author: KRUEGER, Judge.

text:
    MARTINEZ v. STATE.
    No. 20651.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    John J. Pichinson and E. H. Hernandez, both of Corpus Christi, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is possession of marihuana. The punishment assessed is confinement in the state penitentiary for a term of six years.

The record discloses that on May 3, 1938, a city policeman of Corpus Christi arrested appellant near a beer tavern in said city. At that time appellant attempted to dispose of some cigarettes by dropping them on the ground. The officer picked them up, however, and the next day appellant made a written confession admitting thát he possessed marihuana cigarettes for the purpose of sale. In his confession he also admitted that he had been sent to the Texas penitentiary twice for burglary. The officers testified that the cigarettes contained marihuana. Appellant did not testify or offer any affirmative defense.

Owing to the disposition we are making of the case, we need only consider appellant’s bills of exception Nos. 4 and 5, in which he complains of the action of the court in declining to delete from the confession the last two sentences which read as follows: “I have been to the Texas Penitentiary twice. Both times for burglary.”

The court overruled appellant’s motion and permitted the entire confession to be read to the jury; he also allowed them to carry it into the jury room. The court, did, however, instruct the jury not to consider evidence of extraneous crimes for any purpose except as they affected his credibility, if they did so; that they were not trying him for burglary and could not convict him becatise of other cases. We think appellant’s contention should • have been sustained. The punishment assessed was not the lowest, and we cannot say that the information in the purported confession relative to the two former convictions did not tend to prejudice appellant’s rights with the jury in assessing his punishment at more than the minimum. It is true that the State may introduce the whole confession of the defendant, even though it embraces extraneous offense, if it tends to connect him with the crime for which he is on trial. See Calloway v. State, 99 Tex.Cr.R. 436, 270 S.W. 171; Coomer v. State, 97 Tex.Cr.R. 100, 260 S.W. 568. But, it is also a well settled rule that in a prosecution for a particular crime, the accused is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that evidence tending to show that he committed other offenses wholly disconnected with that for which he is on ttial should not be admitted. See 18 Tex. Jur. p. 53, sec. 31, and the many authorities there collated. We think this is the rule by which this case müst be decided. The confession was an admission by the appellant of his guilt of the particular crime (possessing marihuana) with which he was charged. In the instant case, the State might easily have pasted a strip of paper over the objectionable portion of the confession and thereby excluded it from the jury.

Had the appellant taken the witness stand, then the admissions in his confession might have been admissible as affecting his credibility as a witness. See generally Childs v. State, Tex.Cr.App., 22 S.W. 1039; Hooten v. State, 117 Tex.Cr.R. 510, 33 S.W.2d 741; Hunter v. State, 119 Tex.Cr.R. 558, 45 S.W.2d 969; Sherman v. State, 124 Tex.Cr.R. 273, 62 S.W.2d 146. But his character as a witness was not put in issue; consequently the evidence was not admissible for the purpose of affecting his credibility. See Thomason v. State, 115 Tex.Cr.R. 627, 27 S.W.2d 229; Ulmer v. State, 106 Tex.Cr.R. 349, 292 S.W. 245; Smith v. State, 80 Tex.Cr.R. 82, 188 S.W. 983. Hence, the instruction to the jury in this respect was error, notwithstanding the court charged them that they could not convict him because of other offenses.

The matters complained of in bills of exceptions Nos. 1 and 2, relate to the testimony of the officers as to the effect upon persons who use marihuana. The effect of marihuana was not an issue, as was so certified in the bills. We see no reason for admitting such testimony. Owing to the disposition we are making of the case, we need not consider the appellant’s other contentions since they will probably not occur again on another trial.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


source: Caselaw Access Project

author: KRUEGER, Judge. CHRISTIAN, Judge.

license: Public Domain

text:
    TAYLOR v. STATE.
    No. 20531.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1939.
    Rehearing Denied Dec. 20, 1939.

      Graham Bruce and F. W. Hustmyre, both of Orange, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is an accomplice to robbery; the punishment assessed is confinement in the state penitentiary for a term of 25 years.

Appellant was indicted as an accomplice to Quenton McMillian and Alfred Peabody, who were charged with having robbed C. V. Selman, the ticket agent for the Southern Pacific Railroad Company in Orange, Texas, on October 2, 1938. He challenges the sufficiency of the evidence to sustain 'his conviction.

The testimony adduced by the state shows that a short time prior to the robbery, appellant purchased an old model, blue steel pistol from a dealer in sporting goods and firearms. This pistol was identified,as the one used by McMillian in the commission of the robbery. At the time of their arrest, both McMillian and Peabody were in possession of pistols. The one carried by McMillian was identified by the second hand dealer, by some repairs he had made thereon, as the one he had sold to the appellant. After the robbery, McMillian and Peabody hid out, and while in hiding appellant carried food to them. L. T. Delano testified that on the night of the commission of the alleged offense, he saw the appellant, McMillian and Peabody near the L. & R. Railroad and heard them planning to rob the depot. He testified that they stated that there was $3,000 cash coming in on the train. That the money was to be split between McMillian, -Peabody, the defendant and the father of the witness. Other facts and circumstances were proved which corroborated Delano. Appellant did not testify or offer any affirmative defense. We deem the evidence sufficient to support the jury’s conclusion of appellant’s guilt.

Bills of exceptions numbers one and two relate to the same subject matter and will be considered together. Bill number one reflects that the district attorney asked the witness, Mr. Pachar, whether' or not the Piggly Wiggly Store had been robbed, to which appellant objected on the ground that it showed a separate and distinct offense, not connected with the offense for which he was on trial. The court sustained the objection. The district attorney then asked the witness to relate the circumstances under which he saw the pearl handled pistol. The witness replied: “On the night I vyas robbed, September 24, 1938, it was held by Alfred Peabody.” Appellant- objected again and the court sustained the objection to the answer of the witness except to such part of it as showed that he saw the pistol in Peabody’s hand. Bill number two shows that after Pachar had testified that he was manager of the Piggly Wiggly Store and that he had seen the pearl handled pistol in the hands of Peabody on the night the store was robbed (to which appellant had duly objected as shown by bill one), the district attorney asked the witness where he had seen a black pistol, which he handed to the witness for his inspection. The witness replied: “On the same night; it was held hy Quenton McMillian.” Appellant interposed the same objections as he did to the questioning in bill number one.- The objections were sustained in part but overruled insofar as the witness testified that the pistol was held by McMillian. While the court’s ruling was correct in each of these instances, improper evidence was gotten before the jury which should not have been offered.

Bill number three complains of the admission of testimony of the state’s witness, Delano, that McMillian and Peabody robbed the A. B. C. Store. Appellant objected on the ground that it showed a separate and distinct offense, not connected with the offense for which he was on trial, and that the same was highly prejudicial. It is our opinion that appellant’s contention is well-founded and should have been sustained. An accused should be tried on the merits of the particular case. Proof of extraneous crimes which do not tend to show intent, identity, system, etc., is not admissible if it only shows that the defendant is a criminal generally. See Branch’s Ann.P.C., Sec. 166, p. 98, and authorities there cited.

It occurs to us that the testimony complained of in hills of exceptions numbers four and five relate to other robberies and tend to show that appellant received part of the loot of such robberies without showing that appellant was connected therewith or knew that the loot was obtained in a robbery. Even if he had known that such were true, we do not think this evidence is admissible in this case.

Bill of exception number nine shows that the district attorney, in his closing argument, said: “* * * Attorneys' for the defendant have talked a lot about L. T. Delano’s lying about Washie Taylor to save his own skin. Gentlemen, the difference between them is this: Delano had a change of heart and elects to tell all; Washie says, ‘I’ll say nothing.’ ”

The court sustained appellant’s objection and instructed the jury not to consider the same for any purpose. The remark was a reference to appellant’s failure to testify and hence we are constrained to reverse the case. See Branch’s Ann.P.C. Sec. 375, p. 209, and authorities cited; Art. 710, C.C.P.; Thompson v. State, 113 Tex.Cr.R. 45, 19 S.W.2d 316. We forego a discussion of the argument complained of in bill number eight as the same will not occur again upon another trial.

For the errors hereinabove pointed out, the judgment is reversed and the cause remanded.

PER CURIAM.

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

On State’s Motion for Rehearing.

CHRISTIAN, Judge.

The State contends that the argument reflected in bill of exception No. 9, and which is set out in the original opinion, should not be construed as a reference to the failure of the appellant to testify. In short, the State insists that in all the district attorney said he had reference only to the fact that, prior to the trial, appellant had said nothing and had made no explanation. In support of this contention the case of Weatherred v. State, 129 Tex.Cr.R. 514, 89 S.W.2d 212, is cited. We are unable to reach the conclusion that the language employed in the present -case is substantially the same as that set forth in the opinion in Weatherred’s case. Delano testified as a witness for the State in the case at bar and when the district attorney stated to the jury that he elected to tell all it would seem that he necessarily referred to his testimony given upon the trial. Immediately following such declaration relative to the witness Delano, the district attorney said, in referring to appellant, “Washie says, T will say nothing.’ ” Looking to the argument in its entirety, we regard it as one whose necessary effect was a reference to appellant’s failure to testify.

We remain of opinion that the court fell into error in permitting the State to introduce proof of extraneous offenses.

The motion for rehearing is overruled.

PER CURIAM.

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


text:
    WALKER v. STATE.
    No. 20511.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1939.
    Rehearing Denied Dec. 20, 1939.
    Walker Saulsbury and Byron Skelton, both of Temple, and Paul C. Boethel, of Hallettsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

Appellant’s first complaint is that the court erred in overruling his motion to quash the indictment. We have examined the same and deem it sufficient to charge the offense.

His next complaint is that the court erred in overruling his application for a severance, duly verified as required by . law. It appears from the indictment that Gus Walker, Fannie Walker and the appellant were jointly indicted for the theft of seven turkeys, alleged to have been stolen from Forrest Brown on the night of November 14, 1938. Appellant, in due time, filed a motion for severance in which he averred that the testimony of Gus and Fannie Walker was material to his defense and that he bélieved the evidence was not sufficient against them to secure their conviction. He requested that Gus should be tried first and Fannie next before he should be tried. The court overruled the motion without stating any reason therefor.

Under Art. 651, C.C.P., and the decisions of this Court, appellant was entitled to a severance unless it would have caused a continuance of the case, provided his motion was in proper order and assuming that it was not controverted by the state. There is nothing in this record to show that a continuance would have resulted by granting appellant’s motion. It appears from the indictment that all these parties were jointly ifidicted, and it further appears that appellant alone was tried. It is our opinion that in the absence of a verified motion by any of appellant’s co-defendants asking-that appellant be tried first, he was entitled to have them placed on trial first, in the order indicated in his motion. In the case of McBride v. State, 121 Tex.Cr.R. 549, 51 S.W.2d 337, 338, this court said: “When two or more persons are charged with the same offense, and their cases are pending-in the same court, unless a continuance would result, the duty to grant a severance, when properly sought, is imperative.” See also Vargas v. State, 104 Tex.Cr.R. 283, 284 S.W. 564. This court has many times-held that the purpose, object, and spirit of the severance statutes is to award the accused, under proper circumstances, the testimony of a codefendant, free and untrammeled as near as possible from any indictment. It appears that in the instant case this legal right was not accorded to appellant. See Terry v. State, 45 Tex.Cr.R. 264, 76 S.W. 928; Smith v. State, 55 Tex.Cr.R. 326, 116 S.W. 572, Peddy v. State, 118 Tex.Cr.R. 603, 40 S.W.2d 153.

Appellant also complains of the court’s action in failing to instruct the jury with reference to the law of exculpatory statements and declining to give his special requested instruction with reference thereto. The evidence, adduced by the state, reflects that when the appellant was arrested and questioned about where he had obtained the turkeys, he immediately told the officers that he had gotten them from his mother in Lavaca County'. This proof was offered by the state, and unless the state proved the falsity of the statement, appellant was entitled to an acquittal.- Under these facts, the court should have instructed the jury correctly and distinctly as to the effect of such exculpatory statements. See Robidoux v. State, 116 Tex.Cr.R. 432, 34 S.W.2d 863; Otts v. State, 135 Tex.Cr.R. 28, 116 S.W.2d 1084 and the many authorities there cited and discussed.

Appellant also in due time objected to the court’s definition of principals and in failing -to instruct the jury on the converse of the law of principals. After a very careful review of the record, we have reached the conclusion that the evidence did not require an instruction on the converse of the law of principals. We do not deem it necessary to discuss the many other contentions advanced by appellant as they may not arise again on another trial.

The judgment is reversed and the cause remanded.

PER CURIAM. ■

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

On State’s Motion for Rehearing.

CHRISTIAN, Judge.

After re-examining the evidence in the light of the State’s motion for rehearing we remain of the opinion that the court should have instructed the jury as to the effect of exculpatory statements. We think the case is ruled by Otts v. State, 135 Tex.Cr.R. 28, 116 S.W.2d 1084, 1087. In the course of the opinion in- that case Judge Hawkins, speaking for the court, used language as follows:

“In Robidoux v. State, 116 Tex.Cr.R. 432, 34 S.W.2d 863, the question arose as to whether the trial court had given a sufficient charge upon the effect of an exculpatory declaration proved by the State. Without reviewing or referring to any authority the late lamented Judge Latti-more wrote’ as follows ([34 S.W.2d] page 865) : ‘It appears * * * that, if, in proving its case, the state put before the jury statements of the accused which, if true, would entitle him to an acquittal, there should be some direct and positive instruction given to the jury to that effect. * * . * In other words, the right of the accused in such instance should be stated to the jury in plain and unmistakable language, so that they may know that the defendant is entitled to an acquittal if such exculpatory statements be not disproved or shown to be false by other testimony.’ It may be admitted that the statement just quoted is not in accord with the announcement in other cases in some of which the opinions were written by the samé learned judge, unless the apparent discrepancy may be accounted for by differing facts, which as heretofore stated, makes it difficult to arbitrarily announce an inflexible rule. Some of the cases last referred to are Harris v. State, 103 Tex.Cr.R. 479, 281 S.W. 206; Foster v. State, 107 Tex.Cr.R. 376, 296 S.W. 537.

“After having examined all of the authorities cited by appellant and many others as well, and with the desire to be of some aid to the trial judges under the present state of our decisions on the point at issue the writer ventures the following suggestion as a comparatively safe guide for the trial judge in determining ordinarily whether an instruction on exculpatory statements should be given. The rule in Robidoux’ Case, supra, seems a just and fair one, but should be stated with the qualification now to be indicated. Where the defendant does not testify in the case, and where the State in developing its case in chief introduces in connection with a confession or admission of the defendant an exculpatory statement which if true would entitle him to an acquittal, the jury should be told that he is entitled to a verdict of not guilty unless such exculpatory statement has been disproved or shown to he false by other evidence in the case. Without such instruction the jury has no information which may guide them in dealing with the exculpatory statement. The State has no just ground to complain of such instruction, for as heretofore pointed out, the State is not required to introduce the exculpatory statement, but having done so the jury should know how to deal with it, and the jury receives no information upon that subject even though the defensive issue raised by the exculpatory statement is submitted. What has been said can not be taken as an invariable rule, but it may partly aid the situation.”

The motion for rehearing is overruled.

PER CURIAM.

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


author: BEAUCHAMP, Judge.

text:
    GUTIERREZ v. STATE.
    No. 20644.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    H. H. Dunn, of Edinburg, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted of the burglary of a private residence in the night time; penalty assessed at twelve years’ confinement in the penitentiary.

It is further charged in the indictment that appellant had been convicted of a like offense on a former occasion and had served a term in the penitentiary. He admitted in his testimony that he was convicted of burglary in 1930 and had served nineteen months for it.

The contention is made that this was not a similar offense and that the court’s charge directing the jury as to the penalty was error. We think the former conviction for burglary is a similar offense to the present one of burglarizing a private residence in the night time, and the court’s charge on the subject was proper. See Harbert v. State, 136 Tex.Cr.R. 301, 124 S.W.2d 1005; Sasser v. State, 131 Tex.Cr.R. 347, 98 S.W.2d 211; Strickland v. State, 115 Tex.Cr.R. 410, 28 S.W.2d 818; Warner v. State, 118 Tex.Cr.R. 351, 42 S.W.2d 616.

Other questions are raised which we do not consider of importance, and they are overruled with the exception of the one as to whether or not the State properly proved a case of burglary. The contention that it did not must be sustained. We have examined the record very carefully and find no evidence and no circumstance which would justify the jury in concluding that there was any application of force or fraud, either upon the house entered or upon any individual asserting the right to its ownership, use or occupancy. The record is silent as to the condition of the house other than that it was a five-room residence occupied by the aggrieved party, a widow with a large family of children and grand-children, some of whom it must be assumed are of age or at least married. In this state of the record we are compelled to hold that the State failed to introduce, before the jury, the evidence necessary to sustain the averments in the indictment. For the failure to do so, the case is reversed and the cause remanded for a new trial.


author: CHRISTIAN, Judge/' GRAVES, Judge.

text:
    PEERY v. STATE.
    No. 20512.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1939.
    Rehearing Denied Dec. 20, 1939.
    ' Gus Butler, of San Benito, for appellant.
    Lloyd W. Davidson, State’s Atty.p of Austin, for the State.
   CHRISTIAN, Judge/'

The offense is unlawfully practicing medicine; the punishment, a fine of $250 and confinement in jail for one hour.

Appellant was a chiropractor and had maintained an office in his home in San Benito for. several years. He had a sign in front of his home which read: “J. M. Peery, ■ Chiropractor.” He had not registered in the office of the district clerk of Cameron County as required by law. During the month of November, 1938, Jack W. Knight, who j^as “Investigations Counsel for the Texas State Board of Medical Examiners," traveled to the Rio Grande Valley in an automobile. In passing through the City of San Benito he observed the sign we have referred to in front of appellant’s home. Driving on to Brownsville, Mr. Knight went to the district clerk’s office and made an investigation of the records for the purpose of determining whether appellant had filed a certificate with the clerk, as required by law, evidencing his right to practice medicine in Cameron County. Finding no such record, he went to a health clinic in the City of Brownsville and made contact with Mrs. Dora C. Alonso and Miss Catherine Solis, both of whom appear to have been ill.

According to the testimony of Mrs. Alonso, Mr. Knight told her that he knew of a good doctor in San Benito who could cure her, and, at his invitation, she and Miss Solis accompanied him in his automobile to San Benito. After reaching San Benito Mr. Knight parked his car just around the corner and out of sight of the appellant’s home. He gave Mrs. Alon-so two dollars and directed her and Miss Solis to the home of the appellant. In company with Miss Solis, the witness entered the appellant’s home, where the appellant placed her on a cot and connected “her body up with some kind of an electrical machine.” Also he put “some kind of soap on her breast.” Mrs. Alonso testified that she paid appellant two dollars for the treatment. She and Miss Solis then returned with Mr. Knight to the City of Brownsville.

Miss Solis gave testimony substantially the same as that of Mrs. Alonso.

Testifying in his own behalf, appellant .admitted everything connected with the1 treatment except that it was his version that he received no money from Mrs. Alonso. He said, however, that he thought she would return for further treatments and expected to be paid. for the treatment he gave her on the occasion in question at a later date. Appellant also testified that he had been practicing as a chiropractor in the City of San Benito for sixteen years. He admitted that he had not received a license to practice medicine. Appellant’s wife testified that Mrs. Alonso did not pay her husband any money in consideration of the treatment given her. Mrs. Saner testified that she did not see Mrs. Alonso pay appellant any money but that the payment could have been made without her being cognizant of the fact. Mr. Saner testified that he was in the waiting room and that Mrs. Alonso could have paid the appellant without him seeing her. He further testified, as did Mrs. Saner, that he heard Mrs. Alonso talk to appellant about giving her other treatments.

There is nothing in the testimony to in any manner indicate that Mrs. Alon-so was an accomplice witness. On the contrary, it appears that she was not aware that appellant was violating the law, but went to him with the hope that he could relieve the bronchitis with which she was suffering. It therefore follows that appellant’s contention that she was an accomplice witness as a matter of law and that the testimony is insufficient to sustain a conviction must be overruled.

If it should be conceded that Mr. Knight was an accomplice witness as a matter of law—and this is not conceded— it would not follow that the evidence should be held to be insufficient to support the conviction. We say this in view of the fact that his testimony is amply corroborated by that of nonaccomplice witnesses.

Appellant submitted no requested instruction defining accomplice testimony as applied to the witness, but contented himself with making a motion for an instructed verdict on the ground that all of the testimony in the case was that of accomplice witnesses. We have no -question properly presented of the failure of the court to charge the jury that the witness Knight was an accomplice witness.

After carefully examining the' record we are constrained to hold that reversible error is not presented.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

Appellant complains in his motion because, as he alleges, we misapprehended his contention herein relative to the fact that this cause rests entirely on accomplice testimony, and that therefore the court should have granted his motion for an instructed verdict. He again complains that the doctrine upon which he requested his peremptory instruction was on account of his contention that the appellant was lured into this violation, and entrapped by the State’s witnesses into treating Mrs. Alonso, and, therefore, because of such fact the law will not permit a conviction under such circumstances to stand. With the application of such a principle to these instant facts we can not agree. The gist of the offense is that appellant treated a human being for some disease or disorder without having filed certain documents in the office of the district clerk of Cameron County. The fact that an jigent of the State Board of Medical Examiners requested this lady to go to where appellant lived and ask for treatment for bronchitis, and carried her there in his car, and furnished her with $2 to pay for same, in our judgment, would not constitute such to be an entrapment. It seems that appellant had a sign in front of his home, showing him to be a chiropractor; that Mrs. Alonso, who seemed to be suffering from bronchitis and knew nothing of this agent’s motives, desired treatment therefor, and that she claimed to have been benefited thereby.

The word “entrapment” has been defined legally as “the seduction or improper inducement to commit a crime, and not the testing by'trap, trickiness, or deceit of one suspected.” U. S. v. Wray, D.C., 8 F.2d 429. Mr. Webster defines the word “entrap” as “to catch as in a trap by artifice.” The word “entrapment” as used in a legal sense carries with it the presumption that the officer or agent man-' ufactúres the offense and then incites accused to commit the offense for the purpose of prosecution. Swallum v. U. S., 8 Cir., 39 F.2d 390; also see a long list of cases of like import in Vol. 1 Words and Phrases, ■ Fourth Series, p. 896.

In this cause we fail to see any species of entrapment in this agent furnishing the money to Mrs. Alonso, and telling her to go to appellant for treatment, and in her going to appellant and being treated for an ailment from which she was suffering.

The motion is overruled.


text:
    SLAUGHTER v. STATE.
    No. 20675.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1939.
    Earl Earp, of Monahans, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The offense is aggravated assault; penalty assessed at a fine of $100 and confinement in the county jail for 60 days.

The prosecution is under Art. 1147, P.C. 1925, which declares that an assault or battery becomes aggravated: “When committed upon an officer in the lawful discharge o-f the duties of his office, if it was known or declared to the offender that the person assaulted was an officer discharging an official dutyl”

The transcript contains the complaint and information filed, in the case, neither of which complies with this article of the statute in alleging that it was known or declared to the offender that the person assaulted was an officer in the discharge of his official duty. Inasmuch as it is necessary to prove this fact, the failure to allege it in the information is fatal. There-foi e, the information found in the transcript would not support the conviction. State v. Coffey, 41 Tex. 46; Johnson v. State, 26 Tex. 117; Bristow v. State, 36 Tex.Cr.R. 379, 37 S.W. 326; Lacoume v. State, 65 Tex.Cr.R. 146, 143 S.W. 626; Stevenson v. State, 110 Tex.Cr.R. 592, 9 S.W.2d 1108.

Furthermore, a transcript of considerable procedure, including several motions, as well as what purports to be a statement of the things said and done in the trial of the case, is in the record, bearing the original signatures of the prosecuting attorney and the attorney for the defense. This is approved by the judge as the statement of facts in the case. By this “statement of facts”, it is disclosed that the prosecuting attorney read to the jury only the complaint in the case and did not read the information. It was stated and agreed that the appellant was being tried on this complaint.

We are asked to reverse the case on the ground 'that the appellant was not tried upon the information appearing in the transcript. Inasmuch as the information which does appear in the transcript and the complaint filed in the case do not comply with the statute, it is not necessary to pass upon that question.

The case is reversed and the prosecution ordered dismissed.


author: CHRISTIAN, Judge.

text:
    MURRAY v. STATE.
    No. 20655.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    W. R! Blain, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing whisky in a container to which no tax stamp showing the payment of the tax due the State of Texas was affixed; the punishment, a fine of $100.

G. S. Lowe, an inspector of the Texas Liquor Control Board, testified that on the 10th of April, 1939, he and A. C. McDonald, who was employed by the Federal Alcoholic Taxing Unit, went to a house at No. 727 Forsythe Street in the City of Beaumont, and instituted a search for intoxicating liquor. The witness entered the house through the front door while Mr. McDonald went around the building to the rear thereof. Appellant and five or six other negroes were in the kitchen. There were approximately ten rooms in the building, which appeared to be occupied by roomers. As Mr. Lowe entered the kitchen he stated to the negroes present that he had a warrant to search the house. Appellant replied, “All right; go ahead and search.” He found no whisky in the house -but there were several whisky glasses and some empty whisky bottles. All of these bottles bore the proper revenue stamps. The witness testified further that he did not know who was in charge of the building, but assumed that in view of appellant’s statement to him that she controlled it.

Mr. McDonald testified that while making a search of the back yard he found a glass jug under the back steps of the house, containing bootleg whisky. There was no stamp affixed to the jug showing that the tax due the State of Texas had been paid.

We are constrained to agree with appellant’s contention that the evidence is insufficient to support the conviction. It is observed that there was no testimony sufficient to show that appellant was in charge of the rooming house. . There were several persons present at the time of the search, who, as far as the record reflects the matter, had the same opportunity to place the whisky under the back steps as did appellant. There is nothing in the record to show that appellant exercised any control over the liquor. While the court charged on circumstantial evidence, we are constrained to. the view that the proof failed. to exclude every other reasonable hypothesis except that of appellant’s guilt. From Branch’s Ann.P.C., Section 1877, we take the following: “To sustain a conviction it should appear not only that an offense as charged has been committed, but there should also be proof to a degree of certainty greater than a mere probability or strong suspicion tending to establish that the party charged was the person who committed it or was a participant in its commission. There must be legal and competent evidence pertinently identifying the defendant with the transaction constituting the offense charged against him.” See Gunn v. State, 122 Tex.Cr.R. 422, 56 S.W.2d 189.

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.


text:
    MONTGOMERY v. STATE.
    No. 20688.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1939.
    Percy Woodard, of Marshall, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the County Court of Harrison County upon an information charging aggravated assault with a deadly weapon, and his punishment was assessed at a fine of $25 and confinement in the county jail for 30 days.

Not only is the prosecution based upon a defective complaint, but there is a fatal variance between the complaint and the information in this, to-wit: The. complaint begins, “I, H. H. Whatley, do solemnly swear, etc.” and is signed by George Clark. It then proceeds: “Sworn and subscribed before me by H. H. Whatley, a credible person, on this the 27th day of March, 1939. J. B. Henderson, Jr., Assistant- County Attorney, Harrison County, Texas.”

The information following the complaint states that the prosecution is based on the affidavit of H. H. Whatley. Under Article 415, C.C.P., 1925, this was a fatal variance. See Adams v. State, 47 Tex.Cr.R. 35, 81 S.W. 963.

Because of the defect in the complaint, as well as the variance between the complaint and the information, the cause is reversed and the prosecution ordered dismissed.


text:
    CARRIZAL v. STATE.
    No. 20568.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1939.
    Rehearing Denied Dec. 20, 1939.

      Floyd D. James, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of-Austin, for the State.
   KRUEGER, Judge.

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

The record shows that two deputy sheriffs, accompanied by a Mexican man, went to appellant’s home with what purported to be a search warrant, to search his premises for marihuana. When they arrived, appellant was absent but his wife and children were there. , The officers informed her of their mission and read the search warrant to her, whereupon she said: “Go ahead and search.” A few minutes later appellant appeared and the officers advised him of their purpose and read the warrant to him and he told them to go ahead and search; that he did not have any marihuana — only some herbs. The search revealed a quantity of marihuana stored in a can. Appellant testified that he had been in Wisconsin and had gathered some herbs there' to bring to his sick father to be used for medicinal purposes. That he did not know the herbs were marihuana.

Upon the trial, the court upon objection of appellant’s attorney, held the search warrant insufficient, but admitted all of the evidence discovered as a result of the search on the theory that the officers had permission to make the search. No objection to the admission of such evidence seems to have been interposed, as there is no exception in the record complaining of its admission. If a proper and timely objection had been made to the admission of such testimony and the same had been brought here for review by á proper bill of exception, a most serious question would have been presented. See Balch v. State, 134 Tex.Cr.R. 327, 115 S.W.2d 676, and. authorities there cited. But in the absence of any objection, the matter is not properly before this court for review. See Fisher v. State, 108 Tex.Cr.R. 332, 1 S.W.2d 301. Moreover, it will be noted that appellant took the witness stand and testified that he told the officers he had the herbs in a can and they went and got it. Consequently he got before the jury the fact that he possessed the herb which proved to be marihuana. Hence the same testimony as that offered by the officers as a result of the illegal search was offered by appellant, and he has no just grounds for complaint. See McLaughlin v. State, Tex.Cr.App., 4 S.W.2d 54; Machado v. State, 112 Tex.Cr.R. 538, 17 S.W.2d 1060; Flower v. State, 113 Tex.Cr.R. 69, 18 S.W.2d 659; Stone v. State, 113 Tex.Cr.R. 371, 22 S.W.2d 140; Reusch v. State, 119 Tex.Cr.R. 112, 45 S.W.2d 209; Schaefer v. State, 121 Tex.Cr.R. 220, 53 S.W.2d 302; Moss v. State, 121 Tex.Cr.R. 614, 50 S.W.2d 835; Hinton v. State, 122 Tex.Cr.R. 438, 55 S.W.2d 837.

The only bill of exception appearing in the record relates to the action of the court in overruling appellant’s second motion for a continuance. The application is insufficient in that it fails to set out what fact or facts appellant expected to prove by said witness or that said testimony could not be procured from any other source. Moreover, it appears, from the statement of facts that the allegedly absent witness did appear and testify. Consequently no error is shown.

No other matters appearing for review, 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 Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

Appellant contends that the evidence is insufficient to show that the substance he possessed was marihuana. An experienced chemist testified upon the trial, .in part, as follows: “We took the substance of that sack and made the investigation and test for marihuana. There are several tests recognized for that purpose and we made them all. They are used by the Government Narcotic Bureau. One of those is the microscopic test when some of the material is placed under a high power microscope, and then there is the .chemical test where some of the material is treated with chemical agents and the reactions observed. We made those tests and the tests proved to be positive for marihuana. The material was taken from various parts of the sack. I took some from the top and some from the bottom.” Because the witness testified on 'recross-examination that he had no license that qualified him as an expert, it is appellant’s position that his testimony to the effect that the substance was marihuana is entitled to no weight. In connection with such testimony the witness made a statement as follows: “As to whether or not I can tell marihuana by the smell I will say that it has a peculiar odor and that it is a matter of experience rather than chemical knowledge. It has a very characteristic odor.. It is very difficult to describe that odor but it is a peculiar odor or something of that sort. I can’t describe it to you no more than I can describe the odor of tobacco. It just smells like marihuana. It also has a peculiar odor when it is burned.” He testified further, “This substance smelled like marihuana.”

The fact that the witness said that he had no license making him an expert would not warrant this court in holding that the evidence is insufficient. We quote from Hernandez v. State, 129 S.W.2d 301: “Appellant obj ected to the testimony of the officers to the effect that the cigarettes contained marihuana on the ground that they were not ‘qualified as experts to give such an opinion.’ We think the objection was properly overruled. The witnesses gave testimony showing that they were familiar with marihuana. In Miller v. State, Tex.Cr.App., 50 S.W. 704, Presiding Judge Davidson, speaking for the court, said: ‘While the witness Robertson was on the stand he testified that his residence in the city of Temple was burglarized on the night of the 12th of November, 1898, by some one unknown to him; that he was aroused during the night by hearing the noise, and smelled chloroform. Appellant objected to the remark of the witness with reference to chloroform, because he had not qualified himself as an expert on medicines and drugs, and it was his mere opinion. Several other objections were urged. This testimony was clearly admissible.’ We' quote from 11 Ruling Case Law 636: ‘The identification of an odor as that of a certain drug or poison may be made and testified to by any person familiar .with the drug in question.’ ”

We must adhere to our conclusion that we would not be warranted in reversing the judgment, notwithstanding it should be conceded that the search was illegal. We say this in view of the fact that there are no bills of exception in the record in which complaint is made of the testimony touching the result of the search.

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.


text:
    HARLAN v. STATE.
    No. 20637.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    Horace H. Shelton, of Austin, for appellant.

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

The offense is unlawfully killing and possessing a wild female deer; the punishment, a fine of $50.

The prosecution originated in the justice court. After an appeal to the county court, and, upon a trial de novo, judgment was entered affixing a fine of $50 against the appellant. Article 53, C.C.P., reads as follows : “The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases. This article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court or county court at law, in which the fine imposed by the county court or county court at law shall not exceed one hundred dollars.” Under the terms of the statute this court has no jurisdiction of the appeal. Nichols v. State, 129 Tex.Cr.R. 44, 84 S.W.2d 725.

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.


text:
    VAUGHN v. STATE.
    No. 20573.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    W. Joe Bryan and Fryer & Milstead, all 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.
   BEAUCHAMP, Judge.

The appellant was convicted of a charge of theft of over $50 and given a penalty of seven years in the penitentiary.

The story of the transaction out of which this case comes involves John C. Tallman, the prosecuting witness, and Frank Sherman, appellant’s companion in crime, known also by many aliases, who was tried separately and given a sentence of ten years. The transactions are interesting, and a detailed statement of the things that took place will, in our opinion, be essential to a proper understanding of the disposition which is herein made of the' appeal.

From that part of the record about which there is no dispute, we gather that the appellant and Sherman came into the city of El Paso, driving a Buick car bearing a California license, and took rooms at the Lake Hotel. Sherman registered under the name of Adams and gave his address as Fort Worth, Texas, while appellant gave his address as San Francisco. During the two days that followed they were in and out of the hotel many times together. On the date of their arrival, the prosecuting witness Tallman, who was twenty-one years of age and a student of the New Mexico A. & M. College, came into the city with a little more than $80 in his pocket. Searching for some of his college associates he found himself in Juarez, Mexico. Soon thereafter Mr. Sherman (Mr. Adams at the Lake Hotel) sought the acquaintance of young Tallman, and it developed that they had mutual friends, which, of course, accounted for the appellant’s unusual attention to and interest in the unsuspecting college youth. They became companions in a strange land. Exploration of it began at once. At that time the appellant gave his name as Mr. Roser of Fort Worth, and his business as that of an official of the Humble Oil & Refining Company. While they were viewing the scenes together, they happened to meet a stranger to both of them who gave his name as Alexander (Mr. Sherman at the hotel) who said that he was President of the Alexander Woolen Mills Corporation, Third & Oxford Streets, Sidney, Australia. He was the very Mr. Alexander who sold all the woolens to the United States for its Army and Navy. Young Tallman learned this in a casual remark made within his hearing. Alexander was decidedly British and made no effort to conceal the fact. The interesting combination of a high official of the Humble Oil & Refining Company and the president of so large and promising a corporation was 'a climax in the events in the life of this ambitious youngster, and he was soon engrossed in the conversation which took place between them. Alexander was disgusted by some trivial events and particularly one in which he had given a $20.00 bill in payment of .a small item and the party receiving it went away to make change but had failed to return. A singular thing this was for the Britisher but a common thing it might be for the American who inhabits particular quarters where the events of this occasion began on the other side of the river. Alexander was disgusted at the poor sportsmanship of the Americans but he did not mind the trivial matter of the $20 for it was no more than the snap of a finger from his roll of $10,000 which he nonchalantly exhibited. Mr. Roser, the Humble Oil & Refining Company official, was not excited by the presence of so much money. He naturally would not be, but his patriotism was aroused at the indignation of a foreigner over the act of his fellow American, so his particular missionary duty became that of consoling Mr. Alexander and demonstrating to him that the average of the American sportsmanship was really pretty high. Young Tallman might have seen similar action on the screen but it did not look like a thing in real life, and the new experience was so real that the suggestions of his new companion whose congeniality had so suddenly brought them together were irresistible. Entering into a game of matching of coins soon aroused the curiosity of -the Englishman and from all appearance he was sufficiently gullible to be led into the trap framed by Mr. Sherman, whose personality, it may be surmised, took with him as a partner in the transaction young Tallman. They together were sure of winning from Mr. Alexander and then in a secret place they were to meet and divide the spoils equally. The details of the transaction of matching coins which followed is immaterial. A difference arose between appellant and Mr. Alexander (Mr. Sherman in El .Paso). The argument became heated and young Tallman was dragged into the controversy which he partially settled with $25 of the school funds which he had saved for registration. That was not all. They crossed the line into El Paso. Alexander was furious and the quarrel continued. The liberality of Mr. Roser (alias Mr. Vaughn) had finally developed the thought of a- way to make it satisfactory, and at the same time to leave Tallman eventually prosperous. It involved, however, Tallman at the time paying over the balance of the money he had ($59) to Mr. Alexander and then coming to Mr. Roser’s hotel room to be reimbursed for his money in the “divide up”. Disillusionment soon followed. Tail-man went to the hotel according to instructions but Mr. Roser was not even registered there. He went back to the hotel where Mr. Alexander claimed to have been registered. Neither could be found. A new picture appeared before the eyes of young Tallman and he sought the police. Events followed which led to the arrest in Juarez two days later of the appellant and his companion. They were charged with theft. Feature stories in the newspaper carried their pictures. Readers of the stories had had similar experiences. Some of them came to the officers with their story to give assistance. Several other instances, strikingly similar in their staging and almost exact in verbiage, had taken place. These two strangers had met as strangers many times before. Professionals they were. Not only does the evidence of the many whose companionship Mr. Roser sought reveal as much, but Mr. Tallman saw enough that night to satisfy any sensible man. It was a stereotyped transaction. The grand jury returned indictments against the appellant and his companion and they were separately tried with results as stated above.

Appellant produced no witnesses of his own but the examination of the prosecuting witness by counsel for the appellant and the requested special charge, as embraced in Bill of Exception No. 5, indicate clearly that the defense was a lack of intent on the part of the appellant and his companion to harm Tallman or to take his money from him wrongfully. If the jury should find that he voluntarily and of his own free will and volition delivered the money mentioned in the indictment to the possession of one Roser and that it was at that time the intention of the injured party to pass title as well as possession in furtherance of an agreement previously made, then and in that event they should find the appellant not guilty.

The issue of intent was raised and so far as we can discover, it is the defense in the case. The jury being so charged, the arguments began; counsel for the State prosecuting while the appellant, through his counsel, defended. The District Attorney, in his closing argument, became personal and specific, and objection is raised by Bill of Exception No. 1 to the following language: “Yes, gentlemen, I am satisfied, and I believe that you are satisfied, that John Tallman was robbed by these two crooks, these slickers, these professionals, of his hard earned money, which he had saved for the purpose of paying his registration fee in the College so that he could matriculate this summer.”

We are asked to reverse this case because of the argument of counsel for the State, as stated in Bill of Exception No. 1; because of the testimony of the witness Frank Neal, who gave a story of a similar transaction, as detailed in Bill of Exception No. 2; because of the testimony of J. L. Crosswaite to another similar transaction as detailed in Bill of Exception No. 3; because of the testimony of the witness Harry Schecter to another similar transaction, as detailed in Bill of Exception No. 4; and because the court refused to charge the jury that if they found the transaction took place in Juarez, Mexico, they should acquit the appellant.

If the evidence of the witnesses as -to similar transactions should be inadmissible, then there would be occasion for consideration of the bill claiming that error resulted from the argument of the prosecuting attorney. However, this court is of the opinion that the bills of exception complaining of the admission of the testimony as to other similar transactions in which the appellant, either alone or with the same individual now charged under the name of Sherman, should be overruled. The testimony is admissible for the purpose of showing intent and as showing system, whether the events took place contemporaneously or not. This being true, there should be no question but that the argument of counsel was based upon evidence which was before the jury. See Branch’s Ann.P.C., p. 98, sec. 166, and cases there cited.

In Hennessey v. State, 23 Tex.App. 340, 5 S.W. 215, 218, Judge Willson had before him a case in which the appellant was charged with forging, or altering, an account against the State of Texas for postage stamps, etc. The prosecution was permitted to introduce over objection certain post-office receipts in transactions other than that for which the defendant was being tried. The evidence showed that the matters were handled in a similar manner to that being considered by the court. It was a part of the defense that there was no intent to defraud by altering the instrument charged in the indictment. As to the former transactions, the court said: “If fraudulently made or altered by him, they offered legitimate evidence tending to prove a fraudulent intent on his part in altering, if he did alter, the instrument upon which this indictment is based. That they are not papers of contemporaneous date with the alleged forged paper is not a valid objection to them.”

Quoting from Whartonls Criminal Evidence, sec. 38, Judge Willson laid down what we consider a sound principle, as follows: “When the object is to show system, subsequent as well as prior offenses, when tending to establish identity or intent, can be put in evidence. The question is one of induction, and the larger the number of consistent facts, the more complete the induction is. . The time of the collateral inculpatory facts is immaterial, provided they be close enough together to indicate that they are part of a system.”

From the case of Melton v. State, 63 Tex.Cr.R. 362, 140 S.W. 230, 232, we quote as follows: “It was well said by Judge Davidson for this court, in the case of Ware v. State, 36 Tex.Cr.R. [597], 599, 38 S.W. 198: ‘We have heretofore held, and still hold, that it is permisible, when tending to establish identity, intent, or to develop the res gestae, to prove contemporaneous crimes; and this can be done, also, when the object is to show system in crime. * * * ’ ”

In a case of receiving and concealing stolen property, it was" held in Kaufman v. State, 70 Tex.Cr.R. 438, 159 S.W. 58, that it was proper to show similar transactions in order to show, among other things, intent, motive, and system, and the foregoing quotation from Wharton’s Criminal Evidence was again given approval.

The more recent case of Lytton v. State, 131 Tex.Cr.R. 654, 101 S.W.2d 564, assumes in a very positive and definite way the correctness of the rule and gives adherence to the line of decisions herein referred to and quoted from.

From a very able opinion by Judge Ramsey, while a member of this court, in the case of Pelton v. State, 60 Tex.Cr.R. 412, 132 S.W. 480, 482, Ann.Cas.1912C, 86, we quote the following pertinent statement of the law applicable to the facts of that case as further authority for our holding herein: “In this condition of the record, the state was permitted to introduce proof of other contemporaneous crimes'and similar transactions affecting a large number of other laborers and persons in that vicinity, for the purpose of showing that appellant was engaged in swindling generally and in padding pay rolls for the purpose of corroborating Jones and showing the intent and purpose with which he had acted in the transaction • now under consideration.”

A long list of authorities in the decisions of our courts, as well as text-writers, justify the conclusion which we have reached in this case.

It is perfectly clear from a reading of the record that the only substantial defense relied upon by the appellant was that there was no intention to defraud the witness Tallman in taking his money, but that Tallman willingly and in accordance with a previous gambling transaction, delivered the same to him.

Appellant complains of several charges, one of which related to the place where the prosecution, if any, should be had. There is no dispute in the evidence that the negotiations and activities originated in Juarez but that the final agreement and the passing of the $59.00 charged in the indictment took place in El Paso County, Texas. The court properly refused to submit this question to the jury.

We think also that the main charge amply covered the defense in this case.

The judgment is affirmed.


text:
    RUFFIN v. STATE.
    No. 20689.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1939.

      Percy Woodard, of Marshall, for appellant.
    Lloyd W. Davidson, State’s Atty.j of Austin, for the State.
   CHRISTIAN, Judge.

The offense is unlawfully selling whisky in a dry area; the punishment, a fine of $100 and confinement in jail.for 60 days.

Bert Jolley testified that he went to appellant’s home on the 26th of February, 1939, and purchased from appellant a half pint of whisky. As he left the place of sale the witness was arrested by D. A. McDonald, an inspector of the Texas Liquor Control Board, who took the whisky from his possession. Mr. McDonald testified to having arrested Jolley and to having found the half pint of whisky in his possession. Testifying in his own behalf, appellant admitted that Jolley came to his home on the occasion in question but denied that he sold him any whisky. He testified, further, that he knew Mr. McDonald and was aware that he was an inspector of the Texas Liquor Control Board. He said that 20 or 25 minutes after Jolley had been in his home Mr. McDonald and Mr. Little came to his residence and instituted a search, but found no whisky.

It appears that appellant is a negro. On cross-examination appellant was asked by the assistant county attorney whether he called Mr. McDonald “Mr. Pretty Plat” when he referred to him. Appellant’s objection to the question was overruled and he answered in the negative. The state called a witness who testified, over appellant’s' proper objection, that he had heard appellant, in referring to Mr. McDonald, call him “Mr. Pretty Hat.” We are unable to perceive the relevancy and materiality of the testimony. It shed no light on any issue in the case. We think the bills of exception show that the state was permitted to impeach the appellant upon an immaterial matter. In view of the fact that the case must be reversed because of the penalty assessed, we express no opinion whether the bills of exception relating to the matter should be held to present reversible error. However, in the event of another trial, such improper impeachment of appellant should not be repeated.

The offense was alleged to have been committed on the 26th of February, 1939. The applicable penalty is set forth in Section 41 of Article 666, Vernon’s Ann. Tex.P.C. We quote the penalty as follows: “Any person who violates any provision of Article I of this Act for which a specific penalty is not provided shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than One Hundred Dollars ($100) nor more than One Thousand Dollars ($1,000), or by imprisonmeht in the county jail for not more than one'year.” The penalty assessed against the appellant was a fine of $100 and confinement in jail for 60 days. Under Section 41, supra, the jury are not at liberty to fix the punishment at both a fine and imprisonment in the county jail. Under the circumstances, it becomes our duty to order a reversal of the judgment.

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.


author: HAWKINS, Presiding Judge.

text:
    I. V. (Duck) McELROY, Appellant, v. STATE, Appellee.
    No. 20668.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1939.
    W. J. Oxford, Jr., of Stephenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for cattle theft, punishment assessed being two years in the penitentiary.

Appellant has filed his affidavit advising this court that he does not further desire to prosecute his appeal, and at his request the same is dismissed.


text:
    I. V. McELROY, Appellant, v. STATE, Appellee.
    No. 20739.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1939.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for cattle theft, punishment assessed being confinement in the penitentiary for two years.

Appellant has filed his affidavit advising this court that he does not further desire to prosecute his appeal, and at his request the same is dismissed.


text:
    I. V. McELROY, Appellant, v. STATE, Appellee.
    No. 20740.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1939.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for cattle theft, punishment assessed being two years in the penitentiary.

Appellant has filed his affidavit advising this court that he does not further desire to prosecute his appeal, and at his request the same is dismissed.


text:
    McCHRISTY v. STATE.
    No. 20630.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1939.

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

The offense is possessing beer containing more than one-half of one per cent of alcohol by volume in a container not having affixed thereto a stamp showing the payment of the tax due the State of Texas; the punishment,. ⅜ fine of $100.

It is manifest from the testimony adduced upon the trial that the liquor in question was beer, as defined in Article 2, Section 1, Subsection (b) of the Texas Liquor Control Law, which was enacted during the Regular Session of the 45th Legislature. Vernon’s Ann.P.C. art. 667 —1(b). We quote the pertinent part of the definition: “The term ‘beer’ means a malt beverage containing one-half of one per cent or more of alcohol by volume and not more than four (4) per cent of alcohol by weight, * * *.” According to the testimony of the chemist, the liquor the officers discovered in appellant’s residence was a malt beverage containing 3.53 per cent of alcohol by weight. The question arises whether the penalty prescribed in Section 26 of Article 2, Vernon’s Ann.P.C. art. 667 — 26, is applicable. We quote the section last mentioned: “Any person who violates any provision of this Article shall be deemed guilty of a misdemeanor and upon conviction shall he punished by a fine of not less than Twenty-five ($25.00) Dollars nor more than Five Hundred ($500.00) Dollars or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment.” The court gave in charge the penalty set forth in Section 41 of Article 1 of the act, Vernon’s Ann.P.C. art. 666 — 41, which reads as follows: “Any person who violates any provision of Article I of this Act for which a specific penalty is, not provided shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than One Hundred Dollars ($100) nor more than One Thousand Dollars ($1,000), or by imprisonment in the county jail for not more than one year. The term ‘specific penalty’ as used in this Section means and refers only to a penalty which might be imposed as a result of a criminal prosecution.”

The jury assessed the minimum penalty of $100 provided in the section last quoted. Referring to Section 23, Subsection (a) of Article 2 of the act, Vernon’s Ann.P.C. art. 667 — 23(a), we find the following relative to the tax to be levied and assessed on beer: “There is hereby levied and assessed a tax at the rate of One Dollar and Twenty-four Cents ($1.24) per barrel on all beer sold, stored, distributed, transported, or held for the purpose of sale in this State whether ‘manufactured in or imported into this State. Said tax shall be paid and evidenced by placing stamps, which the State Treasurer is herein authorized to provide in the denominations required, on each original package as defined in this Article; provided, further, that at the time said stamp is affixed the person affixing the stamp shall with indelible ink or stamp cancel the same by placing the date and the licensee’s full name or initials upon said revenue stamp.” In Subdivision (b) of Section 23, supra, it is provided: “It is the, purpose and intent of this Act to require . the tax to be p’aid and the stamp evidencing same to be affixed on the first sale, distribution, storage, or transportation 'and at the source, to the end that it'will preclude any person evading the payment of this tax. 'Any person in possession of beer that has not been stamped in accordance with the provisions hereof shall he held to be in violation of this Article and liable for the taxes herein provided and the penalties for such violation.”

The penalty provided in Article 2 for a violation of its provisions has been 'set forth -in our quotation of Section 26, supra. We are unable to escape the conclusion that it is applicable to the present case, in view of the fact that the liquor possessed by the appellant was beer, as that term is defined in Article 2. In said Section 23, under some of the subdivisions thereof, offenses other than possessing unstamped containers of beer are denounced. For example, it is provided in Subdivision (f) as follows: “It shall be unlawful to transport to destinations in this State any beer upon which tax has not been paid and such payment evidenced by stamps affixed and cancelled as required by law.” In Subdivision (k) we find the following: “It shall he unlawful for any person to open any container of beer having a stamp thereon without then and there mutilating or otherwise defacing such stamp' so that it cannot be again used.” It is manifest that the penalty applicable to the offenses defined in said Subdivisions (f) and (k) is that set forth in Section 26, supra; and it is equally manifest that such penalty is applicable to the offense of possessing beer in a container to which the tax stamp is not affixed as defined in Subdivision (a) of said Section 23.

In Section 3-a of Article 1 of the Liquor Control Law, Vernon’s Ann.P.C. art. 666— 3a, we find the following: “'Illicit Beverage’ shall mean and refer to any alcoholic beverage manufactured, distributed, bought, sold, bottled, rectified, blended, treated, fortified, mixed, processed, warehoused, stored, possessed, imported, or transported in violation of this Act, or on which any tax imposed by the laws of this State has not been paid and the tax stámp affixed thereto; * * * We quote further from the same section: “ ‘Alcoholic Beverage’ shall mean alcohol and any beverage containing more than one-half of one per cent of alcohol by volume which is capable of use for beverage purposes, either alone or when diluted.” In Subdivision (12) of Section 17, of Article 1, Vernon’s Ann.P.C. art. 666 — 17(12), we find the following: “It shall be unlawful for any person to have in his possession or transport in this State any illicit beverage.” Section 21 of Article 1 of the act, Vernon’s Ann.P.C. art. 666 — 21, reads, in part, as follows:

“There is hereby levied and imposed on the first sale in addition to the other fees and taxes levied by this Act the following:

“(a). A tax of Ninety-six (96) Cents per gallon on each gallon of distilled spirits, provided the minimum tax on any package of distilled spirits shall be Six (6) Cents.

“(b). A tax of Ten (10) Cents on each gallon of vinous liquor that does not contain over fourteen (14) per cent of alcohol by volume.

“(c). A tax of Twenty (20) Cents on each gallon of vinous liquor containing more than fourteen (14) per cent and not more than twenty-four (24) per cent of alcohol by volume.

“(d). A tax of Twenty-five (25) Cents on each gallon of artificially carbonated and natural sparking vinous liquor.

“(e). A tax of Fifty (50) Cents on each gallon of vinous liquor containing alcohol in excess of twenty-four (24) per cent by volume.

“(f). A tax of Fifteen (15) Cents on each gallon of malt liquor containing alcohol in excess of four (4) per cent by weight.”

It is observed that in these schedules no provision is made for a tax oh malt liquor (beer) containing one-half of one per cent or more of alcohol by volume and not more than 4 per cent of alcohol by weight; and that in order to determine the amount of tax on malt liquor of the content last mentioned we are relegated to Section 23 of Article 2, supra. We are therefore of the opinion that Subdivision (12), Section 17 of Article 1 of the Liquor Control Law, in which the possession of any illicit beverage, in so far as it relates to unstamped liquor, is denounced as an offense refers to the possession of the liquors designated in Section 21 of Article 1, supra, and not to beer as defined in Subdivision (b), Section 1 of Article 2 of the act. Stated in another way, the penalty applicable to the offense of possessing in an unstamped container distilled spirits, vinous liquor containing not over 14 per cent of alcohol by volume, vinous liquor containing more than 14 per cent of alcohol by volume and not more than 24 per cent of alcohol by volume, artificially carbonated -and natural sparking vinous liquor, vinous liquor containing alcohol in excess of 24 pet cent by volume, or malt liquor containing alcohol in excess of 4 per cent by weight is set forth in Section 41 of Article 1, while the penalty for the possession of unstamped beer as defined in Article 2 is provided in Section 26 of Article 2, which we have above quoted.

It follows from what we have said that under the facts of the present case the court was in error in charging the jury as to the penalty they might assess. ■

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.


text:
    PEEBLES et al. v. STATE.
    No. 20660.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    Snell & Snell, of Houston, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is robbery;, the punishment, confinement in the penitentiary for ten years.

The parties involved in the transaction which was alleged to constitute robbery are negroes. According to the version of Bertha Marks, the injured party, the appellants took $34.17 from her without her consent on the 2nd of February, 1939. At the time of the alleged robbery she met the appellants at 12 o’clock noon on a busy street in the City of Houston. She testified that “dozens and hundreds of people were passing on the sidewalk” at the time she was robbed. She testified, further, that just prior to the robbery appellant Peebles came up to her and requested that she direct him to the Medical Arts Building; that she informed him that she did not know its location but would help him find the number in a telephone directory; that during the time she was talking to Peebles appellant Allen walked up and said to her, “Give me your money”; that he further stated to her that unless she complied with his demand he would “leave her like ■he left a woman the night before”; that she had her money in her hand and that Allen took it and started walking away; that as Allen was walking away Peebles said to her, “You have a pretty wrist watch”; that he tried to take the watch from her arm; that when she called a white man who was passing Peebles told her to “shut up or he would stab her”; that Peebles then stated to her that he would try to get her money back as she looked like a hard-working woman; that after making this statement Peebles left the scene of the robbery; that she let appellants take her money because she was afraid “for her life or what they would do to her”; 'that she went to the police station and filed a charge of robbery by assault against the appellants; that thereafter she talked to Will Robinson, a negro policeman.

Robinson testified that when' he arrested the appellants they told him they had taken the money of the injured party “by dropping a pigeon.” He further testified that the injured party stated to him that the appellants “had dropped a pigeon on her.”

Appellant Peebles admitted that he and Allen took the money of the injured party but stated that the transaction occurred as follows: “He met Bertha Marks at the address on the corner of Main and Capitol. He made some inquiry of her concerning an address and telephone number. They walked into a store on the 'corner and Bertha Marks used the telephone book to locate the address that he inquired about. While they were in there James Allen came in and picked up a purse, stating ‘Look what I have found.’ At which time all three of them got together and agreed that each would put up a certain amount of money to guarantee their good faith and divide the money, which appeared to be several hundred dollars. Bertha Marks put up some money and he appeared to put up a certain amount of money and James Allen was sent to a certain address to handle matters and get a check cashed. James Allen took all the money away and never returned. He told Bertha Marks that he would go and try to find James Allen and get her money back because he knew she was a hard-working girl. He left her and later joined James Allen and they divided Bertha’s money.’’

Omitting the formal parts, the indictment charged the offense as follows:

. “Tolie Peebles and James Allen, on or about the 2nd day of February, A. D. 1939, in said county and state, in and upon Bertha Marks did make an assault, and did then and there by said assault and by violence and by putting the said Be'rtha Marks in fear of life and bodily injury, fraudulently and against the will of the said Bertha Marks, take from the person and possession of the said Bertha Marks, thirty-six dollars and fifty cents in money, the same being then and there the personal property of the said Bertha Marks, with the intent then and there to deprive the said Bertha Marks of the value of the same, and to appropriate it to the use of them, the said Tolie Peebles and James Allen.”

We are constrained to agree with the contention of the appellants that the evidence is insufficient to support a conviction for robbery. Under the indictment it was necessary to prove either the assault alleged, the violence charged, or that appel- . lants obtained the property by putting the injured party in fear of life or bodily injury. If any assault occurred it was after the money of the injured party had been obtained and during the time that appellant Peebles made an unsuccessful effort to take her watch. In short, the evidence fails to show an. assault at the time the money was taken. Nor was there violence proved. The appellants made no demonstration and the only language employed on the occasion in question which might be construed to show a threat is found in the statement of appellant Allen that if the injured party refused to give' him her money “he would leave her like he left a woman the night before.” As above shown, the money of the injured party was taken on a sidewalk in the City of Houston where hundreds of people were passing. While it was her version that the statements made to her by the appellant Allen caused her to fear “for her life or what they would do to her,” we are unable to reach the conclusion that the evidence of the acts, or conduct or words of the appellants, under the circumstances reflected by the record, were reasonably calculated “to put her in fear.” The “putting in fear” which is referred to in the statute (Vernon’s Ann.P.C. art. 1408) must, to support a conviction of robbery, be sustained by evidence of acts or conduct or words or circumstances reasonably calculated to effect that result. Easley v. State, 82 Tex.Cr.R. 238, 199 S.W. 476, 478. It appears unreasonable that the language prosecutrix attributed to the appellant Allen would have engendered in her fear of such a nature “as in reason and common experience is likely to induce [her] to part with [her money] against [her] will.” Easley v. State, supra, and authorities cited. We make this statement in view of all the crircumstances surrounding the transaction and in view of the fact that, according to the version of the prosecutrix, she was robbed on a sidewalk over which hundreds of people were passing.

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'"


text:
    BATEMAN v. STATE.
    No. 20671.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1939.
    E. C. Stovall, of Canton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for 'cattle theft, punishment assessed being six years in the penitentiary.

The in.dictment properly charges the of.fense. The record contains neither statement of facts nor bills of exception. In such condition nothing is presented for review and the Judgment is affirmed.


text:
    ROSS v. STATE.
    No. 20669.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1939.
    Bob McCampbell, of Comanche, for ap■pellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for cattle theft, punishment assessed being two years in the penitentiary.

The record is before us without statement of facts or bills of exception. The indictment is in proper form. Nothing is presented for review.

The judgment is affirmed.


text:
    THOMAS v. STATE.
    No. 20682.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1939.
    D. F. Sanders and John A. Veillon, both of Beaumont, for appellant.
    .Lloyd W. Davidson, State’s Atty.,' of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for the unlawful possession of whisky in a container to which no tax stamp showing the payment of the tax due to the State of Texas was affixed; penalty assessed at confinement in the county jail for a period of 30 days.

The chief witness in the case who purchased the liquor in question was an Inspector for the Texas Liquor Control Board.

The record before us presents but one question which it is necessary for us to consider. Complaint is made that, under the facts of this case, the witness was an accomplice and that appellant could not he convicted on his uncorroborated testimony. This question has been before this court recently in several cases. It has been thoroughly considered and decided adversely to the contention of the appellant. See Stevens v. State, 133 Tex.Cr.R. 333, 110 S.W.2d 906, and cases there cited; also Carpenter v. State, Tex.Cr.App.,-S.W.2d - (not yet reported). Art. 666—23a, subdivision (8), Vernon’s Ann.P.C.

No reversible error being shown in the record, the judgment is affirmed.

       Not released by court at date of publication.


author: GRISSOM, Justice.

text:
    IMHOLZ v. SOUTHERN OIL CORPORATION OF AMERICA.
    No. 1947.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 3, 1939.
    Rehearing Denied Dec. 1, 1939.
    Cox & Hayden, of Abilene, and Roy F. Fromway, of Roby, for appellant.
    Scarborough & Ely, of Abilene, for ap-pellee.
   GRISSOM, Justice.

H. W. Imholz sued the Southern Oil Corporation of America for damages for an alleged breach of a written contract to purchase oil and gas leases from him and to drill a well on 2645 acres of land in Fisher County. Plaintiff also sued for special damages resulting from said breach by reason of the purchase by Imholz of oil and gas leases covering approximately 1325 acres of land adjacent to said tract which Imholz alleged he had bought but was unable to pay for because of defendant’s failure to take and pay him for the leases on the 2645 acre tract.

The trial was to the court. Judgment was rendered for defendant, and plaintiff has appealed.

The court, at plaintiff’s request, filed findings of fact and conclusions of law, in substance, as follows:

(1)That three farmers, acting as trustees for their neighbors, got up a block of leases comprising about 4,000 acres of land; (2)that said trustees entered into an agreement with plaintiff to sell him the block at $2.50 an acre “and drilling a well on the property”; (3) that after the agreement between Imholz and the trustees, Im-holz talked to Yingling, president of Southern Oil Corporation, with a view of making a contract with defendant to drill the property and buy the acreage; (4) that Yingling informed plaintiff the price asked was satisfactory “if they could make a contract”; that Imholzs and Yingling discussed the matter in detail; that Yingling said he would have to check Imholz’s geology; that if defendant’s geologist, Mr. Abramson, approved the structure that, “so far as the structure was concerned”, it would be satisfactory. That Yingling told Imholz the titles would have to be merchantable; that any deal’ was contingent upon the Morrow well coming in as a producer; that the Morrow well did come in as a producer; (5) that in the discussion between Yingling and Imholz “no contract was entered into”; that Yingling told Imholz he would, “when the conditions had been met”, have Mr. Watson, a lawyer at Rotan, write a contract to be executed by both parties. That Mr. Watson was never instructed to write such a contract by Yingling, or defendant; (6) that the geologist, Mr. Abramson, did not approve the geology; (7) that a large portion of the leases were covered with mortgages; that there was no waiver of this title defect by defendant; (8) that Mr. Watson had no authority from defendant to represent it in making-a contract; that Mr. Watson wrote a proposed contract, at the instance of plaintiff, which was signed and acknowledged by plaintiff “but was never accepted, agreed to, or ratified by the Southern Oil Corporation or S. C. Ying-ling” ; (9) that Mr. Largent was not defendant’s agent and had no authority to make a contract for it. The court concluded, as a matter of law, that no contract was ever made between plaintiff and defendant.

Upon plaintiff’s request the court filed additional findings of fact and conclusions of law, in part, substantially as follows:

(1) That Mr. Watson examined the title to a part of the leases involved in the proposed trade and that Mr. Formway procured curative matter on a part of said titles. (2) That all of the curative matter was not furnished, in that, there were liens on part of the property and no subrogations or releases of the liens were furnished. (3)That since there was no contract between plaintiff and defendant “it is wholly immaterial why the contract was returned, but the court does find that the geologist, Abramson, did not approve the geology on the leases in question.” (5) That the draft of the proposed contract was returned to plaintiff as soon as it was called to Mr. Yingling’s attention.

The evidence sustains, if it does not compel, a finding that the verbal discussion of the proposed deal, between Imholz and Yingling did not amount to a verbal contract for the sale and purchase of the realty in question. Of course, if a verbal contract ' had been made it could not be enforced against the defendant, it having pleaded the statute of frauds. However, plaintiff’s suit was based upon an alleged written contract between plaintiff and defendant. There was evidence that in the discussion of the proposed sale, Mr. Yingling advised plaintiff that “in the absence of Mr. Abramson’s approval, there was nothing that he could do about it”; that there were no-definite arrangements made for entering into a contract; that Yingling stated to Imholz if the proposed block were approved and the titles good “we would make a contract.” The evidence further shows that Mr. Watson, who had before and after writing the contract in question, represented the defendant as an attorney, at the request of Mr. Imholz and upon information furnished by Imholz, wrote the contract upon which plaintiff bases his suit; the contract was sent to Mr. Yingling, or defendant, after it had been signed and acknowledged by plaintiff; that the written instrument, or “contract”, arrived at defendant’s office in the absence of its president, Mr. Yingling, and was returned by Mr. Yingling as soon as he returned to his office and was" apprised of the presence there of the proposed contract. 'The evidence shows that plaintiff furnished to Mr. Watson abstracts of title to the leases in question; that Mr. Watson examined some of them and that plaintiff’s counsel, Mr. Formway, cured some of the defects in the titles pointed out by Mr. Watson, There is nothing in the record that suggests anything but good faith in such actions by such parties. However, the record shows that such action by Mr. Watson was never authorized by defendant. The evidence shows that, at the time Mr. Yingling returned said contract to plaintiff unsigned and refused to enter into the proposed contract, Mr. Watson talked to Mr. Yingling over the telephone, advised him of the situation and told him that as to a certain title or titles covering one •or more of the leases in question that the •correction of a defect pointed out by Mr. Watson could not be cured within the fixed period of time; that Mr. Yingling instructed Mr. Watson to proceed no further with said matter and advised plaintiff that, because of said defect, defendant did not desire to proceed further with acquisition of the leases. There is evidence to the effect that the geologist, Mr. Abramson, reported as to the territory covered by the leases, which plaintiff proposed to sell defendant, that he had previously worked said territory and “it was no good and he would not spend any time or money on it.”

That defendant did not sign the “contract” sent to it by plaintiff is undisputed. But plaintiff contends that said contract was accepted, agreed to and ratified by defendant and that it is, therefore, binding on defendant regardless of the fact that it was not signed by it. Plaintiff says that defendant’s acceptance of the contract is shown by the fact that the contract was sent to defendant, after it had been signed and acknowledged by plaintiff, and retained by defendant from about August 21 to September 2. Plaintiff further contends that since the •contract was returned by defendant with the statement that the plaintiff’s proposition was refused because of a defective title, plaintiff should have been given a reasonable time in which to cure the defect pointed •out.

Article 3995, R.S.1925, provides:

“No action shall be brought in any court in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by ■the party to be charged therewith. * * *

“4. Upon any contract for tlje sale of real estate or the lease thereof for a longer term than one year ⅜ (Italics ■ours)

Chief Justice Phillips, in Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116, 15 A.L.R. 216, said: “From an early time it has been the rule of this court, steadily adhered to, that to relieve a parol sale of land from the operation of the statute of frauds, 'three things were necessary: 1. Payment of the consideration, whether it be in money or services. 2. Possession by the vendee. And 3. the making by the ven-dee of valuable and permanent improvements upon the land with the consent of the vendor; or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced. Payment of the consideration, though it be a payment in full, is not sufficient. This has been the law since Garner v. Stubblefield, 5 Tex. 552. Nor w possession of the premises by the vendee. Ann Berta Lodge No. 42, I. O. O. F. v. Leverton, 42 Tex. 18. Each of these three elements is indispensable, and they must all exist.”

With reference to plaintiff’s contention that acceptance of the contract by defendant is shown by the fact that the contract was mailed to defendant about August 21 and not returned to plaintiff until about September 2, we think the language of Justice Sharp in American Nat. Ins. Co. v. Warnock, 131 Tex. 457, 114 S.W.2d 1161, 1164, is applicable and answers the contention. He said: “To form a binding contract, it must appear that the party to whom the offer is made accepts such offer and communicates such acceptance to the person making the offer; and, in the case of an offer to buy or sell land, the acceptance must be in writing. The facts of this case do not furnish the essential requisites to make a binding contract. This court, in Patton v. Rucker, 29 Tex. 402, said: ‘In order to their enforcement by the courts, contracts for the sale of land must be evidenced by writing. When the writing relied on contains within itself all the particulars of a concluded contract, it is sufficient if it be signed by the party against whom it is sought to be enforced; but if, instead of being evidence of a concluded agreement, whatever may be its form, it is really a mere proposal, such a writing is turned into an agreement, and can be enforced in equity by the other party only by his acceptance of it in writing.’ See, also, Foster v. New York & T. Land Co., 2 Tex.Civ.App. 505, 22 S.W. 260; Waples-Platter Co. v. Montgomery, Tex.Civ.App., 65 S.W.2d 391; Browning-Ferris Machine Co. v. Thomson, Tex.Civ.App., 58 S.W.2d 183.”

In Clegg v. Brannan, 111 Tex. 367, 234 S.W. 1076, Clegg and Brannan contracted for an exchange of lands. Brannan executed and delivered to Clegg an instrument in writing setting out the terms of the agreement. Clegg sued Brannan to enforce specific performance of said written instrument. Clegg alleged that when the instrument signed by Brannan was executed and delivered to him he paid Brannan $1.00 in cash; that he assumed an indebtedness owing by Brannan amounting to $15,486; that he paid the amounts stipulated in the instruments by executing and tendering deeds to Brannan to the land'provided in the instrument to be deeded to Brannan. Clegg alleged “that by the delivery of said instrument of writing to him, and his acceptance thereof, he agreed to perform and do all the things stipulated in said instrument * * and that both he and * * *■ Brannan acted upon and treated said instrument of writing as binding upon both parties.” Clegg alleged he had furnished abstracts of title to his property to Brannan; that he executed and tendered to Brannan conveyances to the property which Clegg was to convey to Brannan under terms of the contract and that he, Clegg, had performed all the obligations required of him by the contract. Brannan excepted to that part of the petition setting out the alleged contract “ * * * since plaintiff did not sign or execute said contract, and since it is a contract required by the statute of frauds to be in writing, and was and is unenforceable as against the plaintiff Clegg” and was, therefore, unilateral, etc. The exception was sustained, and plaintiff declining to amend, judgment was entered for defendant. The judgment was affirmed by the Court of Civil Appeals and the Supreme Court. We call attention to the following language' of Justice Pierson, as applicable to the instant case:.

“Plaintiff in error contends that he was bound by Brannan’s written contract because he accepted it, and that it was accepted by them as binding upon both. The acceptance of a contract in writing is not equivalent to signing it. . * * *

“The statute of frauds provides that contracts for the sale of real estate not only must be in writing, but they must also be signed by the party to be charged therewith.

“The statute expressly says that an action cannot be maintained against one on a contract for the sale of real estate unless it is in writing and signed by the one to be charged with it.”

On the proposition that a contract for the sale of real estate, or lease thereof for more than one year, to be enforceable, must not only be in writing but must also be signed by the party sought to be charged therewith, as provided by Art. 3995, subd. 4, see also, Moore v. Powell, 6 Tex.Civ.App. 43, 25 S.W. 472, writ refused; Morris v. Gaines, 82 Tex. 255, 17 S.W. 538; Carter v. Portwood, Tex.Civ.App., 26 S.W.2d 422, 426, writ dismissed; 27 C.J. 266, 292; Walker Avenue Realty Co., Inc., v. Alaskan Fur Co., Inc., Tex.Civ.App., 131 S.W.2d 196.

It is not claimed that the three essential requirements, laid down in Hooks v. Bridge-water, supra, as necessary to relieve a parol sale of land from operation of the statute of frauds is applicable to the facts of this case.

But, in addition to the fact that the statute (Art. 3995, Subd. 4) requires that this contract, before it is binding on defendant, must be signed by defendant, “the party to be charged therewith”, the proof does not show as a matter oí law an acceptance of the contract by defendant. No one with authority except Yingling is shown to have acted for defendant in the matter. The evidence that the contract was prepared at the direction of plaintiff and mailed to defendant about August 21 and returned and acceptance declined by defendant about September 2; that it was return- . ed to plaintiff by Yingling upon his return to-his office and as soon as it was called to Yingling’s attention, certainly could do no more than raise a fact issue of acceptance of the proposed contract by defendant. Treating the evidence as capable of raising such fact issue, plaintiff’s contention cannot be sustained because the trial court has found that defendant did not accept, agree to or ratify the proposed contract. The evidence supports said finding. Therefore, because the “contract” was not signed by the defendant, “the party (sought) to be charged therewith”, and because it was not ac- ' cepted, agreed to or ratified by defendant, as found by the court, there was no contract in writing between plaintiff and defendant for sale of the leases.

Since plaintiff’s cause of action is entirely dependent upon establishing the existence of a written contract and it has not been established the court properly entered judg- • ment for defendant.

The judgment is affirmed.