author: KRUEGER, Judge. GRAVES, Judge. HAWKINS, Presiding Judge.

text:
    McDONALD v. STATE.
    No. 20672.
    Court of Criminal Appeals of Texas..
    Jan. 10, 1940.
    Rehearing Denied Feb. 21, 1940.
    Leave to File Second Motion for Rehearing Denied Feb. 28, 1940.

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

The offense is bigamy. The punishment assessed is confinement in the state penitentiary for a term of 5 years.

The state’s testimony, briefly stated, shows that appellant was legally married to Miss Eula Mae 'Crisp in Menard County, Texas, in the year 1937. That thereafter, on the 19th day of November, 1938, he obtained a marriage license from the county clerk of Coleman County and married Miss Roberta Belle Young. Both of said marriage licenses were duly returned and recorded by the clerks of the respective counties from which they were issued. The persons who performed the marriage ceremonies testified and each positively identified appellant as the man whom they married to the respective young ladies. Appellant testified in his own behalf. He admitted having married each of the ladies, but set up as a defensive theory that after his first marriage he and another person started on their way to Detroit; that on their way they stopped at a restaurant in some small town in Oklahoma for dinner and while there he (appellant) met a man named Reed who claimed to be an attorney. That he engaged Reed to obtain a divorce for him, which Reed agreed to do. That he and his companions then proceeded on their way to Detroit. He testified that after his return to Texas he received from Reed a document which he did not understand, accompanied by a letter requesting him to sign said document, have it witnessed, and then return it. That upon receipt of the same by Reed, the divorce would be obtained. He further testified that it was his belief that upon his compliance with this requirement, he was legally divorced from Eula Mae, and so on the following November he felt free to marry again. He also testified that subsequent to his second marriage he learned that the court in Oklahoma had declined to grant the divorce, and that from that day on he ceased to live with Roberta Belle Young as his wife.

By bill of exception number six, appellant complains of the action of the trial court in permitting the district attorney, on cross-examination of appellant, to make inquiry as to a certain letter which he had written to the father of Roberta Belle Young, in which he requested the father to have the marriage annulled; that he stated in said letter that he intended to go out west until the matter was straightened out, and then they could “re-do things.” He also stated in said letter that he had consulted a lawyer who had advised him that this was the best way out of it. Appellant objected to the introduction in evidence of the statements contained in said letter on the ground that the same were prejudicial, -irrelevant, immaterial and did not prove or tend to prove subsequent actions and statements. Even if it should be admitted that the testimony complained of did not tend to prove any element of the offense, we fail to see how it was hurtful to him. The letter showed that as soon as he learned that he had not obtained a divorce in Oklahoma, he sought to have the marriage with Roberta Belle Young annulled. It tended to show that he entered into the second marriage with the honest and sincere belief that he had a legal right to do so. That upon receipt of information to the contrary, he immediately did what he could to correct the error. In short, the letter brought out facts which, if the jury had believed them, might have been a potent factor in exonerating him from the charge for which he was on trial. It appears to us that the facts disclosed by the letter tended more to aid and strengthen his. defensive theory than to hurt him.

Bill of exception number two. complains of the court’s failure to instruct the jury that Roberta Belle Young was an accomplice and that he could not be convicted upon her testimony unless it was corroborated. The state did not rely upon the testimony of Roberta Belle Young. There was ample testimony from other sources which sustained the state’s case. Appellant admitted every fact necessary to support the charge in the indictment, but he sought to exculpate himself by his defensive theory. Moreover, the rule is well established in this state that when a woman with whom a bigamous marriage has been contracted testifies for the state and no proof is offered that she knew that the accused was already married at the time of the bigamous marriage, she is not an accomplice. See Bryan v. State, 63 Tex.Cr.R. 200, 206, 139 S.W. 981. The case of Burgess v. State, 88 Tex.Cr.R. 146, 225 S.W. 182, 184, cited by appellant as- sustaining his contention, does not do so. In that case Mrs. Evans, with whom the bigamous marriage was entered into, knew he was married and had a living wife at the time she married him, which is not the case here.

Appellant timely objected to the following charge of the court: “If from the evidence in this case you believe that the defendant C. W. McDonald was unlawfully married to Roberta Belle Young on or about the date alleged, and if you should further believe that at such time he had a lawful living wife, * * but you further believe that at the time of such latter marriage this defendant honestly believed that he had been divorced from his wife, you will find the defendant not guilty.”

He bases his objection on the use of the word “honestly” as contained in the charge. He contends that the use of the word “honestly” placed a greater burden upon him than he was required by law to carry. His belief as to his status at the time of his marriage to Roberta Belle Young would necessarily have to be based upon reasonable grounds before he would be excused by the law for this offense. If appellant acted upon a state Of facts which would not justify a person of ordinary intelligence in honestly arriving at a conclusion of his status, he would not, in the eyes of the law, be excusable. Webster defines the word “reasonable” to mean “just” and honest”. If his belief was not based on reasonable grounds, it might not be an honest belief inasmuch as he would have no reason to believe it at. all. In support of what we have said here we refer to the case of Williams v. State, 67 Tex.Cr.R. 287, 302, 148 S.W. 763.

By bill of exception number four, appellant complains of the action of the trial court in permitting the district attorney, over appellant’s strenuous objection, to inquire of Roberta Belle Young about whether she or her supposed husband, the appellant, received a certain letter, to which the witness answered: “Yes, from his wife.” Appellant objected thereto on the ground that it was a privileged communication. This bill is qualified by the court who states in the qualification that the letter was not offered in evidence. Consequently, the communication between husband and wife was not offered in evidence. It is true that the witness had theretofore testified that appellant told her that he had received a letter from his wife in which she stated that she could “stick them”. This testimony went before the jury without objection, but-even if appellant- had objected thereto, it would probably have been of no avail to him because it was a statement made by him and he was bound by it.

The introduction of the testimony complained of in bill of exception number five was relevant on the issue of whether appellant’s belief was well founded that he could obtain a divorce in the State of Oklahoma over night. The cross-examination of appellant by the district attorney tended to show that he had some general knowledge of the law relative to divorce proceedings in Texas, and in the absence of any showing to the contrary, the presumption would obtain that the law of Oklahoma is like, or similar to, the law of this state in such matters. It appears from his testimony that he had had two divorce proceedings in Texas. The record is silent as to why he believed that he could obtain a divorce in the State of Oklahoma without either himself, or the wife from whom he sought to obtain the divorce, living or ever having lived in said state. This testimony was admissible on the issue as to whether he had just grounds to believe, at the time that he married Roberta Belle Young, that he was divorced from his then living wife.

All of the bills of exceptions complaining of the argument of the prosecuting attorneys, in our opinion, fail to reflect reversible error. Some of the bills are qualified by the court, and as thus qualified fail to show error. Others show that the argument complained of was a just and reasonable deduction from the evidence.

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

No error of a reversible nature appearing in the record, the judgment is affirmed.

PER CURIAM'.

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

On Motion for Rehearing.

GRAVES, Judge.

Appellant again offers the contention that the wife of the second marriage was an accomplice, and therefore the court should have charged such, and also charged that her testimony should of necessity have been corroborated, etc.

The reason for the necessity of such charge, so appellant says, was because after learning of her bigamous marriage this wife continued to live with appellant for a short time. It might have been true that this bigamous wife was an accomplice to the offense of their unlawful living together after she had found out that he was not lawfully married to appellant, but the testimony shows that at the time the marriage occurred she thought that appellant was a single person, and, under the law, entitled to enter into the contract of marriage. She was not an accomplice witness to the bigamous marriage. Her testimony shows that she had been informed by appellant that he was a single man; that he had gotten his divorce, and was capable of legally entering into the marriage contract. It also seems that he continued to thus deceive his bigamous wife after she had questioned him about having a legal wife then living.

We see no reason for charging the jury relative to this witness being an accomplice. The offense of bigamy is complete when bigamous marriage occurs, regardless of subsequent cohabitation. Weir v. State, 115 Tex.Cr.R. 491, 26 S.W.2d 271.

Appellant’s defense was that he believed that he had been divorced from his first wife, and that he was entitled to an acquittal on the basis of a mistake of fact. He bases this defense on the following occurrence : He was in some unnamed town in Oklahoma some time in 1938, while on his way to Detroit; he was in a drug store alone, and he asked the drug store man if he could direct him to a reliable attorney, and the drug store man said there is one right there, pointing to a man at a nearby table, and appellant then related his troubles to this man, whose name was Reed. This lawyer lived at Ardmore, Oklahoma. Appellant paid this man $10 and went on his way. Appellant produced a letter at the trial purportedly from this man Reed; the envelope, however, he stated had been destroyed, the letter reading as follows:

“Ardmore, Oklahoma
“Nov. 5, 1938.
“Dear Mr McDonald,
“In regard to the inclosed form, Sign it your self and have one other to sign it also, As this is required on all out of State work. I wish to Also call your attention to the Bal-, on which you Owe, The same being $10,
I can of corse use it as son as I can get it, Do as I have Instructed you and I will stand betwene you and all other trouble.
“Atorney At Law, L. J. Reed.”

It also appears from the record that appellant had had previous experiences in matters of divorce, and the jury did not see fit to believe his defense of a mistake of fact when he contracted his marriage with this fourteen year old girl.

We see no reason for enlarging on what we have already said in the original opinion relative to the court’s charge on a mistake of fact as provided for in Article 41, Vernon’s Ann.P.'C. We think the charge given was probably more liberal than contemplated by the above statute. See Adams v. State, 110 Tex.Cr.R. 20, 7 S.W.2d 528.

We adhere to the views expressed in our original opinion herein.

The motion is overruled.

On Second Motion for Rehearing.

HAWKINS, Presiding Judge.

Appellant requests leave to file second motion for rehearing, asserting the court was in error in the original opinion and also in the opinion on rehearing in not reversing the judgment on appellant’s contention that the trial court should have instructed the jury that Roberta Belle Young was an accomplice witness.

Apparently appellant proceeds on the theory that it is reversible error in all cases where a party is an accomplice witness for the trial court to omit an instruction on the subject. We think this court is committed to the contrary view. In addition to the authorities cited upon that point in our original opinion, we call attention to Bogan v. State, 114 Tex.Cr.R. 468, 22 S.W.2d 944; Haines v. State, 134 Tex.Cr.R. 524, 116 S.W.2d 399; Wilkerson v. State, 93 Tex.Cr.R. 50, 245 S.W. 430; Fisher v. State, 81 Tex.Cr.R. 568, 197 S.W. 189. Under the facts of the present case we are of opinion that no reversible error could be held to have occurred by omitting an instruction on accomplice testimony as it referred to the witness in question. The present writer rests the disposition of the point under consideration upon the proposition last above stated, hence expresses no opinion as to whether the evidence may have raised an issue as to the status-of the witness.

Request for leave to file second motion for rehearing is denied.


source: Caselaw Access Project

author: KRUEGER, Judge. HAWKINS, Presiding Judge.

license: Public Domain

text:
    HAMPTON v. STATE.
    No. 20566.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1939.
    Rehearing Granted Feb. 14, 1940.
    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.
   KRUEGER, Judge.

The offense is theft of an automobile. The punishment assessed is confinement in the state penitentiary for a term of 10 years.

It was averred in the indictment that on April 2, 1935, appellant had been convicted in the Criminal District Court Number 2 of Dallas County in Cause No. 6307 of a felony of like character, to-wit: Theft of property over the value of $50. Upon the trial of this case the judgment of conviction in Cause No. 6307 was offered in evidence and appellant identified as the same person convicted in said cause.

Appellant’s first contention is that the trial court erred in declining to sustain his motion for an instruction to the jury to return a verdict of not guilty on the ground that the evidence was insufficient to warrant his conviction. The state’s evidence shows that on the night of September 10, 1938, someone stole an automobile belonging to H. G. Dollar while it was parked on 10th Street in the City of Fort Worth. Mr. Dollar, who was a city policeman, missed his car a short time before midnight and immediately reported it to headquarters. Messrs. Lockhart and McQueen, two city policemen, received information of the theft by radio. At the time they were on Highway 34 going toward Mansfield. They immediately started back to the city. When they reached Riverside Drive, they saw two small boys forced to jump up on the curb to avoid being hit by a swerving automobile. The car hit the curb, bounced back and then started down the street. The officers pursued the car which increased its speed, finally reaching a speed of about 70 miles per hour. After the car had entered Wichita Street, the party driving it tried to make a right hand turn onto a dirt road, but the car failed to make the turn and hit a ditch, ran into a wire fence and pulled down about 150 feet of it. The party, whom the officers identified as the appellant, jumped from the car and ran into a field of sunflowers. About an hour later a motorcycle officer who saw the party run into the field, arrested appellant about a mile from the scene of the wreck. Appellant’s trousers were torn into shreds, his body scratched and cut, and he was bleeding. He explained his condition by stating that he had been in a fight, but did not say when or where. He told the officer that his name was Charley Clark. Appellant did not testify but his father and sister testified that they knew appellant did not wear light trousers as testified to by the officers, but wore a pair of brown trousers. The car was sufficiently identified as the one stolen from Mr. Dollar.

Appellant addressed a number of objections to the court’s charge. His main objections are (1) that the court failed to instruct the jury relative to the law of an alibi, and (2) that the court failed to instruct the jury relative to an exculpatory statement when apprehended. It is our opinion that the issue of alibi was not raised by the evidence; hence no instruction thereon was required. Nor is there in evidence such an exculpatory statement as would require an instruction thereon to the jury. The mere fact that appellant said he had been in a fight when questioned about the condition of his clothes would not raise the issue of alibi as he might have been in a fight several hours before he committed the theft. Nor was his statement exculpatory of the offense. It might be conceded that he had had a fight and that during the encounter his clothes were torn before he committed the offense; but this would not entitle' him to an instruction that if his clothes were torn while he was engaged in a fight to acquit him. Before such an instruction would be justifiéd there would need to be evidence showing that at the time of the theft he was engaged in a fight. The statement did not exclude the idea of his presence at the time and place of the commission of the offense charged. See Parker v. State, 40 Tex.Cr.R. 119, 49 S.W. 80; Woods v. State, 80 Tex.Cr.R. 73, 188 S.W. 980, and authorities cited.

Bill number three complaining of the court’s action in overruling his second application for a continuance is without merit. The trial judge has qualified the bill by stating that this was a second continuance and that the cause had once before been continued because of the absence of counsel for defendant. Moreover, it is our opinion that the appellant has not shown that degree of diligence which the law requires. The indictment was returned against him on September 24, 1938, but it appears from his motion that it was March 10, 1939, before he ever caused a subpoena to be issued for the absent witness. He states that he did not learn of the return of said subpoena until the morning of the trial on March 22. The record fails to disclose when the subpoena was returned. It might have been returned on the 12th of March. If it was and appellant made no further effort to locate the witness and have other process issued, then he was also negligent in this respect. And while appellant states in his motion that “said subpoena is attached hereto and along with the application is made a part of this motion and shows that the said witness was not served by the Sheriff of Dallas County” we are unable to find the same in this record. Under- these circumstances, we do not think he has shown that degree of diligence required by the law. See 9 Tex.Juris, p. 785, Sec. 100 et seq.

After a most careful review of all the matters complained of we have reached the conclusion that no reversible error was committed. Therefore the judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

HAWKINS, Presiding Judge.

In -his motion for rehearing appellant stresses the contention that the record fails to show his connection with the automobile alleged to have been stolen from Mr. Dollar ; in other words, that the evidence fails to identify the car which it is claimed appellant wrecked as the alleged stolen car. This has given us much concern.

It is apparent that the contention now urged is not an afterthought for appellant presented a motion for an instructed verdict of acquittal for the reason as stated in the motion “that the State has wholly failed to connect the defendant with the taking of the automobile belonging to Mr. H. G. Dollar.” Mr. Dollar was a police officer of the City of Fort Worth. On the night of the 10th of September, 1938, at about eleven o’clock he parked his car at the corner of Tenth and Main Streets, and went about his duty patrolling his territory. About twelve o’clock he discovered that his car was gone and reported it to headquarters. He testified that about an hour after he reported its loss he received information “about the location of my car * * * but did not go to the place where the car was reported to have been found.” That same night between twelve and one o’clock he saw and identified his car at Parrent Garage, a place where the police stored cars which had been taken in charge by them. The car had been badly wrecked, and had scratches on the right side and top as if it had been in the wire. The car Mr. Dollar described as his was a “Ford ’34 Coach, V-8,” but he did not give the license number it bore. Mr. Lockard and Mr. McQueen, police officers, were cruising in a police car and-at the corner of Lancaster Avenue and Riverside Drive they noticed a car being operated in such manner as led them to believe the driver was intoxicated; they gave chase to the car for about five or six miles until the car was run into a fence and badly torn up. The party who was operating the car ran away and was not arrested until about an hour later. At the time the officers started chasing the car they had no information that Mr. Dollar’s car had been stolen, but received such information over the radio in a police car after the car they had been chasing- had been wrecked, and while they were at the scene of the wreck. It is apparent from the record that the effort of the State was directed toward identifying appellant as the driver of the wrecked car, which perhaps accounts for the dearth of proof on the point that the wrecked car was the stolen Dollar car, evidence of which would not seem difficult to obtain. ■

The only identifying description of the wrecked car was that it was a V-8 Ford Coach. It does not appear from the record before us how or by whom the car recovered at the Parrent Garage was taken there. No one testified to having received it there, and no one testified to having taken it there from the scene of the wreck, and no witness even gives the license number of the car.

Police officer Lockard testified on direct examination that when he and his partner first saw appellant on the night in question that: “He was headed toward Mansfield in this car belonging to Mr. Dollar.” It escaped our attention that such evidence was without probative value in establishing identity or ownership of the car in view of the fact that the same witness also testified as follows: “I didn’t know that auto of Mr. Dollar’s. I do not know what the license number was, I don’t recall just what the license number was on that * * * I didn’t know that there had been an auto unlawfully taken in Fort Worth at that time, especially the car we were trailing. As a matter of fact, I believed we were trailing a man that was slightly intoxicated.”

Officer Bartlett arrested appellant about an hour after the wreck and brought him back to the wrecked car. Other officers at the scene of the wreck had received a police broadcast that Mr. Dollar’s car had been stolen. Officer Bartlett, referring to the wrecked car, testified: “If that car was stolen I didn’t know when it was stolen, I didn’t know that. I didn’t know who .that car belonged to.”

So far as we know there has been no variance from the principle stated in Scoggins v. State, 92 Tex.Cr.R. 424, 244 S.W. 535, 536, that: “In order to warrant a conviction for theft where possession of recently stolen property is relied on, the property in possession of the party accused, or which had been in his possession,, must be identified as that stolen. It is true this may be done by positive testimony or by-proof of circumstances; when the latter is resorted to it must measure up to the standard which the law requires. See Branch’s Ann.[Tex.]P.C. p. 1342, § 2482.” See also Fountain v. State, 90 Tex.Cr.R. 474, 241 S.W. 489. It seems clear that no positive testimony on the question of identity of the car was placed, in the record. In order to hold the proof by circumstances sufficient it would be -necessary for us to indulge the presumption that because Mr. Dollar’s car had been wrecked, and had scratches on the top and side which looked like “wire scratches”, it therefore must have been the same car which had been wrecked by appellant, and this, in face of the fact that the record fails to show that any one ever moved the wrecked car from the place of the wreck.

After a most careful re-examination of the record we are constrained to grant appellant’s motion for rehearing, set aside the judgment of affirmance, and now reverse the judgment of conviction, and remand the cause for a new trial, and it is so ordered.


author: KRUEGER, Judge. GRAVES, Judge.

text:
    ASNER v. STATE.
    No. 20585.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.
    Rehearing Denied Feb. 21, 1940.

      E. T. Miller and Simpson, Dorenfield & Fullingim, all of Amarillo, for appellant.
    W. L. McConnell, Dist. Atty., of Panhandle, Underwood, Johnson, Dooley & Wilson, of Amarillo, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is receiving and concealing stolen property. The punishment assessed is confinement in the state penitentiary for a term of two years.

The testimony adduced by the state upon the trial shows that during the month of January, 1938, Ross McGill was engaged in drilling an oil well for the Cities Service Company on the Deahl Tract, located about ten miles west of Borger, Texas. Since the drilling was only done during the daytime, one Barney Morrison was employed as a nightwatchman. On Saturday, January 15, Barney requested his brother, Bill, to relieve him for the night. On that afternoon, Bill Morrison had gone to see appellant and Frank Seliger, the proprietors of the Panhandle Pipe and Supply Company in Borger, and made arrangements to sell them some tools that were west of town. Appellant and Seliger agreed to purchase them, and Bill Morrison promised to deliver them that night. Bill got in touch with Earnest Roberts and agreed to split the proceeds from the sale of the property if Ernest would secure a car and assist in delivering it. These parties drove out to the well that night and loaded a part of the tools and delivered them to appellant and Seliger at their place of’ business. They- then brought another load. After all' the tools had been delivered, appellant and Seliger asked them how much they wanted for the property, and when told $50 they replied that they could not pay this much as they were also taking chances. They finally paid about $33 for the tools. Appellant and Seliger then had the boys, who were only 19 years of age, sign fictitious bills of sale. A check was then issued, payable to the fictitious person named in the bill of sale, which was endorsed and then taken by Seliger to the K. C. store about eleven p. m. and cashed. A few days after appellant and Seliger had received this property, they caused it to be painted green, thereby covering up any identification marks by which the tools might have been identified. Appellant insisted that this measure was taken in order to preserve the tools, and not to cover up any identifying marks. Appellant did not testify but offered a number of witnesses, some of whom had been in the employ of the Panhandle Pipe & Supply Company for quite a while. They testified that the tools alleged to have been stolen had. been in possession of the company many months prior to the date of the alleged theft. Others testified that Appellant and Seliger were not at the office on the night in question. That appellant was at the home of his aunt attending a birthday party. While the evidence is conflicting, we think there are enough circumstances shown by the state to corroborate the testimony of Roberts and Morrison, and to justify the jury in their conclusion of appellant’s guilt.

One of the most hotly contested issues in the case was that of the value of the property in question. The state’s-theory was that there was no cash market value in the vicinity for the kind and character of the property in question, and they consequently proved replacement value. It was the defendant’s contention that the property in question was nothing but junk and as such its cash market value was-$4 or $5 per ton. One of appellant’s witnesses asserted that junk was worn out property, obsolete and not fit for use except in an emergency, while the property in question was useable and in good condition. Thus two theories as to value were presented. If it were junk, its value was $4 or $5 per ton. If it were not in such condition as would bring it within the classification of junk, then it had no cash market value and proof of replacement value was admissible. See Sec. 2488, Branch’s Ann.P.C. The question as to whether the property was or was not junk was one to be decided by the jury from the evidence and the appearance of the tools before them. Having solved this question, the solution of value became easy. Apparently appellant did not consider it as junk, or he would not have paid a sum for it which would have been sufficient to have bought four or five tons of the same. Moreover it is not likely that he would preserve the same by painting it if it were in fact junk.

By bill of exception number two, appellant complains because the witness Johnson was permitted to testify to the actual or replacement value of the' tools in question, after he had first testified that he had been engaged in drilling oil wells for the past thirty years. That he was familiar with the type of tools in question, ■their use and condition at the time they were stolen, and the cost price to oil well drillers. It occurs to us that since the witness had affirmatively stated that there was no cash market value for tools of that kind and character at or anywhere near the place from which they were taken, it was proper to state the replacement value. This is the well established rule in this state. See for example, Holmes v. State, 126 Tex. Cr.R. 587, 72 S.W.2d 1092; Vol. 36 Tex. Juris., p. 371, Sec. 41. The disposition of this bill controls bills numbers three, four and five and we see no need in discussing them. It likewise disposes of the objection to the testimony of the witness Conover, in bills 7, 8, and 9, which is to the same effect insofar as' it relates to the value, of the two five inch wrenches.

A complaint is urged in bill number six to the testimony of Johnson in identifying two wrenches, described ill the indictment as five inch wrenches, when it was shown by actual measurement that they were but 3½ and 3% inches respectively between the jaws thereof. The complaint made thereto is that this is a material variance from the allegations of the indictment. We are forced to disagree. Johnson testified that these wrenches were used on 5 inch holes and were commonly referred to as five inch wrenches. See Schenk v. State, 76 Tex.Cr.R. 235, 174 S.W. 357; Roman v. State, 64 Tex.Cr.R. 515, 142 S.W. 912; Dignowitty v. State, 17 Tex. 521, 67 Am.Dec. 670.

Bill number ten complaining of the testimony given by Rob. Ayers was cured by the prompt action of the court in sustaining appellant’s objection to the same and the accompanying instruction to the jury to disregard the same. This is particularly true since there was evidence before the jury that the stolen property was found in appellant’s possession and identified.

Bill number eleven complains of a question propounded to Ayers. Appellant’s objection to the question was sustained and the witness was not permitted to answer. We do not think the question, in and of itself, was of such prejudicial nature as would require a reversal. Moreover, it was not altogether improper for the state to show, if it could, that tools of the same type had perhaps been substituted. Bills numbers 12, 13, and 15 and sixteen appear to be without merit and we see no need in discussing them.

By bill of exception number fourteen, appellant complains of the action of the district attorney on cross-examination of appellant’s witness, Grubbs, in asking him the following question: “Were you there with the officers at the time Stephens’ stuff was identified as stolen?”

The court promptly sustained appellant’s objection and instructed the jury not to consider the same, and the witness was not permitted to answer the question. Appellant nevertheless excepted on the ground that the same was so highly prejudicial that the evil effect thereof could not be withdrawn from the jury. While the question may not have been properly’ framed, in that it contained an implied assertion that some of the property had been stolen from Stephens and was found at appellant’s place of business about the same time, we think if the state had been allowed to show that some property had been recently stolen from Stephens and had been found in the same yard at about the same time, it would have been admissible on the theory of guilty knowledge. Guilty knowledge was an element of the offense which the state was required to prove, and evi--dence of other stolen property being in appellant’s possession about the same time and place was a circumstance from which an inference of guilty knowledge might arise. See Kluting v. State, 90 Tex.Cr.R. 44, 232 S.W. 305, Padillo v. State, 129 Tex.Cr.R. 265, 86 S.W.2d 772 and authorities cited; Hodges v. State, 132 S.W.2d 863, decided by this court on Nov. 1 but not yet reported [in State report]. Moreover appellant offered evidence himself which showed that other stolen property was found in his yard and in his possession. Hence the evidence complained of as indicating an extraneous offense was no more prejudicial than that which he offered by his own witness.

Appellant urged a great many objections to the court’s charge, which contained an instruction upon every phase of the law applicable to the facts proved upon the trial. We see no need of entering upon a detailed discussion of each objection. One objection is based upon the ground that the court failed and refused to instruct the jury relative to the law of circumstantial evidence. We do not think such an instruction was necessary under the facts. A complete case was made against appellant by the testimony of Bill Morrison and Earnest Roberts, the accomplices. All the state needed was corroborating facts or circumstances. It is the settled rule in this state that unless the state’s case rests entirely upon circumstantial evidence, there is no need for an instruction upon the law relative thereto. See Wilson v. State, 115 Tex.Cr.R. 308, 28 S.W.2d 804, and Hicks v. State, 128 Tex.Cr.R. 595, 83 S.W.2d 349 wherein the identical question here presented is decided adversely to appellant’s contentions.

Appellant also contends that the trial court erred in refusing to limit the testimony of the accomplices to show the original theft. Such a limitation of the charge was not necessary under the facts of this case. The cases to which he cites us are cases in which confessions were made by the thief, and a limitation in the charge that such confession is only to be considered as establishing the theft is clearly proper. In the present case, however, the state offered the testimony of these witnesses, and appellant exercised his right to cross-examine them at great length. See Allison v. State, 98 Tex.Cr.R. 56, 263 S.W. 604, 606; Parrish v. State, 134 Tex.Cr.R. 545, 116 S.W.2d 706. Under these authorities, the ruling of the court in this particular was not error.

We think that the court’s instruction with reference to the value of the tools was sufficient as a guide for the jury in determining the question. There is also some complaint levelled at that portion of the court’s charge wherein he instructs them that they could not, in any event, find the value of the tools at more than that alleged in the indictment. He apparently contends that this makes evidence of the averments in the indictment. We are not in accord with him, since the proof tended to show that the value of the tools was more than alleged in the indictment. Consequently the charge was more favorable to him than otherwise. If it is his contention that it is error for the trial judge to refer to the indictment in the charge, we refer him to the cases of Salinas v. State, 113 Tex.Cr.R. 142, 18 S.W.2d 663, and Lindsey v. State, 108 Tex.Cr.R. 187, 299 S.W. 399, where this Court has held otherwise. There was also some evidence that some of the tools in question might not have belonged to Johnson, the special owner, and under the charge as given, this might have authorized the jury to conclude that the value of all the property was less than $50.

Perhaps the most perplexing question in the case is- the complaint urged by appellant that the trial court failed and refused, over proper objection of appellant, to charge on the law of exculpatory statements. His contention is predicated on the fact that when the appellant was first questioned by the officers relative to the stolen tools and a description given to him of these tools by the officers, he readily admitted that he had purchased some similar tools from other sources, including Clem Hines, and gave permission to the officers to search his premises for the goods described by them. Appellant insists that since these statements were proved by the state and were exculpatory in nature, the State was bound thereby until it disproved them beyond a reasonable doubt, and the trial court should have so charged upon proper request. If these statements made by appellant had been exculpatory in nature, and if appellant had made any damaging admissions in the same, there might be some merit to his contention. But the mere fact that the accused had bought some such tools from other persons and had them in his possession would not entitle him to a charge on exculpatory statements. By the statements relied on, appellant admitted nothing which might even remotely connect him with the offense with which he was later accused. The truth of the matter is that the statements were not admissions of anything upon which the state relied and which were relevant to his guilt; consequently they could in no manner be construed as exculpatory statements. To better illustrate our position, we quote the two statements made by appellant at the time he was first questioned and on which he seems to most strongly rely: The state’s witness, Ayres, a constable, testified: “I told him (the appellant) what kind of tools generally had been stolen. He very promptly told me that he had bought some tools like that. * * * To go ahead and search and see if-1 could find them here * *. * * He said go ahead and look. He further, told me that they had bought some tools of that general description. * * * He said he had bought them from Clem Hines.”

Johnson, a state’s witness, testified: “This boy here is the one who made that statement. It was the first time that we were there that this boy (appellant) Asner told Ayres that he bought those two wrenches from Clem Hines.”

Let us take a simpler case wherein the principle sought to be advanced can be more readily appraised. Suppose officers, in their search for a stolen watch, go to a pawn shop. They describe the watch to the proprietor, who then states: “I have many such watches pawned to me every day. I received watches such as you describe from X, Y, and Z during the past few months. Consider yourself at liberty, gentlemen, to search among my wares for the watch which you say has been stolen.” If this same proprietor were later charged with receiving and concealing this stolen watch, would it be seriously contended that his statements made at the time the officers started to search were exculpatory and demanded such a charge as is requested here? We think not. He has admitted no damaging fact upon which the state need rely, and has in no way connected himself with the crime. Insofar as the probative val.ue of the information given, it certainly could not be said that the statements could achieve the dignity of either a confession or an admission. He has, in fact, merely given his permission to search, which under these facts, could not be considered an exculpatory statement. Having admitted nothing, he is entitled to no such charge.

Viewing the statements relied on by appellant, it will be noticed that it would be impossible for the trial court to have successfully prepared a charge, basing the same upon these statements as being “exculpatory.” Moreover, the court did charge that if the jury believed appellant bought any of the property alleged in the indictment from the Gulf Company, Peltz, or anyone other than Morrison and Roberts, then not to convict them of receiving and concealing any such tool or tools. This, we believe, was all he was entitled to under the facts. In his able brief, appellant has cited us to a great many authorities, but they are all cases in which some exculpatory statement was made, and so we do not believe they have any application to the facts of this case.

From the statements above quoted, it will also be seen that appellant gave no explanation of his possession of recently stolen property when said possession was first challenged. Such explanation as he later gave, to the effect that the property had been purchased from the Gulf, Peltz, and others, was sufficiently charged on by the Court. In short, when first questioned we do not think appellant gave any explanation which would require a charge either on exculpatory statements or defendant’s explanation of his possession of property recently stolen.

All of the other complaints urged by the appellant have been carefully examined by us and are deemed to be without merit.

No error of a reversible nature appearing, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Motion for 'Rehearing.

GRAVES, Judge.

Appellant has filed a comprehensive motion, reiterating some of the points raised originally, and also challenging our ruling in the original opinion relative to what might be termed an exculpatory statement concerning the two five inch wrenches only, which were a part of the property claimed by the State to have been received and concealed.

Unquestionably the admission of the possession of such wrenches was damaging, in a way, to appellant, and would and did show his possession thereof, leaving the fact to be further proven of their theft and appellant’s knowledge thereof. His statement of their purchase from Clem Hines was also in a way exculpatory in so far as these two wrenches are concerned; but such a statement would only become exculpatory of a small portion of the property alleged to have been received and concealed, and therefore could not have resulted in imposing upon the trial judge the duty of authorizing in his charge an acquittal in this case, unless the State disproved the fact that such two wrenches were bought from Clem Hines. It seems that there was found and identified in appellant’s possession other property — as alleged in the indictment, which totaled over the value of fifty dollars' — that was not contained in the exculpatory statement. This property was identified as having been stolen from the complaining witness, and which property, exclusive of the two wrenches, amounted in value to more than fifty dollars.

At the most appellant was only entitled to have the jury charged that unless the State had disproved the statement relative to the purchase of these two wrenches from Hines, then they should not consider the same for any purpose in arriving at appellant’s guilt in this matter. As observed in -our original opinion, the court did charge the jury that if the jury believed, qr had a reasonable doubt thereof, that appellant purchased any of the alleged stolen property from the Gulf Company, Sam Peltz, or anyone else save the two confessed takers thereof, then they should not take into consideration such thus purchased property in arriving at their conclusion in this matter. Under such a charge we think that the court sufficiently instructed the jury, in effect, that they must believe beyond a reasonable doubt that the appellant did not purchase such wrenches from anybody save the two confessed thieves before they could take the circumstance of the possession of such wrenches into consideration while determining the issues in this case. We do not think appellant was entitled to any further instruction on his partially exculpatory statement in this matter. The court could not tell the- jury that because he had purchased two items of the many charged, that he was entitled to an acquittal, especially with the numerous other articles still unexplained; hence it naturally followed that he could only direct them to discard any items that they did not believe beyond a reasonable doubt were purchased from the two confessed original takers. If appellant had been charged with receiving fifty stolen wrenches, and had proved that he purchased five of these wrenches legitimately from a dealer, nevertheless such would not have entitled him to an acquittal, but would only have entitled him to have the jury not consider the possession of such five wrenches as a guilty circumstance in arriving at their verdict.

We are not impressed with the proposition that the testimony of the two confessed takers of the property should have been limited to the fact of the unlawful taking alone, but we do think that when present in person and giving their testimony, their testimony as to the sale or delivery of such stolen property was admissible for what it might be worth on the question of receiving and concealing such stolen property, of course, under proper instructions relative to their accompliceship. ' We think appellant has failed to recognize the fact, that these two original takers were also witnesses not only to the original taking, but also to the receiving of such property, and the knowledge of its stolen character upon the part of appellant. This latter testimony was material, and surely this court has never held that such additional testimony could not be given by the original thief, provided he knew the same. The case of Forrester v. State, 69 Tex.Cr.R. 62, 152 S.W. 1041, only holds that the fact of the unlawful taking of the original thief would not be proof that the accused received the property, knowing the same to have been stolen, and such should have been thus limited in the charge, but surely if the original taker had a further knowledge of the accused receiving and concealing such property, then his testimony thereof should be received under proper instructions.

The motion will be overruled.


author: BEAUCHAMP, Judge. HAWKINS, Presiding Judge.

text:
    BECKHAM v. STATE.
    No. 20737.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    Rehearing Denied Feb. 21, 1940.
    Callaway & Callaway, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

This case has been before this court on ■two former appeals. The first report will be found in 133 Tex.Cr.R. 206, 109 S.W.2d 764, and the second in 135 Tex.Cr.R. 338, 120 S.W.2d 97.

The conviction was had in McCulloch County and this appeal is from a two-year sentence in the penitentiary on a charge of murder.

The facts of the case are very much like those found in the former appeals except that the appellant did not take the witness stand in his own behalf in this trial. Therefore, we refer to the former reports for a more definite statement of the nature of the case.

• Complaint is made because the trial judge refused to permit testimony of a physician as to the deadly character of a knife found in the hand of Raymond Thompson, the deceased. This matter has been specifically passed on in the former appeal and we refer to that opinion as sufficient in the present appeal and adhere to the ruling there made.

Fred Sullivan, a witness for the appellant, was asked on cross-examination, “if it was not a fact that he, Fred Sullivan, was indicted and convicted for the offense of bootlegging in the District Court of Mills County, Texas, in 1931, and that if it was not a fact that he was jointly indicted in said case and jointly tried with the defendant, T. G. Beckham.” This evidence was timely objected to as it related to appellant because the appellant had not testified in the case in his own behalf and his general reputation was not in issue. These objections were overruled and the witness was forced to answer the question affirmatively. This court has recently held in Burl Simons v. State, -S.W.2d -, not yet reported [in State Reports], that specific acts of misconduct or criminal charges are improper for the purpose of rebutting evidence of general good reputation. The holding is supported by good authority, and the error in admitting the testimony is more vital where the appellant has not testified in his case and where his reputation is not in issue. The ruling of the court in admitting this evidence is error for which this cause must be reversed and remanded for a new trial. See Prater v. State, 104 Tex.Cr.R. 669, 284 S.W. 965; Brown v. State, 129 Tex.Cr.R. 394, 87 S.W.2d 720; Edwards v. State, 127 Tex.Cr.R. 386, 77 S.W.2d 241; Shipley v. State, 131 Tex.Cr.R. 527, 100 S.W.2d 704.

For the errors stated, the cause is reversed and remanded for a new trial.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

The State has filed a motion for rehearing insisting that we were in. error in predicating a reversal on proof over objection that the witness Sullivan had ' been jointly indicted with appellant for bootlegging. In an effort to explain away the error in admitting such testimony the State attaches to its motion an excerpt from the notes of the Court Reporter. The proceeding which we are now asked to consider is no part of the record and should not have been attached to the State’s motion. •

Bills of exception must be construed as they appear in the record and the bill complaining of the incident mentioned is approved without qualification or explanation. The State unquestionably had the right to cross-examine the witness Sullivan upon the point of his friendly relations with appellant, as toüching his bias as a witness, hut we are at an entire loss to understand how a joint indictment against the witness and appellant could have any hearing upon the question of bias. The return of the indictment was an act of the State, not an act of the witness, and one over which the witness had no control either as to its form or substance. The State, as touching the credibility of Sullivan, could ask him about whether he had been indicted in Mills County, but the question as framed involved the joint indictment of áppellant with the witness. Of course, if appellant had testified his indictment could have been shown as affecting his credibility. But he did not testify, and under those circumstances' we feel compelled to adhere to the conclusion announced in our original opinion.

The State’s motion for rehearing is overruled.

       Not released by court at date of publication.


author: GRAVES, Judge. KRUEGER, Judge.

text:
    GRAHAM v. STATE.
    No. 20762.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1940.
    Rehearing Denied Feb. 21, 1940.
    Hutchison & Fisher, of Paris, for appellant.

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

Appellant was convicted upon a plea of guilty to the possession of untaxed intoxicating liquor, and was by the court fined the sum of $100.

This appeal is predicated entirely upon the overruling of the motion for a new trial, and the bills of exception come to ús in an irregular manner, to say tjie least. They consist of exceptions because the trial court failed to grant a new trial because of his failure to agree with appellant’s attorney’s contentions as set forth in certain paragraphs of such motion for a new trial; and again a bill of exceptions was reserved because the court refused to agree with the attorney’s contention in a succeeding paragraph in said motion, and continuing in such a manner until practically all such paragraphs have been exhausted. We also note that the court qualifies the major number of such bills as follows: “All objections were made at hearing on motion for a new trial; no objections whatever during the trial of this case.” To each of these qualifications appellant’s attorney excepted. On what grounds we are at a loss to determine. The facts are undisputed that the court’s qualification in each such instance is true, and one of the bases for a new trial offered by appellant herein, although-it is not necessary nor do we consider such qualifications.

Appellant’s contention is that he was an ignorant negro, and that some' officers beat him up and took him to the court house, and told him if he did not plead guilty they would beat him again, and put him in the Federal court. That he did not know what he was being held for, nor that he had a right of trial by jury, nor a right to two days time in which to prepare for trial. That he was taken before the county judge, and did plead guilty, and was fined $100 by the judge. Appellant’s attorney offers a further ground for a new trial in that he alleges that the complaint and information were not filed at the time the plea was entered, and therefore Art. 29, C.C.P., Vernon’s Ann.C.C.P. art. 29, was violated.

There was a hearing had on the motion for a new trial, and the witnesses, with the exception of appellant, testified to ill treatment in but one instance. It seems that a liquor board inspector and a deputy inspector were watching a place where appellant was then located and saw him, when approached by a woman, go outside of such enclosure, and, after lifting some planks which covered a hole in the ground, saw him pour something in a glass and then return and prepare to hand this glass to another party. The inspector and deputy then came on the scene and demanded that appellant give them the glass which contained the liquid, whereupon appellant dashed such liquid, which was whisky, on the floor, and the inspector slapped appellant twice with his hand. They then went to the place where appellant had gotten this whisky, which was just outside the enclosure, and found five one-half pint bottles of corn whisky in a hole in the ground with no stamps attached thereto. Appellant was then taken to the county attorney’s office, and the whisky was placed on the table.' Assistant County Attorney Harrison said the inspector told him that he wanted to file on appellant for possession of untax paid liquor, and the attorney asked appellant what he wanted to do about it, and appellant said he was caught and wanted to plead guilty. He said he was guilty, and it was his whisky, and he could not do anything else but plead guilty. He said he wanted to plead guilty now, and the attorney wrote out the complaint and information, had them signed and filed, and went before the county judge, who entered the case on his docket. “The judge read the complaint and told the defendant what he was charged with, and asked him what he wanted to do, and he said he wanted to plead guilty, and he entered a plea of guilty. I filed the complaint and information before he entered a plea of guilty.” Neither one of the arresting officers said a word to the defendant in the county attorney’s presence about pleading guilty. Appellant asked for no lawyer, he asked for no time, he had no bruises perceptible, and said naught about anyone beating him up, and said nothing about any threats.

It also appears from the testimony that the assistant county attorney took this negro into the county judge’s office, and gave the complaint and information to the county clerk, who in turn gave them to the county judge, and the judge then interrogated the appellant. The judgment of the court then recites that the appellant pleaded guilty, after being duly admonished' by the court of the consequences thereof, and waived a trial by jury, and submitted his case to the court, and the court found him guilty, and assessed a fine of $100, the lowest under the law. The county clerk testified that these papers were handed to him for filing, and that he handed them to the county judge, and did not endorse a file mark thereon, nor place his name thereon until after the judge had entered the case on his docket, and heard the plea of guilty, but that the same were handed to him for filing prior to being given to the judge.

We think that the handing of certain papers to the clerk with the intent and purpose that they shall be kept among and treated as papers in the case, should be considered as having been filed in such case, and the failure of the clerk to place his name thereon, showing when filed, could be remedied nunc pro tunc. See Skinner v. State, 64 Tex.Cr.R. 84, 141 S.W. 231; also Branch’s Penal Code, p. 265, and many cases there cited.

The gist of appellant’s complaint lies in the fact that he was arrested, filed on, and had pleaded guilty in from forty-five minutes to an hour after his arrest for the commission of the alleged offense; that he did not know that he could have demanded a jury, nor that he had under the statute two days in which to prepare for trial, and that he pleaded guilty because he was beaten and threatened and coerced into pleading guilty to something that he did not do. The appellant’s testimony is in direct conflict with all the State’s witnesses, as well as the judgment of the court. The record bears out the qualification of the county judge to the bills of exception of appellant, although appellant excepts to each and every quali-ficatipn thereof. It is our opinion that the county judge was well within his rights when he overruled appellant’s motion for a new trial. He had a right to discard appellant’s testimony and accept that of the remaining witnesses, and refuse the motion for a new trial. We confess that we can see no reason for the granting of this motion.

The judgment is affirmed.

On Appellant’s Motion for a Rehearing.

KRUEGER, Judge.

Appellant, in his motion for a rehearing, insists that we were in error in holding that the complaint and information were in fact filed with the clerk of the county court at the time that appellant entered a plea of guilty to possessing untaxed whisky.

As stated in the original opinion, this matter was first called to the court’s attention on motion for new trial. In addition to what we said there, it might b.e noted that if the appellant desired to raise this question, he should have done so before his trial. Such matters cannot be raised for the first time after verdict. See Landreth v. State, 73 Tex.Cr.R. 377, 166 S.W. 503; Starbeck v. State, 53 Tex.Cr.R. 192, 109 S.W. 162; Brogdon v. State, 63 Tex.Cr.R. 475, 140 S.W. 352. As was . stated by this court in the case of Hall v. State, 70 Tex.Cr.R. 240, 156 S.W. 644, 645: “Further replying to this motion in arrest of judgment, it will be noticed under ail the decisions that this matter cannot be taken advantage of by motion in arrest of judgment; that is, with reference to the filing. These matters must come on motion to quash. * * * We are of opinion that, in reference to these matters, there is no merit, and the law is against appellant’s contention.”

Appellant also contends that we erred in holding that he had waived a jury. Looking to the judgment in the record, we find that it recites that appellant waived a jury and entered a plea of guilty before the court. The proof offered on the motion for a new trial is contradictory and is, in our opinion, not strong enough to overcome the presumption of verity which attaches to the judgment. Appellant stated that he did not waive a jury. The assistant county attorney testified that he was present in court and it was his impression that appellant did waive a jury. This, together with the recitals in the judgment, raised an issue which the trial court decided adversely to appellant’s contention. The cases of Wagner v. State, 87 Tex.Cr.R. 47, 219 S.W. 471 and Williams v. State, 93 Tex.Cr.R. 94, 245 S.W. 918, cited by appellant in support of his position, are distinguishable. In neither of those cases was there testimony that appellant had waived a jury, while in the instant case such an issue was raised. Moreover, in the instant case it might be noted that there is no contention on appellant’s part that he was not guilty of the offense. He merely complains because of the manner in which the trial was had. Assuming his guilt, which he admitted, we fail to see how he could have fared any better at the hands of a jury than he did before the court. . He received the minimum penalty prescribed by law for this offense. However, a defendant is entitled to a trial by jury unless it is waived. As stated in the original opinion, under the facts as disclosed by the record, we think the trial court was justified in overruling appellant’s motion for a new trial.

The motion for a 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: CHRISTIAN, Judge. GRAVES, Judge.

text:
    LANG v. STATE.
    No. 20700.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    Rehearing Denied Feb. 21, 1940.
    Robert P. Brown, of San Angelo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is night-time burglary of a private residence; the punishment, confinement in the penitentiary for five years.

The injured party, Mr. J. A. Casey, testified that he and his wife left their residence about 7:30 p. m. on the 9th day of January, 1939; that it was dark and the lights were on at the time; that all the doors and openings of the house were closed when they left; that they later returned and found the house in disorder; that some of the property taken from the house consisted of his wife’s winter coat, her suit case, a piece of costume jewelry, several suits of underwear, some shirts, a pair of white shoes, some pins, a tie clasp, and a pair of white gloves; that he later recovered some of the articles at the city hall and was able to identify them as being his property; that among the articles recovered were the white shoes which belonged to him; that he did not give the appellant nor any other person his consent to enter the house and take his property.

A city policeman testified that he recalled the occasion on January 9, 1939, when the residence of Mr. Casey was burglarized. He said: “That was reported to me at that time. I know the defendant in this case. I first saw him on the next morning about 11:30 o’clock after the burglary was reported.” The witness testified further, as follows:

“On the occasion when I saw the defendant, I had started up North Chadbourne Street, and I saw two negro boys coming east on West Fifth Street, and one of them was carrying a little brown over-night suit case, and I thought I would talk to them and see who they were, and when I got right close to them I saw the end of the suit case was busted like the one that was lost, and I drove up by the side of these boys and asked them where they were going and what their names were, and they told me they were going to Sweetwater; going to hitch hike out of town, and I told them to get in the car and I would take them to the police station and check up on them and carry them out on the road.
“This defendant is one of the two boys I refer to. At that time the defendant was carrying something rolled up in a newspaper.
“I opened the door for the hoys to get in the car and they broke and ran up the alley between Fifth and Sixth Streets. I shut the door and circled the block and ran them back in the alley. They would run back and forth. I couldn’t catch them, and one of them throwed the suit case down and the other one picked it up. Then along about 115 West 5th Street, there was a house there and they ran behind the house, and one of them went north and the other went across the railroad track and I took after the one that went north, because I couldn’t cross the railroad tracks in the car, and he ran into a yard and I hollowed for him to stop, and he stopped and came walking towards me and got a house between us and broke and run again and I shot.
“When I stopped the defendant he had something wrapped up in a newspaper under his arm, and both of his pockets stuck out. He had pretty good sized packages in his pockets.
“I saw that suit case later. When I couldn’t find them any more, I circled back by the house and found where they had thrown the suit case and package over in the yard. The defendant had passed by that yard; I saw him pass by there. I was able to identify the suit case I found there as being the same one that was in the possession of the two negro boys. I took the suit case and package to the police station. The package contained a pair of white shoes. I took the package with the white shoes in it to the police station, and later turned them over to Mr. Casey. I also turned the suit case over to Mr. Casey. That is Mr. J. A. Casey.”

Appellant insists that the testimony fails to show that the burglary was committed in the night time. We are unable to agree with this contention. It is observed that Mr. Casey testified that he left his house about 7:30 p. m., January 9th, and that it was dark at the time. The policeman who recovered the stolen property testified, in effect, that the burglary was reported to him on January 9, 1939. Again, it was his version that he saw the appellant the next morning “about 11:30 o’clock after the burglary was reported.” At that time he recovered the stolen property. We think the testimony we have referred to sufficient to show a night-time burglary.

We are also unable to agree with appellant’s contention that the circumstances are insufficient to exclude every other reasonable hypothesis except appellant’s guilt. The proof, in our opinion, shows that shortly after the burglary appellant was in possession of some of the property which had been taken from the home of the injured party. His possession of such property was unexplained.

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 relative to the identification of the package which the witness Boyd testified he saw in appellant’s hands at the time appellant and his companion were first accosted by Mr. Boyd, the police officer, and urgently insists that the identification of this package with the one found in the yard, near where appellant and his companion passed in their flight from the officer, is so vague and indefinite that the same can not be considered the possession of recently stolen property. We do not think so. It is shown that appellant and his companion were in possession of a broken suit case, as well as a package wrapped up in a newspaper and tied with a string, such package having the shape and contour of shoes. That when accosted, appellant fled, and when later seen had no such package with him, but same was found in a yard, directly on the route followed by appellant in his flight. That it was the same package the witness was positive. He testified: “I saw the package which I have testified to in the possession of the defendant, Leon Lang, and later on I found a similar package; those packages looked alike. I know they were one and the same package. It is my opinion that the packages were one and the same, based on the fact that they looked alike, because it was wrapped in a newspaper with a string tied around it. I know the two packages were the same one. I did not put any mark of identification on the package at the time I stopped the two boys. It is my opinion the packages were one and the same, based on the fact that they looked alike, because it was a newspaper and tied with a string. I looked at the package real well when I was talking to the two boys, and I noticed the size and shape of the package. You could tell the way it was wrapped what was in it. I didn’t see the shoes in the package, but you could tell the shape of them; you could tell what was in it. The packages were the same; they were similar in shape and size. I can’t tell the jury any peculiar way it was wrapped; it was just wrapped up with a string around it. It was about the only way you can wrap up shoes, I imagine.”

We think this identification is sufficiently positive to meet the rules of circumstantial evidence. These shoes were a part of the property taken from the house.

The motion is overruled.


author: CHRISTIAN, Judge.

text:
    LYONS v. STATE.
    No. 20667.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    ■ Archie S. Brown, Jr., and John H. Ditt-mar, both of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for-the State.
   CHRISTIAN, Judge.

The offense is murder; the punishment, death.

The proof on the part of the state was to the effect that on March 7, 1938, H. W. Seely was robbed by appellant and Robert Manning. In perpetrating the robbery appellant and Manning struck deceased several blows with a piece of iron and inflicted wounds on his head from the effects of which he later died.' The state introduced in evidence appellant’s confession in which he admitted that he acted with Manning in perpetrating the robbery. However, his statement was to the effect that only Robert Manning struck the deceased. We quote a portion of the statement as follows : “Just before we got in there Robert said he needed some money and don’t back out, and I figured then that he was either going to pick Mr. Seely’s pockets or use strong-arm methods, and then I went on into the place with him.” We quote from the testimony of Robert Manning, who. was introduced by the state, as follows:

“On the night of March 7, 1938, somewhere in the neighborhood of nine o’clock we were in Buck’s place on East Commerce Street. I met Webster Lyons there and we talked for a while and he told me, ‘Come on, let’s go around on thé street.’ finally I said I could go. He first asked me if I was going to my brother’s funeral and I told him I was and he said he would like to go with, me but that he had no money and I told him all I could do was to give him the money if he wanted to go. He then said he knew where he could get some money if I would go with him and I said, ‘All right. What is it?’ We walked around by the railroad express building and there we talked about old man Seely’s place and he told me that he had worked for Mr. Seely one time and that he knew he had money. He told me if I would go with him we would have plenty of money and I told him I had never done anything like that and he said, ‘You won’t have to do anything. Just come and go with me.’ I then told him all right. We then went to the railroad tracks and Webster picked up one iron and I picked up one. This piece of iron you show me is one of the pieces we picked up. We left there and went up Center Street to Mesquite Street ánd turned off and went down one block to Commerce Street right across the street from Mr. Seely’s place about the middle of the block. We went to Mr. Seely’s place and I noticed there was a man there talking to him and we stopped and stood there a while and the fellow left the place and went across the street, and we went into the place of business and Mr. Seely was in there by himself. Webster said, ‘I am going to tell the old man I am going to Buy a coat.’ That was before we got into his place of business. We went into the place and Webster tried on the coat, and he tried on several coats, and finally he kept motioning to me to hit Mr. Seely, and I would not hit him, and he came to me and said, ‘Robert, why don’t you hit the old man?’ I told him I was not going to hit Mr. Seely and he told me to go on and hit him.
“Mr. Seely was standing between Webster and me and he turned to look at me and Webster hit him and he fell over on the floor into the clothes racks and Webster turned out the lights and closed the door. Webster told me not to stand there and look but to go and look to see if I could open the desk, and I took an iron bar and went to the desk and the drawer was open and I looked through the drawer and found a pistol and Webster came to me and said, ‘Look what I got.’ He said, T got this off the old man. Have you found anything?’ I told him I had not found anything except the pistol and Webster then said, ‘We had better get out of here.’ I said, ‘Wait, let me look through the drawer’ and then Lyons went back to Mr. Seely and I heard him hit him, I don’t know how many times and I went to Webster and said, ‘Don’t hit him any more.’ I said, ‘Come on, let’s get out of here’ and we went out the door and we went to the same place to the railroad express company building, and Webster turned his pocket inside out and he had* some money. We had found some keys and he threw the keys and a small box we had found on top of the building and said, ‘That is the way we do that stuff.’ He then said, ‘We had better hurry up.’ We went to Frank’s place. Frank is a pawn broker, and there Webster got a brown suit of clothes out of pawn and bought a shirt and necktie, and we then left there and went back to the house and changed clothes. While we were in Frank’s place he changed his silver into hills and Webster told Frank he had hit a jackpo't, and asked Frank if he would change his silver into bills, and Frank did.
“After we changed our clothes we went down on the street, and went into Buck’s place and while in there heard the ambulance go by and Webster winked at me. We went out on the street and Webster asked a man what happened and the man said, ‘There is an old man out on the street that two colored boys had robbed and he is all bloody and crawling on the street/ The ambulance picked him up. I said, ‘Well, Webster, we had better go.’ I said, ‘My aunty said she was going to whip me if she caught me down on the street.’ We got a taxi and went to the Missouri Pacific and caught a train and went to San Marcos. We went into the rest room and looked at the pistol and Webster kept the pistol until we got to San Marcos and then gave it to me. The next morning we went to the house of a cousin of mine and he took us to Martindale and we had a flat and stayed there until the flat was fixed, and then went on back to San Marcos and when we got there the funeral had started, and at the funeral service a policeman arrested me.
“I sold the pistol to a man, whose name I do not know, but my brother was working for him in a filling station. We divided the money we got for the pistol and went to Martindale.”

There were many corroborating circumstances introduced by the state.

Appellant excepted to the charge of the court on the ground that it failed to require the jury to find a specific intent to kill. A further exception was based upon the ground that the court failed to charge upon aggravated assault. These exceptions, appear to have been properly overruled. In Miller v. State, 112 Tex.Cr.R. 125, 13 S.W.2d 865, 867, we held that under our present murder statute, which was passed by the Fortieth Legislature (Gen. & Sp. Acts 40th Leg. 1927, Chapter 274), the court is ordinarily required, when the charge is demanded, to instruct the jury that they must find that the accused intended to kill the deceased. In the course of the opinion Judge Martin, speaking for the court, used language as follows r “There do exist cases, we think, in which it is not necessary to prove a specific intent to kill any further than is involved in the proof t f certain facts, as the intentional infliction of serious bodily injury upon the person of another by the use of a weapon deadly per se, or a killing committed in the attempted perpetration of arson, burglary, etc. In such cases we can see no reason for giving the charge under discussion.”

Appellant’s amended motion for new trial was overruled on the 26th day of April, 1939, at which time he gave notice of appeal. The court granted appellant ninety days from the date mentioned in which to file his bills of exception. We find in a supplemental transcript eight hills of exception. They were filed too late to warrant their consideration. The first six bills were filed August 24, 1939. The last two bills were filed September 5, 1939. Thus it is seen that the majority of the bills were filed 120 days after notice of appeal was given and that the others were filed 132 days after such date. We have examined these bills of exception and if we were authorized to consider them we would be constrained to hold that they fail to reflect reversible error.

The judgment is affirmed.

PER CURIAM.

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


author: HAWKINS, Presiding Judge.

text:
    JOHNSON v. STATE.
    No. 20701.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    W. R. Petty, of Palestine, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for pursuing the occupation of a pawnbroker without having paid the taxes due the State, and without obtaining a license to pursue said occupation, punishment being a fine of $150.

Article 6146, R. C. S., defines a pawnbroker as “one who pursues the business of lending money upon interest and receiving upon deposit any personal property as security for the payment of such loan and interest.”

Article 7047, subdivision 13, R. C. S., levies an annual state tax of $150 upon “pawnbrokers.” Article 121, P. C., provides as follows: “Whoever shall pursue or follow any occupation, calling or profession, or do any act taxed by law, without first obtaining a license therefor, shall be fined not less than the amount of the taxes due and not more than double that sum.”

The present prosecution is predicated upon the statutes mentioned.

Appellant challenges the sufficiency of the evidence to support the conviction, and our State’s Attorney admits in his brief that such contention presents quite a troublesome question. The word “occupation” as used in the statutes under consideration means a vocation, trade, or business in which one principally engages to make a living or obtain wealth. Robbins v. State, 57 Tex.Cr.R. 462, 123 S.W. 695; Love v. State, 31 Tex.Cr.R. 469, 20 S.W. 978. The tax being levied “annually”, the inquiry particularly pertinent would be as to the business of accused during the current year. Only two transactions occurring within the period of a year were shown by the State which might support the contention that appellant loaned money on collateral personal security. It was appellant’s contention that he was a jeweler, and that he bought outright jewelry, and other articles, and supported such contention by exhibiting a bill of sale to the property involved in one of the transactions mentioned. It was admitted on the trial that appellant had not complied with any of the requirements prescribed by Title 107, R. C. S., relating to pawnbrokers.

The State proved over appellant’s objection another transaction which occurred about seven years prior to the present prosecution. This was objected to as too remote and it is conceded by the State’s Attorney — and we agree with him — that this evidence was too remote and should have been excluded.

The nearest illustrations in the way of precedents are found under a statute enacted by the Legislature in 1909, Acts 31st Leg., 1st Called Sess., c. 15, whereby it was made a penitentiary offense for a person to “engage in or pursue the occupation or business of selling intoxicating liquors” (section 1) in an area in which local option had been adopted. By the same Act of the Legislature it was provided that “In order to constitute the engaging in or pursuing the occupation or business of selling intoxicating liquors within the meaning of this act, it shall be necessary for the State to prove in all prosecutions hereunder, that the defendant made at least two sales of intoxicating liquor within three years next preceding the filing of the indictment.” (section 3.)

Under the provisions of the last above quoted statute it was sought to have the law so construed that if the State had shown two sales of intoxicating liquor within the time mentioned it was sufficient to support a conviction upon a charge that the accused was engaged in the business of selling intoxicating liquor in dry territory. This court consistently refused to give the law any such construction, but on the other hand, held that if the State’s evidence showed only two or more isolated sales it was not sufficient to support a conviction upon a charge that accused was engaged in the business mentioned. See Thomas v. State, 66 Tex.Cr.R. 374, 147 S.W. 262; Floyd v. State, 66 Tex.Cr.R. 407, 147 S.W. 264; Whitehead v. State, 66 Tex.Cr.R. 482, 147 S.W. 583; Oliver v. State, 68 Tex.Cr.R. 414, 152 S.W. 1066.

Under the authorities cited it follows that the present conviction can not be sustained against the contention that the evidence is insufficient.

Appellant raises some question regarding the sufficiency of the indictment. We discover no merit in this criticism.

The judgment is reversed and the cause remanded.'


text:
    LEVY v. STATE.
    No. 20819.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    E. T. Edrington, of Houston, King C. Haynie, of Houston, on appeal only, for appellant.

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

The offense is a threat to take life; the punishment, a fine of $100.

The record before us is without a statement of facts.

Appellant attacks the complaint and information as being insufficient on the ground that it was necessary to do more than set forth the offense in the language of the statute. The information follows the complaint. We quote the charging part of the complaint as follows: “Abe Levy and Mrs. Jean Levy did then and there threaten to take the life of a human being, to-wit, James E. Hatch, said threat being then and there seriously made, and did then and there threaten to do and inflict serious bodily injury upon the said James E. Hatch, said threat being then and there seriously made.” In support of his position appellant cites Goulding v. State, 126 Tex.Cr.R. 73, 70 S.W.2d 200. In that case the prosecution proceeded under Art. 1268a, Vernon’s Ann. Texas P.C., which provides: “Whoever shall threaten to take the life of any human being or to inflict upon any human being any serious bodily injury, or to burn, injure or destroy any property of any person for the purpose or with the view of extorting money or anything of value from the person threatened shall be guilty of a felony. One guilty of the above offense shall be confined in the State Penitentiary not less than five nor more than twenty-five years.” The present prosecution proceeded under Art. 1265, P.C., which reads as follows: “Whoever shall seriously threaten to take the life of any human being or to inflict upon any human being any serious bodily injury shall be fined not less than one hundred nor more than two thousand dollars, and in addition thereto may be imprisoned in jail not exceeding one year.” This court has expressly held that under the article last quoted a complaint following the language of the statute is sufficient. We quote from Tynes v. State, 17 Tex.App. 123, as follows:

“Under the article 809, Penal Code, denouncing a penalty for seriously threatening to take the life of a human being, the leading object contemplated in the prohibition is the act itself of threatening to take life, whatever may be the mode of doing it. ‘A threat to take life is a definite, single act, capable of being performed in different ways by the use of different words, just as in the case of an assault. * * * Still, however, variant the modes and means of performing the act, it is single and definite, and therefore it is not required that the particular mode or means in any case shall be set out.’ In such case, it would be sufficient for the indictment to charge that the defendant ‘did then and there unlawfully, feloniously and seriously threaten to take the life of A. B.,’ etc. * * *
“A different rule prevails where the offense consists in the sending of a threatening letter with the purpose of extorting money. In such a case it is not sufficient to charge the offense alone in the statutory words. The composition, that is, the letter itself, should have been set out, or such a description given of it that the court, upon inspection, could have judged of its character, and whether or not it was what is 'alleged to be a threat for the purpose of extorting money. * * * ”

In Longley v. State, 43 Tex. 490, in construing the statute now under consideration, the court said: “The indictment complies substantially with the statute, and it was not necessary that it should contain the language in which the threat was expressed.”

In Branch’s Ann.P.C., Section 2682, it is said: “An indictment or information for seriously threatening to take the life of a human being or to inflict serious bodily injury upon a human being need not set out the words constituting the threat. The legal effect of the language constituting the threat may be alleged, and when this is done it is not necessary for the indictment or information to contain the language in which the threat was expressed.”

Giving application to the announcement of the authorities, we are constrained to overrule appellant’s contention that the complaint and information are insufficient.

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.


author: GRAVES, Judge. CHRISTIAN, Judge.

text:
    THOMPSON v. STATE.
    No. 20624.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    Rehearing Denied Feb. 21, 1940.
    Philip S. Kouri, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of an assault with intent to rape upon Vesta Welborn, and by the jury .given two years in the penitentiary.

The prosecutrix, a girl eighteen years of age, lived in the country near Electra. She was barely acquainted with appellant, a man thirty-one years of age. On the occasion herein complained of she was in company with some of her girl friends at the Petty Drug Store, and in the afternoon prosecutrix, the appellant, Mr. Nash and a girl friend went to the picture show, the appellant and prosecutrix sitting together. After' the picture show these parties returned to the drug store, and finally agreed to go that night to the Red Roof dance hall and attend a dance there. Later on they again met at the drug store, and finally left for the dance in an automobile owned and driven by Mr. M. D. Walker, with whom prosecutrix had been keeping company to some extent. Among others, appellant went along. He was a married man, although separated from his wife at such time; but prosecutrix claimed not to have known that he was married. Upon reaching the Red Roof the party obtained two booths, and immediately began the drinking of mixed drinks, using gin, whis-ky and alcohol. The prosecutrix claimed to have drunk only one drink, a Manhattan cocktail, although her companions claimed she drank more than that amount, and that she was intoxicated; that she suffered from what they term a “crying drunk”. There was dancing on the part of all these parties, it being claimed that prosecutrix and appellant fell down on the dance floor, and that possibly prosecutrix fell down on the steps of the hall while leaving. They again entered the car of Mr. Walker, a coupe, and took the other girls home, leaving Mr. Walker, appellant and the prosecutrix in the car. Again about twelve or one o’clock they came to the drug store, which had a liquor package store in conjunction therewith,- and drank a soft drink, and then took one of the clerks in the store to his home. They then approached Mr. Walker’s home, and had a conversation relative to who should take prosecutrix to her home some distance in the country. It was finally agreed that appellant should take her home. After they had driven about a mile and a half out of town towards her home, appellant stopped the car and grabbed prosecu-trix and told her that he was- going to “get into her britches.” At this time she began to fight him and scream, and it is claimed by her that appellant scratched her and bit her and threatened her with a knife; that appellant hit her and finally knocked her out of the car, and she ran up the road screaming for help. That appellant chased her and caught her, and finally got her down in a ditch by the side of the road and pulled her dress up and tried to take off her step-ins but was not able to do so. While she was fighting appellant down in the ditch a car came up and stopped by the Walker car, and she told appellant that was her father’s car, and she ran to her father and began to tell him of the occurrence. The father produced a shot gun from the back of his car and proceeded towards the ditch. When near the ditch they saw appellant, who got up off the ground and started to run, and after calling to appellant to stop the father fired twice, appellant falling at the second shot. The father then disabled the Walker car and went back into town arid reported to the officers who upon returning to the scene found that appellant had gone but left the car. It also appears that appellant suffered with many No. 4 shot wounds. Appellant’s contention .was that he had merely kissed and hugged the prosecutrix, and that she was “crying drunk” and that the different bruises on her body were caused by her falling and striking herself on different objects. Much of this testimony was controverted, but in the main we have outlined that on which the jury evidently relied in finding their verdict.

Appellant’s bill of exceptions No. 2 is without merit, and is overruled. The requested charge which is the basis of this bill was given by the court in a more succinct manner than was requested by the charge incorporated in this bill.

We also find bill of exceptions No. 3 in the identical situation that bill No. 2 is in, and we observe the same ruling.

Bill of exceptions No. 4 complains of the trial court’s refusal to withdraw from a jury certain testimony showing that the father of prosecutrix shot the appellant with a shot gun. The trial court refused to withdraw such testimony from the jury, evidently thinking the same to be res gestae of the transaction, but he did give to the jury a special charge reading as follows: “Gentlemen of the Jury: Certain evidence was permitted to go to you concerning the father taking his shot gun and finding his daughter on the night of the alleged offense. I charge you as a matter of law that you cannot convict the defendant upon this evidence alone,, neither can you convict the defendant alone upon the evidence that the father of the prosecutrix shot the defendant later.” We think the testimony admissible as res gestae, it being shown that the father came up while the struggle between appellant and prose-cutrix was actually in progress, and that appellant was shot while fleeing from the actual scene.

Bill of exceptions No. 5 is overruled. It is concerned with the court’s failure to give a certain instruction relative to the mental condition of prosecutrix caused by her claimed intoxication at the time of the alleged assault. We do find that the careful trial court did' give a charge containing practically the same things requested by appellant in this charge.

Bill of exceptions No. 6 is made up of the appellant’s objections and exceptions to the court’s charge. • We have gone over the same in conjunction with the court’s charge, and find that the court’s charge, together with the special charges given, admirably and correctly present the law as applied to the facts in this case.

Bills of exceptions Nos. 7 and 8’are also overruled for the same reason as is herein given for overruling bill No. 2.

Bill of exceptions No. 9 complains because of the asking of the question to one of appellant’s character witnesses as to whether the witness had heard of the appellant having- been charged with drunkenness. It seemed that after the witness had answered that he had not heard of such charge, the witness was also asked whether he had heard of appellant living in adultery with a certain woman on a certain street, to which such witness answered that he had not heard such. We note that appellant applied for a suspended sentence in the event of a conviction, and also put his character in issue as a peaceable, lawabiding citizen. It is also observed that these same questions were propounded to the appellant as well as to many others of his character witnesses with no objection being shown thereto, and under these circumstances we think the bill does not reflect reversible error. See 12 Tex.Jur. p. 766.

Bill of exceptions No. 12 complains of the trial court’s failure to peremptorily instruct the jury to return a verdict of not guilty. This charge should not have been given.

Bill of exceptions No. 13 complains of the prosecutrix being allowed to testify as to what her father did at the scene of the alleged struggle, when he procured his gun. We have Already -heretofore held that such was res gestae, and admissible as part of the transaction.

Bill of exceptions No. 14 complains because the father Mr. Welborn was allowed to testify that when he started after his daughter on the night in question, that as he “started out the front door, and the gun was sitting by the side of the door, and I picked it up and took it with me.” That Mr. Welborn had the gun was testified to by appellant himself, and we can see no probable reason how appellant could have possibly been injured by allowing testimony to a fact that was so patently present at the scene of the alleged offense.

We see no error reflected in this record, and the judgment is affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

In our disposition of bill of exception No. 9 we had no intention of holding that the state' should not be permitted in cross-examining appellant’s character witnesses to ask them whether they had heard of rumors or of particular and specific charges or acts of the appellant inconsistent with the character the witnesses were called to prove. It is well settled that a witness to the good character of the accused may be asked upon cross-examination whether he had heard of rumors, or of particular and specific charges or acts of the accused inconsistent with the character he was called to prove, not to establish the truth of such charges, but to test the credibility of the witness and enable the jury to weigh his evidence. Garza v. State, 129 Tex.Cr.R. 443, 88 S.W.2d 113.

After carefully re-examining the record in the light of appellant’s motion for rehearing we are constrained to adhere to the conclusion expressed in the original opinion.

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.