author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    SMITH v. STATE.
    No. 20768.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1940.
    Rehearing Denied Feb. 21, 1940.

      Sam W. Davis and Harry W. Freeman, both of Houston, 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.

The evidence offered by the state shows a case of rape by force. Appellant made a confession to the officers in due form, which confession if true, showed appellant to be guilty of the offense. On the trial, appellant took the witness stand and repudiated the confession. He claimed that the act of intercourse was with the consent of prosecutrix. The only issue raised by his testimony was whether or not she consented to the act, and this the jury decided adversely to his contention.

Appellant complains of the action of the court in overruling his motion to quash the indictment on the ground that the jury commissioners selected by the district judge to draw a grand jury for the August Term (at which term appellant was tried) had intentionally and arbitrarily excluded all persons of African descent from serving thereon. He alleged that he was a member of the negro race and that the practice of excluding negroes from grand and petit juries had been resorted to and systematically engaged in by the jury commissioners for a number of years preceding the time of the return of the . indictment on which the prosecution was based. That these acts were in contravention of 14th Amendment to the Constitution of the United States, U.S.C.A., and in violation of Art. 1 of the Constitution of the State of Texas, etc., Vernon’s Ann. St.

This motion was contested by the state and the Court heard evidence thereon. We do not deem it necessary to set out the evidence at length, but it is our opinion that the same wholly fails to show an intentional and arbitrary refusal to' select negroes for grand jury service on the panel that returned the indictment against the appellant. All of the grand jury commissioners stated there was no express and intentional disregard for members of the negro race. Appellant is then relegated to contending that the discrimination is shown by the long continued and uninterrupted failure to summon a member of the negro race for grand jury service as showing discrimination as a matter of law. The evidence in this respect shows that on a number of previous occasions, the jury commissioners had selected negroes as prospective grand jurors. It is shown that in 1936 a negro served on the grand jury, and others had been repeatedly drawn for the grand jury panel — both prior and subsequent thereto. We think the evidence presented was such that the court was justified in reaching the conclusion that race discrimination was not intentionally and deliberately practiced by the jury commissioners. The case of Johnson v. State, 136 Tex.Cr.R. 305, 124 S.W.2d 1001 and authorities there cited are not in point, since the evidence in this case is conflicting. Appellant admits in his able brief that none of the cases cited by him are exact authorities, but insists that the only distinction is one of form — that in those cases it clearly appeared that there was discrimination, while in the case at bar discrimination is covered by a veneer which seems to be a scheme to avoid those decisions. A sufficient answer to any such contention is that the evidence does not show an arbitrary discrimination and we would not be justified in ferreting out such schemes when the evidence was sharply conflicting as to the existence of discrimination at all. This is rather a serious charge against the officers charged with the administration of the law. They are not only presumed to fairly and impartially administer the same, but under their oath are bound to do so; and in the absence of clear and convincing proof to the contrary, the presumption obtains that they did so. See Lugo v. State, 136 Tex.Cr.R. 226, 124 S.W.2d 344, Hamilton v. State, Tex.Cr.App., 135 S.W.2d 476, not yet reported [in State Report], Washington v. State, 51 Tex.Cr.R. 542, 103 S.W. 879.

By bill of exception number two, appellant complains because the court declined to grant appellant’s request to declare a mistrial after prosecutrix was recalled by the state and asked if the various acts of familiarity by her with appellant (as testified to by him) were true; that she emphatically denied them and called upon God to bear witness to the truth of her statement of the case and then fainted. That the behavior of prosecutrix in fainting made it impossible for him to continue his cross-examination of her without prejudicing the jury against him. The court states in his qualification of the bill that he does not certify that anything happened in connection with this witness’ conduct or behavior which would prejudice appellant’s cause in the eyes, of the jury or that pros-ecutrix swooned and passed out, etc. He also states that this witness, after the occurrence in question was in attendance upon the court and was capable (as far as the court knew) to continue testifying. The bill, with the court’s qualification thereto, was accepted by appellant and he is bound thereby. As thus qualified it fails to reflect reversible error, since such qualification would indicate that all that really happened was that the witness cried out for God to bear witness to the truth of her statements, and fainted. The court instructed the jury to disregard such conduct, and any statements not made by her in response to questions. It also appears that the jury was immediately retired. It is not alleged that such conduct on her part was intentional. To the contrary it is in-ferable that it was the result of long and protracted questioning of a white woman who had been assaulted by a negro. Under the circumstances, we do not think this matter reflects reversible error. See Long v. State, 59 Tex.Cr.R. 103, 127 S.W. 551, Ann.Cas.1912A, 1244; Burge v. State, 73 Tex.Cr.R. 505, 167 S.W. 63.

There are a number of special requested charges which were submitted by appellant to the trial court. It appears, however, that the appellant did not except to the refusal of the trial court to give these charges. Consequently, we are not authorized to consider them. It has been repeatedly held that it must be made to appear affirmatively that exception was reserved to the refusal of special charges before they were properly before us for review. See Cunningham v. State, 97 Tex. Cr.R. 624, 262 S.W. 491; Craven v. State, 93 Tex.Cr. 328, 329, 247 S.W. 515; Brooks v. State, 93 Tex.Cr.R. 206, 247 S.W. 517; Linder v. State, 94 Tex.Cr.R. 316, 250 S.W. 703, 4 Tex.Juris, p. 99 and the authorities there collated.

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

The judgment of the trial court is affirmed.

PER CURIAM.

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

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

Appellant reiterates his contention that the jury commission intentionally and arbitrarily excluded all persons of African descent in selecting the grand jury. Looking to the testimony heard upon the motion to quash the indictment, it is observed that we were in error in our statement in the original opinion that all the jury commissioners testified that there was no intentional exclusion of members of the negro race from the grand jury. Only two of the commissioners testified upon the hearing. Mr. Elliott, one of the commissioners, testified that he did not recall whether any negroes were drawn by the commission. He said that the names of some negroes were mentioned during the time the selection was being made. Further, he testified that he did not suggest a negro because he did not know the name of any negro at the time living in Harris County who possessed the qualifications of a grand juror. On his cross-examination he said: “I did not intentionally, arbitrarily and systematically discriminate against any negro being selected on that grand jury.” Mr. Davis, the other member of the jury commission who testified upon the hearing, said that in selecting the grand jury he felt that it was the duty of the commission “to be fair to all classes in the county.” Further, he testified that he suggested the name of’ no negro because he was not personally acquainted with any member of the negro race. Upon cross-examination he said: “The other two grand-jury commissioners and I did not intentionally, arbitrarily and systematically discriminate against putting a negro on the grand jury panel because of his race or color; that is, I did not, and nothing was said by the other two to that effect.” It appears from the agreement entered into between the district attorney and counsel for appellant that in 1930 there were 72,603 negroes in Harris County, including men, women and children. Furthermore, it appears that in 1937 between 7,000 and 8,000 negroes paid their poll taxes. Again, it was shown that a large number of negroes possessed the qualifications of grand jurors. W. K. Richardson, a witness for the state, testified that four grand juries were selected each year. He said: “During the seven years I have been associated with the grand jury I would say that five or six negroes .have served on grand juries; that is just a guess. I think one of those negroes served two different times, not in succession.” . He testified that there was no negro, on the grand jury that indicted appellant. At this juncture we quote from his testimony, as follows: “I have been present on practically all occasions when Judge King and Judge Boyd have charged the grand jury commissions on the selection of grand jurors. They have been instructed to select citizens from all parts of the county and of all different races or walks of life. The court instructed the grand jury commissioners on the law governing the selecting of grand jurors. I do not recall seeing any negro grand jury commissioner; they have all been white that I have seen.”

C. F. Richardson, a witness for appellant, testified that there were approximately 6,000 negro men who paid poll taxes in Harris County during the year 1938. He could not say how many of these men possessed the qualifications of grand jurors. We quote from his testimony as follows: “I can almost count the names of the ne-groes who served on the grand jury in the last ten years.” The witness named approximately seven negroes.

Several negro men testified that they had never served on a grand jury. Their testimony was to the further effect that they possessed the qualifications of grand jurors. There was testimony to the effect that there were very few illiterate negroes in the county. There was also testimony to the effect that about eighteen negroes, had been drawn by the jury commission for grand jury service since 1931. The clerk of Criminal District Court No. 2 of Harris County testified that on several occasions the negro on the panel was number sixteen. However, his testimony was to the further effect that negroes had been serving on the grand juries.

The trial judge testified that he made it a rule to instruct the jury commissioners that there should be no discrimination against any race, color or religion. He said: “I have reminded them particularly of the negro population each time, though I could not instruct them who to put on the grand jury, and that the negro race must not be discriminated against. Several times since I have been here negroes have served on the grand jury. I don’t know how many different races of people there are in this county. * * * ”

Appellant insists that the holding of this court in Johnson v. State, 136 Tex.Cr.R. 305, 124 S.W.2d 1001, is controlling. He also relies upon the case of Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074, and Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757, and other cases which he cites in his brief. In the Norris case the evidence showed that for a long number of years no negroes had been selected for jury service, witnesses saying that none had ever been so called within their memory, the ages of such witnesses ranging from 50 to 76 years. In reaching the conclusion that Norris, who was a negro, had been discriminated against in the selection of the grand jury, the Supreme Court of the United States said [294 U.S. 587, 55 S.Ct. 581, 79 L.Ed. 1074]: “That testimony in itself made out a prima facie case of the denial of the equal protection which the Constitution guarantees.” In Johnson v. 'State, supra, it was shown that for thirty years no person of the negro race had been selected as - a grand juror, during which time a number of persons belonging to said race lived in the county who were qualified voters and qualified to serve on grand juries. In holding that the indictment against Johnson, who was a negro, should have been quashed because he had been discriminated against in the selection of the grand jury, we followed Norris v. Alabama, supra, and Hale v. Commonwealth of Kentucky, 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050.

We think the present case is distinguishable upon the facts from the cases upon which appellant relies. Here it is made to appear that negroes had been drawn for grand jury service during the last ten years. It is true that in some cases those who were drawn did not serve. However, negroes had served on the grand jury during such period of time. We do not understand that the different classes composing the population of a county must have equal representation upon the grand jury. The question for our determination is whether the trial judge was warranted in concluding from the testimony adduced upon the motion to quash that negroes had been intentionally excluded from the grand jury because of their race. The court heard the testimony of two of the grand jury commissioners to the effect that discrimination had not been practiced. Further, he heard testimony to the effect that negroes had been selected for grand jury service and that several negroes had served on the grand jury during the last ten years. In view of such testimony, we would not feel warranted in holding that the trial judge abused his discretion in overruling the motion to quash. To hold otherwise would be to say that every grand jury must have a member of the negro race on the panel before an indictment can be properly returned against any member of such race, notwithstanding the testimony warrants the conclusion that there had been no arbitrary discrimination against the negro race. It follows from what we have said that we are constrained to adhere to the conclusion expressed in the original opinion.

Appellant insists that the evidence fails to comport with human experience because it was shown that appellant remained at the home of the pros-ecutrix after he had had sexual intercourse with her. It appears to be appellant’s contention that the fact that he did not leave the scene of the alleged rape destroys the testimony of the prosecutrix to the effect that she was' forcibly ravished and warrants no other conclusion than that she consented to the act of intercourse. According to the testimony of prosecutrix, appellant grabbed her in her home, forcibly carried her to a bed, and by the use of force which she was unable to overcome, had an act of sexual intercourse with her. Not only the testimony of prosecutrix, but that of other witnesses, shows that she immediately reported the matter to a neighbor. She was greatly excited at the time of making the report. An examination by a physician disclosed that some one had had an act of intercourse with her. The physician who examined her testified, in part, as follows:

“I examined Mrs. Heiden. She was terribly shocked and she told me she had been attacked by a negro. Mrs. Middle-stedt did most of the talking. I made a vaginal examination and found some serous fluid there mixed with quite a little blood. I couldn’t make a successful microscopic of it; I turned it over to Professor Oli-phant, and he went to the school building to make it.
“I saw some slight scratches on her upper and lower limbs. I did not see any bruises on her wrists. The scratches on her limbs were such as could have been made from briars or brush. There was no discoloration of her wrists that I could ascertain at the time I examined her. The lower limbs were scratched up more than the upper ones. They appeared to be briar scratches.
“I made a vaginal examination; I found some serous fluid mixed up with quite a bit of hemorrhage; the posterior wall of the hymen was bleeding. The bleeding was such as might result from intercourse with a young strong man.
-“I talked to Mrs. Heiden at the time I examined her, but she talked in German some and I couldn’t understand it; she couldn’t tell me much as she was badly unnerved and shocked. She talked in German to Mrs. Middlestedt, and she told, me. I did not give Mrs. Heiden a douche; I just mopped her out. Mrs. Heiden told me she had been attacked by this negro.”

We quote from appellant’s written confession as follows:

“I have been working for Mr. Heiden for the past seven- months working out there on his farm doing farm work, during the time that I have worked there I was fed from their kitchen, and my salary was eighteen dollars a month and board. Last Monday I worked on the farm chopped peas, that afternoon when I finished cutting peas I drove up the cows.
“I rode my horse up in the yard after I drove the cows up, and I spoke to Mrs. Heiden’s brother Adoph Strack, after he left, the children came up in the truck with Mrs. Heiden’s two son-in-laws they did not stay but a few minutes, and when they left Mrs. Heiden’s daughters were in the truck also, they all drove off in their cars and I did not hear them say where they were going, when they left I went in the house to get the milk bucket Mr. Strack was in the house and I spoke to him, and then I went out to milk and while I was milking Mr. Strack left.
“When I came back from milking I asked Mrs. Heiden to fix my supper. She told me she did not have time and for me to fix it myself as she was busy peeling pears, then I fixed my supper, Mrs. Heiden was on the front side gallery, the next thing that happened Mrs. Heiden came in the kitchen and then went out in the yard and got some clothes * * * After she got in the room then I caught her by both arms this was in the back bed room after I grabbed her I laid her on the bed, I turned the left arm loose first and pulled up her dress, then I pulled up her dress that is when I put my privates into ,her her privates, after I put it in her I held both wrist again.
“I was on her for about four or five minutes until I finished and cum. When I got up I went out the back and she was still in the house and I did not see her when she left the house, then I went out on the front porch and laid down and stayed there until her two son-in-laws came up and took me down oh the road where we met some more people and then they all took me over to Paul Mittelstedt’s where the officers were, after I committed this act I do not know why I stayed there' but I did, after this was over I did not wash and have not washed since, I had only one sexual .intercourse with Mrs. Heiden.
“The bruises on Mrs. Heiden’s arms are from where I held her, at the time that I released the-left arm is when I raised up ■her dress.and had sexual intercourse with her, she hollered quit twice.” .

It is true that appellant repudiated his confession and gave testimony to the effect that prosecutrix invited him to have sexual relations with her. In short, it was his version that she freely consented to the act. The state took issue with appellant, and offered testimony to the effect that the identical confession introduced in evidence had been made by appellant and that no coercion or persuasion of any character had been used at the time such confession was made. This issue was properly submitted to the jury for their consideration.

Looking to the testimony in its entirety, we are constrained to adhere to the conclusion expressed in the original opinion that the evidence is sufficient to support the judgment of conviction.

The motion for rehearing is overruled.

PER CURIAM.

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


source: Caselaw Access Project

author: CHRISTIAN, Judge. GRAVES, Judge.

license: Public Domain

text:
    DUKES v. STATE.
    No. 20718.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    Rehearing Denied Feb. 21, 1940.
    Xavier Christ, of Port Arthur, and W. R. Blain, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

Prosecutrix, Millie Ruth Avery, was 16 years of age at the time of the alleged assault. She had traveled by train from her home in Louisiana to Beaumont. After leaving the train she entered the automobile of appellant, who was a taxi-cab driver. She directed the appellant to drive her to the home of her sister, which was at 2778 Magnolia Avenue in the City of Beaumont. Obeying her instructions, appellant drove in the direction of her sister’s home, but on arriving there failed to stop. He insisted that prosecutrix remain in the car for the purpose of accompanying him on a ride. She insisted that he leave her at her sister’s home. Refusing to obey her request; appellant drove onto a country road. He finally stopped his car and requested that prosecutrix kiss him. About that time a car passed and appellant got back under the steering wheel, saying, “When that car passes don’t you dare get out.” She attempted to.jump out of th,e car but appellant caught her by the arm and held her “so tight” that she was unable to free herself. At this juncture we quote from the testimony of prosecutrix: “I didn’t have a chance — he was too strong— the more I kicked and tried to get loose from him the tighter he would hold me. So he said ‘Don’t act that way — I am not going to do anything but kiss you.’ * * * He said, ‘Don’t you want to ?’ I said, ‘Kiss you ?’ He said, ‘No, don’t you want to ?’ He never did tell me what he wanted to do. He said, ‘You can lie right down in the seat and we will use a rubber.’ And I said, ‘No, my mother would kill me.’ And he said, ‘Your mother wouldn’t know it.’ ”

Prosecutrix testified further: “He put his hands on me from my knees up. He put his hands under my dress and felt of my privates. He didn’t actually attack me only with his hands. * * * He put his hands under my dress and he also felt of my breast. I was trying to fight him and keep him off of me all the time, but I couldn’t, because he was too strong and I couldn’t shove him off.”

Finally prosecutrix managed to free herself from appellant and hailed a passing car. The lady who was driving this car testified that just as she passed appellant’s car prosecutrix screamed; that she took prosecutrix into her car; that she was crying, and was very nervous and white; that she told the witness what had occurred; that witness took the number of appellant’s car; that later appellant brought prosecu-trix’ suit case to witness’ car, saying that he had made “a mistake about this little girl.”

Testifying in his own behalf, appellant admitted that he asked prosecutrix to have sexual relations with him. It was his version that she had voluntarily gone riding with him and had advised him that he might come to see her that night. It was appellant’s further version that he had in no manner assaulted prosecutrix. He denied that he made the statement attributed to him by the witness who took prosecutrix into her car.

Appellant contends that the evidence is insufficient to support the judgment of conviction. We are unable to reach the conclusion that the proof is not sufficient to show an assault by appellant with the present intent to have sexual intercourse with prosecutrix. See Douglas v. State, 132 Tex.Cr.R. 258, 103 S.W.2d 745, and Hightower v. State, 65 Tex.Cr.R. 323, 143 S.W. 1168.

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.

GRAVES, Judge.

Appellant complains because the original opinion fails to make mention of his second, third, fourth, fifth, sixth, seventh and eighth assignments of error as set forth in his brief. All these assignments relate to the court’s charge and alleged errors therein. We note that appellant filed no objections nor exceptions to the court’s charge at the time of the trial, but seemed to have been content therewith at such time. In order for it to be incumbent upon us to consider these assignments of error relative to the court’s charge, they should have been based upon some objections thereto made at the proper time. None are found in the record, and we therefore do not feel impelled to write upon such assignments set forth for the first time in the brief.

Appellant does complain of the evidence, however, and says that same is insufficient to show the age of the prosecu-trix to have been under eighteen years. He quotes from numerous decisions laying down the cardinal doctrine that “If, in a criminal trial, there be evidence which presents an issue favorable to the defendant, the trial court should not disregard it.” Burkhard v. State, 18 Tex.App. 599. Again: “The theory of the State and that of defendant, if supported by any evidence, should be presented in a charge by which these theories are clearly * * * made prominent to the jury.” Davis v. State, 10 Tex.App. 31.

We have no controversy about the above rule with appellant. The only difficulty we do have is that there was no issue made relative to this young lady’s age. She said she was sixteen years of age, and was not even cross-examined on that statement. The appellant, when he brought the grip to the lady’s car, told the lady, who picked up the prosecutrix after she had gotten out of appellant’s car, that “he made a mistake about this little girl.”

Mrs. Callahan, who picked the little girl up and took her to town, was passing appellant’s car and heard somebody screaming, and said “Stop, there is a little girl screaming.” Appellant took the stand and nowhere in his testimony does he say or intimate that prosecutrix’ age was other than what she said. There must first be an issue before the court would be required to charge thereon. We think this case was properly decided in the original opinion.

The motion is overruled.


author: BEAUCHAMP, Judge.

text:
    BERTRAND v. STATE.
    No. 20839.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    Xavier Christ and Willie T. Briggs, both of Port Arthur, for appellant

      Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted for driving an automobile upon a public highway while intoxicated; penalty assessed at confinement in the county jail for 90 days and a fine of $400.

To confer jurisdiction upon the appellate court, it is essential that the transcript show that notice of appeal was given in open court and entered of record. Art. 827, C.C.P. The transcript in the present instance shows a “docket entry” but fails to show that this was ever carried into the minutes of the court. Casey v. State, 116 Tex.Cr.R. 111, 32 S.W.2d 461, and cases there cited.

The appeal is dismissed.


author: GRAVES, Judge. BEAUCHAMP, Judge.

text:
    HYDE v. STATE.
    No. 20613.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    Rehearing Denied Feb. 21, 1940.
    Gordon M. Burns and M. E. Gates, both of Huntsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of the unlawful killing of Charlie Goodson, and sentenced to be imprisoned in the State penitentiary for life.

The facts adduced by the State show that appellant was a prison guard, and at the time of the killing he was hunting for' an escaped convict. Appellant, together with another guard, had spent the better portion of the day traveling from point to point, endeavoring to find this escaped convict. They had consumed together more than a quart of whisky, contrary to the rules of the prison board, and gave evidence of intoxication to some degree. The appellant and his comrade had been present in the deceased’s barbershop' during the afternoon, and appellant tolr of his having captured another escaped' convict, and related the circumstances relative thereto to one Eric Isgate. In such conversation he told that when he first accosted such convict he did not know who he was, but said that if such person had attempted flight he would have shot him. Then turning to Isgate he said: “You would have done the same thing, wouldn’t you?” to which the witness Is-gate answered “No, I don’t think I would.”

Sometime thereafter the two guards, desiring more whisky, went to the house of one Jug Weaver for the purpose of purchasing whisky and drove around to the rear of said Weaver’s house. Just prior to such time, however, the witness Isgate and deceased Charlie Goodson had closed up the Goodson barbershop, and Mr. Isgate was taking Mr. Goodson home in his car. Mr. Goodson was suffering with a cold and requested Isgate to drive by this same Jug'Weaver’s house for a few moments. They had arrived at this house and Mr. Goodson had gone into Weaver’s home at the time the two convict guards drove up. Isgate, while sitting in his car, was approached by the appellant who jerked the car door open, threw his gun on witness and said “Get out, you convict-loving son-of-a-bitch; I am going to kill you.” Witness got out with both of his hand's up and walked backwards from the appellant, and appellant told him to get on in the house, punching him with his gun. About that time the deceased Charlie Goodson came from around the house, and witness heard him say “Don’t do that; don’t do that,” at which time the pistol fired one shot which took the life of Mr. Goodson. It also appears that Mr. Goodson had nothing in his hands and had no weapon on his body at the time he was killed.

Appellant’s only defense was that he knew nothing about what happened he was so drunk; that he did not remember any of the occurrences relative to the killing, and had no idea of killing anyone; that he did not know Mr. Goodson.

Appellant’s first bill of exceptions complains of the court allowing the State to prove by the witness Isgate a statement relative to the capture of a convict on the day before the killing-in which the witness ■ stated that appellant said if the person captured the day before had run he would have shot him. It was necessary that the State find some motive, if possible, for this wanton killing, and it seems to have probably been based upon the fact that the witness Isgate had angered the appellant in Goodson’s barbershop by making the statement that he would not have killed the convict who was captured had this convict tried to escape from him.

Following up the question objected to in bill No. 1, the court also permitted the witness Isgate to state, as shown in bill of exceptions No. 2, that when witness said he would not have shot the convict had he tried to escape, the defendant said “Ah, Hell I would.” In all probability the motive for this killing, as shown by the statement made by appellant at the scene of the killing, was based upon the conversation in which Mr. Isgate said that he would not have killed the escaping convict. The appellant’s mind was doubtless so enraged that when he saw Isgate at Jug Weaver’s home he called him “a convict loving son-of-a-bitch,” and threatened his life, and doubtless might have intended to kill Isgate at the time he killed Charlie Goodson as they were both at the same house and on the same mission and he may have been confused as to their identity. These bills are overruled.

Bill of exceptions No. 3, in our judgment, reflects no error, no answer having been elicited from the witness.

Bill of exceptions No. 6 is in question and answer form, and we find no certificate of the trial judge that it was necessary for such to be thus presented. We therefore can not consider the same.

Bill of exceptions No. 7 has been considered by us, and we can see no error reflected therein. It complains of the fact that prior to the time of the signing of the criminal minutes of the court the district clerk, under the direction of the court, entered the name of the defendant in cause No. 6414, which is the number of the instant cause in the lower court. The court merely made the record speak the truth, and surely has control of his minutes up to the time same were signed and the term of court, adjourns.

It is also complained by appellant that the witness Marshall Bynum was not a qualified juror in that he was not a householder in the county nor a freeholder in the State. We have carefully gone over the testimony relative to this matter/and, in our judgment, the juror was the head of a household, consisting of himself, his mother and a younger brother, and was a qualified juror under the law.

Appellant also filed a motion for a change of venue in this cause, alleging therein that “there is a dangerous combination existing by influential persons by reason whereof he can not expect a fair trial in Cherokee County,” and that a jury of unbiased and unprejudiced men to try said cause could not be had in such county-

The court heard testimony relative to the matter, and witnesses testified both pro and con at such time.

It seems that the trial court was not in accord with the allegations in the motion for change of venue, and we see no reason to disturb its findings therein. Unfortunately for the defendant, he was not well known in Cherokee County, and again unfortunately he seems to have killed a man who had friends in such county and who was rather prominently connected therein. In our opinion the record shows that there were enough qualified and unbiased jurors in this case presented to him to assure him a fair and impartial trial under the circumstances. We see no error reflected herein.

This was a killing based upon a drunken carousal, with neither justification nor excuse in taking the life of a man who was unarmed and making no attack of any kind upon the appellant. The only defense that appellant offered was intoxication at the time, his testimony showing that he remembered nothing of the transaction that took this man’s life, and the court gave a comprehensive charge on temporary insanity produced by the voluntary recent use of intoxicating liquor, but limited same, as in law he was bound to do, to be considered by the jury only in mitigation of the penalty, if they so desired. We find the charge to be admirably drawn, and possibly more favorable to appellant than he was entitled to, and under the circumstances presented to us we find no error shown in this record.

This judgment is therefore affirmed.

On Motion 'for Rehearing.

BEAUCHAMP, Judge.

On his motion for rehearing appellant insists that the court erred in not sustaining the bills of exception complaining of the testimony of Eric Isgate. A little more definite discussion of this testimony should suffice to make the court’s position clear on this subject, and we think the original conclusion was correct. The appellant was a guard for the Penitentiary System on one of its farms. On the particular occasion of the tragedy, he was in Cherokee County in search of an escaped convict. He was accompanied by another guard who apparently had not known him for any great length of time. The two had purchased and drunk two pints of liquor, and at the time of the tragedy were trying to buy more. For this purpose they had gone to the home of Jug Weaver from whom they thought they could buy some more liquor. It was at his home that the tragedy occurred. Prior to that and during the same day, the appellant had met up with the witness, Eric Isgate, in a barber shop and at said time engaged in a conversation in his presence about a man he had apprehended as a prisoner, and made the remark that when he asked the fellow to stop he would have shot him if he did not stop whether he knew he was a convict or not. The crowd in the shop apparently did not agree with this conduct, and the appellant turned to the witness and asked if he would not have done the same thing, to which the witness replied in the negative. The witness testified on re-direct examination concerning this conversation that when he made this negative reply to the appellant in the barber shop he (appellant) got up and moved like he did not like it much and that he appeared very angry at the witness. As the appellant and his companion approached the home of Jug Weaver, the witness Isgate was in his car near the house and with the engine running, while the deceased, Charlie Goodson, who had come to the place with Isgate, had gone into the house, entering by the back door. When the appellant approached he recognized Isgate and said to him, “Get out of that car, you convict-loving son-of-a-bitch; I’m going to kill you.” The witness pleaded with him but the appellant demanded that he get out and go into the house. He punched the witness with a pistol and still insisted that he go in. As he entered the house the appellant, who was in a drunken condition, saw the deceased, Charlie Goodson, come around the corner and in just a few feet of the witness who was entering the house. It was the State’s theory which appears to be reasonable, that the appellant mistook Good-son for the witness Isgate and probably thought that he had turned around and was coming hack toward him. He fired the shot that killed Charlie Goodson immediately. The appellant did not know Good-son and had no dealings with him, and the State’s theory that he thought it was Is-gate is reasonable. This being true, the transaction earlier in the day at which he became angry with the witness and which he recalled at that particular time is pertinent. If he had killed Isgate there could be no doubt of its admissibility. Inasmuch as he killed Goodson at the very time while he was driving Isgate into the house and probably under the mistaken idea of a drunk man that he was shooting at Isgate, it is likewise clear that the detail of the earlier transaction was admissible in explanation of - the motive for his conduct at this particular time.

Appellant’s counsel ably briefed the question, but did so on the theory that the testimony as to what transpired in the barber shop was another distinct and separate offense. It was not an offense against the law but merely an incident which is connected up by the appellant’s language with the things that happened at the very time of the killing. There being no motive for the killing of Goodson by the appellant, the question of his intention • became a matter of importance, and the evidence complained of is certainly appropriate to make that explanation.

Appellant discusses the case of Woodard v. State, Tex.Cr.App., 51 S.W. 1122. We note that the court, in discussing the testimony held to be inadmissible, considered it as a transaction between the appellant and another entirely different person. In the* instant case, Isgate was materially involved. The appearance of Goodson probably saved the life of Isgate. In the Woodard case, the reason of the court for its decision was that “there was no attempt to connect these matters, so as to make the testimony admissible.” The connection that was made of the testimony certainly gives it quite a different standing in the instant case.

Hill v. State, 44 Tex.Cr.R. 603, 73 S.W. 9, was a burglary case. The court permitted the prosecution to prove another burglary on the same night by the same defendant. It was held in that case that inasmuch as the other burglary had no connection with the one for which Hill was being tried and that it threw no light on the charge that he broke into the Tillman store, that it was an isolated transaction and as such was inadmissible in the case for which he was being tried. We adhere to the doctrine in that case, but it is not applicable here.

Pace v. State, 58 Tex.Cr.R. 90, 124 S.W. 949, is likewise of a different nature. The defendant on trial had met a witness at a certain place and told him that he had come there to “raise hell”. The court held that it was not admissible to introduce testimony of an extraneous crime except that it should come within some of the exceptions to the rule, as for the purpose of showing intent, system, identity of the parties, etc. No connection was shown between the statements made at that time and the crime which the appellant actually committed, there being no question as to intent.

Lawrence v. State, 128 Tex.Cr.R. 416, 82 S.W.2d 647, approved the ruling in the foregoing cases and restated the general principle often expressed that evidence of distinct and separate offenses is inadmissible except under the stated exceptions. No isolated case is ever admissible for the purpose of showing that the defendant is a criminal generally, but there is nothing in the Lawrence case helpful to the appellant’s contention here.

Appellant insists that there is no evidence offered in any way connecting him with the transaction or the occurrence about which Isgate testified with the death of Goodson. We think that the appellant very forcefully connected the two conversations when he approached Isgate, calling him a “convict-loving son-of-a-bitch”. He had special reference to the transaction involving the evidence complained of.

The question herein treated gave this court considerable concern when the case was originally presented. We have again reviewed the evidence and the authorities on this question, together with each and every other question raised by the motion for rehearing, and have come to the conclusion that they were correctly disposed of in the original opinion.

The motion for rehearing is overruled.


author: KRUEGER, Judge.

text:
    SEKALY v. STATE.
    No. 20856.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    W. R. Blain, of Beaumont, for .appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

Conviction is for violation of the statute requiring one who works at a place where food and drink is handled to secure a certificate from a physician that he has no communicable disease. The punishment assessed is a fine of $5.

Appellant’s first complaint is that the court erred in overruling his motion to quash the complaint and information. The information, omitting the formal parts, reads as follows: “On or about the '5th. day of September, 1939 * * W. C. A. Sekaly, who was then and there operating and conducting an establishment where food and drink was served and permitted to be served, and did then and there unlawfully work in and about said establishment without then and there having in his possession a certificate from some reputable physician of Jefferson County, Texas, attesting the fact that the said W. C. A. Se-kaly, bearer, had then and there been examined by such physician within one week prior to the time that he so worked in and about said establishment, .and that such examination disclosed the fact that said person, the said W. C. A. Sekaly, was then and there free from any infectious and contagious disease * *

This prosecution is brought under Art. 705c, Vernon’s Ann.P.C. (effective April 26, 1939), which reads as follows, omitting the unnecessary parts thereof: “No person * * * operating, managing, or conducting any * * * place * * * where food or drink * * * js * * * served, sold, or * * * handled * * * shall work, employ, or keep in their employ, in, on, or about any said place * * * any person infected with any transmissible condition of any infectious or contagious disease, or work, or employ any person to work in, on, or about any said place, * * * who, at the time of his or her ém-ployment, failed to deliver to the employer or his agent, a certificate signed by a legally licensed physician, * * * attesting the fact that the bearer had been actually and thoroughly examined by such physician within a week prior to the time of such employment, and that such examination disclosed the fact that such person to be employed was free from any transmissible condition of any infectious or contagious disease.”

The act further provides that new certificates must be secured every six months.

It is obvious that the complaint and information charged appellant with being the operator and conductor of an establishment where food and drink were served; that he unlawfully worked about said establishment without having in his possession a certificate showing that he had been examined by a physician within one week prior to the time he so worked in said establishment. It occurs to us that said statute requires employees to secure certificates not more than one week prior to the time of their employment, which certificates shall be renewed every six months. The operator must also secure and renew his certificate every six months if he works in and about the premises and handles food and drink, etc. But it is not necessary either in case of operators or employees that their certificates show that the same were secured one meek prior to any particular time they might have worked. The law does not seem to require the operator or employee of the establishment to have a certificate attesting the fact that he or she has been examined by a physician within a week prior to any particular time that he might have worked in such establishment. If this were necessary under the law, then it would require such operator or employee who worked in and about the premises to obtain such certificate every week, so that he might show the same to the proper authorities when they demanded it. In other words, the information does not charge (1) that appellant’s certificate had elapsed by reason of the expiration of any six months period and that he failed to secure a renewal; nor does it charge (2) that he had never secured a certificate prior to the time he started to work. It merely alleges that he worked on said place on a particular date, September 5, 1939, without having secured a certificate for a week prior to this date. Assume, for example, that he had worked there three months before September 5, and had secured a certificate before he ever started to work on July 5; in such event he would clearly not have violated any law. Yet this information charges that he worked on September 5, and because he did so work and had had no examination “within a week prior to the time he so worked”, he was guilty of an offense. He might have been working 3 months and still have three months more before he need renew his certificate, or he might have had the required certificate when he went to work and then worked ten days at the time of the filing of the complaint. In either event, according to the wording .of this complaint and information, he would be guilty. In neither event would he actually be guilty. And yet the complaint and information attempts to charge an offense by the use of such language.

There is also some complaint urged to the information because it alleged that appellant did not have his certificate in his possession. The statute does not require that an owner or employee or operator have actual possession of the certificate; it only requires that it be displayed on the premises where food and drink, etc. is sold or handled.

Having reached the conclusion that the motion to quash should have been sustained, the judgment is reversed and the prosecution ordered 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: HAWKINS, Presiding Judge.

text:
    WILLIAMS v. STATE.
    No. 19910.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1940.
    Samuel K. Wasaff and Charles Owen, both of El Paso, for appellant.
    Roy D. Jackson, Dist. Atty., and Harold S. Long, Asst. Dist. Atty., both of El Paso, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Appellant was convicted of murder in El Paso County, Texas, and after the motion for new trial was overruled and notice of appeal given, upon proper showing before the court in which he was previously tried appellant was found to have become insane pending said appeal, and was committed to the Veterans Hospital at Waco, Texas.

When the appeal was submitted to this court on November 30, 1938 a motion was presented suggesting that further proceedings in the case 'should be suspended under the provisions of Art. 925, C.C.P., and the Clerk of this Court was directed to retire the case from the docket until it should 'be properly shown to this court that appellant had been tried and found to be sane.

It is now made known to this court that appellant died on April 27, 1939. In order that the case may be finally disposed of so far as the docket -of this court is concerned the Clerk is directed to re-docket the case, and it is now ordered that the appeal be abated on account of the death of appellant.


author: GRAVES, Judge. KRUEGER, Judge.

text:
    LEWIS et al. v. STATE.
    No. 20638.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1940.
    Rehearing Denied Feb. 21, 1940.
    J. T. Wright, of Tatum, for appellants.
    Lloyd W. Davidson, Spate's Atty., of Austin, for the State.
   GRAVES, Judge.

Appellants, man and wife, were convicted by the jury of the theft of property over the value of fifty dollars, and their punishment assessed at two years each in the penitentiary.

This is a case of circumstantial evidence, and was so submitted to the jury. We have searched the record for any testimony of any kind that tends to connect Emma Lewis with this offense, and confess that we find none at all. No witness connects her with any taking of this property, which was alleged to have been $250 in money, and there being absent any instruction in the court’s charge relative to the law of principals, we are of the opinion that the testimony relative to her participation in this alleged theft is insufficient.

The testimony relative to J. B. Lewis is entirely circumstantial. Monroe Cato, an. old negro man seventy-five years old, and Fannie Cato, his wife, was sixty-seven years old. Fannie was sick unto death, and two days before her death she reached under the pillow of the bed whereon she lay and took out a ten dollar bill and paid the doctor who was attending her. There remained under such pillow in a long flat purse $255 in money, consisting of two $20 hills, twenty-one $10 bills, and one $5 bill. Upon her death search was made for this money and none was found. Appellant, J. B. Lewis, was Fannie Cato’s nephew, and when the undertaker arrived, and a conversation was had with Monroe relative to paying the undertaker, Monroe told the undertaker, in the presence of J. B. Lewis, that J. B. had stolen the money, and that they would have to pay $10 per month. To this statement by Monroe Cato, appellant J. B. Lewis answered nothing, but did tell the undertaker that he would get the money, $75, to pay for his deceased aunt’s funeral. The undertaker and J. B. Lewis went to two different places, J. B. Lewis attempting to borrow the money, but he was not successful. However, eventually he did go into his own house and produce eight $10 bills to pay for the funeral expenses and gave same to the undertaker. Monroe Cato saw these bills, and said they looked like the stolen bills, but they had no marks of identification thereon. It also seems that on the day his aunt was buried appellant J. B. Lewis was engaged in a crap game with some other negroes and two white men, and was seen in possession of five or six dollars, as well as a ten dollar bill. On the next day he was again seen with a ten dollar bill which was utilized by him in a hog trade. It was also shown that on the day of the above-mentioned crap game, on the day Fannie Cato was buried, appellant J. B. Lewis told a witness that his aunt had died and left him and his wife $250, and wanted to borrow $10 from the witness, stating that he had $90 more at home. He also told such witness that he had recently bought a car and wanted to register it.

Although the possession of so manj bills was explained by appellant J. B. Lewis, such explanation seemed not to have been satisfactory to the jury, and we do not feel that their judgment should be disturbed.

Complaint is made of the verdict of the jury in that it is claimed that it is only the verdict of one juror and not that of the jury ás a whole. It reads as follows: “We, the Juror find the defendants J. B. Lewis and Emma Lewis guilty and assess their punishment (2 Two) years in the penitentiary each. R. H. Bush, Foreman.”

Mr. Branch in his Penal Code, p. 331, Sec. 646, says: “Verdicts should receive a liberal rather than a strict construction, and if the finding of the jury can be reasonably ascertained the verdict should be held good as to form. The object should be to ascertain the intention of the jury,” citing a long list of cases.

Again in same section: “The misspelling of, or the omission of the word ‘jury’, or the use of the word ‘juror’, or ‘jurors’ instead of the word ‘jury’ will not vitiate an otherwise good verdict,” again citing many cases, the case of Zunago v. State, 63 Tex. Cr.R. 58, 138 S.W. 713 [Ann.Cas.1913D, 665], being peculiarly in point hereon.

The charge of the court directed the jury to return a separate verdict as to each defendant, but the jury failed to do so, evidently overlooking that part of the charge. Such a direction being given probably in order to make clear the action and punishment to be meted out to one or both of the defendants. However, the jury in their caution wrote such a plain and understandable verdict that separate verdicts did not become necessary in order to a clear understanding of what they intended to do. We see no error reflected in such a verdict.

Complaint is made relative to paragraph five of the court’s charge. We note there were neither objections nor exceptions taken to such charge, and same was not excepted to in any way, nor called to the trial court’s attention. These objections therefore now come too late.

The overruling of appellants’ motion for a continuance was a matter addressed to the discretion of the court, and we see no abuse thereof.

The judgment, in so far as it affects Emma Lewis, is reversed and remanded; in so far as it affects J. B. Lewis, the judgment is affirmed.

On Appellant’s Motion for Rehearing.

KRUEGER, Judge.

Appellant J. B. Lewis bases his motion for a rehearing on two grounds: The first is that the trial court erred in overruling his motion for a continuance. The application for a continuance was not based» upon any statutory but wholly on equitable grounds. Hence the granting or refusal of the same rested solely within the sound discretion of the trial court. This court would not be justified, under the facts as revealed by the record, in overturning his action thereon.

His second contention is that the evidence is insufficient to sustain his conviction. In our opinion this is without merit. While the evidence is somewhat meagre, we think it sufficient as a basis for the jury’s conclusion of appellant’s guilt. We do not deem it necessary to again set out the facts and circumstances proven upon the trial, inasmuch as the same were fully discussed in the original opinion.

The motion for a rehearing is accordingly overruled.

PER CURIAM.

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


author: CHRISTIAN, Judge.

text:
    HAMILTON et al. v. STATE.
    No. 20825.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    D. C. Bland, of Orange, and Xavier Christ, of Port Arthur, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is aggravated assault; the punishment, a fine of $100 and 60 days in jail.

The prosecution proceeded under Subdivision 3 of Article 1147, P.C. We quote the article and subdivision as follows : “An assault or battery becomes aggravated when, committed under any of the following circumstances: * * * When the person committing the offense goes into the house of a private family and is there guilty of an assault and battery.” The charging part of the indictment is as follows: “Sam Hamilton and Lucy Hamilton did then and there unlawfully go into the house of a private family, to-wit, the house of Inez Prestridge, and did then and there in and upon the said Inez Prestridge commit an aggravated assault.” It is observed that it is not alleged in the indictment that the appellants committed a battery on Inez Prestridge. This court has held that in an indictment of complaint for aggravated assault committed in the house of a private family it should be averred that a battery was committed, as well as an assault, in accordance with the express requirements of the statutory enactment specifying this ground of aggravation. In Pederson v. State, 21 Tex.App. 485, 1 S.W. 521, the court said: “He must go into the house, or be in the house; and he must not only commit an assault, but a battery also.” We quote from 4 Texas Jurisprudence, page 895, as follows: “An indictment or information for aggravated assault or aggravated assault and battery should ordinarily charge, first, the assault, with all necessary particularity as to time, place and circumstances, and secondly, * * * the particular ground or circumstance of aggravation intended to be relied upon, and which may be one of the various grounds of aggravation set forth in the statute (Pen.Code 1925, art. 1147).”

We quote further from 4 Texas Jurisprudence, page 896, as follows: “The decisions holding that an indictment for aggravated assault must charge that offense in terms do not necessarily mean that the term ‘aggravated assault’ must be specifically employed. However, in order that the accused may be apprised of what he will have to meet on the trial, it is necessary to charge the circumstances of aggravation, that is, some of the particular acts or circumstances which are necessary to constitute the offense of aggravated assault. It is necessary that the circumstances of aggravation so charged amount to technical grounds of aggravation; anything less will not suffice: Merely charging that the assault and battery was aggravated is not enough.”

In the present case one of the grounds of aggravation under the subdivision of Article 1147 we are now considering is the commission of a battery. An averment that the assault was aggravated is not in our opinion tantamount to an allegation that a battery was committed.

It follows from what we have said that we are constrained to order a dismissal of the prosecution.

The judgment is reversed and the prosecution ordered 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:
    DENTON v. STATE.
    No. 20845.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    Guy Bonham, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of the theft of property under the value of fifty dollars, and sentenced to a term of ninety days in jail.

There are but two bills of exception in the record. Bill No. 1 complains because the witness John Gray was asked whether a certain witness, a special officer or night watchman, had told him anything about an automobile which it was claimed was parked near where this stolen property was taken, just prior to its taking. The witness answered that he had obtained certain information from such night watchman, and was given the license number by the watchman, and, over appellant’s objection, he said that he went and looked up the number of the car in the tax collector’s office. It will be noticed that he testified no further, however, as to what the records in the tax collector’s office showed. This bill does not reflect any error, so we think.

Bill No. 2 complains because of the witness Winningham, the watchman, testifying that he saw the car which was parked in the vicinity of where the stolen property was first taken, and that he gave the number of the car to the sheriff and the owner of the stolen property. The only objection to such testimony shown in the bill is that the question was leading. We see no error shown therein.

There are no further bills nor other matters called to our attention, save the sufficiency of the testimony. It appears therefrom that Mr. Yturri owned a steam pump located along the San Antonio river. That same was used often, and was seen by him every day or so. That just prior to its being taken a car belonging to appellant was noticed parked nearby. That on December 1, 1938, appellant sold this pump to one F. J. Van Delden for $12.50 and ten gallons of gasoline, appellant making the statement at such time that he was selling this pump for one John Collins. Collins did not testify, but Mrs. Pipkin testified that she heard a conversation between Collins and appellant wherein Collins desired to borrow appellant’s car for the purpose of taking Collins’ wife somewhere out in town. Thereafterwards, on that night, appellant and his wife, as well as Mrs. Pipkin, claim that the car was back at home with this pump in the back part of it.

This case was tried before the court without the intervention of a jury, and appellant underwent a rigid cross-examination which probably weakened the strength of his testimony, as well as that of his witnesses, who were somewhat confused as to dates, but who remained steadfast as to occurrences. The court, with a knowledge of the law, doubtless gave full force to the doctrine of circumstantial' evidence; he also had the benefit of seeing the witnesses and observing their demeanor upon the stand, and arrived at a satisfactory conclusion to himself of the appellant’s guilt, and we do not feel inclined to disturb the same. Undoubtedly, appellant’s bad previous record may have affected his credibility as a witness before the court, and much of his testimony was probably dis.carded.

The judgment is affirmed.


text:
    137 Tex.Cr. 513
    WHATLEY v. STATE.
    No. 20459.
    Court of Criminal Appeals of Texas.
    Oct 25, 1939.
   GRAVES, Judge.

Appellant was convicted of an assault with intent to murder Mrs. Cumie Barrow, and assessed a penalty of twelve years in the penitentiary. Upon appeal, his case was affirmed by this court on June 21, 1939, and a motion for a rehearing therein is now pending.

It is now made known to this court that while in the custody of W. W. Waid, Warden of the State penitentiary, the said Whatley escaped from such institution and custody on September 29, 1939, and has not voluntarily surrendered, and is now on this date at large.

Art. 824, C.C.P. Vernon’s Ann.C.C.P. art. 824, provides that if the defendant, pending appeal, escapes from custody, the jurisdiction of this court no longer attaches, but that upon his voluntary return within ten days, such appeal shall be reinstated. It appears herein, however, that the ten days allowed for a voluntary return have elapsed, and he is still at large.

Therefore the original opinion herein of date June 21, 1939, is hereby withdrawn, and this appeal is dismissed.


text:
    GARZA v. STATE.
    No. 20848.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    Oliver Johnson, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is willfully burning personal property of another; the punishment assessed is a fine of $1,000.

It appears from' the record that on the night of September 1, 1938, a stock car ' belonging to the Pennsylvania Railroad Company was discovered to be on fire while it was sitting on the switch tracks of the Missouri-Pacific Railroad Company in the City of San Antonio. A few days thereafter, appellant was arrested and while under arrest made a confession in which ,he admitted that he set fire to three railway cars on the night in question. On the trial, he repudiated his confession and testified that the statements contained in his confession were not true, and that he made them because the officers whipped him and he was afraid not to admit that he was the person who set fire to the cars. The officers testified that there was no mistreatment of the appellant by them. The question of whether or not the confession was freely and voluntarily made was submitted by an appropriate instruction to the jury for their determination. See Bingham v. State, 97 Tex.Cr.R. 594, 595, 262 S.W. 747; Blake v. State, 110 Tex.Cr.R. 128, 7 S.W.2d 579, and authorities cited.

By bill of exception number one, appellant complains of the action of the trial court in declining to give him a jury panel drawn from the jury wheel as provided by Art. 2101, R.C.S., and requiring him to submit his cause to a jury picked up and summoned by the sheriff under the direction of the court. This bill is qualified by the court and in the qualification he states that there was no regular jury available, none having been drawn from the jury wheel for the week of June 26, 1939, the week of appellant’s trial. That the defendant demanded a jury trial and the court ordered the sheriff to summons a panel of 12 men from which to select a jury. That the defendant objected to such a picked up jury, which objection was overruled by the court, and the defendant duly excepted.

It will be noted from Art. 2094, R.C.S., Vernon’s Ann.Civ.St. art. 2094, that in each county having a population of at least 58,000 or having therein a city containing at least 20,000 as shown by the last preceding Federal Census, the tax collector or one of his deputies, together with the tax assessor or one of his deputies, together with the sheriff or one of his deputies, and the county clerk or one of his deputies, or the district clerk or one of his deputies, shall meet at the courthouse of their county between the 1st and 15th days of August of each year and select from the list of qualified jurors of such county as shown by the tax list in the tax assessors office for the current year, the jurors for service in the district and county courts of such county for the ensuing year in the manner provided. Art. 2095 provides that the names of the men so selected shall be written on separate cards of uniform size and color which shall be deposited in a circular wheel to be provided for such purpose by the Commissioners’ Court of the County, etc.

Art. 2096 provides: “Not less than ten days prior to the first day of a term of court, the district clerk or one of his deputies, and the sheriff, or one of his deputies, in the presence and under the direction of the district judge, if the jurors are to be drawn for the district court, or the clerk of the county court, or one of his deputies, and the sheriff, or one of his deputies, in the presence and under the direction of the county judge, if the jurors are to be drawn for the county court, shall draw from the wheel containing the names of jurors, after the same has been well turned so that the cards therein are thoroughly mixed, one by one the names of thirty-six jurors, or a greater or less number where such judge has so directed, for each week of the term of the district or county courts for which a jury may be required * * * ” etc.

Art. 2101, R.C.S., provides in part that the provisions of the seven preceding articles (Art. 2094-2100, R.C.S., Vernon’s Ann.Civ.St. arts. 2094 — 2100), commonly known as the “Jury Wheel Law,” shall remain in full force in the counties which may be governed by this law, except as modified by the special provisions of the law. Said section also provides that the provisions of this article shall be applicable only to such counties of the state as may maintain three or more district courts, or in which three or more district-courts may be hereafter established.

■Section 2 of Art. 2101 provides as follows : “In each county under this law, the district judges shall meet together and determine approximately the number of jurors that are reasonably necessary for jury service in all the county courts at law, county courts and district courts of such county, for each week during the time said courts may hold during the year, and shall thereupon order the drawing of such number of jurors from the wheel for each of said weeks, said jury to be known as the general panel of jurors for service in all such courts of such county for the respective weeks for which they are designated to serve. * * * ”

Section 3 of Art. 2101, R.C.S., provides as follows: “Said jurors, when impaneled shall constitute a general panel for the week, for service as jurors in all county and district courts in said county, and shall be used interchangeably in all of the said courts. In the event of a deficiency of said jurors at any given time to meet the requirement of all said courts, the judge having control of said general panel for the week shall order such additional jurors to be drawn from the wheel as may be sufficient to meet such emergency, but such jurors shall act only as special jurors and shall be discharged as soon as their services are no further needed. Resort to the wheel shall be had in all cases to fill out the general panel, except where waived by the parties or their attorneys; provided that by written agreement entered into by all parties to any cause or suit, or the attorney of record in such suit or cause filed therein, the sheriff or other officer in attendance upon said court, may summon the jury needed, or any part of same, in such cause or suit by talesmen, without resorting to the jury wheel, and in such cause or suit said jurors so selected shall be paid as if regularly drawn from the jury wheel.”

It is plainly provided by the last section of said article herein quoted that in the event of a deficiency of jurors at any given time, to meet the requirements of all said courts, the judge having control of said general panel shall order the additional jurors to be drawn from the wheel, etc. It is further provided in said section that resort to the wheel shall be had in all cases to fill out the general panel except where waived by the parties or the attorneys of record, or by written agreement entered into between all parties to the litigation.

This court will take judicial knowledge of the fact that Bexar County and the City of San Antonio are within the purview of the above-quoted provisions of the law, both as to population and as to the number of district courts. See Ervin v. State, 119 Tex.Cr.R. 204, 44 S.W.2d 380. The above-quoted statutes being a special law applicable to Bexar County and other counties in which there are three or more district courts, it therefore supercedes the general law on the subject. It is obvious to us that in counties having three or more district courts, the judge is not authorized to instruct the sheriff to go out and summon men for jury service in either the district or county courts, unless by agreement 'of the parties, etc. He is not even permitted to summon talesman, but resort must ordinarily be had to the jury wheel in procuring a jury or jurors for service — unless there is a contrary agreement, or such procedure is waived, etc.

Bills numbers 2, 6 and 7 are in question and answer form without a certificate from the trial court that it was necessary that they be in such form; hence we cannot consider them. See Monday v. State, 124 Tex.Cr.R. 44, 60 S.W.2d 435; Art. 760, C.C.P., Vernon’s Ann.C.C.P. art. 760. Bill of exception number 3 is multifarious. Moreover it sets forth no ground of objection. All other matters complained of by appellant have been carefully examined by us and are deemed to be without merit.

For the error above discussed, the judgment is reversed and the cause remanded.

PER CURIAM.

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


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    Ex parte YOUNG.
    No. 20919.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.

      H. R. Bishop and J. Elwood Winters, both of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

The basis of this writ of habeas corpus seems to be that relator was fined in a justice court of Tarrant County the sum of $14 as fine and costs in a certain cause therein. That he was committed to jail in default of the payment of this amount, and had remained five days in jail. He therefore contends that under the provisions of Art. 793, C.C.P., he is entitled to his discharge on account of the fact that he was entitled to receive $3 per day for each day that he has been thus confined in jail.

We have heretofore held that Arts. 793, 793a, 794, 794a, 794b, 794c and 794d, Vernon’s Annotated Code of Criminal Procedure, were unconstitutional for the reasons set forth in Ex parte Ferguson, Tex.Cr.App., 132 S.W.2d 408, to which ruling we again adhere. We then find ourselves confronted with original Article 793, C.C.P., Chapter Four, under the head of “Execution Of Judgment — In Misdemeanor Cases.” We quote Art. 793: “When a defendant is convicted of a misdemeanor and his punishment is assessed at a pecuniary fine, if he is unable to pay the fine and costs adjudged against him, he may for such time as will satisfy the judgment be put to work in the workhouse, or on the county farm, or public improvements of the county, as provided in the succeeding Article, or if there be no such workhouse, farm or improvements, he shall be imprisoned in jail for a sufficient length of time to discharge the full amount of fine and costs adjudged against him; rating such labor or imprisonment at three dollars ($3) for each day thereof.”

We are impressed with the idea that such article is a general one, and applies to any and all misdemeanors generally, unless there should appear in such Code a more specific one dealing with some subject therein. In our search therefor we came in contact with Art. 920, C.C.P., under the heading of “Judgment In Justice Court,” which reads as follows:

“A defendant placed in jail on account of failure to pay the fine and costs can be discharged on habeas corpus by showing:
“1. That he is too poor to pay the fine and costs, and
“2. That he has remained in jail a sufficient length of time to satisfy the fine and costs, at the rate of three dollars for each day.
“But the defendant shall, in no case under this article, be discharged until he has been imprisoned at least ten days; and a justice of the peace may discharge the defendant upon his showing the same cause, by application to such justice; and when such application is granted, the justice shall note the same on his docket.”

It is our holding that Article 920, supra, prevents the discharge of any person by means of a writ of habeas corpus who is compelled to lay out his fine and costs in jail, which was levied in a justice court, until he has served at least ten days in jail. At such time he is entitled to the writ of habeas corpus, and shall be allowed the sum of three .dollars per day for each day he remained in jail, and if such amount would have discharged the fine and costs, he would be entitled to his discharge on a habeas corpus hearing. Ex parte McLaughlin, 124 Tex.Cr.R. 40, 60 S.W.2d 786; Ex parte Fernandez, 122 Tex.Cr.R. 641, 57 S.W.2d 578. While this holding may operate as a seeming injustice to the relator herein, compelling him to serve ten days in jail for a $14 fine, its correction is a matter for the legislature rather than this court. The statute is plain and we must follow it.

We therefore hold herein that relator would have to either pay his fine and costs in the justice court, or serve at least ten days in jail before being entitled to his discharge herein by means of a writ of habeas corpus.

The judgment of the trial court is affirmed.


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    BOND v. STATE.
    No. 20834.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    John D. Logan, of San Angelo, for appellant.
    Lloyd W. Davidson, State’s A-tty., of Austin, for the State.
   KRUEGER, Judge.

The offense is fraudulently obtaining board and lodging, and the punishment assessed is a fine of $1.

The prosecution in this case was sought to be brought under Article 1551, P.C. The offense attempted to be denounced in said article is a species of swindling. Therefore the rules with reference to the proof of a swindle should be applied in the instant case.

We note from the testimony of Mrs. Garrett that appellant came to her boarding and rooming house on the 10th day of June, 1939, and applied for board and room. He told her at the time that he had no money, but had a job with a construction corn-pany that was constructing a bridge over the North Concho River, and he would pay her on each Saturday when he received his check. When he failed to pay on the first Saturday, she asked him about it on the following Thursday and he paid her for one week. He never paid his board and room bill on Saturday as he had agreed to do, but would tell her he would pay her just as soon as he got his check. During his stay at her boarding house, he paid for one week and paid part of a third week, but did not pay on Saturday as he had agreed to do. While he was boarding at her house, he got his arm hurt and was unable to work for one week. When she asked him to pay his board and room bill for that week, he told her he was not able to work, but he would receive one-half pay from the insurance company for such time as he lost by reason of his injury and would pay her out of that. He finally left the boarding house after about a month and never finished paying her in full. He owed her at the time he left about $11.20. She also testified that she believed all of the statements appellant made to her relative to his paying the board bill and relied thereon in extending him credit, and gave him his board and room. -This is all the testimony introduced by the state upon the trial of the case.

Analyzing the testimony for the purpose of determining whether it would sustain a conviction for swindling, we make the following observations. At the' time appellant applied for board and room, he advised Mrs. Garrett he had no money and that he would pay her at the end of each week out of his weekly salary as an employee in constructing the bridge. His statement that he had a job, but had no money was therefore true, and she extended him credit upon his promise to pay her as he received his salary at the end of each week. Even if it should be conceded that the statements and representations so made by the defendant in obtaining room and board were false, they are not sufficient upon which to base a conviction under Art. 1551, P.C. Since generally the rules applicable to swindling would be applicable to the instant case, resort must be had to the well-established rule that the false representations or pretenses must relate to an existing or past fact. As stated in Texas Juris., Vol. 39, p. 1057; “The false pretense or representations must relate to an existing fact or past event; mere false promises or professions as to future happenings or events are insufficient.”

In Branch’s Ann.P.C., Sec. 2627, it is ¿aid: “To constitute' the offense of swindling-some false representation as to existing facts or past event must have been made. Mere false promises or false professions of intention, although acted upon, are not sufficient.”

Applying this rule to the facts in the instant case, it is obvious that any false statements and representations made-by the defendant in order to obtain board and lodging related to future happenings or events and not to an existing fact or a past event. Consequently, any statements, however false, made by the appellant to Mrs. Gar.rett, after he had become indebted to her for board and room were not sufficient upon which to base a conviction under this statute. See Garrett v. State, 125 Tex.Cr.R. 351, 68 S.W.2d 507; Windham v. State, 71 Tex.Cr.R. 384, 160 S.W. 72.

In our opinion the evidence as disclosed by the record, is insufficient to support the conviction. The judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

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


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    HAYWOOD v. STATE.
    No. 20842.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    E. B. Chambers and John H. Dittmar, both of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant, a female under the age of eighteen years, was convicted by a jury in the juvenile court and declared to be a delinquent child, and was committed to the Girls Training School at Gainesville, Texas, for an indeterminate term not extending beyond July 23, 1944.

She was tried upon a complaint and information, the latter reading in part as follows:

“Now comes L. J. Gittinger, Assistant Criminal District Attorney of Bexar County, Texas, upon the affidavit of George D. Pickens, attached hereto and made a part hereof, and represents to the County Court of Bexar County, Texas, that on the 19th day of April 1939, one Odessa Haywood was a (female child and under the age of 18 years) residing in Bexar County, Texas, and before the making of this information was a delinquent child.
“That said child is incorrigible; and that said child knowingly associates with thieves and idle persons; and that said child habitually wanders about the streets of the City of San Antonio, Bexar County, Texas, in the night time without being on any business or occupation; and the said child is and has been guilty of immoral conduct in public places, to-wit: in the streets of the City of San Antonio, Texas, and that on or about the 15th day of April A. D. 1939, in the County of Bexar, State of Texas, and before the making and filing of this information, did then and there unlawfully and voluntarily and with malice aforethought kill and murder Carrie Lee Thompson by then and there stabbing the said Carrie Lee Thompson with a knife, constituting the said Odessa Haywood a delinquent child, against the peace and dignity of -the State.”

Article 5143a, Vernon’s 1939 Cummula-tive Supplement to the Texas Statutes, passed by the Legislature in 19.37, defines a “delinquent child” as any boy between the ages of 10 and 17 years, and any girl between the ages of 10 and 18 years who violates any penal laws of,this State, etc. It will be noted from the above set forth information that nowhere therein is it alleged that appellant was over the age of ten years at the time of the making of the allegations.

We have heretofore recently held in the case of Rose et al. v. State, Tex.Cr.App., 129 S.W.2d 639, that it was necessary to charge in the indictment, or in the complaint and information, that the person so charged as being a delinquent child, in the case of a boy, that he was over the age of ten years and under the age of seventeen years; if a girl, as in this present instance, that she was over the age of ten years and under the age of eighteen years.

There being an absence of an allegation that appellant was over the age of ten years, under the authority of the above case we hold this complaint and information defective, and the judgment is reversed and the prosecution is therefore ordered dismissed.