author: ' GRAVES, Judge. BEAUCHAMP, Judge.

text:
    McCUTCHEON v. STATE.
    No. 21342.
    Court of Criminal Appeals of Texas.
    Feb. 19, 1941.
    Rehearing Denied March 26, 1941.
    V. M. Toomey, of Houston (King C. Haynie, of Houston, of counsel on appeal only), for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   ' GRAVES, Judge.

Appellant was convicted of burglary with intent to .steal, and was sentenced to serve a term of two years in the penitentiary.

There is only one proposition presented to us suggesting an error in this trial. That proposition is contained in appellant’s request to the trial court to instruct the jury that the witness, Mr. Matthews, was an accomplice, and in the event of the refusal of such instruction, then that the court submit the fact of such accomplice-ship to the jury.

Mr. Matthews testified that he knew appellant by sight but not by name. That appellant had bought a little material from him, and sold him some secondhand plumbing fixtures in the past, and that no question was ever raised as to the title of such fixtures. That on the date in question appellant came into Matthews’ secondhand store early in the morning and inquired if he, Matthews, would buy some secondhand fixtures, stating that he had been out rabbit hunting and had stumbled on some merchandise, and he wanted to know if Matthews would buy it. This conversation seemed to have taken place openly, as there was an officer present at such time. Matthews agreed to buy the same, if it was all right, and later appellant brought into the place of business of Matthews a commode, a wash basin and a lavatory and placed them on the floor -among other secondhand goods. At such time there were four or five customers in Mr. Matthews’ place. Mr. Matthews agreed to pay $32 for the goods thus purchased from appellant, and, after waiting on his customers, he prepared a bill of sale to such goods, which the appellant signed with the name of R. B. Lee. The dealer paid a portion of the purchase price, but on account of not having enough money to complete the payment, appellant was to return for the remainder of the money later on. Later on, in a few days, Mr. Gallagher, the owner of the alleged burglarized house, came into Matthews’ place of business for the purpose of purchasing some secondhand fixtures to replace the ones taken from his house, and there found the very property taken from his house, and positively identified the same. Matthews then identified appellant as the person who sold him the alleged stolen property, which property was openly exhibited on the floor oí such dealer’s business house where other wares were also exhibited.

We are of the opinion that this testimony does not in any way connect the dealer Matthdws with any burglary of the house, nor does his conduct savor of any guilty knowledge that such articles were the fruits oí a burglary or were stolen; but instead we think such conduct evidences an innocent intent on such dealer’s part, and a belief in the valid title of appellant to such goods.

Mr. Branch in his Penal Code, p. 361, says: “Proof merely that the witness purchased, received, or helped 'kill or dispose of the stolen property, will not make his testimony that of an accomplice, when there is no proof of facts which would put such witness on notice that there was something wrong with the property,” citing many cases.

Also see Vick v. State, 132 Tex.Cr.R. 182, 102 S.W.2d 1060; Holmes v. State, 125 Tex.Cr.R. 354, 68 S.W.2d 189, and Pauly v. State, 93 Tex.Cr.R. 183, 246 S.W. 375.

We think the trial court was correct in refusing to charge that the dealer was an accomplice, and also correct in refusing to submit the matter of such accomplice-ship to the jury for their determination.

Appellant offered no testimony, nor affirmative defense.

The judgment is affirmed.

On Motion for Rehearing.

BEAUCHAMP, Judge.

Appellant files his motion for rehearing in this case and alleges as ground therefor that there, is no evidence of “breaking” into the house in question. Mr. Gallagher, the owner of the house, testified that he had moved out of this place t'o a new one and that a few days thereafter he was notified of the theft of property from his house, and that when he got there he found the several articles mentioned were gone. He said, “those things were in the house when I moved out of it. When I closed the place was when I left; I don’t know for sure whether I later closed it again. * * * I am positive that my place was closed when I left there. The doors and windows were closed. * ⅜ * This was the following Monday after my attention was called to the fact that my place was entered.”

The evidence shows that the house was closed and that the things were taken out between the visits of the owner to it without his consent. How is it possible for that to have been done without a breaking into the house by someone? Appellant was found in possession of the goods.

We recognize the doctrine laid down in Tex.Jur. Vol. 7, page 852, to the effect that mere possession of goods recently stolen, “without evidence of a breaking of the house”, would be insufficient to prove the essentials of the allegation in this case, but we think the foregoing evidence of Mr. Gallagher meets the requirements of Strickland v. State, Tex.Cr.App., 78 S.W. 689, in which Judge Davidson used the following language: “It has been held that possession of recently stolen property taken from the burglarized house is a sufficient predicate to justify a conviction for burglary, but in all those cases, so far as we are aware, an entrance to the house by somebody was a necessary condition as a predicate for the burglary conviction. The mere possession of recently stolen property, without evidence of a breaking, is not sufficient to show a burglary. If the breaking is proved, and the party is recently thereafter found in possession of the property taken from the house, it would perhaps be sufficient to justify the conviction for the burglary; * *

It was concluded in that case that the evidence was insufficient to show a break by Strickland, but this is based on the fact that appellant was in the house at the time the stolen property was placed in a trunk and he had the opportunity to take it while he was in the house lawfully. We find no trouble in distinguishing that case from the case at bar.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: KRUEGER, Judge.

license: Public Domain

text:
    ROBERTS v. STATE.
    No. 21482.
    Court of Criminal Appeals of Texas.
    March 5, 1941.
    Tom M. Miller and Jimmie Cunningham, both of Graham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for the possession of whisky in a dry area. The punishment assessed is confinement in the county jail for 90 days.

Appellant’s first complaint is that the trial court erred in overruling his application for a continuance based on the absence of W. R. Roberts, by whom he expected to prove and would have proved, if present, that the whisky found by the officers belonged to the witness and not to the defendant; that defendant did not know that the whisky had been placed there by W. R. Roberts. The record shows that the complaint was filed on August 10, 1940, charging appellant with the offense of possessing whisky in a dry area. He was arrested on the same day and made bond for his appearance in the County Court of Young County to answer to said charge. He was not tried until the 17th day of October, 1940, at which time he made his application for a continuance by reason of the absence of said witness. At no time from the date of his arrest until the time of his trial had he ever applied for a subpoena for said witness, but relied wholly upon the promise of the witness to be in attendance of court whenever this case was called for trial. Appellant knew about two weeks prior to the date of the trial that the witness was leaving the county to go to Snyder, Texas, and from there to Nu-eces County, where he expected to make his home, yet he failed to obtain process for the witness. In our opinion, the defendant has failed to exercise such diligence as would have' entitled him to a continuance. See Hart v. State, 139 Tex.Cr.R. 101, 138 S.W.2d 818, and cases there cited. We, therefore, overrule appellant’s contention.

By bill of exception No. 2, complaint is made of the testimony of the sheriff and his deputy as to what they found on appellant’s premises as a result of a search thereof without a search warrant. This bill cannot be properly appraised in the absence of a statement of facts. In 1939 Sup. to 4 Tex.Jur., p. 234, § 167, the rule is thus stated: “Bills of exception or objections requiring a consideration of the facts or evidence will not be appraised or considered in absence of statement of facts.”

Under note 10 of the text quoted many cases are cited in support of the principle announced.

There is a statement of facts accompanying the record, but it is in question and answer form and cannot be considered by us. Article 760, C.C.P., as amended by Acts 1931, 42nd Leg., 1st C.S., p. 75, ch. 34, § 7, Vernon’s Ann.C.C.P. art. 760, reads as follows: “Where the defendant in a criminal 'case appeals, he is entitled to a statement of facts certified by the trial judge and sent up with the record; provided that said statement of facts shall be in narrative form.”

In the absence of a statement of facts, we cannot say that the appellant did not himself take the witness-stand and: testify that he had the whisky. Under such circumstances, the officers’ testimony, if inadmissible, would be harmless error.

No reversible error appearing from the record, the judgment of the trial court is affirmed.

' PER CURIAM.

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


author: CHRISTIAN, Judge.

text:
    McMURREY v. STATE.
    No. 21442.
    Court of Criminal Appeals of Texas.
    March 19, 1941.
    J. W. Ragsdale, of Victoria, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

The testimony of the state was to the effect that appellant assaulted and stabbed the injured party with a knife. The testimony of appellant’s witnesses was to the effect that in their opinion appellant was insane. The state introduced many witnesses who expressed a contrary opinion.

The conviction was for assault with intent to murder with malice. It is shown in bill of exception No. 5 that Trigg Peebles, a witness for the state, testified on his direct-examination that sometime prior to the assault appellant stated to him that he was going to beat hell out of Mr. Wallace, the injured party, and kill him and two other men. Upon cross-examination counsel for appellant asked the witness if he had testified before the grand jury to such facts,* that is, that appellant had threatened to take the life of the injured party and two other named men. State’s counsel objected to the question as follows: “I don’t think he can bring out anything that happened in the grand jury room.” The court sustained the objection. It is recited in the bill of exception that counsel for appellant advised the court that he asked the question for the purpose of laying a predicate to impeach the witness Peebles. It is certified in the bill that if the witness had answered the question he would have testified that he did state such facts when he was before the grand jury. It is -further certified that if the testimony had been permitted by the court to be elicited from the witness that appellant would have produced members of the grand jury whose testimony would have been to the effect that the witness had not stated to the grand jury that appellant had threatened to kill the injured party. The bill of exception is qualified by the trial court. However, the qualification merely shows the stenographer’s notes on the question presented by the bill which, when considered, fail to detract frqm the certificates of the trial court set forth in such bill. In short, notwithstanding the qualification, the question of the right of counsel for the appellant to lay the predicate for impeaching the witness is presented in the bill. It is manifest that the objection of counsel for the state was sustained solely upon the ground that appellant was not privileged to impeach the witness by showing occurrences before the grand jury relative to such testimony at the time he was a witness before such body. In Link v. State, 73 Tex.Cr.R. 82, 164 S.W. 987, 994, this court used language as follows: “And a witness may be impeached by proof of her statements before the grand jury in conflict with her testimony given on the trial.” In Lowe v. State, 88 Tex.Cr.R. 316, 226 S.W. 674, 678, Judge Lattimore, speaking for the court, used language as follows: “Appellant’s witness Burkett was asked, over objection, if it was not true that when before the grand jury testifying in regard to this transaction he failed to mention certain matters now given in testimony by him. The answer of the witness is not given in the bill of exceptions, but from certain statements therein we are led to believe that he stated that such question was not asked him when before the grand jury. A witness may be asked, as affecting his credibility, whether at other times and places, in narrating the occurrence testified about, he gave testimony different from that now given. Nor would the fact that the attempted predicate was as tq statements made before the grand jury affect the admissibility of such question and its answer. A witness may be impeached by statements made, or omissions, relative to his testimony, before a grand jury. Vernon’s C.C.P. p. 183 [Vernon’s Ann.C.C.P. art. 365] and cases cited; Clanton v. State, 13 Tex.App. [139] 153; Rippey v. State, 29 Tex.App. [37] 43, 14 S.W. 448; section 177, Branch’s Ann. Penal Code.”

Giving application to the announcement of the decisions, we are- constrained to hold that the court was in error in sustaining the objection of counsel for the state. That the testimony of the witness was material and hurtful is obvious. It tended strongly to show that appellant acted upon malice aforethought when he attacked and stabbed the injured party. It follows that we are of opinion that the bill of exception reflects reversible error.

The testimony of the state as to the nature and seriousness of the wounds inflicted upon Mr. Wallace is not entirely satisfactory. An ordinary pocket knife was used by appellant in making the assault. It is suggested that if another trial be had a more detailed description of the injuries inflicted should be given. However, we disclaim any intention of predicating a reversal upon the insufficiency of the evidence. In view of the disposition we are making of the appeal it is deemed unnecessary to set out the testimony in detail.

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

PER CURIAM.

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


author: 'HAWKINS, Presiding Judge.

text:
    BELL v. STATE.
    No. 21510.
    Court of Criminal Appeals of Texas.
    March 26, 1941.
    John Menefee, of McCamey, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   'HAWKINS, Presiding Judge.

Conviction is for murder; punishment assessed at fifty years in the penitentiary.

The record is before us without statement of facts or bills of exception, and on March 19, 1941, the judgment of the trial court was affirmed.

Appellant has now filed in this court his affidavit advising that he desires to withdraw his appeal in said cause. It is therefore ordered that the judgment of affirmance be withdrawn, and the appeal is dismissed at appellant’s request.


author: BEAUCHAM, Judge.

text:
    DENNIS v. STATE.
    No. 21457.
    Court of Criminal Appeals of Texas.
    March 12, 1941.
    Donald & Donald, Joe H. Cleveland, and T. H. Yarbrough, all of Bowie, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAM, Judge.

The appeal is from a sentence of two years in the penitentiary on a charge of cattle theft.

The indictment alleges the theft of three head of cattle, the property of S. J. Embry, by H. L. Dennis. The proof shows that on the date alleged some one driving a car with a license plate identical with that assigned to a pickup truck belonging to appellant and giving his name as H. L. Dennis delivered the three cattle in question to a commission company in Fort Worth. By chance, on the next day Embry was in the stockyards of the commission company and identified his cattle and took possession of them. They had not been sold.

Acting upon telephone advice from Fort Worth, Dick Lawrence, Sheriff of Montague County, filed a complaint against H. L. Dennis and w,ent to St. Jo where he located him in a cafe. The sheriff details the conversation. He says that he asked the accused which one of the Dennises took two P-bar cows to Fort Worth the day before, and he quoted defendant as saying, “I took three cattle down there last night.” Other than this statement and the fact that the license plate on the truck delivering the cattle bore his number, and that the party delivering them listed them as the property of H. L. Dennis, there is no evidence in the record to connect him with the theft of the cattle. If this statement is admissible in evidence against him, then the fact given would be a damaging circumstance in the case.

The sheriff testifies further, upon cross-examination, that when he approached the defendant he had a warrant for his arrest charging the theft of the cattle. He says, “I was only seeking at that time to find H. L. Dennis; He answered my question. No information was given me other than what I already knew; I had a complaint against H. L. Dennis; He didn’t tell me he was H. L. Dennis. I was trying to find H. L. ■ Dennis * * *. From the time I knew he was a Dennis and started questioning him, I wouldn’t have let H. L. Dennis leave my presence and go off unchecked; I considered him under arrest from the time he answered my question. Even if he hadn’t answered my question, I would have found out who he was before I would have let him go on out.”

The foregoing testimony of the sheriff shows definitely and conclusively that the party was under arrest at the time he made the statement which was admitted in evidence against him. The admission of this testimony is contrary to 727A, C.C.P., Vernon’s Ann.C.C.P. art. 727a, and the bill of exception complaining of the court’s ruling must be sustained. Lightfoot v. State, 117 Tex.Cr.R. 515, 35 S.W.2d 163.

There is considerable evidence relating to the conduct of the sheriff in handling appellant, taking him from place to place while refusing him the privilege of making bond, but the complaints relative thereto are not of a nature that should, in any way, affect the disposition of this case on this appeal. Other matters complained of will, in all probability, not arise upon another trial.

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


author: CHRISTIAN, Judge. GRAVES, Judge.

text:
    NEW v. STATE
    No. 21339.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1941.
    Rehearing Denied March 26, 1941.
    McIntosh & Duncan, of Gilmer, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is rape; the punishment, death.

The case was tried upon the theory that Jim Johnson had sexual intercourse with Willie Joe Winchester, a girl under fifteen years of age, with her consent and that appellant, while present, and knowing the unlawful intent of Johnson, encouraged him by words in the commission of the unlawful act.

Prosecutrix was the step-daughter of the appellant, and, according to her testimony, became fourteen years of age on the 22nd of April, 1940. She lived in the home of her mother and the appellant, where the offense occurred. It was her version on direct examination that on the 8th of March, 1940, at night, Johnson came to her home and was admitted by appellant. She had already gone to bed pursuant to appellant’s instructions. After admitting Johnson, appellant brought him to the door of her room and turned his flashlight on her bed. Johnson came to her bed, fondled her person, and eventually had an act of sexual intercourse with her. The testimony-fails to reveal whether appellant was in the room or in the house at the time the rape was accomplished. On cross-examination prosecutrix denied the transaction, saying that Johnson had not come to the house on the occasion in question and that her testimony touching the matter had been falsely given because she feared she would be sent to the reformatory. Upon redirect examination she affirmed that the act of intercourse had taken place as first detailed • by her. However, upon further examination by counsel for the appellant, she retracted her ■ inculpatory testimony. According to the version she had first given, Johnson had been to her home on an occasion prior to the time of the act relied upon by the state and while there had had sexual intercourse with her.

Johnson, the accomplice witness, testified only to one. act of intercourse with prose-cutrix, which, if we comprehend the testimony, was on the 8th day of March, 1940. According to his version, appellant invited him to come to his home, and, upon his arrival there, met him at the door, invited him in and carried him to the room of the prosecutrix. A monetary consideration moved from him to appellant shortly prior to the time he entered the room. Johnson testified that after fondling the person of prosecutrix he had an act of sexual intercourse with her. We find nothing in the testimony of Johnson to show whether appellant was in the room or in the house when the act occurred.

Appellant did not testify.

It was averred in the indictment that prosecutrix was under the age of fifteen years at the time of the alleged rape. Under the provisions of Article 1183, P. C., the age of consent is eighteen years. The allegation that prosecutrix was under fifteen years of age was favorable to appellant, and the indictment is sufficient. However, a greater burden was placed on the state by the pleader than was required by law. We quote from Young v. State, 89 Tex.Cr.R. 230, 230 S.W. 414, 415, in which Judge Lattimore, speaking for the court, used language as follows:

“The allegation that prosecutrix was under 15 years of age was favorable to appellant, the age of consent at the time as fixed by statute being 18 ■ years. A greater burden was thus placed on the state by the pleader herein than was required by law.
“We have been unable to see anything substantial in the contention that the indictment was defective for the reason that an acquittal upon proof that prosecutrix was more than 15 years of age would not bar a subsequent prosecution by indictment charging her to be under the age of 18.”

In view of the averment that the prosecutrix was under fifteen years of age, appellant introduced proof in an effort to show that she was beyond that age at the time of the commission of the offense. If the testimony introduced by appellant was sufficient on the point to raise in the minds of the jury a reasonable doubt as to the age of the prosecutrix, then the jury should have been instructed to acquit the appellant if they entertained a reasonable doubt as to whether the prosecutrix was under fifteen years of age. See Tucker v. State, 137 Tex.Cr.R. 112, 128 S.W.2d 402. A charge on .the issue was not given, although appellant excepted to the charge for its failure to submit his defensive theory. We think that in view of the fact appellant’s testimony presented no other theory than that prosecutrix was over fifteen, the exception was sufficient. Looking to the testimony which appellant contends is sufficient to raise a reasonable doubt as to the age of the prosecutrix, it is observed that a daughter of the appellant testified that prosecutrix lived in' the home of appellant during the fall of 1930 and attended school. Again, the witness testified that Minnie Earl; the youngest sister of prosecutrix, was fourteen years of age. She said: “Willie Joe Winchester (prosecutrix) is older than Minnie Earl. She started to school before my baby sister (referring to Minnie Earl) did.” Referring to prosecutrix’s first school year, the witness said: “It was her first year of school. She was in the primer.” It has been observed that prosecutrix testified that she became fourteen years of age on the 22nd of April, 1940. It follows that if the testimony of the half-sister of the prosecutrix is to be accepted prosecu-trix was between four and five years of age at the'time she entered the public schools. If the youngest sister of prosecutrix was fourteen in May, 1940, which was the time of the trial, the prosecutrix could not have beeu fourteen years of age on the 10th of April, 1940. Under all of the circumstances, we would not feel warranted in holding that the testimony adduced by the appellant on the question of the age of the prosecu-trix was not sufficient to raise a reasonable doubt. It is true that several witnesses testified positively that the prosecutrix was fourteen years of age. However, the issue being raised, it was the province of the jury to determine the question under an adequate instruction, and such an instruction should have been given.

This being a consent case, if prosecutrix was over fifteen years of age at the time of the offense and previously unchaste, appellant would not be guilty of rape. According to the testimony of prosecutrix, she had theretofore had an act of sexual intercourse with Johnson. The state relied upon the second act. Article 1183, P. C., reads as follows: “Rape is the carnal knowledge of a woman without her consent obtained by force, threats or fraud; or the carnal knowledge of a woman other than the wife of the person having such carnal knowledge with or without consent and with or without the use of force, threats or fraud, such woman being so mentally diseased at the time as to have no will to oppose the act of carnal knowledge, the person having carnal knowledge of her knowing her to he so mentally diseased; or the carnal knowledge of a female under the age of eighteen years other than the wife of the person with' or without her consent and with or without the use of force, threats or fraud; provided that if she is fifteen years of age or over the defend-' ant may show in consent cases she was not of previous chaste character as a defense.”

In construing this article this court, speaking through Judge Hawkins in Cloninger v. State, 91 Tex.Cr.R. 143, 237 S.W. 288, 291, used language as follows:

“The state has filed a motion for rehearing in which it is urgently insisted that our original opinion is wrong where we held that, if prosecutrix had engaged in an act of intercourse with appellant at a time prior to the act elected by the state upon which to seek conviction, she was not of ‘previous chaste character.’
“The argument advanced that a man who had brought about the defilement of a virtuous girl should not be permitted to hide behind his own wrong appeals very strongly to us as individuals, as it naturally does to any man who has at heart the preservation of the purity of womanhood, and the punishment for its violation. But if we surrendered to our feelings, following the promptings of desire, and changed our former ruling, we cannot see it otherwise than that we would be arrogating to ourselves legislative functions, and in effect, by judicial construction, write into the law something which might with propriety have been incorporated by the Legislature, but was omitted by it.
“The last sentence of article 1063, P. C, defining rape, as amended at the Fourth called session of the Thirty-Fifth Legislature (Acts 35th Leg. (1918) c. 50), reads as follows:
“ ‘Provided, that if . the woman is fifteen years of age or over, the defendant may show in consent cases, she was not of previous chaste character as a defense.’
“It seems to us that any other conclusion than heretofore announced would be to read into the law by judicial construction a further proviso ‘that such defense should not be available to an accused if he was the author of the woman’s unchastity.’ Sentiment and reverence for virtue has a strong impelling force in that direction, but recognition of our duty to declare the law as written, rather than as we might wish it to be, draws the other way.
“The Legislature uses the words ‘previous chaste character.’ When we determine at what time an unmarried woman becomes ‘unchaste’ then the controlling question in this case 'is settled. The word ‘chaste’ is supposed to have been used by the Legislature’ in its ordinary meaning. It is not necessary to go to the text-writers and decisions of the courts to determine what the usual and ordinary meaning of ‘sexual purity’ is. But, if we go to the decisions, our own court has settled it in construing the very statute now under consideration. In Norman v. State, 89 Tex.Cr.R. 330, 230 S.W. 991, it is said:
“ ‘A chaste woman, within the meaning of the law as applied to an unmarried woman, signifies one who has had no carnal knowledge of men. Cyc. of Law and Proc. vol. 6, p. 978; [1] Words and Phrases, Second Series, p. 652; State v. Kelley, 191 Mo. 680, 90 S.W. 834; Kerr v. United States [7 Ind.T. 486], 104 S.W. 809; Marshall v. Territory [2 Okl.Cr. 136], 101 P. 139.’

It has been observed that appellant was tried and , convicted upon the theory that he was a principal. Appellant objected to the charge of the court on the ground that it failed to embrace an instruction covering the law of circumstantial evidence, his position being that the presence of the appellant at the time of the commission of the offense is shown alone by circumstances. While not predicating a reversal upon the failure to give the charge, the opinion is expressed that if the' testimony is the same upon another trial such an instruction should be given.

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 Motion for Rehearing.

GRAVES, Judge.

The State has filed a motion for a rehearing herein, and urges that the age of the girl, Willie Joe Winchester, was not made an issue in the trial of the case; that the age of this girl was not disputed in this trial. While this matter may not be free from doubt, nevertheless we think a charge should be given by the trial court to the jury relative thereto in the event of another trial.

The girl who was alleged to have been raped by Jim Johnson, a negro man, when first placed upon the stand, testified to an act of intercourse upon her part with this man. Upon her cross-examination she repudiated this testimony in its entirety, and claimed to have been frightened into making such statement, and upon her redirect examination she again asserted the truth of her previous direct testimony, and implicated her step-father as well as Johnson, the negro. Again she was questioned upon her recross-examination, and therein repudiated the incriminatory statements she had just given before the jury while being questioned by the State, thus leaving her testimony in a very unsatisfactory condition. It is evident that this witness’ testimony had been tampered with by some one, and she was laboring under fear to such an extent that her testimony could not be relied upon to any great degree.

It is then observed that the negro, Jim Johnson, who testified for the State, was an accomplice, and was charged with the same offense as this appellant. As such an accomplice, necessarily' his testimony, which implicated appellant in this offense, should have been corroborated by other testimony tending to connect this appellant with its commission. The State was forced to rely upon the girl’s testimony for corroboration of the negro, and in the unsatisfactory condition that the little girl’s testimony is in, with her affirmances and immediate denials, we confess we are not able to find any corroborative testimony of that of the negro that would lead us to say that the appellant solicited this negro to have intercourse with this girl, nor that appellant was present at the time the negro says the act of intercourse with the girl took place. The whereabouts of the appellant during the negro’s presence in the. little girl’s room should have been shown if possible.

Paragraph four of the court’s charge should not have been given, but the first paragraph six was a correct exposition of the law applying to the doctrine of principals.

In the event of another trial hereof the girl may be able to give a more lucid explanation of the matters here at issue, but under her present testimony no substantial reliance can be placed upon her statements.

We see no reason to recede from our views expressed in our original opinion. The motion will be overruled.


author: CHRISTIAN, Judge. CHRISTIAN, Judge.

text:
    LOTT v. STATE.
    No. 21452.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1941.
    On Motion to Reinstate Appeal March 19, 1941.

      Oliver W. Johnson, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is misdemeanor theft; the punishment, a fine of $10 and confinement in jail for one day.

The record fails to disclose that notice of appeal was given as required by law. Hence this court is without jurisdiction. Article 827, C.C.P., reads as follows : “An appeal is taken by giving notice thereof in open court at the term of •court at which conviction is had, and having the same entered of record. If notice ■of appeal is given at the term at which the conviction is had and the same is not entered of record, then by making proof of the fact, the judge of the court trying the ■cause shall order the same entered, of record either in term time or vacation by entering in the minutes of his court an order to that effect. Said entry when so' made shall bear date as of date when notice of .appeal was actually given in open court.”

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.

On Appellant’s Motion to Reinstate Appeal.

CHRISTIAN, Judge.

The record having been perfected, the appeal is reinstated and the case considered on its merits.

It was charged in the complaint and information, in substance, that appellant fraudulently took $25 in money from the possession of Dudley M. Stelle without his consent.

.The statement of facts discloses that the sheriff of Kendall County testified, in substance, as follows: On the 23rd day of August, 1940, he was called to the Bird ranch which is located in Kendall County. Mr. Bird informed him that some money was missing. He (the witness) took appellant and another employee of the ránch into custody, and started with them to San Antonio. On their way to San Antonio he told appellant and her Companion that he wanted them to tell him the truth about the matter. Appellant denied that she had taken the money from anyone. After reaching San Antonio he carried appellant to “Detectives’ Office” for the purpose of having the lie detector used on her. Later he carried appellant back to Kendall County, where she made a confession and led him to the place where “the money was hidden,” saying to him at the time that she had stolen such money.'

The witness testified further that he had never had a conversation with Dudley M. Stelle, the alleged injured party, but had received a letter from him after appellant had been arrested and had made a confession. At this juncture we quote from the agreed statement of facts as follows: “The witness testified that from his own knowledge, that he did not know who the money belonged to, other than what was told to him by the defendant after her return from San Antonio; and that he did not know of his own knowledge whether or not Dudley M. Stelle had given the defendant his consent to take the money.”

We have set forth substantially all of the testimony adduced upon the trial.

We find in the record a copy of a confession purportedly made by the appellant. It was not carried into the statement of facts and is therefore not authenticated by the trial judge in any manner. It merely bears the certificate of the clerk of the county court to the effect that it was introduced in evidence during the trial of the case. In view of the fact that it is no part of the statement of facts, it is not subject to consideration. If such purported confession should be considered,. it shows in substance that appellant stole $20 belonging to Dudley M. Stelle, the injured party. Other than the confession there is nothing in the record to show that Stelle lost $20 by theft. In short, it is only the confession that shows the offense of theft of Stelle’s money had been committed. Hence the corpus delicti was not sufficiently established. Be that as it may, we are bound by the statement of facts, and in the testimony shown therein nothing appears to show that the alleged injured party lost any money. If he did lose $20 there is nothing in the testimony in support of the averment in the indictment that the taking was without his consent. Obviously, the evidence is not sufficient to support the judgment of conviction.

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. GRAVES, Judge.

text:
    BECKHAM v. STATE.
    No. 21454.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1941.
    Rehearing Denied April 2, 1041.
    Callaway & Callaway, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Appellant was tried in Hamilton County, Texas, on a change of venue, upon an indictment charging that, with malice aforethought, he killed Raymond Thompson by shooting him with a gun. The killing was alleged to have occurred in Brown County, Texas. Appellant was convicted for murder with malice aforethought and his punishment was assessed at thirty years in the penitentiary.

This is the fourth time this case has been before us. The opinions on the three former appeals will be found reported in 133 Tex.Cr.R. 206, 109 S.W.2d 764; 135 Tex.Cr.R. 338, 120 S.W.2d 97; 138 Tex.Cr.R. 431, 136 S.W.2d 829. In the opinions referred to the facts are sufficiently set forth without the necessity of repeating them here. The evidence is practically the same upon this appeal save that appellant did not testify upon the present trial.

In the only bill of exception brought forward appellant complains because the trial court refused to grant his application fot a continuance. The application was predicated upon the absence of Louise Beckham, a daughter of appellant. It is stated in the application that Louise lived with her father in Zephyr, in Brown County; that she had been theretofore regularly summoned as a witness (when is not stated); that it was the contention of ' appellant that deceased and Louise were engaged to be married; that on the afternoon of the killing and a short time prior thereto deceased had brutally beaten Louise. It was stated in the application that if Louise were present, she would testify that deceased had brutally beaten and mistreated her; that she so reported it to appellant immediately before the shooting. The State contested the application for continuance and the facts developed upon the contest are brought forward in connection with the bill.

We conclude that there are a number of reasons supporting the court’s action in declining to grant the continuance:

(a)Upon the first trial of this case in Brown County, Louise was used as a witness by appellant. He was convicted and assessed a term of twenty years in the penitentiary. When the case was again called for trial, appellant sought and obtained a continuance because of the absence of said witness, who was at that time shown to be visiting a sister in the State of Tennessee. Upon the second trial in Brown County, appellant was convicted and assessed a term of eighteen years in the penitentiary. Louise, although present, was not used as a witness. After the judgment in the second trial had been reversed, the venue of the case was changed to Mc-Culloch County. Upon the first trial there, a hung jury resulted. Louise was again present but did not testify. On the second trial in McCulloch County, appellant was convicted and given a term of two years in the penitentiary. Again Louise, although present, was not used as a witness. Thus, it appeared to the trial court that upon three occasions after the first trial appellant had not called Louise to testify.

(b) Upon the hearing of the contest, the State exhibited to the trial court the testimony of Louise, both on direct and cross-examination,' given by her upon the first trial. It appeared therefrom that the witness had not then testified as now claimed by appellant that she would. This may throw some light upon the failure to call Louise as a witness upon three former trials. It certainly justified the trial court in concluding that she would not testify as claimed.

(c) After the second trial in McCul-loch County, the venue was changed to Hamilton County. The record fails to show whethér the witnesses were put under recognizance to appear before the court in Hamilton County. No process is shown ever to have been issued for Louise returnable to the court in Hamilton County. While it is stated in the application for continuance that appellant did not know where Louise was, yet it dearly appears from the evidence heard upon the contest that she was well known to the officers of Brown County and was seen frequently in the town of Brownwood; that in fact, she was confined in the county jail in Brown County from the 9th of August until the 18th of August; that appellant was advised of the setting of this case about the 9th of August or a day or two thereafter. If process had been issued for this witness, no difficulty would have been experienced in serving her with the same. Diligence appears lacking.

(d) Upon the contest, the mother of Louise testified that the last year or two Louise had been staying away from home the greater part of the time working; that most of the time her mother did not know where she was and could not tell the court when she was likely to be back; that she might be gone for a year and was liable to come back at any time; that she might be away working for six months or a year and might be out of the state. A sister of the absent witness testified that if she were then trying to locate Louise, she would not know where to write or telegraph; that she did not know whether her information as to her whereabouts would be any more definite six months from then. Appellant himself testified upon the contest that he understood Louise had gone away with a man who was himself a transient character and who had in fact served a term in the penitentiary. Thus, it appeared doubtful if her presence could have been secured at the next term of court.

(e) We observe that in the beginning of the statement of facts there is an agreement between counsel for the State and counsel for appellant, which reads as follows : “It is also agreed that either party, State or defendant, if the same becomes admissible, may introduce in evidence the evidence of any witness from the state-ment of evidence taken at any former trial of this case without proving the same by the court reporter of the 35th Judicial District.”

Appellant did not seek to avail himself of this agreement to reproduce the testimony of Louise although it was available to him.

(f) It is stated in the application for continuance that the testimony expected from the absent witness could not be procured from any other source. The evidence shows that there were three witnesses present at the trial who were with deceased and Louise at the time it was claimed she had been beaten by deceased. Two of these witnesses testified upon the present trial, yet appellant did not undertake to develop that fact from either of them, nor was the other one called as a witness. We conclude that the trial court was well within his discretion in refusing the continuance.

At the time appellant was convicted in McCulloch County, it was stated in the verdict that the jury found him guilty of murder “without malice”. Appellant took the position upon the trial, and re-asserts it here, that in view of said verdict he could not again be placed on trial for murder upon malice aforethought. He properly preserved the point by objecting to the trial court submitting the issue of murder with malice and also requested a special charge to the same effect.

In support of his position appellant cites Sec. 14, Art. 1, of the State Constitution Vernon’s Ann.St.; Art. 8, C.C.P., Art. 702, C.C.P., and a number of cases which would be appropriate and would sustain appellant’s contention if the present offense of murder was one of degrees as it was before the murder law was changed in 1927. See Acts 40th Leg., p. 412, chap. 274; Articles 1256, 1257, 1257a, 1257b and 1257c, Vernon’s Ann.Tex.P.C., Vol. 2. The present Art. 1257c was incorporated in said statute by an act of the 42nd Leg., p. 94, chap. 60.

Since the repeal of our old murder statute, the holdings of this court have been consistently against the contention here urged. The exact point was raised and decided against appellant in Hill v. State, 126 Tex.Cr.R. 79, 69 S.W.2d 409; Joubert v. State, 136 Tex.Cr.R. 219, 124 S.W.2d 368; Ex parte Conway, 118 Tex.Cr.R. 148, 37 S.W.2d 1017; Hunt v. State, 123 Tex.Cr.R. 559, 59 S.W.2d 836. See, also, Herrera v. State, 117 Tex.Cr.R. 389, 36 S.W.2d 515; Parks v. State, 131 Tex.Cr.R. 464, 99 S.W.2d 943; Chappell v. State, 124 Tex.Cr.R. 187, 61 S.W.2d 842; Stephens v. State, 125 Tex.Cr.R. 397, 68 S.W.2d 181; Morgan v. State, 121 Tex.Cr.R. 424, 49 S.W.2d 788.

We call attention to the fact that since the enactment of our present murder statute, it has been held many times that in prosecutions for murder it is not necessary for the verdict to show whether the accused is found guilty of murder with or without malice. Davis v. State, 110 Tex.Cr.R. 605, 10 S.W.2d 116; Wright v. State, 113 Tex.Cr.R. 297, 21 S.W.2d 507; Williams v. State, 117 Tex.Cr.R. 459, 34 S.W.2d 886; Housden v. State, 131 Tex.Cr.R. 256, 98 S.W.2d 181. While the cases last mentioned do not deal with the exact question now under consideration, they are consistent with the holding in the other cases cited for the reason that if the present offense of murder consisted of degrees, it would be necessary for the verdict to specify of which degree of offense the accused was found guilty.

Appellant insists that under the proven facts, it is not shown that he is guilty of murder with malice. Without again reciting the evidence here, we content ourselves with stating that from examination of the facts, it is our opinion that the verdict of the jury is not without support.

The judgment is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

We have again familiarized ourselves with the record in this case and have carefully read the motion filed herein. We can see no good reason for writing further on the matters set forth in such motion. We regret our inability to agree with appellant’s contention but remain of the opinion that the original opinion correctly disposes of the contentions made herein.

The motion will therefore be overruled.


text:
    SPEARS v. STATE.
    No. 21428.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    On Motion to Reinstate Appeal March 19, 1941.
    Barnes & McElroy, of Terrell, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The conviction is for a misdemeanor; the punishment, a fine of one hundred dollars.

This court is without jurisdiction to pass upon the merits of the case owing to the fact that the appeal bond fails to state that appellant has been convicted of a misdemeanor. It merely shows that appellant “stands charged with the offense of prescribing more than one pint of whis-ky to one person in one day.” See Wright v. State, 117 Tex.Cr.R. 485, 35 S.W.2d 413.

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.

On Motion to Re-Instate Appeal.

GRAVES, Judge.

The record having been perfected, the appeal is reinstated and the case considered on its merits.

Appellant, who was a physician, was convicted of prescribing more than one pint of whisky to one person in one day. An inspector of the Liquor Control Board testified that appellant wrote two prescriptions for him for one pint of whisky each and that he procured the whisky from the drugstore in'which appellant worked.

Appellant admitted that he wrote a prescription for one pint of whisky but denied that he wrote a second prescription.

Appellant was required to testify over his objection on cross-examination that he had been convicted of vagrancy growing out of habitual association with common prostitutes. The objection to such testimony was that the offenses for which he had been convicted did not involve moral turpitude. We are unable to agree with this contention. It was held in McIntosh v. State, 91 Tex.Cr.R. 392, 239 S.W. 622, that a female witness might be asked, as affecting her credibility, if she had not been convicted of being a vagrant, to-wit, a common prostitute, overruling to the contrary Neyland v. State, 79 Tex.Cr.R. 652, 187 S.W. 196, and Ellis v. State, 56 Tex.Cr.R. 14, 117 S.W. 978, 133 Am.St.Rep. 953. It has also been held that, as affecting her credit, a female witness may be asked if she is not a common prostitute. See cases cited in Yeager v. State, 96 Tex.Cr.R. 124, 256 S.W. 914, 915. In the Yeager case it was held proper for Yeager to elicit from the prosecuting witness that in connection with a saloon he (the prosecuting witness) had other property which he rented to prostitutes. In that case, in referring to the rule that a female witness might be asked if she was not a common prostitute, Judge Hawkins, speaking for the court, used language as follows:

“As we understand it this latter character of cross-examination is permissible, not upon the ground that isolated acts of immoral conduct may be shown to impeach a witness, for proof of such isolated acts is inhibited, but upon the ground that the history, occupation, etc. of a witness are always legitimate subjects of investigation. Underhill’s Cr. Evidence (3d Ed.) § 387. If it can be shown by cross-examination of the female witness that she is engaged in a business or occupation odious and disgraceful in itself to be considered in deter-mininting to what extent she is worthy of credit, by the same process of reasoning then it occurs to us that a male witness could be asked 'upon cross-examination if at a time not too remote he was engaged in the business or occupation of knowingly renting to prostitutes his property in which to ply their vocation.”

In view of the fact that a female witness may be asked, as affecting her credibility, if she has not been convicted of being a vagrant, “to-wit, a common prostitute,” we perceive no valid reason for holding that a male witness cannot be asked upon cross-examination, as affecting his credibility, if at a time not too remote he had been convicted of being a vagrant on a charge of habitually associating with common prostitutes.

In bill of exceptions No. 3 it is shown that counsel for the State elicited from appellant on cross-examination that he paid a fine on the 29th of January, 1938, on his plea of guilty to the offense of vagrancy “on account of commonly associating with a common prostitute.” Immediately after eliciting such testimony from the appellant .counsel for the State asked appellant if he did not likewise on the same date pay the fine of the negro woman who was with him and who was involved in the vagrancy charge. Appellant objected to the question and the objection was sustained, and it appears from the court’s qualification to the bill that no request was made of the trial court to instruct the jury to dis-' regard the question.

It is demonstrated above that the testimony relative to the plea of guilty, based on an association with common prostitutes, was admissible as being an offense involving moral turpitude; then we are faced with the proposition that on account of the fact that there was an intimation in such objectionable question that such a prostitute was a negro, that such offered question, although not answered, was the cause of appellant’s conviction herein. In order to give credence to such theory, it would be necessary to give no credence to the witness Williams and his positive testimony as to the two sales on the one day, and to find no benefit in the testimony showing two sales of a pint of whisky each time on the same day, as well as the partially evasive testimony of the appellant as to his many other prescriptions on that same day as the ones here in question. That a conviction for his association with prostitutes was admissible, whether white or black, is granted, we think, to now be settled law, and the mere mention of the fact of propounding the question to him, as follows: “You likewise on the same date paid the fine of the woman that was with you then, a negro?” — an objection thereto being sustained, and which question was never answered, seems to us to be harmless error, if error at all. Relative to the effect of the asking of such question upon the verdict of the jury, it was either the cause of the jury finding a verdict or it was harmless because of the fact that the jury gave appellant the lowest penalty provided for by law for the offense charged. We are loath to say that a jury of this State would so far forget their duty as to convict a person charged with a crime because of an intimation that such person had paid the fine of a negro woman prostitute. To the contrary, there are present herein facts upon which the jury could predicate their verdict of guilt, and if the negro woman episode entered into their verdict, then it fails to manifest itself therein because of the fact that appellant was awarded the lowest penalty provided by law.

If error was manifested by said bill, which we do not assert, we think the same was harmless, and especially in view of the trial court’s prompt instruction to disregard the same.

No error appearing in the record, the judgment is affirmed.


text:
    THOMAS v. STATE.
    No. 21508.
    Court of Criminal Appeals of Texas.
    March 19, 1941.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft of cattle. The indictment embraced averments showing that appellant had theretofore been twice convicted of felonies less than capital. Because of repetition of offenses, the punishment was assessed at confinement in the penitentiary for life.

The caption fails to show the date of the adjournment of the trial court. Under the decisions, this defect requires a dismissal of the appeal. Burleson v. State, 132 Tex.Cr.R. 89, 102 S.W.2d 1063.

The appeal is dismissed.

PER CURIAM.

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


author: GRAVES, Judge.

text:
    Ex parte RAMOS.
    No. 21582.
    Court of Criminal Appeals of Texas.
    March 19, 1941.
    L. R. Patton, of Galveston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Relator desires a reduction of bond from $750 as the same had been theretofore fixed by the court under a prior writ of habeas corpus.

The record merely shows that prospective bondsmen, approached upon the part of relator, thought the bond fixed by the court was too high, but agreed to go on a $500 bond.

The record does not show any facts from which the character of the offense - can be gathered, save that relator is charged with an attempt to rape a married woman. It is also shown that the relator has already had the benefit of one writ of habeas cor-' pus, at which hearing bail herein was reduced from $1,500 to $750.

The mere fact that a person approached, and requested to go on a bond, thinks that the bond is set too high, would not be a moving reason for this court to also say that such bond was set at too great a figure.

There is no' reason shown herein why this bond is too onerous or excessive. We are offered no more cogent reason why this court should reduce this amount.

The judgment is therefore affirmed.


author: BEAUCHAMP, Judge.

text:
    Ex parte HARRINGTON.
    No. 21579.
    Court of Criminal Appeals of Texas.
    March 19, 1941.
    T. K. Irwin, Jr., of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Relator was convicted of a misdemeanor in the justice of the peace court in Dallas County, and was assessed a fine of one dollar and costs, amounting to thirteen dollars and fifty cents. On this total amount he paid the sum of seven dollars and fifty cents, leaving six dollars due. He was thereafter committed to jail and served two full days, at which time he sued out a writ of' habeas corpus in an attempt to release himself as against the contention of the state that he would have to serve a minimum of ten days as provided in Article 920 C.C.P., Vernon’s Ann.C.C.P. art. 920, claiming his rights under Article 793 C.C.P., Vernon’s Ann.C.C.P. art. 793.

Appellant concedes that if he had paid no part of the fine and costs he would be required to serve a minimum of ten days under Article 920, C.C.P. as held by this court in Ex parte Young, 138 Tex.Cr.R. 418, 136 S.W.2d 863. In other words, the article providing for the minimum of ten days applied until appellant had paid what he claims to be the fine and a part of the costs, and that it is only in a case where he owes both fine and costs that the article will apply. If this should be true, he could have paid the one dollar fine, then made an affidavit that he was too poor to pay the fine and costs and serve the twelve dollars and fifty cents out at the rate of three dollars per day and secure his release without serving the minimum of ten days as provided by Act of the Legislature. If this construction should be given the Act it would make it appear a very weak and foolish provision in the law and entirely destroy its purpose. We cannot favor such construction and are unable to see the logic in the argument which appellant makes to reach that conclusion.

We think that the case of Ex parte Young, supra, sustains the ruling of the trial court and it is accordingly affirmed.


text:
    TUCKER v. STATE.
    No. 21387.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1941.
    Rehearing Denied March 26, 1941.
    H. R. Bishop, of Fort Worth, for appellant.
    Marvin H. Brown, Jr., Crim. Dist. Atty., and Dayton Moses, Asst. Crim. Dist. Atty., both of Fort Worth, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is murder; the punishment, confinement in the penitentiary for fifty years.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Audrey Frances Corbin by stabbing and cutting her with a knife.

Deceased and appellant were married in Oklahoma City on the 15th of March, 1937. In May, 1938, they separated in Fort Worth and the deceased filed a suit for divorce in the district court of Tarrant County. According to the testimony of the state, deceased was the breadwinner of the family during the time she and appellant were married. It was the theory of the state, circumstantially supported, that after deceased had obtained her divorce from appellant he followed her to Fort Worth for the purpose of killing her in the event she refused to return to him as his wife. It was appellant’s theory, supported by his testimony, that he sought deceased primarily for the purpose of asking’ her whether she had obtained a divorce and whether she intended to marry Buddy Benton. Appellant disclaimed any intention of killing the deceased, and testified in effect that she was accidentally stabbed by a butcher knife in his hand while he was defending himself against an attack on the part of Buddy Benton which caused him to believe that he was in danger of losing his life or suffering serious bodily injury.

The homicide occurred on the 16th of April, 1940, at the home of Mrs. Theoda Benton, who was the mother of Buddy Benton. According to the testimony of Mrs. Benton, appellant came to her home, and, after some conversation with deceased, stabbed deceased and Buddy Benton to death with a butcher knife. It was her version that appellant was not being attacked at the time. In short, if the testimony of the witness was to be accepted, the killing of deceased and Benton was unprovoked. Appellant testified that after he had talked to deceased, Buddy Benton advanced upon him with a large pair of scissors; that he (appellant) pulled the butcher knife from the inside of his leather jacket for the purpose of defending himself against Benton; that as Benton continued to advance deceased ran between them and received a cut from tlie butcher knife; that deceased was accidentally cut while he (appellant) was defending himself against the assault by Benton with the large pair ©f scissors.

Bill of exception No. 3 is concerned with appellant’s objection to the introduction in evidence of the following statement found in the dying declaration of the deceased: “He cut me with a knife for no reason.” We think the objection was properly overruled. We quote the language of Judge Lattimore in Finley v. State, 92 Tex.Cr.R. 543, 244 S.W. 526, 527:

“That part of said dying declaration at which the objection was directed was the sentence ‘he shot me in cold blood.’ The objection was that said statement was but the opinion of the deceased as to the condition of the mind of the defendant at the time of the shooting.
“There have been so many pronouncements by this court upon the general subject of dying declarations that we do not deem it necessary to go into an extended discussion of the reasons advanced for admitting same, nor do we desire to attempt to lay down any limits within which such declaration must be confined, and beyond which it must not go. While we have not found in our authorities in this state a decision passing upon the acceptance or rejection of a statement in the exact words of the one here involved, there are many which pass upon cases whose facts, and the principles announced, are analogous. In the following cases the deceased stated in his dying declaration, in substance, that the accused shot him for nothing, and in all the cases this was held admissible. Roberts v. State, 5 Tex.App. 141, 150; Carter v. State, 8 Tex.App. 372; Lockhart v. State, 53 Tex.Cr.R. 589, 593, 111 S.W. 1024; Craft v. State, 57 Tex.Cr.R. 257, 261, 122 S.W. 547; Corbitt v. State, 72 Tex.Cr.R. 396, 163 S.W. 436; Woods v. State, 87 Tex.Cr.R. 354, 221 S.W. 276. In Sims v. State, 36 Tex.Cr.R. 154, 156, 36 S.W. 256, a dying declaration to the. effect that ‘Sims ought not to have shot me’ was held admissible, and in Connell v. State, 46 Tex.Cr.R. 259, 261, 81 S.W. 746, a similar statment to the effect that ‘he had no cause for doing it’ was held admissible. In McBride v. People, 5 Colo.App. 91, 37 P. 953, the Supreme Court of Colorado affirmed the introduction in evidence as part of a dying declaration of a statement similar to that here complained of, asserting in the opinion that—
“Such statement was ‘merely intended to illustrate the lack of provocation and wantonness in which the appellant did the act; it was descriptive of the manner in which the act was committed; it conveyed the idea that the appellant disregarded the claims of humanity, and without giving any warning shot him. It was a statement of fact by way of illustration/

“We think the declaration fairly well within the often used phrase that an opinion which is a shorthand rendering of the-facts is admissible. We can see no ground of objection to this statement that could not have been urged in any of the cases above cited. To assert that one shot another for nothing is to state that the shooting was without cause, and was wanton and without justification. Appellant cites only the cases of Bateson v. State, 46 Tex.Cr.R. 34, 80 S.W. 88, and Williams v. State, 40 Tex.Cr.R. 565, 51 S.W. 224, as authority for his contention. The Bateson case was disapproved by this court in Clark v. State, 56 Tex.Cr.R. 293, 120 S.W. 179, in which latter case we held that it was permissible to prove for the defense a statement which was -a part of the res gestae, to the effect that the accused shot in self-defense. We think the language used in both the Bate-son and Williams cases much more objectionable than that.here complained of, and that neither of them should be carried to the extent of being held as authority to reject the statement which is made the basis of this objection. We are of opinion that there was no error in admitting the entire dying declaration.”

We find in the record several exceptions to the charge of the court which do not appear to have been authenticated by the trial judge. However, bill of exception No. 1 brings forward the exceptions to the charge with the following statement appended to the bill:

“Said above written objections and exceptions were filed with the clerk of said court before the main charge was read and delivered to the jury and the court did thereafter amend his main charge to the jury and again presented the same to the defendant for his objections and exceptions and the defendant again, before said main charge was read and delivered to the jury, re-urged all of the above written objections to said main charge, to which objections and exceptions on the part of the defendant the court did then and there overrule said objections and exceptions, to which action of the court the defendant did then and there except and tenders this as his bill of exceptions number one and asks that the same be approved and ordered filed as a part of the record in this cause, which is accordingly done.
“The above and foregoing Bill of Exception No. 1 is hereby approved and ordered filed this 11th Day of September, 1940, with the following exceptions and qualifications concerning the last paragraph thereof:
“The first part of said paragraph, beginning with the words: ‘Said above written •objections and exceptions were filed’, and ending with the words: ‘and again presented the same to the defendant for his objections and exceptions’, is correct, but the part of the said last paragraph following the part last quoted is incorrect, in that, after the Court amended and re-drafted the charge and presented the same to counsel for the defendant, and counsel for the defendant was given time to, and did, examine the same, he, counsel for the defendant, then stated to the Court that there were no further exceptions to the charge, whereupon said charge was read to the jury.”

In view of the qualification to the bill of exception, we would not be warranted in appraising the objections to the charge. We quote from Jennings v. State, 121 Tex.Cr.R. 384, 51 S.W.2d 341, 345, as follows: “It is recited in bill of exception No. 14 that appellant submitted a special instruction to the court in which the jury would have been advised to acquit appellant if they believed from the evidence that the codefendant, Wilson, actually committed the homicide while acting in his own self-defense. In qualifying the bill of exception the court stated that, after the special charge was submitted to him, he corrected his main charge, and considered that the main charge, as corrected, embodied the substance of the special instruction. It does not appear that appellant excepted to the corrected charge. Appellant did not except to the court’s qualification to the bill of exception, and is bound thereby. If appellant was not satisfied with the charge after it was amended, it was incumbent upon him to file further objections thereto. Sims v. State, 117 Tex.Cr.R. 88, 34 S.W.2d 1098; Jackson v. State, 103 Tex.Cr.R. 252, 280 S.W. 808; Hall v. State, 97 Tex.Cr.R. 158, 260 S.W. 878.”

It is shown in bill of exception No. 8 that appellant filed his second application for continuance based on the absence of “Jack, an Indian boy, residing at Wewoka, Oklahoma.” It is stated in the application as follows: “That no subpoena has been issued for this witness due to the fact that he resides out of the jurisdiction of this court; no application to take the deposition of this witness has been made for the reason that his last name and street address are unknown.” It is further stated in the application that appellant had an accurate description of the witness, and that he had good reason to believe that said witness was temporarily absent from Wewoka, Oklahoma. Again, it was stated in the application that appellant expected to prove by the witness that he was near the scene of the homicide and heard Buddy'Benton order appellant off of his premises, saying to him in effect that he would leave if he knew what was good for him. The witness would have testified, further, according to the averment in the application, that Benton spoke in angry tones. We think the trial court was warranted in overruling the application for continuance., The affidavit of the witness showing the testimony he would give was not appended to the motion for new trial. The judicial discretion rested with the trial judge to determine, in passing on the motion for new trial, whether or not 'the absent testimony was probably true in view of all of the evidence heard during the trial. However, if the absent witness had made affidavit that if present he would have sworn to the facts stated in the application for continuance, and such affidavit had been attached to the motion for new trial, then the discretion of the trial judge to determine the probable truth of such testimony would not have operated. Tubb v. State, 109 Tex.Cr.R. 455, 5 S.W.2d 152. In the absence of the affidavit of the witness the trial judge was warranted in finding, in the light of the evidence adduced upon the trial, that the testimony of the absent witness was not probably true. Likewise the trial court was warranted in concluding that if the absent testimony should be before the jury in another trial, under the facts presented by the record, it is not reasonably probable that a more favorable verdict for appellant would result. See Davis v. State, 133 Tex.Cr.R. 215, 109 S.W. 2d 756.

A careful examination of all of appellant’s contentions leads us to the conclusion 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 of the fact that he thinks this court, in its original opinion, misread and misunderstood the trial court’s qualification to his' exceptions and objections to the court’s charge in that the trial court said, in substance, that after he had amended the charge in the light of appellant’s objections, then the appellant had no further objections thereto. We think the decisions quoted in the original opinion mean that in the event of certain objections having been made relative to the court’s charge, in the event of the trial court’s amendment thereto, it is also obligatory upon the part of appellant that he again level his objections to the amended charge, otherwise such objections will be waived.

The main contention in such objections to the court’s charge was based on the fact that the trial court failed to instruct the jury that the deceased was the wife of appellant at the time of the fatal difficulty, and that a decree of divorce theretofore rendered between the appellant and the deceased was void, upon the grounds that the deceased had not resided in the forum of the divorce case trial a sufficient length of time in order to entitle her to file a suit for divorce therein. An effort to have this divorce declared void in this criminal proceeding was a collateral attack thereon. We think that this judgment is but voidable at least, and can only be declared_ to be of no effect in a direct attack thereon. It is not a jurisdictionál matter as to the time of residence of the plaintiff in the court of trial. The Supreme Court in Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 79, 89 A.L.R. 1198, in an opinion by Justice Critz', held that: “Under the above construction of article 4631, we hold that it is not a jurisdictional statute at all, but merely a statute prescribing the qualifications of the plaintiff in divorce cases. The plaintiff must possess the qualifications prescribed by article 4631 before he is entitled to prosecute a divorce suit in the courts of this state.” To the same effect is an opinion by Justice Monteith in the case of Prendergast v. Prendergast, Tex.Civ. App., 122 S.W.2d 710.

In other words, it is held that the matter of plaintiff’s continuous residence is not a jurisdictional matter, but that the statute, Art. 4631, Vernon’s Civil Statutes, merely prescribes certain qualifications of the plaintiff in order that the suit might be brought.

It is also worthy of note that appellant signed a written waiver of service of citation in'the deceased’s divorce case filed in Tarrant County, and entered his appearance therein. We do not think he could attack the validity of that divorce decree entered in said cause in Tarrant County in this criminal proceeding.

We see no reason to recede from our holding in the original opinion, and this motion is therefore overruled.


text:
    ROBINSON v. STATE.
    No. 21492.
    Court of Criminal Appeals of Texas.
    March 19, 1941.

      Reed & Cannon, of Groesbeck, and H. S. Beard, of Waco, for appellant.
    L. L. Geren, Co. Atty., J. B. Engledow and Clarence Ferguson, Asst. Co. Attys., and L. W. Shepperd, Sp. Prosecutor, all of Groesbeck, and Lloyd W. Da-vidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted for knowingly receiving and concealing stolen property, and the jury assessed his penalty at two years in the penitentiary.

The State’s main proof consisted of the testimony of confessed accomplices.

It was shown that the warehouse of the Magnolia Petroleum Co. in Groesbeck was burglarized on the night of July 17, 1940, and a quantity of lubricating oil and grease taken therefrom. The two accomplices both swore that they took this quantity of oil and grease to appellant’s home in the nighttime, and he bought same from them, paying him therefor a price proven to be much less than their fair value. The State then showed by a negro, Ollie Busby, that at about three o’clock in the morning, sometime about the middle of July of that year, appellant came to where Busby was living on appellant’s place and awakened Busby, and told him that he was going to “stash” some oil. From the context we infer that the word “stash” means to hide, conceal or dispose of this oil. Busby demurred but finally went with appellant and hid this oil that was at such time in appellant’s pickup truck. .After hiding this oil, which was -in cans, contained in cases, the two came back to appellant’s home and emptied some of these small cans into w large five gallon can, and afterwards the negro Busby, under appellant’s instructions, burned these small cans in appellant’s hog pasture. Later on the officers came to this negro’s house and he took them and showed them where the oil had been hidden, and some of these cases of oil were recovered and brought into court and identified as a portion of the stolen oil. There were also found some burned cans where the negro said they were located, and the officers also found some oil in a five-gallon can near appellant’s home. Busby’s wife and mother-in-law also testified as to appellant’s three o’clock in the morning trip to Busby’s house, and one of them testified that appellant told Busby that “he wanted him to go with him and help him to put away some stuff,” and that appellant threatened to kill Busby if he did not go with him.

Appellant did not take the stand, and offered only one witness, his wife, who testified only to certain matters in an attempted impeachment of Busby’s wife and mother-in-law. She did leave an inference, however, that appellant had some land rented from a Mr. Simmons, and upon Mr. Simmons’ land was found a portion of the stolen oil. •

Appellant complains because of an alleged variance between the allegation and the proof in that the stolen property was alleged to have been that of E. M. Jones whereas he says that such property was that of J. T. Jones, and that the proof failed to correspond to the allegation. The testimony shows that the property alleged to have been stolen was under the care, custody and control of Mrs. Esther Maye Jones, and that she and her husband looked after such property. That her husband was subject to an affliction which at times rendered him unconscious, and that this property, while belonging to the Magnolia Petroleum Co., was in her care, custody and control. We think it is perfectly plain that she was the special owner, and that her name and initials were E. M. Jones. We see no failure in correspondence of the allegation and proof. See Branch’s P.C., p. 1316, § 2432.

Appellant again complains because it is claimed that the State failed to make out a case of receiving a sufficient amount of stolen property to show a felony. It is shown by the proof that the negro Busby took the officers to places where they recovered nine cases of oil and two buckets of grease, but only six of these cases bore any identifying marks thereon from which the witnesses were able to say that these cases came out of this Magnolia warehouse at the time of the burglary. It was shown that at the same time that these six cases of oil were stolen there were also other cases of oil stolen, the whole being valued at more than $50, and that all such stolen stuff was delivered to appellant near midnight of July 17, 1940. We think that such facts were sufficient for the jury to say that the amount received by appellant was either the whole of the stolen property or none of it. They may infer the stealing of the whole from the possession of a part. Branch’s P.C., p. 1332, § 2463, and cases cited. It is also worthy of note that the accomplices state that they delivered to appellant seventeen cases of oil, which would amount in value to more than $50.

Appellant complains relative to the court’s charge on accomplice testimony. We think the court should have responded to this complaint.. We suggest, in the event of another trial, that the court give in charge to the jury substantially the charge set forth in Brown v. State, 57 Tex.Cr.R. 570, 124 S.W. 101, which is quoted in Quinn v. State, 136 Tex.Cr.R. 131, 123 S.W.2d 890.

It is here noted that in order to connect this appellant under this indictment it is necessary to show guilty knowledge. True, this endeavor comes from accomplices, but that one fact does not render this proof inadmissible. Mr. Wharton lays down the exceptions to the general rule that forbids the introduction of crimes of a like character, and among these exceptions we find (3) to prove scienter or guilty knowledge. In Section 35, Vol. 1, on Criminal Evidence, he says: “Evidence of collateral offenses often becomes relevant where it is necessary to prove scienter or guilty knowledge, even though the reception of such evidence might establish a different and independent offense. In prosecutions for receiving stolen .goods, guilty knowledge is the gist or substance of the offense to be established by the prosecution; and evidence of collateral offenses is admissible to establish such knowledge.”

We think the Kaufman case, Kaufman v. State, 70 Tex.Cr.R. 438, 159 S.W. 58, 60, from which the above quotation is taken, is in point on this proposition. We also think the Henderson case, Henderson v. State, 76 Tex.Cr.R. 66, 172 S.W. 793, in point. In that case the State’s witness claimed that appellant told witness that he needed some pool balls, and if witness would get some pool balls the accused would buy them from him. Witness stole one No. 7 pool ball about one o’clock and brought same to accused’s room, who took same and asked witness to get some more. Then later witness and a friend stole four more balls and took same up to Henderson’s room, where Henderson’s wife took the balls and laid them down on the floor; the thieves then met Henderson on the street and told him about the four other balls, and he gave them fifty cents. This prosecution was for receiving the first ball No. 7. This court held that the second transaction of the additional four balls was admissible under Branch’s Crim.Law, § 338, and cases there cited. To the same effect is the case of Lytton v. State, 131 Tex.Cr.R. 654, 101 S.W.2d 564, the only difference between the Lytton case and the one at bar being that the State introduced a confession of Lytton; yet the court held in that case that the plea of not guilty placed the burden upon the State to prove not only the reception of the stolen property but also the guilty knowledge upon Lyt-ton’s part at such time. That the conspiracy between the parties and the other transactions therein complained of would be of value in establishing such knowledge.

We think that offenses of a like character as the receiving of the Groesbeck property were admissible. We doubt the admissibility of the Abe Schwartz stolen shirts. There seems to have been no conspiracy relative to such goods as the fruits of the Schwartz burglary.

We can see no harmful error in allowing J. T. Jones to testify relative to an affliction that he might have had and his liability to fall unconscious at any time.

Appellant’s bill of exceptions No. 9 complains of the remarks of the State’s attorney as follows: “Now then gentlemen of the jury, let us consider the characters in this crime. I am sure that the characters in this case are the most unusual of any that have been brought into the court room in many a day.”

Appellant seems to think that such remarks refer to his character, which he says was not put in issue. We think that the criticism is not well founded. Such remarks might have been directed at anyone of the numerous witnesses who appeared in the case, among whom the appellant was not. We see no error shown herein.

There seems also to have been an unfortunate personal encounter between one of the State’s witnesses and appellant’s counsel, and his bill of exceptions No. 11 is concerned with the State being allowed to prove by the witness engaged in such encounter his version thereof. This matter was offered and brought out by appellant’s attorneys presumptively for the purpose of showing bias and ill-will upon the part of such witness toward them and their client, the appellant. We think after such had been offered by the appellant, the State had the right to show the absence of such bias upon the part of the witness, which they endeavored to do by means of the objected to testimony. In the event of another trial hereof we suggest that the trial court embody in his charge a paragraph relative to these offenses other than that relative tó the Groesbeck oil, and therein limit the same only for the purpose of showing guilty knowledge, if they do thus show.

We note that the court instructed the jury that Busby was an accomplice as a matter of law. It is our opinion that in this respect the court committed an error against the State. It occurs to us that under the testimony it was an issue of fact whether Busby was an accomplice, and that issue should have been submitted to the jury. Busby testified that appellant came to his home on the night in question and asked him, Busby, to go with him and assist him in concealing some oil; that when Busby demurred, claiming that he was ill, appellant threatened to kill him unless he did as requested. Busby’s wife and mother-in-law testified substantially to the same facts. If Busby was put in fear of death or serious bodily injury, and, while laboring under such fear, he assisted the appellant in concealing the oil, he would not be an accomplice witness and his testimony would not be required by law to be corroborated. The fact that he may have kept silent' after the concealment of the oil would not make him an accomplice. It seems to be a general rule that a person who is forced by threats or actual violence to do an act is not liable to punishment for the same. See Turner v. State, 112 Tex.Cr.R. 245, 16 S.W.2d 127; Turner v. State, 117 Tex.Cr.R. 434, 37 S.W.2d 747; Wingo v. State, 85 Tex.Cr.R. 118, 210 S.W. 547, and Williams v. State, 33 Tex.Cr.R. 128, 25 S.W. 629, 47 Am.St.Rep. 21.

We therefore think that the court should have submitted to the jury the question as to whether or not the witness Busby was an accomplice, such fact to be determined by them under proper instructions.

We are of the opinion that the State failed to sufficiently corroborate the three accomplices in this matter. One accomplice can not corroborate another. The only corroboration we have is furnished by the negro Ollie Busby, who was denominated an accomplice by the court and who took the officers to the place where some of this stolen oil was found. No one save Busby ever places appellant at the hiding place. It is not clearly shown whether or not appellant had control of the land where the oil was hidden, nor how far from appellant’s home a portion of this oil was found. It is true that Busby’s wife says that she heard appellant tell her husband that he wanted the husband to go with appellant “and help him put away some stuff.” This statement is practically all the corroborating testimony to anyone of the three charged accomplices. Such testimony does not mention what kind of “stuff” was referred to by appellant, and leaves the jury as well as this court in doubt as to its meaning. We are of the opinion that the testimony in corroboration of this negro, who is charged,to be an accomplice, is too weak and uncertain to tend to connect this appellant with the commission of the offense charged in the indictment, and on account of such failure it is our duty to reverse this judgment.

We have examined all bills, and those not written upon are overruled.

The judgment is reversed and the cause remanded.


text:
    Johnie LONG v. STATE.
    No. 21502.
    Court of Criminal Appeals of Texas.
    March 19, 1941.
    J. R. Porter, of Clarendon, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in Donley County on a charge of driving an automobile while intoxicated, and assessed a penalty of fifty dollars and ninety days in jail.

Appeal was had to this court and he now files an affidavit asking that his appeal he withdrawn. Accordingly the same is ordered dismissed.


text:
    Johnie LONG v. STATE.
    No. 21503.
    Court of Criminal Appeals of Texas.
    March 19, 1941.
    J. R. Porter, of Clarendon, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Upon appellant’s plea of guilty of .the offense of driving an automobile upon a public highway while under the influence of intoxicating liquor, and the waiver of a trial by jury, the court assessed his penalty at a fine of $50 and imprisonment in the county jail for a period of ninety days.

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


author: WALKER, Chief Justice.

text:
    J. H. BAXTER et al., Appellants, v. Ira AVANT, Appellee.
    No. 3796.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 17, 1941.
    Rehearing Denied Feb. 19, 1941.
    J. R. McDougald and D. L. Broadus, both of Beaumont, for appellants.
    Fred A. White, of Port Arthur, for ap-pellee.
   WALKER, Chief Justice.

This appeal was prosecuted from a final judgment of the County Court of Jefferson County at Law, Jefferson County, Texas. Finding no error in the record, the judgment of the lower court is affirmed without written opinion. Texas & N. O. Ry. Co. v. Futch, Tex.Civ.App., 127 S.W.2d 1040.


author: PER CURIAM.

text:
    TRADERS & GENERAL INS. CO. v. DAVIS et al.
    No. 25496.
    Supreme Court of Texas.
    March 19, 1941.
    A. L. Lowery, of Nacogdoches, and Lightfoot, Robertson & Gano, of Fort Worth, for plaintiff in error.
    Collins, Williams & Garrison and Sumner VVilliams, Jr., all of Lufkin, for defendants in error.
   PER CURIAM.

A careful examination of the application for writ of error filed herein by plaintiff in error discloses that it contains no assignment attacking the rulings of the Court of Civil Appeals on the issues of good cause. We dismiss this application “W. O. J. — Correct Judgment,” but in doing so we are not approving the holdings of the Court of Civil Appeals on the question as to whether or not the defendants in error plead or proved good cause for not filing their claim with the Industrial Accident Board within the time required by law, Vernon’s Ann.Civ.St. art. 8307, § 4a.


text:
    Ex parte BRIGGS.
    No. 21563.
    Court of Criminal Appeals of Texas.
    March 19, 1941.
    M. E. Gates, of Huntsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant brought this action in the district court of Walker County to effect his release from the penitentiary, alleging that he was unlawfully restrained of his liberty under and by virtue of judgments and commitments issued out of the district court of El Paso County. He alleges further that said judgment and commitment papers were illegal and void, by reason of which he is so unlawfully restrained. He further says, “Applicant invokes the equitable powers of this court and asks the court that writ of habeas corpus be granted.”

The state answered by setting up two judgments by which he is held. They are found in the record as exhibits to the answer. On the Sth day of February, 1941, the district judge entered his order refusing to release appellant and recited that the evidence was heard and he thereupon found both the law and facts with the respondent.

There is no statement of facts in the record, no bills of exception, and nothing is presented to sustain the general allegations made by appellant.

The judgment of the trial court is affirmed.