witness and placed under the rule with the other witnesses; that no white person made any inquiry of her as to what she knew; about the case; that if she had been called to the witness-stand she would have testified to all the facts within her knowledge relative to the case, but she was not called upon by the State to testify, and appellant, with knowledge of her presence, made no effort to interview her. Can it be said that appellant exercised the required diligence to entitle him to a new trial on the ground of newly discovered evidence which he might have discovered before or during the trial had he made any inquiry of the witness? We think not. See Salas v. State, 131 Tex.Cr.R. 296, 98 S.W.2d 203; Parrott v. State, 101 Tex.Cr.R. 553, 276 S.W. 279.

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.

On Rehearing.

BEAUCHAMP, Judge.

Appellant knew of the witness Ozene Ballard at the time he went to trial, but didn’t have his name and contends that he was unable to- subpoena him. The witness was his companion on the occasion of the assault and his presence was known to appellant. The conplaint is only that he did not know his name and did not know how to have him subpoenaed as a witness, but learned this after his trial. The existence of the witness was known to the appellant at the time he went to trial. He might have, at that time, presented a motion for a continuance until he could learn the name of his witness and secure his evidence. At least, the proposition would have had considerably more force than it does presented as newly discovered evidence, or a newly discovered witness. Whatever rights appellant had to secure the attendance and testimony of the witness Ballard appear to have been waived when he did not present this as a ground for a continuance of his case.

We overrule the motion for rehearing.


text:
    O’BRIEN v. STATE.
    No. 21368.
    Court of Criminal Appeals of Texas.
    Dec. 18, 1940.
    McCraw & Holt, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for robbery, punishment assessed being thirty years in the penitentiary.

S.F. Little was alleged to have been the victim of the robbery. The evidence shows that on April 4th, 1940, appellant appeared in Little’s room and exhibited a pistol and robbed Little of $1,700 and a diamond ring of the value of $1,000. Two or three weeks after the robbery appellant was arrested at the Highlander Apartment. Present with appellant at the time of his arrest was a girl, who was identified as the same girl who was present at appellant’s trial. When the officers entered appellant’s apartment he ran into the front room and towards a table in the drawer of which was a pistol, which the officers secured. Appellant said to one of the officers making the arrest if he (appellant) could have gotten to his gun — appellant called it 'a “rod” — before the officers got there “it would have been a different story.”

The indictment contained two counts, the first charging robbery by the use and exhibition of a pistol, the second charging ordinary robbery by assault and violence' and by putting Little in fear of life and bodily injury. When the casé was called for trial the State abandoned the first count. Appellant went to trial without being represented by an attorney. The trial court certifies as follows: “The court offered to appoint this defendant counsel and almost insisted that he have counsel, but he stated that he could represent himself and so desired.”

The record shows that he did cross-examine the State’s witnesses, and examined witnesses called by himself, and argued his case before the jury. Mention is now made of the circumstances just recited in view of what happened later.

After his conviction appellant did secure an attorney who presented a motion for a new trial. None of the things now sought to be urged as errors was complained of or even mentioned in said motion.

Three bills of exception in the record were filed too late. Appellant seeks to have the case reversed on the ground that without his own or his attorney’s fault he has been deprived of his bills, or, on the other hand, to have the bills considered notwithstanding the delayed filing.

It appears that when appellant’s motion for new trial was overruled the attorney then representing him asked if he could have additional time in which to file bills of exception, and the court instructed counsel that after the 30 days allowed by law had elapsed if he would file a written request for additional time 60 days more would be granted. The trial judge evidently overlooked the fact that after the 30 days allowed by the statute (Art. 760, C.C.P., subdivision 5) had expired he was without authority to then make an extension order, but that it was required to be made within the 30 days allowed by the statute. Buckley v. State, 108 Tex.Cr.R. 316, 300 S.W. 67; Stevenson v. State, 110 Tex.Cr.R. 383, 10 S.W.2d 548, and cases therein cited; see, also, § 301, page 436, 4 Tex.Jur., and cases cited in Note 19 under said section. It further appears from the record that counsel then representing appellant never at any time, either before or after the expiration of the statutory 30 days, asked for a further extension. If such a request had been made appellant would have been in a much more favorable light before this court in asking consideration of bills delayed in filing.

Attached to two of the bills of exception is a copy of the entire statement of facts, it apparently being the position of attorneys now representing appellant that it was necessary to make the statement of facts a part of the bills in order to exhibit the claimed error, and that said’ statement of facts was delayed in preparation without fault chargeable to appellant, and that this would excuse the delayed filing of the bills. Appellant is in no better position regarding the delay in preparation of the statement of facts than he is about the absence of extension orders about the bills of exception. The statement of facts was filed within the 90 days provided by Art. 760, C.C.P., for filing statement of facts, but as an aid to bills of exception it is another question. In the first place, we can see no good reason why it was necessary to encumber the record by making the statement of facts a part of said bills. Regarding the delay in preparation of the statement of facts: The record shows that the motion for new trial was overruled on June 28th. On July 20th the then counsel for appellant filed an affidavit to secure a free statement of facts. The trial court made the order therefor on the same day. It appears from the uncontroverted affidavit of the court reporter that he had ample time to prepare the statement of facts, but that he was told several times by the then counsel for appellant that there was no hurry about the matter and that he (the then counsel) thought he could get the money to pay for the record; that he (the court reporter) was informed by present counsel for appellant on August 24th that they had been employed to appeal the case and wanted the statement of facts; that he prepared and delivered it to them on August 28th. The cause for any delay in preparation of the statement of facts is apparent from the foregoing recital.

The bills of exception were not presented to the trial judge until the 3d day of September. They were qualified, approved and filed on September 4th. The bills might be dismissed without further comment because filed too late.

However, if considered, the bills present no error of which this court may properly take cognizance. The recitals in the bills do not claim to show that any objection was made to the introduction of the evidence nor to the argument of counsel now sought to be complained of. In regard to bills two and three relating to argument of counsel for the State, the trial court certifies that “at no time during the argument of counsel for the State did the defendant make any character of objection or exception to the argument”. All that may be said of the bills is that they recite certain things as having occurred during the trial which might have been subject to objection. We observe nothing in bill number one regarding evidence of the recovery of the ring taken at the time of the robbery which was improper even had objection been interposed.

Some things were perhaps said in the argument which would have been better omitted, but it is too firmly settled now to call for further discussion that to avail an accused argument must be objected to at the time it is made. Weige v. State, 81 Tex.Cr.R. 476, 196 S.W. 524; Spears v. State, 91 Tex.Cr.R. 51, 237 S.W. 270; Simmons v. State, 93 Tex.Cr.R. 421, 248 S.W. 392, 393; Harris v. State, 93 Tex.Cr.R. 544, 249 S.W. 485; Herms v. State, 129 Tex.Cr.R. 448, 87 S.W.2d 717; Salinas v. State, 113 Tex.Cr.R. 142, 18 S.W.2d 663; Smith v. State, 104 Tex.Cr.R. 616, 286 S.W. 223; Thompson v. State, 116 Tex.Cr.R. 437, 34 S.W.2d 250; Crowley v. State, 117 Tex.Cr.R. 372, 35 S.W.2d 437. In Scott v. State, 132 Tex.Cr.R. 517, 105 S.W.2d 242, it was insisted that if the argument was so obviously harmful that its effect could not have been controlled by an instruction to disregard it there would be no necessity to object at the time the argument was made. This court declined to follow said suggestion but adhered to the rule that objection must be interposed when the argument was made, citing many of the cases listed above, and quoting in part Art. 2237, R.C.S. The Scott case has been cited with approval in Morgan v. State, 135 Tex.Cr.R. 76, 117 S.W.2d 76; Coy v. State, 136 Tex.Cr.R. 79, 123 S.W.2d 894. The rule should not be changed because appellant had no attorney. In this particular case appellant had declined the trial court’s offer to appoint counsel to represent him. The sympathy of the court might be with an unfortunate accused unable to secure counsel, but it would scarcely be a salutary holding to announce that such condition would justify a variance from the rules of orderly procedure.

The judgment is affirmed.


text:
    RENFROE v. STATE.
    No. 21315.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1940.
    Robert P. Brown and Cliff Tupper, Jr., both of San Angelo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of killing and taking a game bird, to wit, a wild turkey, at a time of the year other than the open season for the killing and taking of a wild turkey, and was by the jury fined the sum of $10.

Appellant complains because of the refusal of the trial court to give in charge to the jury his requested charge as follows : “You are instructed that unless you believe beyond a reasonable doubt that the defendant did kill and did take a wild turkey within the boundaries of Tom Green County, Texas, that you will find the defendant not guilty.”

We find in the concluding paragraph of the trial court’s charge that he gave substantially the matters set forth in the above request.

Appellant’s bill No. 3 complains of the introduction of all the testimony of Pat Close, the game warden, who stopped the automobile which appellant was driving and searched the same, and found a turkey therein, because it was contended that the witness had no search warrant, nor warrant of arrest for appellant, and no probable cause for such unwarranted search. It appears from testimony heard before the court, outside of the presence of the jury, that the witness “had been called by ranch-men in the vicinity of the Fort McKavett road on several previous days telling him that the defendant was hunting along said road, and that on one previous occasion he had endeavored to stop the defendant along said road, and that the defendant had outrun-him on that occasion; that a ranchman on the Fort McKavett road had called him on November S, 1939, about 4:30 or 5 o’clock in the afternoon, and had stated that the defendant was out there hunting again, and that his car was parked on the Fort McKavett road; that he got in his car and drove out on said road and saw the defendant’s car parked by the side of the road; that he then turned around and went back about, a mile down the road and parked until about sundown when he stopped the defendant’s car by parking across the road; that he then asked the defendant if he had been hunting and looked into the car and found a gun; that he then asked the defendant to open the backend-of his automobile, which the defendant did; that he then found a turkey gobbler in the rear end of the defendant’s car.”

It occurs to us that such witness was possessed of enough reliable information to constitute a probable cause for the searching of this automobile. It is also to be noted that Art. 923d, P.C., gives the right of search whenever any deputy commissioner has reason to suspect that any vehicle may contain game unlawfully killed, and punishes any person who refuses to stop and allow a search of such vehicle.

We are also impressed with the conclusion that the argument complained of by appellant in his bill of exceptions No. 4 was invited by and in answer to certain argument upon the part of appellant’s attorney, and does not constitute any error.

Appellant also complains of the statute, Pen. Code 1925, art. 907, making possession of any wild game bird during the closed season thereon as prima facie evidence of guilt under the statute prohibiting such possession, and contends that such prima facie evidence statute is unconstitutional. We are impressed with the idea that such a statute is merely a rule of evidence, and that the Legislature possessed the power to change such rules within their reasonably exercised discretion. In Wigmore on Evidence, Second Edition, Vol. 2, p. 1063, Sec. 1356, we find the following:

“There remains a question which has no concern with the question of conclusive evidence, but has often been assimilated to it, and has received an undeserved importance and a needless confusion by that association, namely, the question of the constitutionality of statutes creating rules of presumption or ‘prima facie’ evidence.
“A rule of presumption is simply a rule changing the burden of proof, i. e., declaring that the main fact will be inferred or assumed from some other fact until evidence to the contrary is introduced. There is not. the least doubt, on principle, that the Legislature has entire control over such rules, as it has over all other rules of procedure in general and evidence in particular-subject only to the limitations of the rules of Evidence expressly enshrined in the Constitution.”

Of a certainty there must be some reasonable connection with the main fact to be proven and the presumption of fact from the evidence produced, but when that connection is presented, then a reasonable deduction can be properly provided by the Legislature as to what amount of evidence will be necessary to allow the presumption of one fact from evidence of another proven fact.

We find this power upheld in many statutory enactments, both state and federal. The contention made by appellant we do not think is sound.

The testimony shows appellant in possession of a turkey on November 5, 1939, during the closed season on wild turkeys; there was proof offered before the jury that this was a wild turkey, and, although contrary proof was also offered, the jury’s verdict settled the fact that this was a wild turkey. There also seems to be what might be termed a confession of guilt upon the part of appellant to the witness Oscar Butts.

We find no error herein, and the judgment is affirmed.


author: BEAUCHAMP, Judge.

text:
    COTHRAN v. STATE.
    No. 21329.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1940.
    J. Mitch Johnson, of San Saba, for appellant.
    Lloyd'W. Davidson,. State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the county court of San Saba County for violation of the local option law, and assessed a penalty of two years in the county jail, from which he appeals.

The question raised in this appeal is whether or not a conviction against appellant in Cause No. 1744, dated November 30, 1938, can again be utilized in this case after having been used for the purpose of enhancing the penalty in prior cases.

Without stating the facts, which are practically the same and which raise the same questions of law, it is sufficient to say that this is the same question as was presented in several former appeals, Cothren v. State, Tex.Cr.App., 140 S.W.2d 860; Cothren v. State, Tex.Cr.App., 141 S.W.2d 600, and in Cothren v. State, Tex.Cr.App., 143 S.W.2d 958, against this same appellant, the opinion in which has not yet been reported.

Reference is here made to said opinions, and for the reasons therein stated the judgment herein is reversed and remanded.


text:
    Jack COTHRAN, Appellant, v. STATE, Appellee.
    No. 21330.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1940.
    J. Mitch Johnson, of San Saba, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The question presented in this appeal is exactly the same as that discussed in Tex.Cr.App. 145 S.W.2d 885, by the same appellant in an opinion of this date. For the same reasons the judgment of the trial court is reversed and the cause remanded.


text:
    Jack COTHRAN, Appellant, v. STATE, Appellee.
    No. 21331.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1940.
    J. Mitch Johnson, of San Saba, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The question presented in this appeal is exactly the same as that discussed in Tex.Cr.App., 145 S.W.2d 885, by the same appellant in an opinion of this date. For the same reasons the judgment of the trial court is reversed and the cause remanded.


text:
    BURT v. STATE.
    No. 21336.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1940.
    H. L. Edwards, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted on a charge of murder and assessed a penalty of five years in the penitentiary.

This case with the same question now before us has heretofore been before this court in No. 20910, reported in 138 Tex.Cr.R. 540, 137 S.W.2d 1045, 1046. We held at that time under a well-considered opinion that appellant was entitled to have his affirmative defense submitted to the jury without complicating issues. It is our opinion that on the second trial of the case the learned trial judge has failed to remove these complications.

Applying the facts of the case, which were the same as found in the record before us, it was held in the former appeal that the court should have instructed the jury, “if they had a reasonable doubt that he fired the shot in an effort to stop deceased, and had no intention of hitting him”, they should acquit him. It was further said that the court’s charge on accidental homicide was not sufficient to present appellant’s affirmative defense in that it was calculated to lead the jury to believe that appellant could be held guilty of murder if he was negligent and careless in discharging his pistol. This is not the law of this case. It was stated that accidental homicide was not shown to be in the case. It was further said that even though it had been, the charge of the court should not have been trammeled by conditions requiring the jury to find that negligent homicide was not in the case before they could acquit appellant of murder on his accidental theory.

Notwithstanding the foregoing holding, we find the following charge in this particular case: “If you believe from the evidence, or have a reasonable doubt thereof, that the defendant shot his pistol for the purpose of causing the said Bertie Y’Barbo to stop, and was not guilty of any negligence or carelessness in doing so, you will find the defendant not guilty.”

Under the authorities cited in the former opinion we think this charge is error requiring a reversal of the case.

We know of no stronger language to use than that heretofore used which states that where the evidence raises a defensive theory in an affirmative way, it is incumbent, upon the court to submit that theory in a charge untrammeled by other issues and without conditions such as found in the foregoing charge.

The court’s definition of murder should, of course, comply with the present statute, Vernon’s Annotated Penal Code, Art. 1256.

For the reasons stated, the judgment of the trial court is reversed and the cause remanded.


text:
    MOORE v. STATE.
    No. 21308.
    Court of Criminal Appeals of Texas.
    Dec. 18, 1940.

      Basket! & Parks, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant, a negro man, was charged by indictment with driving an automobile on a public street in the city of Dallas, Texas, about midnight on the 13th day of January, 1940, and striking one Orvelle Polly with said automobile, and refusing to stop and render “all necessary assistance to the said Polly in this, to-wit: that the said Andrew Moore did then and there fail to stop and to carry the said Orvelle Polly to a physician and surgeon for medical and surgical treatment required by the said Orvelle Polly by reason of the said injury received as aforesaid,” etc.

Appellant was by the jury convicted and given a term of two years in the penitentiary.

The testimony shows that appellant was 'driving an old sedan about midnight, on the date alleged, on Merlin Street, and near the house of Ellen Lofton, on one side of the street and the Central Freight Lines on the other side of the street, he struck a car belonging to Ellen Lofton, which was parked in front of her home. The night watchman for the Freight Company, who was upstairs on its property and could see out of the windows, stated that he heard one slight 'impact, and within a second or two he heard another louder crash; that he immediately looked out of the window and saw one car backing around another car, which first car immediately drove off; that it soon stopped and backed up and the driver thereof opened the door on the opposite side from the car he had struck, and stood up and looked out and then sat back down and drove off. This person was afterwards shown to be the appellant, whose defense was embodied in the statement that he did not know he had hit anyone in the accident. The night watchman immediately came downstairs and unlocked a gate and went across the lighted street to the scene of the accident, and there found a man’s body lying diagonally behind the car that was struck. He immediately went back across the street and phoned for an ambulance.' In about ten minutes the ambulance came and the man, Mr. Polly, was found to be dead. He evidently died from a hemorrhage of the stomach, there being evidence that the major portion of the blood in his body was in his stomach and was drawn therefrom by the undertaker, as shown by his testimony.

Appellant offers the proposition that the court should have charged the jury that “if Orvelle Polly was struck by defendant’s automobile and death was instantaneous, then medical or surgical treatment would not have been either necessary or required, and under those conditions, the defendant having stopped, he would not be guilty of the offense charged.”

In the first place it was appellant’s duty to stop, regardless of whether or not anyone was injured, see Garcia v. State, 131 Tex.Cr.R. 84, 96 S.W.2d 977; Bevil v. State, Tex.Cr.App., 141 S.W.2d 362, 363; and further it is our opinion that the stop demanded by statute, Vernon’s Ann.P.C. Art. 1150, does not mean a stop for an instant, enabling but a cursory examination of the surroundings, but does mean a definite cessation of movement for a sufficient length of time for a person of ordinary powers of observation to fully understand the surroundings of the accident and to possess himself of an accurate knowledge of the results of the accident. We further observe that the mere fact that the injured person was found to be dead some few minutes after the accident, would not be a sufficient excuse to absolve appellant from blame on account of a failure to stop an appreciable length of time.

We find in 42 Corp.Jur., p. 1385, Sec. 1451, the following: “The fact that an injured person is unconscious and so unable to receive the information required by the statute to be given him, or is dead and therefore not in need of assistance does not excuse the failure of the driver to stop or to comply with other provisions of the statute.” In line with this text we find the case of People v. McKee, 80 Cal.App. 200, 251 P. 675, 677, a California case, which law is practically the same .as ours. We quote: “The second contention advanced by the defendant is that the evidence is not sufficient to support the verdict on the second count— that of failing to stop and render all necessary aid to Mrs. Fleming after she was struck. The insufficiency, he says, consists of this: That the evidence establishes that she was instantly killed, and therefore no assistance was possible. The testimony does .establish that Mrs. Fleming was dead at least by the time the bystanders reached her. We cannot admit, however, even for the purpose of argument, that there was no assistance to be rendered. Certainly decency and common respect dictate that mutilated humans should not be allowed to lie around in the street as mute evidence of the destruction wrought by speed. There was at least such assistance to be rendered as would comply with the respect due from one human to another who has passed beyond the veil of materiality. Let us, however, temporarily grant the argument; nevertheless, as was pointed out in People v. Huber, 64 Cal.App. 352, 221 P. 695, it was the defendant’s duty under any view of the situation to stop his machine and stand ready to comply with the various provisions of the law, regardless of whether or not the person struck was sufficiently injured to require assistance or so seriously injured that assistance was no longer necessary to her material well-being. He made no attempt to comply and he certainly cannot be heard to say that he is guilty of no offense because the woman was killed instead of injured. Justice would indeed be ‘blind’ and deaf and dumb to heed such specious arguments.”

The above case is very similar to the instant case. No one touched Mr. Polly’s body for about ten minutes after the accident, at which time the police officer testified that he found no pulse on the body. We doubt the application of the doctrine of instant death in this case. Appellant testified that he hit the automobile but that he did not know that he had hit a man, and when he backed up he saw no man lying in the street, although the night watchman testified that there was light from the street lights shining at such place. And again we do not think the short stop and then the drive away would meet the duty imposed upon him by statute, and therefore he was not entitled to the instruction requested.

We find in appellant’s objections and exceptions to the court’s charge an objection in that the charge authorized a conviction if defendant failed and refused to render “all necessary assistance,” because same is broader than the charge in the indictment in that the indictment specifically charges that the necessary assistance he is charged with having failed to render was to carry said Orvelle Polly to a physician or surgeon for medical or surgical treatment. It is observed that the allegations m the indictment relative to such necessary assistance elaborates on the same as follows: * * in this, to-wit, that the said Andrew Moore did then and there fail to stop and to carry the said Orvelle Polly to a physician and surgeon for medical and surgical treatment required by the said Orvelle Polly, by reason of the said injury, received, as aforesaid, by being struck by said automobile, * *

The portion of the court’s charge complained of being as follows: “Now if you find and believe from the evidence, beyond a reasonable doubt, that the defendant, Andrew Moore, on or about the 13th day of January 1940, the time alleged in the indictment, in the county and state aforesaid, was the driver and person in control of a motor vehicle, towit, an automobile, in and upon a public street and highway, towit: Merlin Street, in the city of Dallas, Dallas County, Texas, and that the said automobile so driven and controlled by the said defend-an¿ did then and there strike and collide with one Orvelle Polly, and thereby injure the sajd Polly, and the said defendant, Andrew Moore, did then and there unlawfully fail and refuse to stop and render all necessary assistance to the said Orvelle Polly, then you will find the defendant guilty as charged in the indictment, and assess his punishment at confinement in the penitentiary for any time not to exceed five (5) years or imprisonment in jail for any time not exceeding one (1) year, or by fine in any sum not to exceed Five Thousand ($5,000.00) Dollars, or by both such fine and imprisonment in jail-’

We think the trial court was in error jn pjacing a greater burden on appellant than ⅛ required of him by the indictment ⅛ this case as above quoted. Since the pleader had seen fit to set forth the assistance required of appellant in the indictment, it. was necessary that the charge should follow the indictment and not enlarge thereon, and in the charge where the words “necessary assistance appear the same should have been followed with the phrase specified in the indictment, that is, by failing to stop and carry the said Orvelle Polly to a physician and surgeon, etc.

⅞ ⅛ eiementary that the court’s cfiarge can not authorize a conviction for other acts than thoSe set forth ⅛ the ⅛. dictment and t0 authorize a conviction on further matters than those set forth in indictmellt is erroneous,

It is further the law that where particular facts and circumstances are set forth constituting the descriptive identity of the offense charged, the trial court is limited in his charge to those matters thus specifically alleged.

We held in the Tooney case, Tooney v. State, 5 Tex.App. 163, 192: “The charge must conform to and correspond with the allegations. To go outside of and beyond them, in submitting other issues, is not only calculated to mislead the jury, but also calculated to injure the rights of the defendant, by making them depend upon matters he could not be prepared to meet, because he was not notified that they would be.urged against him. Coney v. State, 43 Tex. 414; Kouns v. State, 3 Tex.App. 13; Ferguson v. State, 4 Tex.App. 156.” And many other decisions holding practically the same.

Because of the error in the court’s charge submitting to the jury “all necessary assistance” rather than the allegations in the indictment of taking the said Orvelle Polly to a physician and surgeon, etc., this judgment is reversed and the cause is remanded.


text:
    WILSON v. STATE.
    No. 21318.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1940.

      Wade & Wade, of Beeville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

Appellant was convicted of an assault to murder without malice. His punishment was assessed at confinement in the state penitentiary for a term of three years.

The State’s testimony, briefly stated, shows that on the night of December 23, 1939, Jose Chapa, the injured party, accompanied by Pedro Garcia and Ben Rodriguez, went from the W. O. W. Hall to the Casino Club located in the town of Beeville in Bee County. While these three men were out at their car drinking a bottle of beer the appellant, Ben Wilson, came from the club room and went to where these three parties were, and without any apparent cause, assaulted Chapa with a knife, inflicting serious wounds upon him. Dr. Miller, who treated the injured party at the Thomas Memorial Hospital, described, the wounds and the location thereof on the body of Chapa as follows: “He had a mean slash across the right side of his neck, cuts on his hands and a stab wound in the abdomen. They were such wounds as would be calculated to produce death or serious bodily injury.”

Appellant admitted cutting Chapa with a knife, but contended that he did so in self-defense. He said that when he went around to the back of their car towards the highway Chapa, the injured party cursed him; that he then came to the front of their car when Chapa threw a beer bottle at him; that he ducked, drew his knife, and when Chapa advanced upon him he cut him; that they clinched and fell to the ground, during which time he continued to cut Chapa until they were separated.

Appellant addressed quite a number of objections to the court’s charge relative to the law of assault with intent to murder, both with and without malice, but in view of the fact that the jury found him guilty of assault' to murder without malice, all of the objections addressed to the court’s instruction on the law of assault to murder with malice passed out of the case. Consequently we need only consider the obj ections addressed to the court’s charge on the law of assault to murder without malice and self-defense.

The court’s instruction on assault to murder without malice reads as follows: “But, if from the evidence you believe beyond a reasonable doubt that the defendant, Ben Wilson, on or about the 23 day of December, 1939, in the County of Bee and State of Texas, with a deadly weapon, to-wit, a knife, and without malice, as that term has been hereinbefore defined to you, did assault the said Jose Chapa with intent, then and there to kill the said Jose Chapa, you will find the defendant guilty of an assault with intent to murder, and say so by your verdict and assess his punishment at confinement in the penitentiary for a term of not less than one nor more than three years, as you may determine and state in your verdict.”

Appellant’s main objection to this charge is that the court, in connection with said instruction, did not apply the doctrine of reasonable doubt. We note, however, that in the succeeding paragraph the court instructed the jury as follows: “If you believe from the evidence that the defendant is guilty of an assault, but have a reasonable doubt as to whether such assault was with intent to murder, then you will acquit him of that offense and next consider whether he is guilty of an aggravated assault.”

This was a direct instruction to the jury that if they had a reasonable doubt as to whether the assault was made with an intent to murder, then they should acquit him of that offense and next consider whether he was guilty of an aggravated assault. In our opinion, the jury could not have been misled by the failure of the the court to incorporate the doctrine of reasonable doubt in his instruction relative to an assault to murder without malice. The court was not required to wind up every paragraph of the charge with the instruction that unless they so found or if they had a reasonable doubt thereof to acquit him. Tex.Jur. Vol. 24, p. 609, § 118, states the rule as follows: “If the instructions apply the doctrine of reasonable doubt to the whole case, it is not ordinarily necessary to restate the rule in connection with each feature of the case or in each paragraph of the charge.” See cases cited under note 6.

Appellant also objected to the court’s charge on the law of self-defense on the. ground that it limited his right of self-defense to actpal or apparent danger of suffering death or serious bodily injury. We have examined the court’s charge in the light of the objections addressed thereto but find no such limitation therein. The court clearly and definitely instructed the jury that if from the acts of the said Jose Chapa or from his words, coupled with acts, there was created in the mind of the defendant a reasonable apprehension that he was in danger of suffering bodily injury at the hands of Jose Chapa, then the defendant had a right to defend himself against such danger -or apparent danger; and it is not necessary to the right of self-defense that the danger should in fact exist, but if it reasonably appeared to the defendant at the time, viewed from his standpoint, that such danger existed, he would have the same right to defend against it that he would if the danger were real; and a party so unlawfully attacked is not bound to retreat in order to avoid the necessity of killing his assailant. If the defendant committed the assault as a means of defense, believing at the time he did so, if he did so, that he was in danger of suffering bodily injury at the hands of Jose Chapa, the jury should acquit him. We think this was a sufficient instruction in that it fully and fairly protected the defendant in his legal right of self-defense as against any attack or apparent attack by Jose Chapa.

By bill of exception No. 4 appellant complains of the action of the trial court in limiting the appellant’s right of self-defense to the theory that he was attacked only by Jose Chapa and did not instruct the jury that the defendant had a right to defend himself agains't an attack by both Jose Chapa and Pedro Garcia or either of them; that before the court presented his charge to the jury appellant objected thereto in writing on the ground that defendant was entitled to a charge affirmatively ‘ stating that he had a right under the law to-use all means at his command to protect himself against an assault, actual or apparent, at the hands of Jose Chapa and Pedro Garcia. The objection was overruled by the- court and appellant excepted. The court certifies that defendant would be entitled to such a charge if the facts were such as showed that Jose Chapa and Pedro-Garcia were advancing towards the defendant ; that he had a right under the law to use all the means at his command to protect himself against an actual or threatened assault by either or both of them. We think the evidence is sufficient to raise the issue.

Hernando Cortez testified that there was a pretty good crowd at the Casino Club at the time; that when he heard that Ben Wilson was fighting he went out there within a short distance of where the parties were engaged in the fight; that all three of them were up against the fence, but he could not tell who they were out there in the dark; that he found out after-wards who the two men were that Ben was fighting with up against the fence.

Appellant testified that he was at the Casino Club on the night in question; that when he started to go home he walked by the car at which Jose Chapa, Pedro Garcia and Ben Rodriguez were standing; that he heard Chapa make some remark concerning him; that he then started back to the Casino Club to get Mike Cortez to take him home because he was afraid that Chapa might jump on him; that when he walked around the front of the car and started to go to the Casino Club, Chapa threw a beer bottle at him; that when the beer bottle was thrown at him, he went down to the giound on his right knee, drew his knife from his pocket, and when Chapa rushed at him, he cut him on the arm. Then both Chapa and Pedro Garcia caught hold of him. Garcia caught him by the left armf and Chapa caught his right arm, and they pushed him backwards to the fence; that during this time Chapa was hitting him in the left side. ’ Then Mike Cortez came out and told Chapa and Garcia to turn him loose. They did so, and got in their car to leave. Appellant said he was afraid of them because they were both as large as, if not larger than he was. He further testified: “I didn’t say a while ago that at that time he had me by the right arm like this (indicating) and that the only way I could stab him was by swinging at him like that (indicating), but said that I was standing like that (indicating) and he had my arm like that (indicat-, ing) and that I cut him like that (indicating). * * * I had slapped him and cut him in the neck and shoulder at the same time. Then Pedro Garcia came ■ in and caught my left arm like that (indicating) and Jose had hold of my right arm, and we went down onto the fence. * * * I was not trying or intending to kill Jose, at the time I cut him, but was just trying to get aloose from them.”

We think that the evidence is sufficient to raise the issue that appellant had the right to defend himself against the attack of both Chapa and Garcia, or either of them, and the court should have responded to the appellant’s objection. When there is evidence, viewed from the accused’s standpoint, that he was in danger of an unlawful attack or a threatened attack at the hands of more than one assailant, the court should instruct the jury that he'had a right to defend himself against either or both of them. In support of the views herein expressed we refer to the following cases: Petty v. State, 126 Tex.Cr.R. 185, 70 S.W.2d 718; Smart v. State, Tex.Cr.App., 146 S.W.2d 397, opinion delivered Dec. 4, 1940.

Bill of exception No. 3 reflects the following occurrence: While Dr. Miller was testifying on behalf of the State, the court permitted the injured party, Jose Chapa, to be brought into the court room, undress himself and exhibit the wounds on his body to the jury. The court also permitted Dr. Miller to point to the wounds on the body of the injured party and describe the extent of the injuries and the seriousness thereof. The wounds so exhibited were large, ugly and discolored scars. Appellant objected to this procedure for the reason that such evidence -was highly prejudicial; that there was not dispute as to the cutting; that the wounds were serious and dangerous; that the exhibition of the wounds could serve no good purpose; was prejudicial and injurious to the defendant for the reason that there was no issue before the jury as to the extent of the injuries or as to who in-flictedl the same, which objections were overruled by the court and the defendant then and there excepted.

If appellant had admitted the seriousness of the wounds, a different question might have been presented- and the case might have come within the rule announced by Judge Davidson in Newman v. State, 85 Tex.Cr.R. 556, 213 S.W. 651, and Chapman v. State, 66 Tex.Cr.R. 489, 147 S.W. 580. But this he did not do. By his plea of not guilty, the State was required to prove the seriousness of the wounds in order to establish its case. That appellant contested the seriousness of the wounds is shown by the fact that when the State proved by the sheriff the location and character of the wounds on the body of the injured party, appellant objected thereto on the ground that the sheriff, being a lay-witness, could not express an opinion relative to the seriousness of the wounds. We believe that the facts of’ this case bring it within the rule announced by this court in that of Harris v. State, 106 Tex.Cr.R. 539, 293 S.W. 822, 824, in which this court, speaking through Judge Hawkins, said: “Reed was permitted over objection to remove his clothing and exhibit to the jury scars left on his body by the wounds inflicted by appellant. These scars were several in number; being of an ugly and discolored appearance. The objection urged was that physicians present could testify to the nature and character of the wounds, and that their exhibition to the jury tended to solve no issue in the case. This objection cannot be sustained. The state was seeking conviction of aggravated assault, based on the claims that the wounds inflicted were of a serious nature. Appellant by his plea of 'not guilty’ had put the state upon proof of every material fact necessary to convict. One of these facts was the nature of the wounds. The state could establish this fact by any legitimate evidence at hand, ánd appellant could not dictate that the state proceed'in any particular manner to make out its case'. The wounds, exhibited enabled the jury to pass upon the question as to whether serious bodily injury had been inflicted. The fact that physicians could testify, and did later testify, that Reed was confined in the hospital ten days, and 'that the wounds were of a serious nature, would not render inadmissible their exhibition before the jury.”.

It is observed in this connection that the evidence shows the assault was committed with a pocket knife. There is no evidence as to the size of said knife or the length of the blades. The State was compelled to resort to proof as to the wounds inflicted to show the deadly character of the weapon used by appellant.

Appellant, ⅛ his brief, refers us to the case of Gandy v. State, 137 Tex.Cr.R. 412, 129 S.W.2d 661, in support of his contention. . It will be noted that in the discussion of the question in that case, the court inquired of appellant’s counsel if by his objection he intended to admit that the injuries suffered by the prosecuting witness were serious, to which he replied in the negative; and when he declined to admit the serious nature of the wounds, that issue became a controverted one. Consequently the exhibition of the wounds to the jury, under the circumstances, became admissible, notwithstanding the fact that the attending physician testified to the location of the wounds on the body and the serious nature thereof. Hence, that case does not support the appellant’s contention, nor does the case of Smith v. State, 129 Tex.Cr.R. 273, 86 S.W.2d 750 do so. We, therefore, overrule his contention.

Appellant objected to the testimony given by the sheriff to the effect that he examined the wounds on the body of Chapa; that they were such as were calculated to produce death or serious bodily injury. While ordinarily a layman would not be qualified to express an opinion relative to the seriousness of wounds, yet, the sheriff’s testimony was in substance and effect but a repetition of that given by the doctor who treated the injured party. The jury already had before them testimony to the same effect given by the doctor which was not controverted. Consequently, the admission of the testimony complained of was a harmless error. From 19 Tex.Jur. p. 176 § 116, we take the following quotation: “It is a general rule also that the admission of improper evidence does not constitute reversible error if the same facts were proved by other and proper testimony or by evidence which was not objected to. This rule has been applied many times in connection with the receipt of objectionable opinion evidence given by non-experts,” etc. See Norton v. State, 129 Tex.Cr.R. 503, 88 S.W.2d 1045.

Bill of exception No. 5 reflects the following occurrence: Ben Rodriguez, who testified for the defendant, described the difficulty as he saw it. His testimony was at variance with what he had theretofore stated to Alex Cox in the presence of Wachtendorf, a deputy sheriff. Thereupon the State introduced the deputy sheriff and proved by him that on the day before the trial began, Ben Rodriguez made a statement to Alex Cox, the District Attorney, in the presence of the said Wachtendorf, which was at variance with his testimony, to which appellant objected on the ground that it was a transaction out of the presence and hearing of the defendant; -that it was hearsay and therefore no proper predicate was laid for said question. Thereupon, the District Attorney, in the presence of the jury, stated to the court that it was offered for the purpose of impeachment, whereupon the court overruled the objection and made the following remarks: “It (meaning the testimony of the witness Wachtendorf) is admitted for impeachment purposes only and the Court is going to limit, it to that, and the jury will not consider it for any other purpose except to impeach the witness, Ben Rodriguez.”

We think this remark by the court was a comment on the weight of the testimony which is inhibited by the statute, Art 707, C.C.P.

All other matters complained of have been carefully considered by us and are deemed to be without merit.

In view of another trial, we would suggest that the court do not assume that the knife used by appellant was a deadly weapon but to submit the issue to the jury as to whether or not the knife, from the manner of its use, was calculated to produce death or serious bodily injury.

For the error herein pointed out, 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.


text:
    ROUNTREE v. STATE.
    No. 21277.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1940.
    Polk Shelton, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of being an accomplice to cattle theft, and sentenced to serve a term of two years in the penitentiary.

It appears from the testimony that appellant entered into a conspiracy with his nephew Eugene Rountree, wherein it was agreed that Eugene would catch a cow on certain premises near the city of Austin, and tie up such cow, and appellant would come and get the cow and sell the same, and give Eugene one-half the money that the cow was sold for. It further appears that Eugene Rountree did rope a cow and tie her up on the roadside near where the cow was kept, and at a later date appellant sold this stolen cow to another.

Under a long line of decisions of this court, the conspiracy contemplating the disposal of such stolen property by one not present at the commission of the offense, Ahe one whose part of the conspiracy was to dispose of the property, and divide the proceeds among the wrongdoers, was a principal and not an accomplice, on the ground that each conspirator is guilty of the acts of any and all the conspirators as long as the purpose of the conspiracy exists and is being carried out to its termination. In the early case of Smith v. State, 21 Tex.App. 107, 125, 17 S.W. 552, 555, we held:. “If it be proved that defendants by their acts pursued the same objects, often by the same means, one performing one part and another another part of the same, so as to complete it with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object ([Mussel] Slough Case [C.C.], 5 F. 680) ; and under our statute such acting together would make all principal offenders, whether present bodily at the place of the offense or not (Berry v. State, 4 Tex.App. 492; Heard v. State, 9 Tex.App. 1; Wright v. State, 18 Tex.App. 358); and they are all principals and acting together as long as any portion or object of the common design remains incomplete, —in other words, until the full pu'rpose and object of the conspiracy is consummated and accomplished.”

The difficulty which confronts us in this case is the fact that the witness Eugene Rountree, after he had reduced the cow to his possession and tied her up on the roadside, was still interested in the animal, according to the proof, owning a half interest in her, or what she “brought,” and thus owning a half interest in the stolen cow. The part of the conspiracy wherein the appellant became active was the disposal of the animal and the division of the money received therefor. Under the decisions this constituted him a principal in the theft, and he .should have been thus changed in the indictment.' We refer to the case of Rountree v. State, Tex.Cr.App., 143 S.W.2d 942, .wherein, under a different 'state of facts, this same appellant was held to have been an accomplice, and the difference between an accomplice and a principal was set forth. It will be observed in that case the actual taker of the animal received the sum of $7 for taking the animal, and had no further interest therein; in this present case, however, the taker of the animal was still interested in the same, and appellant owed to him the obligation of disposing of the animal and paying to the original taker one-half of the money received for the stolen cow. Under the above line of decisions this constituted appellant a principal, and he should have been so charged in the indictment. We quote from the Rountree case, 143 S.W.2d 942; 943: “If Eugene Rountree had had any further interest in the animal or the proceeds thereof to be paid him by appellant after the disposition of the animal by the latter the case would have been brought within the principle recognized in Smith v. State, 21 Tex.App. 107, 17 S.W. 552; McInnis v. State, 122 Tex.Cr.R. 128, 54 S.W.2d 96, and the cases therein cited, and also in Miller v. State, 133 Tex.Cr.R. 53, 105 S.W.2d 1097.”

It is observed that the count upon which a conviction was had. herein charges appellant as an accomplice while the facts show .Rim to be a principal in the offense.

Because of the failure of the allegation and the proof to correspond, this judgment is reversed and the cause remanded.


text:
    BARNES v. STATE.
    No. 21236.
    Court of Criminal Appeals of Texas.
    Dec. 18, 1940.
    Clarke Wills, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

Appellant was charged by complaint and information with having violated the Mediical Practice Act. Vernon’s Ann.Civ.St. art. 4495 et seq. He was convicted of said offense and his punishment was assessed at confinement in the county jail for a period of fifteen days and by a fine of $500.

The only question presented by the record which we deem necessary to discuss is the sufficiency of the evidence to sustain the allegations in the complaint and information. It was charged in the complaint, and- the averments in the information are identical with those in the complaint, that appellant resided in Mason County; that he had and maintained an office in and had designated a place in said county where he treated and prescribed for patients without having first registered in the office of the District Clerk of Mason County a certificate issued by the State Board of Medical Examiners evidencing his right to practice medicine, etc. Consequently, the State was required by evidence to support and sustain these allegations. The record not only fails to show that appellant resided in Mason County, but, on the contrary, it shows that he resided in Dallas County; nor is there any evidence which showed that he had an office in of had designated a place in Mason County where he met, treated or prescribed for patients. It is true that there is some evidence showing that appellant came to Mason County at the request of Mr. Kothmann, the patient, and met him at the place designated by Koth-mann and treated him, but there is no evidence from any source that appellant ever designated a place to meet patients for the purpose of treating, prescribing for or advising with them. Hence the proof fails to meet the allegations in the complaint and information. Therefore, we are constrained to reverse the judgment of the trial court and to remand the cause, and it is so ordered.

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: SMITH, Chief Justice.

text:
    FEDERAL UNDERWRITERS EXCHANGE v. SMITH.
    No. 10763.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 13, 1940.
    Rehearing Granted Dec. 11, 1940.
    Battaile & Burr, of Houston, and Brown & Bader, of Edinburg, for plaintiff in error.
    . Crane & Glarner, of Raymondville, for defendant in error.
   SMITH, Chief Justice.

In this workmen’s compensation case, originating in a justice of the peace court upon plaintiff in error’s appeal from an award of the Industrial Accident Board, Delmar H. Smith was the employee and Federal Underwriters Exchange the insurance carrier.

Smith filed his cross-petition and obtained judgment against the insurance company in the justice of the peace court, and on appeal in the county court, for $200 plus interest from the date of the award of the Industrial’ Accident Board for a like amount. The insurance company perfected its appeal to this Court, but has done nothing towards prosecuting it except to timely file transcript of 'the record here.

Defendant in error has now filed motion to affirm with 10 per cent damages for delay, under Arts. 1857 and 1860, R.S. 1925, thereby requiring this Court to search the record for error, and, if any be found, to reverse the judgment. 3 Tex.Jur. § 799.

We have carefully inspected the record and on rehearing conclude that no error is apparent therefrom. We held in the original disposition upon our own motion and through no default of defendant in error that the justice of the peace court was without original, and the county court and this Court without appellate, jurisdiction over the subject matter of defendant in error’s cross-action, to-wit: A suit by the employee to recover $200 statutory workmen’s compensation upon the contract of the insurance carrier, with 6% interest from the date of the employee’s injury. We held, before, that the character of interest prayed for was in the nature of damages, and not eo nomine, and should be added to the principal sum prayed for in determining the amount in controversy for jurisdictional purposes. In that holding we are now convinced we were in error.

The jurisdiction of justice of the peace courts is restricted by the Constitution to suits wherein the “amount in controversy is two hundred dollars or less, exclusive of interest.” Vernon’s Ann.St.Const. Art. 5, § 19; Art. 2385, R.S. 1925.

It is settled law that in determining the amount in controversy for jurisdictional purposes, interest as damages must be added to. the principal sum sued for; whereas, if interest eo nomine is sued for, it is not added to the principal sum, or considered in ascertaining the amount in controversy for jurisdictional purposes. 3 Tex.Jur. § 43.

So it is now settled that in suits to recover money upon written' contracts from the provisions of which the amounts of liability thereunder are ascertainable, interest on the amount recovered shall be allowed at the rate of 6 per cent per annum from the date the debt accrues, as interest eo nomine. Art. 5070, R.S.1925. Federal Life Insurance Company v. Kriton, 112 Tex. 532, 249 S.W. 193.

An insurance contract, such as required in workmen’s compensation cases, from the provisions of which the amounts payable thereunder are ascertainable therefrom, is within the contemplation of the statute. Federal Life Ins. Co. v. Kriton, supra; Consolidated Underwriters v. Saxon, Tex.Com.App., 265 S.W. 143.

These conclusions bring this case within the rules stated and defendant in error’s suit for $200 and interest on that suit from the date the cause of action accrued was within the jurisdiction of the justice of the peace court, in that the interest prayed for was interest eo nomine and not as damages, and did not affect jurisdiction.

There being no error apparent from the record, and it being obvious that the appeal was frivolously perfected for delay only, defendant in error’s motion for rehearing and for 10 per cent damages for delay will both be granted and the judgment affirmed with damages as prayed for. The original opinion will be withdrawn and this substituted therefor.

Affirmed, with damages.


author: CODY, Justice.

text:
    CITIZENS STATE BANK OF HOUSTON v. GILES et al.
    No. 11055.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 20, 1940.
    Rehearing Denied Dec. 12, 1940.
    Gammage, Gammage & Bauer and Earl W. Gammage, all. of Houston, for appellant.
    John C. Ridley, of Houston, for appel-lees.
   CODY, Justice.

Appellant brought suit against R. Fletcher, R. L. Giles doing business as Southern Used Car Company, Henry Michalka and Robert Boggan in two counts. In the first count the suit was one to recover judgment on a note made by Fletcher, payable to appellant, and to foreclose the chattel mortgage given by Fletcher on an automobile to secure payment of his note. Appellant alleged that its mortgage was forthwith, placed of record, and that any interest which the other defendants might have in said automobile was acquired with notice of appellant’s mortgage, and inferior thereto. The value of the mortgaged automobile was alleged to be the sum of $450 at the time suit was filed.

In appellant’s second count, in the alternative, appellant alleged that on May 5, 1937, with knowledge of appellant’s mortgage, appellee Giles, doing business as Southern Used Car Company, bought said automobile from Fletcher, and displayed same for sale at his place of business, and sold same to Henry Michalka and converted same to his own use; that said Michalka purchased with notice of appellant’s mortgage, and wrongfully took possession of same, and converted same to his own use; and that Michalka did sell same to Robert Boggan, who had notice of appellant’s mortgage, and wrongfully took possession of said automobile, and converted same to his own use. That by reason of such wrongful conversions appellant had sustained damage in the sum of $300, the balance due on its note, plus 10% interest thereon from maturity, together with attorneys fees thereon. Appellant’s prayer was for judgment on its note against Fletcher, principal, interest, and attorneys fees, together with foreclosure of the chattel mortgage, and in the alternative the prayer was for judgment against all of the defendants for conversion of the automobile in the sum of $330.

Defendant Fletcher admitted his liability on the note in open court; Henry Michal-ka filed a motion to quash citation several terms before the case was tried. And defendant Boggan was dismissed from the suit without prejudice.

Appellee Giles, by way of defense, and special answer, pled that he was an innocent purchaser for value, and that the assistant cashier of appellant bank, one Willard, had assured him over the ’phone while there was sufficient time to have stopped payment on a check given to Fletcher that the note was then being paid by Fletcher, and the mortgage had 'been discharged. And Giles also pled that the note had in fact been paid; also that Fletcher was an automobile dealer, and daily exposed said automobile for sale, and that the mortgage was void under Articles 4000 and 5497a, Vernon’s Annotated Civil Statutes of Texas.

The jury, in response to special issues, returned a verdict that failed to sustain appellee’s pled defenses.

Appellant elected, at the conclusion of the evidence, to stand upon, the second count.

The court granted the motion of Giles for judgment notwithstanding the verdict, the ground for such action being made to appear in what is designated as the court’s findings of fact and conclusions of law, which are as follows:

“1. I find that the answers of the jury to the Special Issues submitted herein by the Court are supported by the evidence, and such findings are, therefore, adopted by the Court.
“2. I further find from the undisputed evidence herein that all facts not found by the jury are found by me in favor of plaintiff, Bank, and same support a judgment for conversion of the automobile in question as pleaded against defendant Giles and defendant Michalka for the amount of $376.75, being the amount for which I rendered judgment herein against defendant Fletchér.
“3. I find that all of plaintiff’s pleadings as a whole completely fail to allege the market value, or any other value, of the automobile in question at the time or the place that plaintiff alleges said automobile was converted by the defendants Giles and Michalka.
“4. I further find that the second, or alternative count, in plaintiff’s pleadings, being paragraph 8 and 9 of plaintiff’s original petition, wherein plaintiff seeks to allege a cause of action for conversion against defendants Giles and Michalka, completely fails to allege either the market value, or any other value, of the automobile in question either at the time or the place that plaintiff alleges 'said automobile was converted by defendants Giles and Michalka.
“5. I further find that at the conclusion of all of the testimony herein, and after all parties had rested their case, but before the charge of the Court was prepared or submitted to the jury, and before the argument on the motion for instructed verdict, plaintiff in open court voluntarily announced, without any motion or request to-do so by any of the defendants, then or at any time prior thereto, that it waived and abandoned its recovery pleaded herein upon the theory of foreclosure of its chattel mortgage, and instead elected to stand and rely upon its theory of conversion of the automobile in question and to the extent of plaintiff’s interest therein, as reflected by its chattel mortgage thereon, as against defendants Giles and Michalka; and for recovery against defendant Fletcher on the note.”

The power of the trial court to render judgment notwithstanding the verdict is conferred by Article 2211, Vernon’s Annotated Texas Statutes, and it must appear of record that the requirements of the statute as to service of the motion under said article has been complied with. Edmiston v. Texas & N. O. R. R. Co., Tex.Com.App., 138 S.W.2d 526, 528; Flines v. Parks, 128 Tex. 289, 96 S.W.2d 970, 971; Gentry v. Central Motor Co., Tex.Civ.App., 100 S.W.2d 215. It neither appears in the judgment or otherwise in the record that service of the motion was had on appellant.

As appears from the court’s findings quoted above, there was ample evidence to support the issues found in favor of appellant and against appellee. Had appellee moved for an instructed verdict at the conclusion of the evidence on the ground that appellant’s alternative pleadings were subject to a general demurrer, the court would most likely have' refused such a motion. Indeed Article 2211 was not passed to enable a defendant to have a judgment on the merits of a cause merely because plaintiff’s pleading might be subject to a general demurrer. The issues submitted to the jury were raised by the pleadings, and they had evidence to support them. In such case the court may not render a judgment notwithstanding the verdict. Hines v. Parks, supia.

We are unable to agree that the court in refusing to permit appellant to amend his pleadings after verdict has abused his discretion. Appellee may very conceivably have failed to fully develop his case in reliance on the point that appellant’s pleadings would not support a judgment.

These conclusions require a reversal of the trial court’s judgment, and a remanding of the cause for a new trial. It will be so ordered.

We treat the action of the trial court as arresting judgment because of insufficient pleading to support it in favor of plaintiff.

Reversed and remanded.