text:
    PAPPAS v. PAPPAS.
    No. 14160.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 10, 1941.
    Theo Koenig and M. Kleberg, both of Fort Worth, for appellant.
    Leake, Henry, Young & Golden and J.M. Ploppenstein; all of Dallas, for appellee.
   BROWN, Justice.

Appellant, Mary Pappas, brought suit in the district court of Tarrant County, Texas, seeking a decree of divorcement from appellee, Plarry N. Pappas, an injunction to prevent appellee from disposing of certain properties, and an order granting her alimony pending a hearing of the cause .on its merits.

The petition is couched in language complying with the provisions of Article 4631, Revised Civil Statutes of Texas, Vernon’s Ann.Civ.St. art. 4631, but appel-lee presented a plea in abatement attacking’ the allegations of the petition, wherein the petitioner claims to have been an actual bona fide inhabitant of the State of Texas for twelve months, and a resident of the county in'which the suit was filed for six months., next preceding the filing of the suit.

The trial court, without a hearing, granted the prayer for an injunction and ordered the appellee to pay alimony to appellant in weekly instalments of $50 each.

On January 27th, 1940, on a hearing of the plea in abatement, which’ was tried by the Hon. Glover Johnson, as special judge of said court, in the absence of the duly elected judge thereof, the plea was sustained and the order granting alimony to the petitioner was set aside and the cause was dismissed, and the petitioner excepted and gave notice of appeal to this court.

Thereafter, on February 16th, 1940, the petitioner, Mary Pappas, perfected her appeal by filing a cost bond that was approved by the district clerk of Tarrant County.

Thereafter, on February 20th, 1940, the duly elected district judge, presiding over said court, attempted to continue in full force and effect the order for alimony which had been made by the court in January, 1940, which order had been set aside and held for naught, by the said special judge of said court, on January 27th, 1940, and the following language is used in said order:

“Accordingly, it is this 20th day of February, 1940, ordered, adjudged and decreed by this court that the order of January 2nd, 1940, granting plaintiff alimony in this cause, and that the injunction herein prayed for and granted by this court on the 10th day of January, 1940, be, and the same are hereby made to continue and remain in full force and effect till the appeal taken in this cause and this lawsuit have been finally adjudicated and determined, and it is so ordered.”

The question raised by the appellant is presented in several different propositions that all boil down to one contention, namely: Was the action of the trial court in sustaining the defendant’s plea in abatement correct, in view of the fact that the district courts of the State of Texas are alone vested with the authority and power to grant decrees of divorcement and they alone have jurisdiction of such cases, even though it be made to appear that the petitioner in the divorce proceeding, at the time the matter is brought to the attention of the trial court, by a proper plea has not been a bona fide inhabitant of the State of Texas for twelve months next preceding the filing of the suit, and has not been a resident citizen of the county in which the suit was filed, for six months next preceding the filing of such suit?

The contention is made that the provisions of the statute above mentioned are not jurisdictional, that the trial court should have kept the cause pending until such time as the provisions o'f said Article 4631 (R.C.S.) have been complied with, and that such court. has the right to continue in full force and effect the alimony order and the injunction order.

We are of opinion that these contentions are not sound, in the case at bar.

Fortunately, the Supreme Court has heretofore adopted an opinion by the Commission of Appeals in the case of Aucutt v. Aucutt et al., 122 Tex. 518, 62 S.W.2d 77, 89 A.L.R. 1198, and we believe the questions presented to us have been set at rest.

Let it be remembered that no citizen has an inherent or vested right to obtain a decree dissolving what should be “the sacred bonds of matrimony” in any court in the State of Texas. Section 8 of Article 5 of the Constitution of the State of Texas, Vernon’s Ann.St., declares that: “The District Court shall have original jurisdiction * * * of all cases of divorce”, but there is no attempt on the part of the Constitution to designate any “ground” or “grounds” upon which a bill of divorcement may be granted, nor is there any provision prescribing any necessary qualifications on the part of one petitioning for a divorce as prerequisite to the right to bring such an action.

All these matters are left to the wisdom of the lawmaking body.

It follows that the State and society have an interest in keeping intact all such contracts and in protecting them to the fullest extent. This is true because such contracts form the basis of a decent social order, the solid foundation of the homes of the people and are necessary to produce and protect a civilization that nurtures the spiritual side of mankind.

All this being true, the lawmaking body of this State is vested with authority to deny its citizens the right to secure a bill of divorcement through any of its courts, by declining to enact a statute providing for grounds 'necessary to support a judgment for divorce, or it may limit the grounds so as to render it very difficult to obtain such a judgment, or it may require such strict, necessary prerequisites to the right to bring such a suit that but few citizens could maintain such an action in the courts. In other words, no rule having been laid down in the Constitution and no restriction upon the powers of the lawmaking body having been incorporated therein, the Legislature, in its wisdom, is given rather full and complete authority over the matter of providing for such causes of action, and necessarily has full authority not only to prescribe and lay down in plain language any and all so-called “grounds” for the securing of such judgments, but it may, in its wisdom, also prescribe any “qualifications” which it declares a petitioner must have before such petitioner is entitled to seek such relief in any of the State courts.

The article on which the petitioner,must rely (4631) distinctly provides: “No suit for, divorce shall be maintained in the Courts of this State unless the petitioner for such divorce shall at the time of exhibiting his or her petition, be an ’actual bona fide inhabitant of this State for a period of twelve (12) months, and shall have resided in the county where the suit is filed for six (6) months next preceding the filing of same.”

Mr. Justice Critz, in the Aucutt case, speaking-ior the court of Last Resort in Texas, said [122 Tex. 518, 62 S.W.2d 79, 89 A.L.R. 1198]: “We hold that it is not a jurisdictional statute at all, but merely a statute prescribing the qualifications of the plaintiff in divorce cases. The plaintiff must possess the qualifications prescribed by article 4631 before he is entitled to prosecute a divorce suit in the courts of this state.”

We do not see how the Supreme Court could have made plainer its construction of the statute in question or what better guidepost it could have erected for the courts of this State.

'Under the findings of the trial court, in the instant suit, the petitioner, Mary Pappas, did not possess these necessary qualifications. The evidence sustains the trial court’s findings.

It is evident to us that the order of the district court, attempting to keep in force the order for alimony and for the injunction, cannot stand, under the facts in this case.

If, as the statute above relied upon prescribes, a petitioner is not permitted to maintain a suit for divorce in the courts of this State unless the petitioner possesses the qualifications prescribed by the statute, it is evident that such a petitioner is not entitled to seek any relief that is ancillary or incident to the action seeking a divorce.

If this were not true, then the provisions of the statute would be without force and the words used therein would become as “sounding brass and a tinkling cymbal.”

For the reasons stated, the judgment of the trial court sustaining the defendant’s plea in abatement and setting aside the order requiring the defendant to pay the plaintiff alimony is affirmed, and the order of the trial court, of date February 20th, 1940, attempting to keep in full force and effect said order for alimony and the injunction theretofore granted is reversed and vacated.


source: Caselaw Access Project

author: HAWKINS, Presiding Judge.

license: Public Domain

text:
    Raymond BALLEW, Appellant, v. STATE of Texas, Appellee.
    No. 21515.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    Jas. C. Mahan, of Childress, and Marvin B. Simpson, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for assault to murder without malice, punishment assessed being one year in the penitentiary.

Appellant gave notice of appeal to this ■court, but since the jurisdiction of this court attached appellant has filed his affidavit requesting the court to dismiss the appeal, and at his request it is so ordered.


author: KRUEGER, Judge.

text:
    Eddie McGILL, Appellant, v. STATE of Texas, Appellee.
    No. 21372.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    Ralph Dickson and Kelly Tipps, both of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of .Austin, for the State.
   KRUEGER, Judge.

The conviction is for the burglary of a ;private residence at night. The punishment .assessed is confinement in the state penitentiary for a term of five years.

Since perfecting his appeal, appellant has filed a written motion, duly verified, requesting the 'privilege of withdrawing said .appeal. The request is granted and the appeal is dismissed.

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: GRAVES, Judge.

text:
    O. L. SMYRL, Appellant, v. STATE of Texas, Appellee.
    No. 21431.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    E. A. Landman, of Athens, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted in the district court of Anderson County for misapplication of county funds, and his punishment was assessed at two years’ confinement in the penitentiary.

Since perfecting his appeal, the appellant has filed a written motion, duly verified, requesting the privilege of withdrawing his appeal. The request is granted and the appeal is dismissed.


author: PER CURIAM.

text:
    UNITED CAB CO., Appellant, v. Roy J. DAVENPORT, Appellee.
    No. 10843.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 8, 1941.
    Rehearing Denied Feb. 5, 1941.
    Randle Taylor, of San Antonio, for appellant.
    Walter Groce, of San Antonio, for ap-pellee.
   PER CURIAM.

Affirmed without written opinion on authority of Associated Indemnity Corporation v. J. M. Gatling, Tex.Civ.App., 75 S.W.2d 294.


author: O’QUINN, Justice.

text:
    EMPLOYERS CASUALTY COMPANY et al. v. W. D. GORDON et al.
    No. 3731.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 2, 1941.
    Rehearing Denied Jan. 15, 1941.
    Sewell, Taylor, Morris & Connally, of Houston, and David C. Marcus, of Beaumont, for appellant.
    G. D. Baten, of Beaumont, for appel-lee.
   O’QUINN, Justice.

Though tried in district court, the amount in controversy was within the jurisdiction of the county court, being the sum of $997.42. After careful consideration of the record, we affirm the judgment without written opinion. Associated Indemnity Co. v. Gatling, Tex.Civ.App., 75 S.W.2d 294; Texas & N. O. Ry. Co. v. Futch, Tex.Civ.App., 127 S.W.2d 1040; Fidelity & Guaranty Fire Corporation v. Roy Stubblefield, Tex.Civ.App., 140 S.W.2d 1115.


author: KRUEGER, Judge. HAWKINS, Presiding Judge.

text:
    VALLONE v. STATE.
    No. 21011.
    Court of Criminal Appeals of Texas.
    May 29, 1940.
    Rehearing Denied Feb. 5, 1941.
    W. Ray Scruggs, R. F. Peden, John N. Snell, Sr., and Kahn & Branch, all of Houston, for appellant.
    Dan W. Jackson, :Cr. Dist. Atty., and Allie L. Peyton and Tod Adams, Asst. Cr. Dist. Attys., all of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is murder. The punishment assessed is confinement in the penitentiary for life.

From the record before us, it appears that about 5 P. M. on August 29, 1939, the appellant shot and killed J. I. Thomas on the landing of the stairway leading to the Uptown Club and the 21 Club room on the same floor, located on Capital Avenue, in the block between Milam and Travis Streets in the City of Houston, Harris County, Texas. The record discloses that the deceased, Thomas, and Strelau made two visits to the 21 Club on the afternoon in question. On their first visit, they merely came to the first landing apparently looking for some one. They remained but a few minutes and then left. About 40 or 45 minutes later they returned to the 21 Club, and in a very short time the appellant, his son and two other parties brought the deceased and Strelau to the stairway and struck them. They hit Strelau so hard that he fell from the landing down the stairway to the floor. The deceased was also knocked down by Tony Vallone but he caught himself near the landing, held his hand over his head as if to ward off the blows when appellant drew his pistol and said, “Get back and let me kill the s— of a b — ;” and then immediately fired two shots at Thomas, one of which entered his'body about three and one-half inches below the collar bone and about two inches to the left of the mid-line of the breast and made its exit about the center of the right shoulder, passing through the body on a level line. The other bullet struck the deceased on the right side about the short ribs and burned the skin but did not enter.

Appellant testified that he arrived at his office in the 21 Club in the afternoon between 4 and 5 P. M.; that when he started to leave his office he noticed two men whom he had not theretofore seen, beating and kicking his son. He said to them, “Don’t do that; don’t do that”, and then ran back to the office, procured his pistol, returned to the scene of the trouble and again said to them, “Don’t do that; stop that,” Whereupon, the deceased said to his companion, “Grab that s— of a b — and we will kill them both.” Appellant again said, “Don’t do that”; whereupon the deceased reached for the bosom of his shirt and advanced towards appellant, which induced, him to believe that the deceased was going to draw a gun, and he then shot the deceased. Appellant further testified that he noticed that Strelau had a razor in his hand which he-put back in his pocket after the shooting; that he did not shoot the deceased to kill him but to keep the deceased from killing him and his son.

Walter H. McGrew testified that on the afternoon in question he had been to a show; that when he came out from the show he went into the building where the fatal difficulty occurred; that he saw three people on the landing, one of whom was lying down and the other two were kicking him; that he heard one of the two say, “Kill him; Kill him”; that about that time two shots were fired and he then left.

The appellant’s son, Tony Vallone, testified that he was employed as doorman for the Club; that on the day in question he heard the buzzer-button located underneath the carpet of the stairway, and when he heard it, he went to see who was coming up. He noticed that it was Strelau and the deceased. He inquired of them if there was anything he might do for them. They replied that they wanted to come into the club-room and gamble. He told them that he was sorry; that it was a private club and he could not admit them. They called him a s— of a b— and left. In a short time he heard the buzzer-button again and went to see who was coming up and discovered that it was Strelau and the deceased. He again told them that it was a private club and that he could not admit them. The deceased then said to Strelau, “Grab that yellow s— of a b — , and let us beat him up”, and the fight began. During the fight he tripped and fell on the landing of the stairway; that when he fell he struck his head against the wall and they, Strelau and deceased, kicked him; that he then heard some one holler, “Don’t do that; don’t do that.” He noticed that the deceased, Thomas, had something in the bosom of his shirt and when he reached for it the first shot was fired and he saw Thomas stagger. The second shot was fired immediately after the first one. He then heard appellant say, “Tony, I am sorry I had to do that; if I hadn’t done it they would have killed us both.” Much of the defendant’s testimony related to what the deceased and Strelau did to appellant and his son. When the deceased was picked up he had no weapon on his person, nor was any discovered on the landing where he fell. All that was found on his person was a half-pint bottle of whisky and five or six packages of cigarettes.

By Bill of Exception Nos. 1 and 2 appellant complains of the testimony given by Ray Brewer, a bystander, who testified that after the shooting he passed within three or four feet of where Frank Douglas and some other persons were standing; that he heard Douglas, a bystander, say, “There goes the s— of a b— who shot him”; that the defendant continued to walk until he had reached a point five or six steps away, when he looked back at them and then went toward the garage but made no reply. Douglas also testified that he made the remark, to which testimony appellant objected to on the ground that it was a statement by a bystander; that it was prejudicial because it was not shown that the defendant heard the remark, etc. The record shows that the statement was made by Douglas immediately after the shots had been fired and that when the defendant had walked five or six steps from his victim he looked back at Douglas who had made the remark. Although appellant testified in his own behalf he did not deny having heard the statement. Douglas, Brewer and appellant were, at the time of the remark, in such close proximity to the scene of the killing and to each other as justified the court in admitting the testimony. If appellant heard the remark and made no denial, it was a tacit admission that he had fired the shot and was proper for the jury to consider on the question of who did the killing, inasmuch as the defendant had not at the time testified and admitted the killing. Under appellant’s plea of not guilty the State was required to prove that he did the killing and this evidence was a circumstance tending to connect him with the homicide.

In the case of Powell v. State, 99 Tex.Cr.R. 276, 284, 269 S.W. 443, 447, a question somewhat similar to the one here presented was before this Court, and the Court, speaking through Judge Hawkins, said: “From the proximity of the parties the court concluded that the testimony was admissible, but instructed the jury at the time that, unless they found from the evidence beyond a reasonable doubt that appellant heard the statement of deceased testified to by Mr. and Mrs. Hagan, they would not consider it for any purpose.”

In the instant case, no such charge was given, nor required^ because the appellant, subsequent to the admission of the testimony, took the witness-stand and admitted that he fired the shots which produced the death of the deceased. However, the court, by written instruction, withdrew said complained of testimony from the jury after they had deliberated part of two days and one night. Appellant contends that the belated withdrawal did not remove the prejudicial effect thereof. We are not in accord with his contention. In our opinion, the testimony, under the circumstances disclosed by the record, was admissible. Appellant cites us to the case of Young v. State, 136 Tex.Cr.R. 149, 124 S.W.2d 144, 145. In that case, the appellant and a woman were in a car with the windows up, some ten or twelve steps from the person who made the remark, “What is that fellow trying to do with that woman?” There was no evidence that under the circumstances shown to have existed there that appellant heard or might have heard what was said. Consequently, the evidence was not admissible; but here we have quite a different state of facts. Moreover, we think the statement complained of was a part of the res gestae. See Gilmore v. State, 91 Tex.Cr.R. 31, 241 S.W. 492; Taylor v. State, 89 Tex.Cr.R. 112, 229 S.W. 552, 554; Kinney v. State, 65 Tex.Cr.R. 251, 144 S.W. 257; Keeton v. State, 59 Tex.Cr.R. 316, 128 S.W. 404.

Bill of Exception No. 3 reflects the following occurrence: After Tony Vallone, son of the appellant, had testified that Stre-lau and the deceased had not been inside the club on the afternoon of the homicide and had not lost any money in a card game and that he did not take them one at a time, bring them out to the stairway and throw them out, he was asked by the District Attorney : “And the reason of it was * * * didn’t you find out they only had a small amount of money, and didn’t one of you say, These cheap s— of a b— don’t have any money’; did that happen ?”

The witness replied, “No, sir.” To all of which appellant objected on the ground that unless the State had something to back it up the questions were prejudicial and without foundation. We are not in accord with him for several reasons: First, the question was asked on cross-examination; second, there was some basis for the question because the club was a quasi-public place according to the testimony. It was a place where people engaged in playing cards. The stairway was provided with a buzzer-button placed under the carpet and out of view of people who came there. The purpose of the buzzer was to notify those in the club that some one was coming. Just above the door was á looking-glass so constructed that one on the inside of the club room could see who was coming up the stairway. If the club was not operated contrary to the law, then why all of these attachments? Furthermore, after Strelau and the deceased were thrown out, one of them came back up to the stairway and said, “Lonnie, give us back something.” Under the facts here related, we would not be justified in holding that the questions were asked without any basis therefor but with a view of prejudicing the minds of the jury against appellant. See Clements v. State, 69 Tex.Cr.R. 369, 153 S.W. 1137. The State, upon cross-examination, may ask such questions as might show a motive for the encounter or the intent of the accused. Article 1257a, Vernon’s Ann. P.C., provides: “In all prosecutions for felonious homicide the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased,” etc.

However, the asking of an improper question will not in any and all events require a reversal of a case when the answer thereto was in the negative. See Ard v. State, 101 Tex.Cr.R. 545, 276 S.W. 263; Graham v. State, 122 Tex.Cr.R. 416, 55 S.W.2d 826; Sayles v. State, 101 Tex.Cr.R. 333, 275 S.W. 831.

Bill of Exception No. 4 shows that the District Attorney propounded to the witness Vallone the following question: “Hadn’t Thomas been into that place before, and had won some two thousand dollars?” This question was answered in the negative.

Bill No. 5 shows that the witness was then .asked: “Isn’t it a fact that when they * * came in there * * * that day * * * .they started to gamble and it was discovered that between them they had only about eight or nine dollars, and weren’t they bounced out one at a time and rolled down the steps ?” To which the witness replied, “No, sir; never was there; never saw the men before in my life.” We think that what we have •said in disposing of Bill No. 3 applies here and we see no need of further discussing the question. See Alexander v. State, Tex.Cr.App., 8 S.W.2d 176; Briggs v. State, 108 Tex.Cr.App. 544, 2 S.W.2d 238; Clements v. State, 69 Tex.Cr.R. 369, 153 S.W. 1137.

By Bill of Exception No. 6 appellant complains of the action of the trial court in overruling his motion for a new trial based on the ground that J. T. Carter, one of the jurors of the panel before whom appellant was tried, was not a freeholder or householder; that on his voir dire he was asked the question if he was a freeholder or householder and he replied in the affirmative; that appellant was not negligent in failing to discover it until after the trial. It does not appear that any probable injury resulted to defendant by reason of Carter’s services as a juror. Carter at first stood for assessing appellant’s punishment at twenty years but after considerable deliberation agreed with his fellow jurors to assess the penalty at confinement in the state penitentiary for life. Subsequently Carter made an affidavit in which he charged misconduct on the part of the jurors in their deliberations. This affidavit was attached to appellant’s motion for a new trial and urged as a ground for a new trial. This question has been decided adversely to appellant’s contention. See Leeper v. State, 29 Tex.App. 63, 14 S.W. 398; Squyres v. State, 92 Tex.Cr.R. 160, 242 S.W. 1024, and authorities there cited.

Appellant also complains because the trial court declined to grant him a new trial on the ground that the jury in their deliberation received other evidence than that admitted under the ruling'of the court, viz.: Juror Carter informed the jury that he knew by reputation that appellant was operating a gambling house or club; that one or more of the other jurors stated that the defendant had been accused of the murder of one Navarro. The State contested the averments in the motion. In support of his motion, appellant claims that he not only attached the affidavit of Carter thereto but that he called the juror to the witriess stand, who gave testimony supporting the aver-ments in the motion; that he then rested; that the State merely offered the affidavits of the other eleven jurors in support of its contest but did not offer to place any of said jurors on the stand to support the denial of the averments in appellant’s motion, notwithstanding they were all present in court. Appellant takes the position that the affidavits offered by the State did not overcome the showing which he made entitling him to a new trial.

Article 757, C.C.P., provides: “The State may take issue with the defendant upon the truth of any cause set forth in the motion for a new trial; and, in such case, the judge shall hear evidence, by affidavit or otherwise, and determine the issue.”

In our opinion, the trial court, under the article quoted above, could, in his discretion, decline to hear oral evidence. See Asher v. State, 102 Tex.Cr.R. 162, 277 S.W. 1099; McBee v. State, 119 Tex.Cr.R. 279, 44 S.W.2d 699. The granting or the refusal to sustain a motion for a new trial ordinarily rests within the sound discretion of the trial court and unless it is made to appear that he abused his discretion this court would not be justified in reversing the judgment.

All other matters have been examined by us and are deemed to be without merit.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

HAWKINS, Presiding Judge.

In his motion for rehearing appellant urges with much earnestness that we were wrong in holding that bills of exception Nos. 3, 4 and 5 did not present reversible error.

The questions complained of in the said three bills are set out in our original opinion. It must be borne in mind that all of the questions were answered in the negative. It was appellant’s contention that the questions were asked with the purpose of prejudicing the jury against appellant; that the State had no evidence to substantiate the matters embraced in the question, and that they were unfounded. The record discloses that the Assistant District Attorney, Mr. Winborn, was conducting the cross-examination and propounded the questions involved. The reasons which prompted the questions became the subject of investigation on the hearing of the motion for new trial, and Mr. Winborn’s evidence on the subject follows:

“I have read the defendant’s amended motion for a new trial in this case, and have familiarized myself with it and particularly the points raised in paragraphs four, five and six thereof, wherein the defendant contends that I was not acting in good faith in asking Tony Vallone, a witness for the defendant, and also the defendant, Vincent Vallone, certain questions regarding certain conduct of the deceased, Thomas, and his friend, Strelau, prior to.the killing of Thomas, and further contending that those questions were asked for prejudicial reasons with no information at that time as a predicate for propounding such interrogatories.
“I remember questioning the witness for the defendant, one Tony Vallone, and also the defendant, Vincent Vallone. I recall asking those questions. I did not ask them for the purpose of creating prejudice in the minds of the jury. I asked those questions because I had reason to believe that it did happen, from the information gained in the investigation conducted by the District Attorney’s office and myself independently.
“I make this statement. There were two questions in which I had the information. The defendant testified that after the shooting that one of the reasons he went back into the 21 Club was to have his son washed up. I had information that the son left there and went into a barber shop over by the old city hall and washed up, and I asked Tony that question and he admitted that was true.
“As to the defendant, Vincent Vallone, I had information that, not Strelau, but that the deceased had been in that place a short time prior to that day and had won a sum of money, around two thousand dollars or twenty-two hundred dollars, and I asked him that question, if he hadn’t been up there before, and he answered in the negative, and I pursued it no further; I accepted his answer and went no further. I asked him no further questions about that. I was simply seeking that information from the defendant himself. When he told me ‘No,’ I didn’t go any further.
“I did ask substantially the question, to which objection is raised in paragraph four of defendant’s motion, ‘And the reason of it was, didn’t you find out they only had a small amount of money, and didn’t one of you say “these cheap son of a bitches don’t have any money”; didn’t that happen?’ I had information to the effect that that did happen.
“When I asked the question complained about in paragraph five of defendant’s motion, ‘Isn’t it a fact that when they (meaning the deceased and Strelau) came in there (meaning said club) that day (meaning the time of the homicide) they started to gamble and it was discovered that between them they had only about eight or nine dollars, and weren’t they bounced out one at a time and rolled down the steps ?’ I had information which I thought justified me in asking that, and I honestly believed it did happen.
“When I asked the defendant the question complained of in paragraph six of defendant’s motion, ‘And won some two thousand dollars’, I had information which I felt justified me in asking that.
“As to whether or not I could prove it or not, when I asked those questions, I was doubtful of being able to prove it under the rules of evidence. I had information that satisfied me that it did happen, but I was doubtful of being able to prove it; that is, have it in the shape that it would be admissible as evidence, and when I asked the defendant those questions I was assuming he would answer truthfully.”

In view of the sworn testimony of Mr. Winborn to the contrary we would not be justified in assuming that the questions objected to were asked in bad faith or for an improper purpose.

In discussing objections urged to questions propounded to the defendant this court said in Patterson v. State, 87 Tex.Cr.R. 95, 221 S.W. 596, 601: “The questions which the appellant failed to answer in an affirmative way were not such as to bring them within the rule which condemns conduct on the part of the prosecution wherein it is sought to discredit the case of the accused and secure a verdict adverse to him by bringing before the jury damaging facts through irrelevant questions, or questions which obviously are not expected to elicit proof or lay a predicate for legitimate evidence. This rule is conducive to a fair administration of justice, and its violation has often been the subject of comment, and at times the cause for reversal. McIntosh v. State [85 Tex.Cr.R. 417], 213 S.W. 659; Faulkner v. State, 80 Tex.Cr.R. 341, 189 S.W. 1077; Henley v. State, 81 Tex.Cr.R. 221, 195 S.W. 197. The rule is not to be made use of, however, to abridge the right of legitimate cross-examination.” (Italics ours.)

Giving effect to the rule with the qualification in mind, and assuming under the circumstances stated that the questions were propounded in good faith based on information which led counsel for the State to believe the matters involved in the questions were true, suppose the witness had answered the questions in the affirmative. Certainly the answers would not be subject to a motion to strike based on a claim that the questions were improperly framed, having been asked on cross-examination. It seems equally sure then that a negative answer would have nothing to do with rendering the form of the questions improper.

In Fritts v. State, 119 Tex.Cr.R. 412, 42 S.W.2d 609, where the death penalty was assessed, questions were asked accused on cross-examination which were objected to, but were answered in the negative as here. We there said even if the questions had been improper a reversal would not necessarily 'follow, the questions having been answered in the negative, and quoted from Ard v. State, 101 Tex.Cr.R. 545, 276 S.W. 263, 265, as follows: “The asking of a question whose affirmative answer might be hurtful to the accused would ordinarily present no error when complained of in a bill of exceptions unless the answer is given, and, if given and answered in the negative, as is the case in appellant’s bill of exceptions No. 5, no error would be made to appear.”

See also Booth v. State, 90 Tex.Cr.R. 240, 234 S.W. 888; McCoy v. State, 129 Tex.Cr.R. 259, 86 S.W.2d 748. The holding in Ard’s case, supra, was followed in Graham v. State, 122 Tex.Cr.R. 416, 55 S.W.2d 826; McCoy v. State, 129 Tex.Cr.R. 259, 86 S.W.2d 748.

In his motion for rehearing and written argument in support thereof appellant mentions Alexander v. State, Tex.Cr.App., 8 S.W.2d 176; Peysen v. State, 136 Tex.Cr.R. 127, 124 S.W.2d 137; McClure v. State, 136 Tex.Cr.R. 312, 124 S.W.2d 1007; Waters v. State, 91 Tex.Cr.R. 592, 241 S.W. 496; Sumrow v. State, 116 Tex.Cr.R. 593, 31 S.W.2d 823; McNaulty v. State, 138 Tex.Cr.R. 317, 135 S.W.2d 987; Lamm v. State, 94 Tex.Cr.R. 560, 252 S.W. 535; West v. State, 137 Tex.Cr.R. 554, 132 S.W.2d 872; Bowers v. State, 138 Tex.Cr.R. 98, 134 S.W.2d 675. It is not believed that such cases furnish much aid in considering the question before us in the present instance. Said cases furnish illustrations where questions to witnesses were put in such form as to inform the jury of specific crimes or misconduct of accused which were collateral to and not connected with the offense upon trial, which facts were not properly provable. In the opinion on rehearing in the Waters case, supra [91 Tex.Cr.R. 592, 241 S.W. 500], we find this language: “The questions propounded by counsel for the state in the instant case were improper, and, even had they elicited affirmative responses, the evidence would have been inadmissible.” Therein, we think, lies the vital distinction in the questions which are the subject of objections in the present case. If affirmative responses had been elicited the evidence would clearly have been admissible.

Appellant relies strongly upon Ballard v. State, 97 Tex.Cr.R. 455, 262 S.W. 85, to support his contention that hills 3, 4 and 5 present reversible error, and from a casual reading it would seem to be more nearly in point than any other case to which our attention has been directed, and yet there is a marked distinction between it and the present case. Ballard killed Bates. The evidence showed that Bates was hunting Ballard with the avowed intention of killing him. Bailey was an employee of Ballard. Bailey had an extended conversation with Bates a short time before the killing in which he repeated the threats to kill Ballard. Bailey repeatedly declared that Bates declined to give a reason for wanting to kill Ballard. On cross-examination the witness was asked the question “Don’t you know Bates did tell you what he was going to kill Ballard for?” He again answered in the negative. He was then asked “Don’t you know that Bates told you that he was going to kill Ballard on account of improper conduct of Ballard toward Bates’ wife?” The court sustained objection to the question and it was not answered. In discussing the matter this court assumed — in the absence from the record of a reason for the trial court’s ruling — that under the circumstances the question was not asked with the expectation of an affirmative answer. In the present instance under the facts as heretofore related this court would not he justified in assuming that questions her.e the subject of objections were asked in bad faith. Again, since the reason for the trial court’s ruling in Ballard’s case was a matter of conjecture it might be that he thought appellant would in no event be bound by it even had Bailey answered the question in the affirmative, that is, that improper relations between Ballard and Mrs. Bates could not be thus proven and that the question sought to elicit inadmissible evidence. The reversal in Ballard’s case did not rest alone upon the incident mentioned. The representative of the State in two instances told the jury in his argument what he could have proven but had not. Suppose Ballard had been on the witness stand and State’s counsel was in possession of information which led him to believe that improper relations had existed between Ballard and deceased’s wife, and counsel on cross-examina-tiop had asked Ballard if in fact such relations had not existed and if he (Ballard) did not know that this was the reason of Bates’ anger and threats to kill. Under such circumstances what basis would there have been for a contention that the question was improper, regardless of the answer? If such had been the picture in Ballard’s case, then we would have a parallel here.

It occurs to us that to sustain appellant’s contention here would destroy the very end sought to be attained by legitimate cross-examination. If the defendant or any other witness is thought to be in possession of information which would be legitimate evidence if an admission as to such facts could be secured from him on cross-examination, certainly it would not be improper to so frame the question as tended to secure the admission by an affirmative answer. Yet to hold as appellant contends would deter counsel from asking such a question, for fear of being penalized if a negative answer was given by the witness.

In our original opinion we said that after Strelau and the deceased were thrown out one of them came back up to the stairway and said, “Sonnie, give us back something.” Our attention has been called to a typographical error. The name should have been “Lonnie,” and the original opinion has been corrected to so read.^

Believing the proper disposition was made of the case originally, appellant’s motion for rehearing is overruled.


author: KRUEGER, Judge. KRUEGER, Judge.

text:
    FLETCHER v. STATE.
    No. 21247.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.
    Rehearing Granted Jan. 29, 1941.

      Charles Tex Kurlan and Jno. A. Bal-lowe, both of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is rape. The punishment assessed is confinement in the state penitentiary for life.

It was charged in the indictment that on the 16th day of December, 1939, the defendant, Albert Harold Fletcher, with force and «arms, in the county of Dallas, State of Texas, in and upon Mary Evelyn Curtis, then and there under the age of eighteen years, did make and assault, and that the said Albert Harold Fletcher did then and there ravish and have carnal knowledge of the said Mary Evelyn. Curtis, she, the said Mary Evelyn Curtis, not being then and there the wife of the said Albert Harold Fletcher, etc.

The record before us discloses in substance the following facts: On the night in question, Jack Walker, Nelson Coy, Cecil Dodson and the appellant took Alberta Lowe and the injured girl, Mary Evelyn Curtis, in an automobile to a place known as Sky Harbor, where they engaged in dancing and also drank some whisky. About eleven o’clock, or somewhere near that time, they took Miss Lowe to her home and then pretended to take Mary Evelyn Curtis to her home, but before they had gone very far she discovered that they were not driving in the direction of her home and called the appellant’s attention thereto, whereupon he replied that he was taking a near cut, when in fact he drove out on the Scyene Road some distance, then turned off on a dirt road and stopped the car a short distance from the Scyene Road, where they got out and the alleged offense was committed.

Appellant was the first one to have sexual intercourse with her by force and threats, and he was followed by each of the other three. After the commission of the offense, they took the girl to her home. As soon as she got out of the car, she started to go into the house and they left. She immediately reported the occurrence to her father and mother who took her to a hospital where she received medical attention. Her physical condition showed that she had received rather harsh treatment at the hands of some one.

Appellant was arrested the next day at noon. He made a voluntary confession in which he admitted that he, as well as his companions, had engaged in sexual intercourse with the girl over her protest. Upon his trial he in part repudiated his confession but admitted the act of intercourse, claiming that it was with the girl’s consent. There is no direct testimony from any source which questioned her previous chastity. Consequently the evidence is sufficient to sustain the conviction.

Appellant’s bill of exception No. 1 discloses that quite a controversy arose between the trial judge and the attorneys for the defendant as to what actually occurred upon the trial of the case. In the bill appellant asserts that upon his cross-examination by the State’s counsel he was asked the following question: “Where was your wife when you were arrested?” Appellant objected to this question because it was improper, was highly prejudicial and inflammatory and did not tend to prove, explain or make clear any issue in the case, which objection was overruled' and the defendant was forced to answer: “I told the jury that my wife had gone to church.” To this he claims he again objected for the reasons above stated. When this bill of exception w;as presented to the trial court he declined to approve it in the language therein expressed and appended his qualification thereto in which he states that while appellant was testifying on direct examination by his attorney he was asked what he was doing at the time he was arrested by the officers, to which he replied: “Standing in front yard talking to mother and father at the time they drove up.” He was then asked: “Did you have any kind of weapon?” He replied that he had on “a white cook-apron”. Then the following question was propounded: “Helping aroiind the house ?” "to which he replied: “Yes, my wife had gone to church.” Thereafter, when the defendant was turned over to the State for cross-examination, the District Attorney propounded to him the following question : “Where did you tell this jury under the questions of your counsel your wife was when the officers drove up there ?” He replied: “She was gone to church.” Then the following interrogatory was propounded: “Oh, your wife was gone to church?” To which he replied: “Yes.” Then the following question was propounded : “That was on Saturday; that your first wife or second wife?” When the last question was propounded appellant objected and requested the court to instruct the jury not to consider it. The court sustained the objection and instructed the jury to disregard the question and answer.

Appellant declined to accept the bill as qualified by the court and he filed a bystanders’ bill supported by the affidavit of E. I. Steele, D. E. Harris and J. R. Boze-man. This bill was contested by the affidavit of Jack K. Tingle, the Official Court Reporter in the Criminal District Court No. 2 of Dallas County, Texas, and the affidavit of Sam Ray, Special Investigator for the District Attorney’s Office in and for Dallas County, Texas. The court reporter transcribed the testimony of the appellant on cross-examination by the State which sustains the court’s qualification. The statement of facts to which the appellant agreed coincides with the affidavit of the court reporter relative to what occurred at the time in question.

The affidavit of Sam Ray discloses that he made a diligent search for the three men; that he searched the telephone directory of the city of Dallas for the past eight or nine years but their names were not listed therein; that he made inquiry of the sheriff’s office and talked to many men in an effort to locate the bystanders but could not find them; that he finally called upon the attorneys for the appellant and made inquiry of them as to where he might locate the men whose affidavit was attached in support of the bystanders’ bill, but they did not seem to know of their whereabouts. However, the attorneys promised to make an effort to locate the men; that a few days later he again called upon the attorneys for the defendant but they did not know the address of these men, but promised to furnish this information to the investigator.

Under the record before us, we are of the opinion that the bystanders’ bill was properly contested under Article 2237, subd. 9, of Vernon’s Revised Civil Statutes of Texas; and the bill as thus qualified by the trial court must, under the rules of procedure approved by this court in many cases, be considered in lieu of the bystanders’ bill. It is .our opinion that the bill, as qualified and supported by the record, fails' to disclose any reversible error. See Zachary v. State, 57 Tex.Cr. 179, 122 S.W. 263.

Bill of exception No. 2, together with the bystanders’ bill and the contest thereof, reflects the same controversy between the trial court and the attorneys for the defendant as does bill No. 1. In the bill as originally drawn by the appellant, it is stated that the State recalled Gertrude Jacobs, a character witness for the defendant and asked her in rebuttal in effect if she was not or had not been a sister-in-law of the defendant and that if her sister had not been a former wife of the defendant and if they were not divorced. Appellant claims that he objected to said testimony upon the ground-that it was inadmissible, was improper and highly prejudicial to the defendant. The objection was overruled and the witness was required to answer: “My sister married this defendant in 1934; they are now divorced; my sister has a 3-year old girl by him, his child.”

Appellant claims he again objected to the answer for the reasons above stated, which objection was overruled by the court.

The court qualifies this bill of exception and in his qualification quotes rather at length from the testimony as thus transcribed by the court reporter:

“Q. Now, your sister married the defendant? A. Yes.
“Q. What year was that? A. 1934.
“Q. And I believe that they are now divorced — he is divorced from your sister? A. Yes, sir.
“Q. And I believe your sister has a little girl or a little boy? A. A girl.
“Q. How old is that girl? A. Three years.
“Q. That is his child ? A. Yes.”

The court in his qualification says that the appellant did not object to the testimony at the time it was elicited but that at the conclusion of all the evidence appellant requested a special charge instructing the jury not to consider the testimony for any purpose whatsoever. This charge was given by the court.

Appellant excepted to the qualification of the trial court and filed a bystanders’ bill supported by the affidavit of the same parties whose affidavit appears in appellant’s bystanders’ bill No. 1. This bill is also contested by the affidavit of the court reporter. Hence we cannot consider the same but are relegated to the bill as qualified by the trial court and that bill, as thus qualified, fails to reflect any reversible error.

By bill of exception No. 3 appellant complains of the court’s action in declining to submit the following special requested charge:

“1 charge you as a part of the law in this case, to be taken and considered by you along with the other charges given, that the confession of a person while under arrest, or in any jail, or merely while in the custody or restraint of an officer, cannot be used in evidence against such person unless same was freely and voluntarily made by such person without the imposition of any compulsion, restraint, threat, or fear, and then only after such person has been first duly warned by the person to whom such confession is made that he does not have to make any statement at all, and that any statement so made can be used in evidence against the person making same.
“Now, I charge you if you find and believe from the evidence that defendant, Albert Harold Fletcher, made the confession which is in evidence in this case, but that he was coerced by threats or impelled by fear of bodily harm, either or both, and that such fear was operating on his mind and conduct, and that he made such confession while under the influence of such fear, or that he had not been warned that he did not have to make any statement at all and that any statement made by him would be used in evidence against him, or if you have a reasonable doubt thereof, then such confession cannot be used in evidence against him, and you will not give any credence or weight to same in your deliberations herein, but same is entirely withdrawn from your consideration of any purpose.”

The court, after instructing the jury as to the essential legal elements to constitute a statement by an accused while under arrest a voluntary confession, charged them, among other things, as follows : “Although you may find and believe from the evidence that a written statement was made by the defendant and signed by him, yet, if you find and believe from the evidence or have a reasonable doubt thereof that he was forced or induced to make or sign said statement by reason of any threats, coercion, persuasion, statements or words on the part of the witnesses, John Daniels or Buchanan, or any other person or persons, or any other conduct or treatment on the part of the said Daniels or Buchanan, or any other person, then, you will not consider said statement for any purpose whatever.”

The appellant, while on the witness-stand, admitted that he made the statement offered in evidence but contended that he was coerced in doing so. We quote from his testimony as follows':

“I was placed in City Jail about 12:10 P. M. I did not see Nelson Coy or Jack Walker there in jail for 1½ hours or 2 hours, at which time I saw Walker downstairs in Buchanan’s office in the basement; these officers told me that (the) other boys had made a written statement; that I didn’t have to make a statement but that he would advise me to make one, the best thing for me to do; if I had known that I didn’t have to make a statement I wouldn’t have made one to that effect; they carried me in.
“Officer Daniels talked to me there; he sat down in a chair and started 'dictating a statement which I supposed he had taken from one of the other boys; he wrote out the statement; I heard the statement read here the other day; I did not tell him what was in that statement; Daniels wrote the statement out, handed it to me and told me I could sign it or else; I had been kicked around up there before by Bob Abbott; I signed that statement in fear of bodily harm:”

Mr. Abbott, who, on a former occasion had placed appellant in jail, denied that he at any time ever kicked or mistreated him.

Mr. Buchanan accompanied Mr. Daniels when he arrested the appellant on December 17, 1939. From Buchanan’s testimony we quote as follows: “I was present at the City Hall when this defendant made a written statement concerning the raping of Mary Evelyn Curtis the night before; I heard all the matters contained in that statement; Mr. Daniels accepted his statement. During all of this time I never laid the weight of a hand on this defendant nor did I threaten him; no one threatened him in my presence; Mr. Daniels did not threaten him. * * * After this statement was typed he (appellant) was given a copy and he signed it; no one forced him to sign it; Mr. Daniels did not hand him that statement and tell him to sign it or else.”

Mr. Nunn, who wrote the statement with a typewriter, testified that Mr. Daniels read the written statement to the appellant but before he had finished it appellant said: “That is enough; you need not read any more; that is all I want to hear of it.” Fie also said: “The whole thing is a mess.” Mr. Daniels read the balance of it to him. “Mr. Daniels did not write the statement and lay it in front of defendant and tell him to sign it or else; that did not happen; the defendant was not forced to sign this statement; no one struck him or abused him in any way. He made it voluntarily; there was no force • or violence used.” Mr. Daniels denied that he abused the defendant in any manner; that he had never seen the appellant before and had no animosity for him; that at the time of the arrest he told appellant that the girl’s father had been at the police station, but he did not tell him that the father of the girl had come there with a shotgun.

It occurs to us that under the instructions from the court as above set out the appellant was fully protected in his legal rights. Consequently it was unnecessary to submit to the jury the appellant’s requested special charge.

Bill of exception No. 4 also complains of the action of the court in declining to give a special requested instruction to the effect that if the officers (Buchanan and Daniels) told the appellant that two men with a shotgun were at the city hall waiting for him and that such statement by the officers produced any fear or terror in the mind of the defendant, that he would suffer bodily harm and that in a few hours thereafter the defendant made the confession introduced in evidence and that if at the time he so made it he was laboring under the fear or terror of bodily harm, it will be presumed that the defendant made said statement and confession by reason of fear, etc. The court declined to submit this instruction and we think properly so for the reason that we find no evidence which would justify an instruction that two men with a shotgun were waiting at the city hall for him. Moreover, the recitation in the charge that “it will be presumed that defendant made said statement and confession by reason of said fear and terror” is clearly an instruction upon the weight of the evidence or the inference to be drawn therefrom. However, this bill is qualified by the trial court who states in his qualification that in his opinion the main charge with reference to the voluntary nature of the appellant’s submitted confession was fully covered in the court’s instruction to the jury.

Bills of exception Nos. S, 6, 7, and 8 complain of the. court’s refusal to submit appellant’s special requested instructions relative to the amount of resistance necessary on the part of the female in resisting the commission of the alleged rape. These instructions were not required inasmuch as the alleged injured female was under eighteen years of age. The act of intercourse was rape regardless of whether she resisted or consented thereto. See Art. 1183, Vernon’s Ann.Tex. P.C. vol. 2; Turner v. State, 72 Tex.Cr.R. 649, 163 S.W. 705; Kinch v. State, 70 Tex.Cr.R. 419, 156 S.W. 649; Steptoe v. State, 134 Tex.Cr.R. 320, 115 S.W.2d 916.

Bill of exception No. 10 reflects the following' occurrence: Appellant in due time filed a motion for a severance in which he set forth that Nelson Coy, Cecil Dodson, and Jack Walker were also indicted for the same offense; and he asked that each of the three named persons be first tried for the reason that the State did not have sufficient evidence to justify their conviction and that their testimony would be very material to his defense. The court qualified this bill and in his qualification states that each of the three parties filed a motion for a severance and asked that each of the others be first put on trial; that by reason of the filing of said motions by each of the other defendants requesting a severance the matter of who should first be placed on trial rested entirely within his discretion. Under the facts stated the court, in directing the order of the trial of the defendants, acted in accordance with Art. 652, C.C.P. This bill is also qualified, and as thus qualified by the trial court was accepted by the appellant and he is bound thereby. See Abbott v. State, 94 Tex.Cr.R. 31, 250 S.W. 188; Morgan v. State, 97 Tex.Cr.R. 383, 261 S.W. 1034; Strickland v. State, 97 Tex.Cr.R. 471, 262 S.W. 75.

Bill of exception No. 11 complains of the following remarks of the District Attorney in his argument to the jury: “You, Fletcher, have had lots of experience. You are the master mind. You were driving the car. You have been married twice and have two babies.”

Appellant cla-ims in his bill that he objected to that portion of the argument relating to the defendant’s marriage and the fact that he had two babies. The court sustained the objection and at the request of the defendant instructed the jury not to consider said argument for any purpose. The court qualified this bill and in his qualification states that the argument of the District Attorney was not taken down by the court reporter, and the court did not recall that the District Attorney used the word “babies”. This matter was brought forward in the motion for a new trial, and the State, through its District Attorney, denied that he used the words attributed to him by the appellant. The court further states in his qualification that the appellant did not object to the testimony of Gertrude Jacobs with reference to the defendant having been married to her sister, divorced and having a three-year old girl by him; that the first objection made thereto was by way of a special requested instruction to the jury not to consider the same, which requested instruction was by the court submitted to the jury. In our opinion, under the facts disclosed by this record showing that the appellant was married, that he had a child — a girl three years of age, the argument could not have been any more prejudicial tti the defendant than the testimony which was introduced without objection.

Appellant excepted to the court’s qualification and filed a bystanders’ bill supported by the affidavit of the same three bystanders named in the bystanders’ bills of exception Nos. 1 and 2. This bystanders’ bill is also contested by the State. Hence the court’s bill, as qualified, must prevail under the established rules of this court.

Appellant next complains of the action of the trial court in overruling his motion for a new trial in which he has brought forward each and every complaint disclosed by the bills of exception herein discussed, and in addition thereto, that the jury in their deliberation disregarded the instructions of the court not to consider the fact that the appellant had been married twice and had two children— one by his former wife and one by his present wife; and also upon the ground of newly discovered evidence as disclosed by the affidavit of Dr. Harry G. Wilson which is attached to the motion for a new trial and whose name appeared on the back of the indictment as a witness.

It was charged in the motion for a new trial that Dr. Wilson would have testified that he examined the prosecutrix after midnight on December 16, 1939, at the request of her parents; that the examination of her privates disclosed the fact that a short time previous to the examination she had had intercourse with some male person; that he also found an old rupture of the hymen and old scar tissues which had been made by the entrance of some object into her privates. The State contested this motion and each and every ground therein set out, and especially the misconduct of the jury as charged in the appellant’s motion. The court heard . testimony relative thereto which showed that none of the jurors in their deliberations discussed the fact that the appellant had been married twice and had two children; that one of the jurors at one time made some reference thereto but he was immediately stopped and admonished that they could not consider the same, and there the matter rested. No futher reference thereto • was thereafter made by any of the jurors.' Most of the jurors, however, testified that they did not even hear any such remark or reference to the appellant being a married man.

With reference to the newly discovered testimony, it occurs to us that since the name of the witness, Dr. Wilson, appeared on 'the back 'of the indictment which was returned by the grand jury on the '30th day of December, 1939, and inasmuch as the trial of the case did not begin until about the 24th day of February, 1940, the appellant and his attorneys had ample time in which to have interviewed the doctor and ascertained what his examination of the injured girl disclosed. It is- obvious that the appellant and his attorneys failed to. exercise that degree of- diligence which the law requires in order' to entitle them to a new trial on the ground of newly discovered evidence. See Art. 753, Vernon’s Ann.Tex.C.C.P. vol. 3, p. 13, note 25; also 1940 Cumulative Supplement, pp. 9 and 10, note 28. See also Burkhart v. State, 127 Tex.Cr.R. 1, 74 S.W.2d 692.

Relative to the allegation of newly discovered evidence, the State offered Gene Bailey, Assistant District Attorney in and for Dallas County, Texas, who testified that -he participated in the trial of the defendant; that near the conclusion of the trial he talked to- the appellant’s attorneys and in that conversation he told one or the other of said attorneys, or perhaps both, that he was not going to use Dr. Wilson as a witness in behalf of the State but that if they desired to use him they might do so; that he could be found any time at the Emergency Hospital in the City of Dallas. This testimony on behalf of the State is uncontroverted by the appellant or his attorneys.

It occurs to us that under the facts developed upon the hearing of the motion for a new trial the court was justified in finding as a fact that the jurors did not discuss or take into consideration the fact that appellant, was a married man and had two children; and the court was- also! justified in concluding that the appellant and his attorneys had failed to exercise that degree of diligence required of them by law to entitle them to a new trial upon the ground of newly discovered evidence. Hence we overrule the appellant’s contentions.

After having carefully reviewed each and every other complaint relating to alleged errors in the trial of the case, we have reached the conclusion that no reversible error is presented.

From what we have said, it follows that the judgment of the trial court should be in all things affirmed 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.

On Motion for Rehearing.

KRUEGER, Judge.

Appellant has filed ' a rather lengthy motion for a rehearing in which he contends that the trial court committed fundamental error in submitting the case to the jury as one of- rape on a female under the age of consent because the indictment charged the defendant with rape by force on a - female under the age of consent, thereby submitting to the jury an entirely different and distinct offense. Omitting the formal parts, the indictment reads as follows: “ * * * that one Albert Plarold Fletcher on the 16th day of December in the Year of our Lord One Thousand Nine Hundred and 39, with force and arms, in the County and State aforesaid, in and upon Mary Evelyn Curtis, a female, then and there under the age of eighteen years, did make an assault, and the said Albert Harold Fletcher did then and there ravish and have carnal knowledge of the said Mary Evelyn Curtis, the said Mary Evelyn Curtis not being then and there the wife of the said Albert Harold Fletcher, etc.”

We do not deem it necessary to enter upon an extended discussion of the question here presented. A reference to the case of Patton v. State, 105 Tex.Cr.R. 128, 287 S.W. 51, 52, seems decisive of the question. We quote from the opinion in that case as follows: “In the indictment it is charged that the appellant ‘did make an assault upon and did then and there ravish and have carnal knowledge/ etc. The pros-ecutrix was averred to be under 15 years of age. Under this indictment, a conviction could be sustained upon proof of either rape by force or by acquiescence of a female whose age was below 18 years. See Buchanan v. State, 41 Tex.Cr.R. 127, 52 S.W. 769. Such an indictment, by the use of the word ‘ravish/ charges rape by force, but the additional, words, ‘have carnal knowledge/ embraced in the same count, permits proof of the other phases of rape. See Dyer v. State (Tex.Cr.App.) 283 S.W. 820.”

Appellant re-asserts the contention that the trial court erred in declining to give a peremptory instruction to the jury to return a verdict of not guilty. He claims that he established by circumstantial evidence the unchastity of the prosecutrix, in this: That he proved she drank whisky and permitted young men to kiss and hug her. The prosecutrix testified that she was a virgin at the time that she was assaulted by appellant; that she had never had sexual relations .with any man prior to the time in question. Consequently, appellant was not entitled to such an instruction even though the issue of her unchastity might have been raised. However, we do not believe that any female who may take a drink of in-, toxicating liquor and even kiss or permit friends of the opposite sex to hug and kiss her would be sufficient to raise the issue of her previous unchastity. To so hold might cast suspicion upon a great number of-our virtuous women and besmirch their good character. We think this question has been fully and definitely settled by the opinion rendered by this court in the case of Satterwhite v. State, 113 Tex.Cr.R. 659, 23 S.W.2d 356, 362, in which Judge Lattimore, speaking for the court, on State’s Motion for Rehearing, said:

“It seems to the writer that it would be far better to adhere to the long-established rules of procedure in Texas in such regard, than fly to speculative ills we wot not of. Young America in 1929 seems not as adverse to hugging and kissing friends of the opposite sex, as may have once been the case; but this would hardly justify the legal conclusion that such conduct tends to show lack of chastity. Nor is the fact of one becoming under the influence of strong drink, even if deplorable, to be held in law to involve sexual or other immorality, or even to tend in that direction.
* * * * *
“In passing we note that in the case last mentioned [Wood v. State, 80 Tex.Cr.R. [398], 409, 189 S.W. 474] the court below excluded the testimony of a witness for the defense who swore that he hugged and kissed prosecutrix and this court upheld said action of the trial court and cited Kearse v. State (Tex.Cr.App.) 88 S.W. [363] 364, wherein the court below refused to allow a defense witness to swear that prosecutrix' kissed him; this court observing that from such proof it would not follow that she would allow another man to kiss her.”

Appellant next complains because we declined to. consider his bystanders’ bill of exception No. 11, wherein he excepted to the following remarks by the District Attorney in his argument to the jury: “You Fletcher, have had lots of experience. You are the master mind. You were driving the car. You have been married twice and have two babies.”

This bill was contested by the State, but appellant, now for the first time, asserts that the contesting affidavit was not filed within ten days after the bystanders’ bill had been filed as required by Article 2237, section 9, Revised Civil Statutes. This matter was not called to our attention on the original submission and it escaped our notice. A re-examination of the record discloses the correctness of the appellant’s contention. Hence the contesting affidavit cannot be considered and we are constrained to decide the question presented upon the merits of the bystanders' bill. It is true that the record shows that Gertrude Jacobs, a witness for appellant, testified to his general good reputation; and on cross-examination she was asked by the District Attorney if her sister didn’t marry appellant and if she didn’t have a three-year old child, a girl, by him, which questions were answered in the affirmative. However, at the conclusion of the testimony appellant requested the court .to withdraw said testimony from the jury and instruct them not to consider it for any purpose, which the court did. It is our opinion that by so doing the court committed an error against the State because it had a right to show, if it could, the interest or motive of. the witness in the result, of the trial. The witness’ niece was the appellant’s child and the odium which flowed from his conviction would cast its shadow upon the child., Nevertheless, when the court withdrew this testimony from the jury, the case stood as if it had not been introduced. Therefore, the argument of the District Attorney was tantamount to bringing to the attention of the jury, by way of argument, unsworn testimony which was not before them and which was hurtful and prejudicial, requiring a reversal of the judgment. Prosecuting attorneys in their argument should confine themselves to a discussion of the evidence admitted under the ruling of the court and legitimate deduction therefrom. When testimony has been withdrawn from the jury the State’s attorney should refrain from commenting thereon. See Kerr v. State, 128 Tex.Cr.R. 373, 81 S.W.2d 530; Sarli v. State, 80 Tex.Cr.R. 161, 189 S.W. 149; Bradley v. State, 72 Tex.Cr.R. 287, 162 S.W. 515; Cannon v. State, 84 Tex.Cr.R. 479, 208 S.W. 660.

The motion for rehearing is granted, the order of affirmance is set aside and the judgment is now 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: BEAUCHAMP, Judge.

text:
    RYAN v. STATE.
    No. 21386.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    A. A. Morris, of .Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted on a charge of violating the liquor laws and assessed a fine of $100.

The transcript in the case fails to show any notice of appeal. This is essential to confer jurisdiction on the reviewing court. See Art. 827, Vernon’s Ann.C.C.P., and authorities collated under said article.

The appeal is dismissed.


text:
    BRALY v. STATE.
    No. 21460.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    John C. Henderson, of Angleton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted in the district court of Brazoria County of forgery, and his punishment was assessed at two years confinement in the penitentiary.

Since perfecting his appeal, the appellant has filed a written motion, duly verified, requesting the privilege of withdrawing his appeal. The request is granted and the appeal is dismissed.


text:
    PAWLAWSKI v. STATE.
    No. 21385.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    J. A. Rhodes, of Brenham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the county court of Washington County on a charge of violating the liquor laws, and was assessed a fine of $75 and two months in jail.

The proceedings appear regular. The record is before this court without statement of facts or bills of exception and there is nothing presented for our review.

The judgment of the trial court is affirmed.


author: BEAUCHAMP, Judge. GRAVES, Judge.

text:
    WYBLE v. STATE.
    No. 21015.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Rehearing Denied Oct. 9, 1940.

      David E. O’Fiel, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from a fine of $100 assessed by the County Court of Jefferson County for a violation of the liquor laws.

It is alleged in the complaint and information that appellant had in his possession “an illicit alcoholic beverage containing more than one-half of one per cent of alcohol by volume”, etc; that it was in a container to which no tax stamp showing the payment of the .tax on said beverage due to the State of Texas was affixed, and to which there was no valid evidence showing the payment of the tax on said beverage to the State of Texas. The further formal allegation is made that such tax is due.

This complaint and information has been approved in the case of J. M. Austin v. State, No. 20951, Tex.Cr.App., 146 S.W. 990.

The State’s evidence is to the effect that appellant lived with his family consisting of his wife and several children at 812 Miller Street in the city of Beaumont. On or about the 29th day of September, 1939, five officers, with a search warrant, went to the premises and there discovered in the bath room of the appellant’s house several gallons of whisky in a container to which no stamp was attached and there was no evidence showing payment of the tax due to the State of Texas. The whisky was transferred into other-containers and consisted of about six gallons which were brought into the court room and introduced in evidence in the case. ;

Some exceptions were taken and presented in the record in a manner which raises a very doubtful question as to whether or not they should be considered by this court; however, the only one giving serious consideration relates to testimony concerning the number of the house searched and whether or not it corresponded with the number given in the search warrant. Appellant on the witness stand admitted this number to be correct and all evidence regarding the same became immaterial. There is nothing in the procedure or in the jury’s verdict to indicate that this evidence was in any way prejudicial.

There is but one bill of exception which cdmplains of the ruling of the court in admitting the evidence of the officers as to the things they found in the private residence of the appellant. This is based upon the contention that the search warrant produced was illegal; first, because it does not describe the residence to be searched. On this point, it is described as 812 Miller Street in the city of Beaumont, and being occupied by the appellant. We are unable to see the point of objection in this respect. It is further objected that the correct number of the house was not given. All of the evidence, both for the State and the . defendant, on this subject gives this number and we are unable to see the basis of this objection.

The third objection is that the search warrant purports to be based merely upon information and belief and that no facts are recited which would authorize the issuance of such warrant, it being contended that the staiement that the affiants “received reliable information by a trustworthy citizen of Jefferson County, Texas, that liquor was being kept at the premises described” does not comply with the requirements of the statute and that the facts should all be stated showing what information they did receive. This question has been recently considered in a number of cases adhering to the long line of decisions, and we think the court should not be required to write on it at this time. The contention is not sustained.

The questions of fact in the case, as testified to by the witnesses for the State, are strongly denied by the appellant, his wife and two sons, each of whom stated that the officers came to the house on the night alleged and made a search of the premises but went away without finding any liquor; that for some reason unknown to them they arrested the appellant and took him to jail that night out of a sick bed. They denied that the liquor or the containers were found in the search. These are questions of fact upon which the jury has passed and of which this court has no jurisdiction.

No error being shown on the trial of the case, the judgment is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant in his motion attacks the constitutionality of H.B. No. 5, Chapter 448, Acts of the Regular Session of the 45th Legislature, Vernon’s Ann.P.C. art. 666 — 3 et seq., because of the fact, as. he alleges, that same has a defective caption, as well as that such act contains more than one subject, as well as many other allegations attacking the validity of this act.

It will be observed that such act is denominated the “Liquor Control Law,” and, as such, of a necessity must take in a wide range of subjects in order to effect its purpose. We also observe that same is amendatory of another and earlier statute passed for the same purpose of controlling the liquor traffic in this Státe at the time the prohibitory liquor amendment had been superseded. We do not think that it is necessary for the caption of this latter statute to set forth in detail the enormous amount of detailed regulations that would necessarily have to appear in the body of the ■bill.

However, we are not driven to such reasoning to find a justification for the presence of a penalty now present against the possession of untaxed liquor. We do find the caption of the last liquor control act contains the following: “* * * levying, altering and clarifying fees and taxes heretofore levied, and levied by the provisions of this act, and providing for their collection, and allocating such fees and taxes collected * * *.”

It is to be further noted that under Section 3a of such last liquor control act, Vernon’s Ann.P.C. art. 666 — -3a, an illicit beverage is defined, among other things, as an alcoholic beverage possessed upon “which any tax imposed by the laws of the State of Texas has not been paid and the tax stamp affixed thereto.”

It is further noted that the possession of any “illicit beverage” is punished by a .proper section of such an enactment. See Section 41, p. 1090, Acts 45th Legislature, Regular Session, Vernon’s Ann.P.C. art. 666 — 42.

We are not impressed with the contention setting up the alleged unconstitutionality of this portion, of the statute.

Neither do we see any strength in the contention that because the paragraph defining “illicit beverage” in such act sets forth more than one thing that can constitute an illicit beverage, such would constitute such paragraph to fail because of a fancied duplicity. Reference can be made to multiple statutes that set forth in their categories many ways in which a violation thereof can be found, and a conviction had for the commission of any one of such -methods of committing the one denominated offense. They are too numerous to demand mention.

Nor do we think the complaint insufficient to charge an offense. It charges the ‘possession of an illicit alcoholic beverage, to-wit-: whisky, in a container to which no stamp showing the payment of the tax on said beverage due to the State of Texas was affixed, etc. This seems to follow the definition of what the law has termed an illicit beverage, and we think is sufficient to put appellant upon notice in legal terms of what he was charged with.

Appellant further complains of the search warrant under which this whisky was alleged to have been found. He gives to us no valid reason, however, why same should be held invalid by us, and his objections thereto were properly- overruled.

We think the original disposition of this case should not be disturbed, and the motion is overruled.


text:
    DAVIS v. STATE.
    No. 21403.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    R. W. Webb, of Snyder, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for the possession of intoxicating liquor for the purpose of sale in dry area, punishment assessed at a fine of one hundred dollars.

No bills of exception are brought forward. The facts have been examined and are sufficient to support the verdict.

The judgment is affirmed.


text:
    VALDEZ v. STATE.
    No. 21406.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    W. Joe Bryan, of El Paso, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of a violation of the laws regulating the sale of liquor, and by the jury sentenced to serve thirty days in the county jail.

Appellant’s bill of exceptions No. 1 complains because in an allegation therein it is said that the State failed to prove the venue of this case to be in El Paso County. It is stated in the bill, and also ascertainable from the record, that no question relative to venue was raised until the filing of the motion for a new trial. This comes too^ late. We held in the case of Lawrence v. State, 117 Tex.Cr.R. 228, 36 S.W.2d 1018, 1019, as follows: “It is suggested in appellant’s brief that the evidence failed to show venue * * *. It is sufficient answer to say that no such issue was made in the court below and under the terms of article 847, C.C.P., it cannot now be raised in this court.”

Appellant’s bill is incomplete also, in that it does not show that the question of venue was made an issue in the court below, and it also fails to set out the evidence relative to venue so as to negative the proof thereof. We said in Allen v. State, 82 Tex.Cr.R. 416, 199 S.W. 633, 634, that: “Venue may be proved by circumstantial evidence (Steadham v. State, 40 Tex.Cr.R. 43, 48 S.W. 177; Pye v. State, 71 Tex.Cr.R. 94, 154 S.W. 222), and its proof beyond a reasonable doubt is not required (Johnson v. State, 72 Tex.Cr.R. 387, 162 S.W. 512). The bill of exceptions to the refusal of the charge mentioned does not set out the evidence so as to negative the proof of venue nor does it certify as a fact that venue was not proved. The bill contains only the reasons assigned by appellant for his exception. This does not verify the facts recited in these grounds. Branch’s Ann.P.C., p. 134, § 209; Smith v. State, 4 Tex.App. [626] 630; Arnold v. State, 74 Tex.Cr.R. 269, 168 S.W. [122] 125.”

We also quote from Fondren v. State, 77 Tex.Cr.R. 660, 662, 179 S.W. 1170, 1171: “While the case was being presented to the jury, and after the evidence had closed, appellant requested the court to instruct the jury to return a verdict of not guilty on the ground that the venue had not been proven. This contention would have been sound had not article 938 of the Code of Criminal Procedure been amended in 1897. By that article it is now provided this court, on appeal, shall presume that venue was proven in the court below, unless such matters were made an. issue in the court below, and it affirmatively appears to the contrary by bill of exceptions properly signed and allowed by the trial judge. The only bill in the record relating to this matter is one reserved to the failure of the court to give this special charge. This in no way evidences that venue was made an issue during the trial of the case, and, if in fact we take the record as a whole, the statement of facts evidences that no such issue was made on the trial, but the whole case proceeded upon the theory that the house in Warren in which the deputy sheriff of Tyler county says he found appellant and two others gaming was in Tyler county. Barker v. State [Tex.Cr.App.] 47 S.W. 980. While it may be said that there is no one who swore positively that the house, in which the card playing is said to have taken place, was in Tyler county, yet the jury, under the facts and circumstances in this case, would have been authorized to so find, had that been made an issue and the court submitted it to the jury in his charge.”

Bill of exceptions No. 2 merely objects to certain testimony on the grounds that same was immaterial and irrelevant, and goes no further. It is not shown therein why or in what way the same was thus objectionable. A mere' statement of the grounds of an objection is not a certificate to that effect.

Bill of exceptions No. 3 relates to certain remarks of the State’s attorney in his argument to the jury. Such remarks seem to have been brought forth by the conduct of the appellant’s attorney during the trial, and we do not think they were of sufficient importance to justify a reprimand of the State’s attorney as requested by appellant of the trial court; nor could they have had any material effect upon the jury.

The facts adduced by the State show a sale of liquor after 12 o’clock midnight by the appellant. He denied the sale. The jury decided this fact against him, and we see no reason to disturb their verdict.

Finding no error in the record, the judgment is affirmed.


text:
    HENDRIX v. STATE.
    No. 21408.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.

      Roy A. Scott, of Corpus Christi, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of the offense of felony theft, and his punishment was assessed by the jury at two years confinement in the penitentiary.

The record is before this court without statement of facts or bills of exceptions. The indictment and all matters of procedure ' appear regular.

The judgment is affirmed.


text:
    MORROW v. STATE.
    No. 21379.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    A. E. Heidingsfelder, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the County Court at Law No. 2 in Harris County on a complaint and information which alleged that he had, “unlawfully engaged in, work, and conduct the business of a journeyman plumber, to-wit, working on lead waste pipes, to serve plumbing fixtures, and to be connected to the city sanitary sewer”, without a license as provided by the ordinances of the city of Houston.

The facts in the case are practically without dispute. It is admitted in the evidence that Mr. Custer, by whom the appellant was employed, is a master plumber and plumbing contractor; that he has a right to employ journeymen plumbers and that journeymen plumbers have a right to have helpers. Mr. Custer had a contract for a certain job of work and had a journeyman plumber in charge of it who had helpers. Appellant was one of them. The journeyman plumber had left the job for something like an hour, during which time appellant testifies that he did such work as Mr. Teague, the journeyman plumber, had outlined for him to do in his absence and no more; that he was to make preparation for Mr. Teague to complete the plumbing work when he returned, and was instructed to arrange some lead pipe so Teague would wipe it and prepare it to be installed; This he was doing.

Teague says that appellant, with others, was employed not as plumbers, but as helpers; that the work which he left appellant to do consisted of straightening out lead pipe and cutting notches in the sills so the pipe could be run through the roof. He said that was the work of helpers. He said the pipe was so bent up that it had to be straightened, which appellant was doing and which he described as, “the usual, necessary and customary work of helpers.”

Other witnesses seemed to use the word “plumber” and “plumbing work” indiscriminately. There is nothing in the record defining “plumbing work” and “the business of a journeyman plumber”, terms used in the complaint. A plumber is defined as one who works in tin, lead, zinc, etc. Also one who supplies, repairs or fits water pipes, etc. Plumbing is defined as the art or occupation of putting in or repairing the pipes and other fittings for the water or gas supply or sewage disposal of a building.

It does not appear that either of the witnesses testifying for the state or the defense confined themselves to a technical use of the word. The city inspector said, “When I got out there Clarence Morrow was working on some lead waste pipes. The work Clarence Morrow was doing was plumbing work”. It was admitted by the state that journeymen plumbers have a right to have helpers. The state’s witness said there was no journeyman plumber supervising the work appellant was doing at the particular time he was there, which was about ten minutes, but he was not able to say that the contractor did not have a licensed journeyman plumber on the job.

We have concluded that the record is too indefinite to sustain a conviction. A stenographer in a law office who takes dictation is doing legal work. The office girl for the dentist receives his telephone calls, makes engagements, helps in the laboratory, assists the dentist in some of his work with the patient, and is engaged in dental work, but she is not engaged in the profession of practicing dentistry, nor is the secretary to the attorney engaged in practicing law. It is just as reasonable that other licensed businesses and professions may have helpers, and, in the absence of a showing that they are doing that thing which requires the skill and knowledge incident to the trade or profession, it would seem that the grounds for regulation would not exist and that, therefore, it is not within the purpose of the law-making body to include them.

In the performance of a contract for a plumbing job ditches are to be dug, materials are to be handled and lifted in place, all of which is a part of the plumbing business and part of a contract by any reasonable construction, but it is not required that all of this be done by licensed plumbers, nor would we think that it is necessary for the licensed supervisor to have his eye constantly on the things that they are doing under his direction and supervision. Certainly, as in the instant case, if they were cutting notches by which they could pass a sill, or straightening a piece of lead pipe so it could be fitted into position by the one authorized to do it, their act would not constitute a violation of a regulation which the Legislature would be authorized to make.

The ordinance introduced in evidence in this case, after providing for the appointment of a board to examine applicants for a plumbers license and for the granting of same, fixes a penalty for “any person doing plumbing business in the city of Houston without first obtaining a license as hereinabove provided, etc”. The penalty is any amount not exceeding $200. The evidence in this case is insufficient to show a violation of that ordinance.

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


text:
    PARKER v. STATE.
    No. 21401.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    No appearance for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the district court of Red River County on a charge of cattle theft and his punishment assessed at two years in the penitentiary.

The proceedings appear regular. The record is before us without statement of facts or bills of exception, and there is nothing presented to this court for review.

The judgment of the trial court is affirmed.