author: WALKER, Chief Justice.

text:
    STATE v. CENTRAL POWER & LIGHT CO.
    No. 3764.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 23, 1941.
    Rehearing Denied Feb. 5, 1941.
    Gerald C. Mann, Atty. Gen., and W. R. Koch, Pat Coon, F. B. Isely, Ocie Speer, and Geo. W. Barcus, Asst. Attys. Gen., for appellant.
    Kemp, Lewright, Dyer, Wilson & Sor-rell, of Corpus Christi, and Looney & Clark, of Austin, for appellee.
   WALKER, Chief Justice.

The appeal was prosecuted by appellant, the State of Texas, to the Austin Court of Civil Appeals from the judgment of the district court of Travis county, sustaining the general demurrer to its petition against appellee, Central Power and Light Company. The case is on our docket by order of transfer by the Supreme Court.

We make the following summary of appellant’s petition: (a) The State of Texas was plaintiff; Central Power and Light Company, a Massachusetts corporation with a permit to do business in Texas, was defendant, (b) “On such dates as hereinafter are more specifically set out, and on such other dates as are to the plaintiff unknown, but well known to the defendant, the defendant entered into conspiracies and formed trusts and combinations of its capital, skill and acts between itself and others hereinafter named, and made and entered into agreements and conspiracies and did the acts and deed hereinafter more specifically set out for the following purposes, to-wit:

“1. To create, and which tended to create, and carry out restrictions in trade and commerce and aids to commerce, and in the preparation for market and transportation of electric light and motor power, and to create and carry out restrictions in the free pursuit of said business which is authorized and permitted by the laws of this State.
“2. To fix, maintain, increase and reduce the prices of electric light and motor power, and of the preparation of said products for market and transportation within the State of Texas.
“3. To present and to lessen competition in the manufacturing, making, marketing, transportation, sale and purchase of electric light and motor power within the State of Texas.
“4. To fix and maintain standards and figures whereby the price of electric light and motor power, and also the preparation of electric light and motor power for market might be, and were, affected, controlled, and established in the State of Texas.
“5. To make and enter into, maintain, execute, and carry out contracts, agreements, and obligations, by which the defendant bound other parties not to sell, dispose of and prepare for market electric light and motor power, and to make contracts by which they agreed to keep the price of such commodities at fixed figures, and by which they affected and maintained the price of such commodities; and which did preclude free and unrestricted competition among the defendant and others in the marketing and sale of such commodities within the State of Texas.
“6. To abstain and to cause others to abstain from engaging and continuing in the business of marketing electric light and motor power within, the State of Texas.
“The manner in which said conspiracies, trusts, and combinations were created and carried out is hereinafter more specially set out.” (c) The manner of the execution of the conspiracy was plead in detail, (d) On the 11th day of March, 1936, the City Council called an election to determine whether or not the City of Yorktown, incorporated under the general laws of the State of Texas with all the rights granted to such a city under Title 28, R.C.S.1925, Vernon’s Ann.Civ.St. art. 961 et seq., would vote bonds to the amount of $65,000 “for the purpose of acquiring a municipal lighting and power system for generating and distributing electric current for ’ the use by and for the sale by the city.” The election was held on the 3rd day of April, 1936, with 204 votes for the issue and 171 against, (c) The defendant, its agents, employees, and other persons, “combined their capital, skill, and acts in an effort to prevent and lessen competition in the manufacture, making, transportation, distribution, and sale of electric light and motor power by attempting to defeat the election called to authorize the City Council of the City of Yorktown, Texas, to issue bonds to construct their own electric light and power plant and distributing system.” The petition detailed five specific acts committed by the defendant in its effort to defeat the election, (f) “On or about October 18, 1937, the defendant proposed to members of the City Council of the City of Yorktown, Texas, that they forego the building of their own municipal plant, which plant would be a competitor of the defendant company, and in return for this agreement on the part of the city, the defendant would pay the city a cash consideration, and make other valuable concessions. The following memorandum of agreement was entered into by the defendant and the City Council of Yorktown and the mayor and members of the City Council of Yorktown in their individual capacities on or about October 18, 1937:
“ ‘State of Texas
“ ‘County of Dewitt
“ ‘This memorandum of agreement entered into this 18th day of October, 1937, by and between the City of Yorktown, Texas, acting by and through its duly authorized Mayor and City Secretary, hereinafter referred to as “City”, and Central Power and Light Company, .a Massachusetts corporation, with a permit to do business in Texas, acting by and through its duly authorized President and Secretary, hereinafter referred to as “Company”, Witnesseth:
“ ‘Whereas, heretofore, on the 3rd day of April, 1936, a majority of the qualified voters of the City of Yorktown, at an election called and held in pursuance to a Resolution of the City Council of the City, of Yorktown, voted to authorize the City Council of the City of Yorktown to issue Lighting and Power Revenue Bonds of said City in the sum of Sixty-five Thousand Dollars ($65,000.00) for the purpose of erecting and constructing an electric light and power plant and street lighting and distributing systems in and for the City of Yorktown, Texas; and
“ ‘Whereas, the said City of Yorktown had theretofore, on August 21, 1935, applied to the Federal Emergency Administration of Public Works for a grant to aid it in the construction of an electric light and power plant and street lighting and distribution systems; and
“ ‘Whereas, the said Federal Emergency Administration of Public Works offered, by proposal dated December 11, 193.5, to assist the said City of Yorktown in constructing "an electric light and power plant and street lighting and distribution systems by way of a grant; and
“ ‘Whereas, the City Council of said City on the 7th day of January, 1936, adopted a resolution purporting to accept said grant; and
“ ‘Whereas, the City Council of the City of Yorktown now deems it advisable, and not to the best interests of the City of Yorktown, and its citizens, to construct arid own and operate a municipal electric light and power plant; and
“ ‘Whereas, the City has made expenditures and created obligations in the sum of approximately Ten Thousand Dollars ($10,000.00) in preparation for the erection and constructions of an electric light and power plant and electric street lighting and distribution systems, and Company is willing to reimburse City said sum upon the terms and conditions hereinafter stated;
“ ‘Now, Therefore, It Is Agreed:
“ ‘(1) Company will pay City the sum' of Ten Thousand Dollars ($10,000.00) to fully reimburse it for any and all expenditures made and obligations erected in connection with its purpose to erect and construct an electric light and power plant and street lighting and distribution systems.
“ ‘(2) The City will not issue, sell of offer for sale bonds of the City which the City Council is authorized to issue by the election held on April 3, 1936.
“ ‘(3) The application made by the City to Federal Emergency Administration of Public Works of the United States of America for a grant or loan to aid iff financing the construction of an electric light and power plant and electric street lighting and distribution systems shall be withdrawn forthwith, and the Resolution adopted by the City Council on the 7th day of January, 1936, known as Resolution No. 1, and shown in the Minutes of the City Council of the City of Yorktown in Volume 1 at page 37, shall be repealed and rescinded by proper action of the City Council in form and manner to be approved by attorneys for the Company, and any and all contracts and agreements, whether made by offer and acceptance or otherwise, between the City and Federal Emergency Administration of Public Works for aid to the City in financing construction of an electric light and power plant and street lighting and distribution systems will be rescinded and canceled.
“ ‘(4) The City has this day entered into a contract with Company for the purchase from Company for a period of ten years from date thereof, of electric energy for municipal water pumping, and said contract shall be fully performed for the entire term thereof.
“ ‘(5) Company has this day entered into a contract with the City for the purchase from City of water in the amount of not less than Three Hundred Dollars ($300.00) worth each year for a period of ten years, for use at ice plant located in Yorktown, and Company shall fully perform said contract for the entire term thereof.
“‘(6) During the period of ten years which the said contracts described in paragraphs (4) and (5) above are in effect, City agrees not to build, erect or construct, nor attempt to build, erect or construct, or have built, erected or constructed, either directly or indirectly, an electric light and power plant and street lighting and distribution systems, or either or any of them, nor issue or attempt to issue the bonds authorized by the election held on April 3, 1936, or any other securities of any sort whatever, for the purpose of erecting or constructing an electric light and power plant and street lighting and distribution systems, or either of them.
“‘(7) The City Council of the City of Yorktown shall pass all ordinances and resolutions, either or both, necessary to carry out the intent of this agreement in such form and manner as are satisfactory to counsel for Company.
“ ‘(8) The sum of Ten Thousand Dollars ($10,000.00) to be paid to City by Company shall be placed in escrow in the First National Bank of Yorktown, Texas, and when such necessary ordinances and resolutions referred to in this Agreement have passed and approved, when the application or applications to the Federal Emergency Administration of Public Works for aid has been withdrawn, when the Contract or Agreement with Federal Emergency Administration of Public Works for aid in the form of a grant has been rescinded and cancelled and when the Contract for sale of electric energy by Company to the City for water pumping is authorized and executed, and when contract for sale by the City to the Company of water for use at Company’s ice plant as above mentioned is authorized and executed, then said bank, acting as escrow agent, shall be and is authorized to turn over and deliver to the City of Yorktown, the sum of Ten Thousand Dollars ($10,-000) so placed in escrow.
“ ‘In Witness Whereof, the City has caused this instrument to be executed by its Mayor and City Secretary and attested with its corporate seal, and the Company has caused same to be executed by its President and -Secretary, as of the 18th day ■of October, 1937.
“ ‘City of Yorktown
“ ‘By W. Westhoif
“ ‘Mayor
“ ‘City
“ ‘Attest:
“ ‘R. F. Senf
“ ‘City Secretary
“ ‘Central Power and Light Company
“ ‘Attest:
“ ‘W. D. Boone “ ‘By James C. Kenney
“ ‘Secretary President
Company.’

It was further alleged that the parties to the contract duly executed its obligations. (g) “Since October 18, 1937, the contract set out in full in paragraph VII, (paragraph (f) supra) herein, has been in existence between the defendant and the City of Yorktown, and the Mayor and members of the City Council of Yorktown in their individual capacities, which combination has successfully prevented and lessened competition, restrained trade and blocked the channels of normal business in the manufacture, sale and purchase of electric light and motor power, and the defendant who has wilfully and intentionally prevented and lessened competition in the manufacture, sale and purchase of electric light and motor power, and by the contract set out in paragraph VII, (paragraph (f) supra) above, has prevented the City of Yorktown from carrying out the mandate of its citizens as expressed in the election held for the purpose of determining whether a municipal light and power plant and distributing system should be constructed.” (h) It was further alleged that, on the facts stated in the petition, the defendant had become liable to the plaintiff for the penalties provided by Articles 7426 — 7447, the Anti-trust Statutes. The prayer was for judgment for the penalties and for injunctive relief restraining the defendant “from carrying out the agreements, conspiracies, trust and combinations within the State of Texas.” The prayer was also for general relief and for special relief in particulars not necessary to enumerate.

Opinion.

We give appellant’s sixth proposition: “The court erred in sustaining defendant’s general demurrer, because the contract or agreement between appellee and the city of Yorktown, pleaded by plaintiff, is an attempt to grant an exclusive franchise to appellee and creates a monopoly and unlawful combine in violation of the anti-trust laws and Constitution of Texas.”

If the contract in issue between appel-lee and the City of Yorktown granted ap-pellee an exclusive franchise, it thereby created a monopoly and an unlawful combine in violation of the anti-trust laws of the State and of Section 26 of Article I of the state constitution. It is the law of this state that no city can grant an exclusive right to furnish either water or light. City of Brenham v. Brenham Water Co., 67 Tex. 542, 4 S.W. 143.

On the following conclusions, it is our judgment that the contract in issue did not create a monopoly and an unlawful combine in violation of our anti-trust laws.

(1) The manifest purpose of the contract — the controlling purpose as between the contracting parties — was to furnish electric power to the City of Yorktown and its citizens. The City had the legal right to effectuate this purpose by contract with appellee. Neal v. San Antonio Water Supply Co., Tex.Civ.App., 218 S.W. 35; in the City of Brenham case, supra [67 Tex. 542, 4 S.W. 147], our Supreme Court said: “Taking all the laws into consideration, we cannot doubt the power of the city to make some contract through which the city might be furnished with water. * * * The legislature has also given power to every city within which one or more private corporations may have water-works to contract with one or all of them, and the further power to permit the use of its streets and other public grounds for the purposes of such works contemplated by the statute, by as many water companies as may desire to do so.”

So, to the extent that the contract empowered appellee to furnish electric power .to the City and its citizens, simply in that respect, the contract did not violate our anti-trust statutes.

(2) Article 962, R.C.S.1925, gave the City of Yorktown the power of “contracting and being contracted with,” and to “take, hold and purchase, lease, grant and' convey such real and personal or mixed property or estate as the purposes of the corporation may require.” By Article 1108 the City had the power to construct, operate and own an electric light system. Bass v. City of Clifton, Tex.Civ.App., 261 S.W. 795; West Texas Utilities Co. v. City of Spur, 5 Cir., 38 F.2d 466. These points must be conceded, because the bonds described in appellant’s petition were voted for the purpose of installing an electric light system. So, the act of executing the contract did not violate our anti-trust statutes.

(3) Had the bonds been sold and the electric system installed with the proceeds of the sale, by complying with the provisions of Articles 1112 and 1118a, Section 2, the City would have had the power to sell the plants, and, on authority of Article 1268, to sell even to a competing system. The moving purpose of Article 1268 was thus stated in the emergency clause: “The fact that the operation in many cities, towns and villages within this State of two or more electric, gas or water plants results in inefficient service and imposes a needless burden upon the people thereof * * Acts 24th Leg., Reg. Sess., p. 131.

The fact that these articles of the statute authorized the City to sell its electric system only on a majority vote of its citizens is immaterial on this issue. If such a sale was in violation of our anti-trust statutes, the vote of the citizens would not make it lawful. But that is not appellant’s point' — the want of power in the City of Yorktown to sell the improvements made by it in its attempt to erect the plant. The City had the power to make the contract in issue, except wherein the contract was inhibited by Section 26 of Article I of the Constitution, Vernon’s Ann.St., and by our anti-trust statutes. If that proposition were not sound, appellant’s petition would be subject to the general demurrer, without relation to our anti-trust statutes. It follows that the only point at issue between appellant and appellee is whether in making the contract, the contracting parties hedged it about with conditions inhibited by Section 26 of Article I of the Constitution and our antitrust statutes.

As we understand appellant’s brief, the following conditions of the contract are advanced as making it void: “(1) Company will pay City the sum of Ten Thousand Dollars ($10,000.00) to fully reimburse it for any and all expenditures, made and obligations erected (incurred) in connection with its purpose to erect and construct an electric light and power plant and street lighting and distribution system.”

This section of the contract was not illegal; having the power to sell the instru-mentalities named therein, the City of Yorktown had the power to name and agree upon the consideration. This section goes no further than to fix the consideration. '“(4) The City has this day entered into a contract with Company for the purchase from Company for a period of ten years from date thereof, of electric energy for municipal water pumping, and said contract shall be fully performed for the entire term thereof.”

The fact that the contract was to run for ten years does not make it violate our anti-trust statutes. On this point, in the City of Brenham case, supra, our Supreme Court said: “We do not wish to be understood to hold that a municipal corporation has no power, in any event, to contract for such things as are consumed in their daily use, for a period longer than .the official term of the officers who make the contract; but we do intend to be understood to hold that such corporations have no power to make contracts continuous in character, in reference to such things or any others, by which they will be, in effect,' precluded from exercising from time to time any- power, legislative in character, conferred upon them by law.”

Nothing in this clause of the contract precluded the City of Yorktown from exercising from time to time any power, legislative in character, conferred upon it by law. In the City of Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 19 S.Ct. 77, 43 L.Ed. 341, on all fours with the facts of the case at bar, the Supreme Court of the United States held that a contract for a continuous supply of water and the payment of rentals for twenty-five years did not preclude the City of Walla Walla from exercising from time to time its legislative power, in relation to securing a supply of water, conferred upon it by law.

“(5) Company has this day entered into a contract with the City for the purchase from City of water in the amount of not less than Three Hundred Dollars ($300.00) worth each year for a period •of ten years, for use at ice plant located in Yorktown, and Company shall fully perform said contract for the entire term thereof.”

This section of the contract contains no “exclusive” element. Appellee, by this section, did not contract with the City of Yorktown to purchase from it all the water needed to operate its business. It simply contracted to buy “not less than Three Hundred Dollars ($300.00) worth each year for a period of ten years.” Clearly, this section does not fall within the inhibition of the City of Brenham case, supra.

“(6) During the. period of ten years which the said contracts described in paragraphs (4) and (5) above are in effect, City agrees not to build, erect or construct^ nor attempt to build, erect or construct, or have built, erected or constructed, either directly or indirectly, an electric light and power plant and street lighting and distribution systems, or either or any of them, nor issue or attempt to issue the bonds authorized by the election held on April 3, 1936, or any other securities of any sort whatever, for the purpose of erecting or constructing an electric light and power plant and street lighting and distribution systems, or either of them.”

This section of the contract is not in violation of Section 26, Article I, of our Constitution, nor of our anti-trust laws. Having the power to sell the instru-mentalities, the subject matter of the contract, the City of Yorktown, as an incident of the sale, had the lawful right to agree for a limited time not to engage in a competitive business. 29 Tex.Jur. 769; Gates v. Hooper, 90 Tex. 563, 39 S.W. 1079. The literal language of this section denies appellant’s contention that it created a monopoly and an unlawful combine in violation of our, anti-trust laws. The City of Yorktown did not contract in this section, nor in any other section of the contract, that it would not grant to another company a franchise to build a second electric system within its corporate limits; by the language of the contract there was no limitation on the city’s right to grant additional franchises. The City did not contract away its power to purchase or acquire under eminent domain or foreclosure proceedings appellee’s plant, nor any other plant that might be erected on authority of this franchise. The City did not contract to take from appellee all the electric power to be used by it or - by its citizens for the ten years of the contract nor for any other period. As directly in point, sustaining our construction of the contract, we make the following quotation from the City of Walla Walla case, supra [172 U.S. 1, 19 S.Ct. 82, 43 L.Ed. 341]:

“The argument of the city is that the council exceeded its powers in authorizing the contract with the water" company for a continuous supply of water and the payment of rentals for 25 years, and that such contract was specially obnoxious in its stipulation that the city should not construct water works of its own during the life of the contract. * * * Without expressing an opinion upon the point involved in that case [the City of Brenham case is referred to, but that case is not in point' on this issue], we are content to say that an ordinance granting a right to a water company for 25 years to lay and maintain water pipes for the purpose of furnishing the inhabitants of a city with water, does not, in our opinion, create a monopoly, or prevent the granting of a similar franchise to another company. Particularly is this so when taken in connection with a further stipulation that the city shall not erect water works of its own. This provision is not devoid of an implication that it was intended to exclude only competition from itself, and not from other parties whom it might choose to invest with a similar franchise. * * * An agreement of this kind was a natural incident to the main purpose of the contract, — to the power given to the city by its charter to provide a sufficient supply of water. * * * We think a disclaimer of this kind was within the fair intendment of the contract, and that a stipulation to that effect was such a one as the city might lawfully make, as an incident of the principal undertaking.”

It follows that the judgment of the lower court sustaining the demurrer to appellant’s petition should be sustained.

We pretermit a discussion of appellee’s counter proposition that the City of Yorktown, a municipal corporation, was not a person,- firm, corporation, or association of persons within the meaning of our antitrust statutes. Also, we pretermit a discussion of appellant’s proposition that, if it be conceded that the City of Yorktown was not within our anti-trust statutes and was not subject to prosecution thereunder, such immunity did not extend to appellee as a conspirator under the anti-trust statutes with the City of Yorktown.

The judgment of the lower court should be affirmed, and it is accordingly so ordered.

Affirmed.


source: Caselaw Access Project

author: KRUEGER, Judge.

license: Public Domain

text:
    LANCASTER v. STATE.
    No. 21426.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    W. H. Crunk and C. C. McKinney, both of Cooper, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

Appellant was convicted for unlawfully transporting whisky in a dry area and his punishment was assessed at a fine of $500. .

It was charged in the complaint and information that Delta County was a dry area by virtue of an election held within and for said county by the qualified electors to determine whether or not the sale of intoxicating liquor should be prohibited there; that said election was held on the 16th day of October, 1897, and resulted in favor of prohibiting the sale of intoxicating liquor within said county, etc.

Appellant’s first complaint is that the trial court, at the conclusion of the testimony, declined to give to the jury his special requested instruction to return a verdict of not guilty. We are of the opinion that he was entitled to such an instruction because the testimony shows that if appellant transported any whisky he did so in Fannin County near the line between Fannin and Delta Counties. The trial court no doubt realized that the evidence failed to show that appellant ever entered Delta County while engaged in the transportation of whisky at the time in question, because he instructed the jury that if they believed from the evidence beyond a reasonable doubt that the defendant, in Delta County, or within four hundred yards of the boundary line of said county, transported whisky, to find Him guilty. The court evidently was of the opinion that Article 190, C.C.P. applied to cases of this nature and that is why he gave said article in his charge to the jury. The article mentioned is merely a venue statute and cannot transform a legal act into an illegal one. It is obvious that the sale or transportation of intoxicating liquor in a wet area, although within four hundred yards of a dry area, would not constitute an offense. Since the sale or transportation of the whisky was presumptively legal, the evidence was insufficient to authorize a conviction, and the charge of the court was also erroneous. See Owens v. State, 138 Tex.Cr.R. 297, 135 S.W.2d 997.

For the reasons indicated, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

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


author: GRAVES, Judge.

text:
    MORAN v. STATE.
    No. 21430.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    H. S. Beard, of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Conviction is for burglary; punishment, two years’ confinement in the penitentiary.

The record is before this court without statement of facts or bills of exception. The appellant entered a plea of guilty to the offense charged. The indictment and all matters of procedure appear regular.

The judgment is affirmed.


text:
    BARRERA v. STATE.
    No. 21418.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    Frank Lane, of Brackettville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

Appellant was convicted of an aggravated assault, and his punishment assessed at confinement in the county jail for a period of sixty days.

It was charged in the complaint and information that on or about the 7th day of June, 1940, appellant committed an aggravated assault upon Adela Alcala by cutting her with a knife; that Fidel Barrera was then and there an adult male and the said Adela Alcala was then and there a female, etc.

The testimony shows that on the night in question appellant called at the home of Mrs. F. Alcala for the purpose of taking her daughter Ermila to a picture show. When he arrived at their home Adela, the injured female, met him at the door and told him that Ermila was in her bed asleep and declined to admit him. Appellant then forced the screen door open and entered over Adela’s protest. As a result, a struggle ensued between Adela and appellant which aroused Ermila from her slumber. She went to the assistance of her sister and also called her mother. The two girls then took hold of the appellant’s hands, shoved him up against the wall and held him while their mother took the knife from him. It is further shown that during the encounter Adela was cut on her finger.

Appellant took the witness-stand and testified in his own behalf. He admitted going to the home of Mrs. F. Alcala on the night in question for the purpose of taking Er-mila to a picture show. He also admitted that Adela met him at the door but declined to let him in; that he entered over her protest which brought about an encounter between him and the girls; that during the struggle some one hit him on the top of the head with a glass object; that Adela was cut on her finger and it was bleeding. He denied that he did the cutting.

We think that the evidence is sufficient to sustain the conviction.

We find two hills of exception in the record which were filed too late to he considered. Appellant’s motion for a new trial was overruled on the 27th day of July, 1940, at which time notice of appeal was given. The hills' were not filed until September 23, 1940, which was fifty-eight days after adjournment of court. Under Article 760, C.C.P., Vernon’s Ann.C.C.P. Art. 760 appellant had thirty days after adjournment in which to file the bills of exception unless the time was extended by an order of the court and entered upon the minutes. In the absence of such an order the bills of exception had to be filed within thirty days after adjournment of court. See Glasper v. State, 76 Tex.Cr.R. 310, 174 S.W. 585; Adams v. State, 94 Tex.Cr.R. 636, 252 S.W. 510; De La Hay v. State, 131 Tex.Cr.R. 407, 99 S.W.2d 941; Gaddison v. State, Tex.Cr.App., 90 S.W.2d 256.

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

PER CURIAM.

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


text:
    Ex parte LEWIS.
    No. 20868.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    Shead & Smith, of Longview, for appellant.
    William Caven, City Atty., of Marshall, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

All former opinions herein are withdrawn, and the following substituted therefor:

Relator was charged by complaint with having violated the following ordinance of the city of Marshall in Harrison County:

“An Ordinance
“An ordinance prohibiting soliciters, p.ed-dlers, itinerant merchants and transient vendors of merchandise from going upon the premises of private residences without an invitation. of the owner or occupant thereof: Providing a permit: Fixing a penalty: and declaring an emergency.
“Be It Ordained by the Commission of the City of Marshall:
“Section 1: That after the passage of this ordinance it shall be unlawful for any soliciters of orders for merchandise, peddlers, itinerant merchants, transient vendors of merchandise to go in and upon the premises of a private residence in the City of Marshall unless requested or invited so to do by the owner or occupant of said private residence for the purpose of soliciting orders for the sale of goods, wares and merchandise, or for the purpose of disposing of or peddling the same.
“Section 2: Every soliciter of orders for the sale of merchandise, peddler, itinerant merchant or transient vendor of merchandise, shall obtain a permit from the City Manager of the City of Marshall before soliciting any orders, offering for sale or selling any goods, wares or merchandise in the City of Marshall, and it shall be the duty of the City Manager to make investigation of all persons offering so to do to determine their authority for making such sales and taking such orders, and before issuing a permit shall determine that they actually represent the parties they, so claim to represent and that they are aii actual bona fide representative of a reliable concern. Unless he so finds he shall refuse to issue a permit for the taking of orders and the selling of merchandise in the City of Marshall.
“Section 3: Any person who shall violate any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and fined in any sum not to exceed $100.-00.”

This ordinance is . attacked on the grounds that same is unreasonable, arbitrary and void, and is violative of the Constitutions Doth State and Federal in that same is “an abridgment of the right of contract, and use of the streets of Marshall without due course of law.” We gather that the burden of the last portion of such objection rests in the fact that those occupying private residences are the only persons to say whether or not a person mentioned in the above quoted ordinance may come upon the premises of such a private residence, thus leaving to such residents the power to say whether or not it would be an offense to come upon such premises;

The reason for the passage of Section 1 of this ordinance, .is suggested to be the inconvenience of the housewife who would be ofttimes called from her duties as such to her door to engage in a controversy with some transient peddler of unwanted wares relative to whether she should purchase same, and the possible breaking down of her resistance, leaving her in possession of some article later proven unsatisfactory, sold to her by one here today and gone tomorrow, with no proper backing or responsibility.

That the governing body of a city or town has the power to pass an ordinance of like import to the one under consideration, we think, is plainly shown to have been delegated to such bodies by the State legislature under Art. 1015, Section 37, Revised Civil Statutes, 1925, which reads as follows: “Art. 1015. Other powers.— The governing body (of the city) shall also have power: * * * 37. 'Peddlers, theaters, etc. — To license, tax and regulate 'or suppress and prevent hawkers, peddlers, pawnbrokers and keepers or other exhibitions, shows and amusements.”

The case of Town of Green River v. Fuller Brush Co., 10 Cir., reported in 88 A.L.R. p. 177, also found in 65 F.2d 112, was one of like import to the matter here at issue. The town of Green River in Wyoming passed an ordinance prohibiting solicitors, peddlers, hawkers, itinerant merchants and transient vendors of merchandise from going on private premises for the purpose of pursuing their avocation unless invited so to do by the owner or occupant of said private residence. This ordinance was assailed as in violation of the Federal Constitution as depriving the Brush Company of its property without due process of law, and denying to it the equal protection of the law, and an interference with interstate commerce. That court held that none of these objections applied to such ordinance. -In that case, the legislature had given to the municipality the power to declare nuisances and to abate them, while in the’ one here in question the legislature has granted the city the power to regulate or suppress and prevent hawkers and peddlers. .In the Wyoming case, supra, it was held that such ordinance was an appropriate exercise of the police power.

In Schmidinger v. Chicago, 226 U.S. 578, 33 S.Ct. 182, 184, 57 L.Ed. 364, Ann.Cas. 1914B, 284, the Supreme Court said: “This court has frequently affirmed that the local authorities intrusted with the regulation of such matters, and not the courts, are primarily the judges of the necessities of local situations calling for such legislation, and the courts may only interfere with laws or ordinances passed in pursuance of the police power where they are so arbitrary as to be palpably and unmistakably in excess of any reasonable exercise' of the authority conferred.”

It is also worthy of note that Art. 479, P.C., provides that: “Any peddler or hawker of goods or merchandise who enters upon premises owned or leased by another and wilfully refuses to leave said premises after having been notified by the owner or possessor of said premises, or his agent, to leave the same, shall be fined not less than one nor more than twenty-five dollars.”

This act was passed in 1913, and does not seem to have been questioned, and it occurs to us that if one can be punished for not, leaving certain premises when properly notified to do so, it would also be not unreasonable to say that an ’ ordinance prohibiting such an one from going on certain premises unless invited so to do was a legitimate exercise of the police power under Art. 1015, Sec. 37, supra.

Under the powers conferred on a municipality by Art. 1015, Sec. 37, supra, we are of the opinion that this ordinance is a valid exercise of the police power not only inherent but also granted thereby to the city of Marshall.

Section 2 of the ordinance would seem to us to be but an exercise of the inherent power lodged in a city government to protect its citizenship from fraudulent schemes and devices having for their purpose the defrauding of the citizens by causing them to enter into tentative contracts with irresponsible persons incapable of carrying out such contracts as made. We are not primarily concerned with Section 2 of this ordinance, the complaint under which relator is held being for a violation of Section 1.

It has been contended, however, that the two sections of this ordinance are in direct conflict with each other. We do not think so. Under this ordinance we think it is the duty of each peddler, transient merchant or itinerant merchant, to obtain a permit so to do from the city authority; it is also further his duty, if he expects to make his sales or solicitations at private residences, to do so either by invitation of such resident, or permission thereof.

We do not think the ordinance is unreasonable nor arbitrary, but is a fair application of the police power inherent in the governing power, and granted to municipalities by statutory enactment.

The judgment is affirmed.


text:
    DOMINGUEZ v. STATE.
    No. 21419.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.

      Carpenter & Boling, of Lubbock, for-appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is unlawfully carrying a pistol. The punishment assessed is a fine of $100..

The State’s testimony shows that on the evening of April 21, 1940, a city policeman of the city of Lubbock observed the appellant and anothe Mexican sitting in an automobile. He went towards them, but before reaching their car, he saw appellant reach inside of his shirt, take out a pistol and lay it on the floor of the car between his feet. The officer then arrested the appellant and took him to jail. So far as the record shows, the officer did not know where the appellant had come from or how long he had been there, nor where he was going nor why he had the pistol.

Appellant testified in his own behalf that the pistol belonged to one Ramon who had pledged it to him for a loan of five dollars; that on the day in question he was notified by Ramon that if he would return the pistol he (Ramon) would pay him the five dollars plus fifty cents’ interest; that on the evening in question appellant started with the pistol to Ramon’s house, which was in a northwesterly direction from his own home; that a man in an automobile stopped him and invited him to get into the car; that about the time they began talking the officer came towards the - car. Upon seeing the officer, appellant took the pistol out of his shirt and put it on the floor of the car.

The appellant’s wife corroborated him as to the loan of five dollars to Ramon and the pledge of the pistol as security; also the fact that appellant took the pistol on the evening in question and started to Ramon’s home for the purpose of returning it.

There are a number of bills of exception in the record complaining of the admission of certain testimony, some of which might reflect reversible error if the bills could be considered, but having been filed too late we cannot consider them.

Appellant reserved two exceptions to' the court’s charge and requested special charges on the subject which the court declined to give and which he contends reflect reversible error. The first is that the court erred in his charge in limiting the appellant’s affirmative defense by charging the jury that if they believed from the evidence that the defendant had loaned to Ramon five dollars and was. holding the pistol as security and that at the time of his arrest he was in the act of taking the pistol to Ramon and was going the shortest and most direct route; then to acquit him. Appellant contends that the charge is too restrictive in that it required the jury to find that he was going the shortest and most direct route to the home of Ramon. The uncontradicted evidence shows that Ramon lived in a northwesterly direction from the home of the appellant and that he was going in such direction at the time he was arrested, but there is no evidence from any source that he might have gone a shorter and more direct route. We are of the opinion that the appellant’s contention is well founded. If the appellant was taking the pistol to the home of its owner for the purpose of returning it and collecting the debt for which it was pledged, then he was not violating any law. The fact that he was not going the shortest and most direct route would not make his otherwise lawful act an unlawful one. In support of what we have said here, we refer to the following cases: Waterhouse v. State, 62 Tex.Cr.R. 551, 138 S.W. 386; Granger v. State, 50 Tex.Cr.R. 488, 98 S.W. 836. See also 44 Tex.Jur. p. 473, § 31.

Appellant’s next contention is that the court erred in declining to instruct the jury relative to the presumption of innocence which the law casts around one accused of crime. We are of the opinion that the learned trial court fell into error in declining to give such an instruction. The court is required by law to fully instruct the jury as to the law applicable to the case. Obviously, under the facts above stated, appellant was entitled to have the jury told that every defendant in a criminal case is presumed to be innocent until his guilt is established by competent evidence beyond a reasonable doubt. See Art. 705, C.C.P.; also Thomason v. State, 115 Tex.Cr.R. 627, 27 S.W.2d 229; Roberts v. State, 91 Tex.Cr.R. 433, 239 S.W. 960.

For the errors herein pointed out, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

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


author: CHRISTIAN, Judge.

text:
    POTTER v. STATE.
    No. 21416.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    R. E. Eubank, of Paris, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

The.record is before us without a statement of facts or bills of exception. In the absence of a statement of facts we are ' unable to determine whether the court was in error in refusing to submit to the jury appellant’s requested instructions.

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.


text:
    DAVIS v. STATE.
    No. 21410.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    R. W. Webb, of Snyder, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for the unlawful possession of intoxicating liquor for the purpose of sale in a dry area; penalty assessed at a fine of $100.

No bills of exception accompany the record. Therefore, the only question presented for review is the sufficiency of the evidence to support the conviction.

Briefly stated, the State’s testimony is to the effect that on the 26th day of June, 1940, two employees of the Texas Liquor Control Board went to the premises of the appellant in the negro section of Snyder, in Scurry County, and purchased from him four cans of Pabst beer (a malt liquor), for the price of twenty cents per can; that this beer was labeled for identification and introduced in evidence upon the trial.

Appellant did not testify, nor did he introduce any affirmative defense upon the trial.

Deeming the evidence sufficient to support the conviction, the judgment of the trial court is affirmed.

PER CURIAM.

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


author: BEAUCHAMP, Judge. HAWKINS, Judge.

text:
    CLEMENTS v. STATE.
    No. 21304.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1940.
    Rehearing Denied Feb. 12, 1941.

      J. A. Jost and E. P. Lipscomb, both of San Antonio, for appellant. .
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted on a charge of illegally practicing law in Bexar County and was assessed the minimum penalty of $100.

The record in the case is voluminous. The transcript of 191 pages contains thirty-nine bills of exception, while the statement of facts is within thirty-seven pages. It would be very difficult and we do not consider it necessary to discuss all of the bills of exception, many of which are mere repetition of other bills. Some do not conform to the rules and some are not approved by the court.

The evidence in the case, following the complaint, shows that the appellant Albert Clements was associated in some manner with E. P. Lipscomb, an attorney whose offices are at 432 West Houston Street, San Antonio, Texas. A Mrs. Ma-har testified that she had a difficulty with her husband in a public place in San Antonio and was directed to the appellant as a lawyer. She went to him and consulted with him as such and he advised with her, which resulted in her filing a suit for divorce, asking for 'alimony and a division of community property. He accompanied her to the court house, or to the office of her husband’s attorney, and says further that she introduced him to her husband’s attorney as her attorney. It is specifically alleged and shown that following a conference between appellant and her husband’s attorney a letter was written which, including the letterhead, is as follows:

“Phone Belmont 30831 Real Estate Loans
“E. P. Lipscomb — Pearl A. Mason
“Albert Clements
“Law Offices 432 W. Houston St.
“San Antonio', Texas
“August 1st., 1939
“Mr. Louis W. Schlesinger,
“Alamo Bank Bldg.,
“San Antonio, Texas
“No. B-9S498. Mahar vs. Mahar.
“Dear sir,
“With reference to this case, we submit the following propositions for your consideration, to-wit:
“1. Custody of minor child, as per our conversation.
“2. Fifty ($50.00) Dollars per month, as alimony.
“3. Twenty-five ($25.00) Dollars per month for support of minor child, payable semi-monthly (or monthly) in advance.
“It is the opinion of plaintiff, that $25.00 per month will clothe and care for minor child, but not in an elaborate manner.
“Trusting that this will meet with the approval of yourself and client, and awaiting your reply,
“We are,
“Yours truly,
“(Signed), Lipscomb, Mason & Clements,
“By A. Clements.”

It is testified by E. P. Lipscomb that Pearl A. Mason is the wife of Albert Clements; that she is an attorney, but that she works at the City Hall, while her name is on the stationery, as shown in the foregoing letter. He says further that the letter written by Mr. Schlesinger, attorney for Mrs. Mahar’s husband, was addressed to the “firm”.

We quote further from Mr. Lipscomb’s testimony: “As to what arrangement I had with Clements around August 1, 1939, I was to pay him a salary, but I didn’t always have the money to pay him, I was to pay him $15.00 a week for helping me, do anything that had to be done. He has been connected with me over three years, approximately, I don’t remember the date. As to his negotiating loans, just at the moment I don’t think of any people that wanted to borrow money. As to how many ranches Mr. Clements sold during that three year period, there haven’t been over four or five ranches sold in this part of Texas during that time. He didn’t sell a single one of those that have been sold.”

Mr. Lipscomb was testifying in behalf of appellant and represented him in the trial of. the case. The evidence of Mrs. Mahar is sufficient upon which the jury may find the appellant guilty, and the testimony of Mr. Lipscomb is not inconsistent.

Mr. Lipscomb apparently used ap-, pellant to do anything in the way of practicing law which he himself docs, and takes the view that an attorney has a right to employ someone not an attorney to do all of these things. In his brief he urges the importance of the question to many lawyers in Texas on this particular ground, saying that if appellant’s conviction should be affirmed, that lawyers could not hire people to do their work. We think it is unimportant as to how anyone illegally practicing law receives his pay. If he is employed on a salary and engages in the practice of law as that is defined under Art. 430a, Vernon’s Annotated Penal Code, he would be violating the law as definitely as if he charged and received fees directly from clients. A license issued to an individual to practice law authorizes only that individual to do so.

Appellant is very insistent that he was injured by an unkind remark made by the prosecuting attorney of and concerning appellant’s attorney, in which he called him, “a two-bit shyster.” This complaint is presented by appellant’s bill of exception No. 33. We cannot consider it, however, for the reason that this bill is not approved by the trial judge. The court says the matters and things therein stated are not true and correct. The court further says that he had the reporter to prepare testimony on the subject in “Q & A” form. This was attached to the bill, as we understand it, not as a qualification of the bill because it is not approved by the judge in that manner. It is simply surplusage, having no particular purpose which we are able to discover. However, if we do give consideration to it, it disclosés that the statement made was the culmination of a tilt between the attorneys and appears to have been provoked by the things which the defendant’s attorney himself said to the prosecutor. The court instructed the jury not to consider it and it is evident from the verdict which they returned that they were not prejudiced by it.

Further complaint is made in the appellant’s bill of exception No. 37 that there is a variance between the information and the evidence, in that it is not shown that the letter was written and mailed in Bexar County, Texas, and no evidence to fix venue in Bexar County, Texas. We think this is answered by the evidence of Mr. Lipscomb himself, who testified that his office is at 432 West Houston Street, San Antonio, Texas. This is the county seat of Bexar County, a fact of which the court may take judicial knowledge. Mrs. Mahar testified as to the transactions taking place in that same office and in the court house, naming the district court sitting there. The letter itself carries the date line, “San Antonio, Texas, August 1, 1939”, and it is addressed to “Mr. Louis W. Schlesinger, Alamo Bank Bldg., San Antonio, Texas.” This evidence sufficiently proves the fácts alleged.

We find it unnecessary, for the reasons stated, to consider further the bills of exception, but each one has been examined by us and we do not believe that they present questions warranting a reversal of the case. The judgment of the trial court is affirmed.

On Motion for Rehearing.

HAWKINS, Judge.

In his motion for rehearing appellant re-asserts that the complaint and information is fatally defective, and complains because this point was not disposed of in our original opinion.

Omitting formal parts, the State’s pleadings charge that appellant did: ' “* * * unlawfully practice law in that he did then and there in a representative capacity perform an act in connection with proceedings pending and prospective before a court, to-wit: the 37th Judicial District Court of Bexar County, Texas, in that he did then and there write a letter in behalf of Mrs. Ethel Mahar concerning Theodore N. Mahar, submitting a proposition for temporary alimony in a divorce suit pending and prospective in said court, between Mrs. Ethel Mahar, as plaintiff and Theodore N. Mahar, as defendant, the said Albert Clements being a natural person who was not a member of the bar regularly admitted and licensed to practice law; * *

The prosecution was under the provisions of the Acts of the 43d Legislature, p. 835, Ch. 238, and appears in Vol. 1, Vernon’s Ann.P.C. as Art. 430a. Section 1 of the Act makes it unlawful for anyone to practice law except persons who are members of the bar regularly admitted and licensed to practice law. Section 2, in subdivisions a, b, c, d and e specifies certain acts which are declared to be practicing law. It is not necessary here to state what they are, suffice it to say the averments in the State’s pleading bring appellant within the act - of practicing law. Immediately following the declaration of the acts and things which constitute practicing law and as a part of the same section two it is said:

“'Nothing in this section shall be construed to prohibit” (1) any person from attending to his own business, (2) nor from preparing abstracts, certifying or insuring titles to property, (3) nor prohibiting banks or trust companies from representing their customers in adjusting items mentioned in subdivision (e) heretofore referred to, (4) nor as prohibiting one from pursuing the business of adjusting insurance or freight rate claims, (5) nor as prohibiting a collecting agency subject to an occupation tax from settling controverted claims growing out of contractual relations, (6) nor as prohibiting real estate agents from collecting rents for their employers (7) nor as prohibiting notaries public from drawing conveyances.

It is appellant’s contention that the exemptions mentioned are exceptions to the law under which he is prosecuted, and are so written into the statute that it is necessary for the State in its pleading to negative said exceptions before one may be properly charged with illegally practicing law, and that the failure to so negative them renders the complaint and information against appellant fatally defective.

Probably no other subject has been productive of more writing and confusing expressions than the one dealing with the necessity or otherwise of negativing exceptions in indictments and informa-tions. Notwithstanding this, our court has announced some very clear principles which have been, epitomized by Mr. Branch in his valuable Ann.Tex.P.C. in section 510, page 263, The application of these principles will frequently solve the problem simply and understanding^. We quote from Branch Ann.Tex.P.C. § 510. “When that portion of the statute, alleged is so inconsistent with the exception as to substantially negative it, it is not necessary to negative the exception in terms. State v. Clayton, 43 Tex. 410; Summerlin v. State, 3 Tex.App. 444; Hodges v. State, 44 Tex.Cr.R. 444, 72 S.W. 179; Wilkerson v. State, 44 Tex.Cr.R. 455, 72 S.W. 850.”

The observations of Judge Davidson in the opinion in Wilkerson’s case, supra, are quite pertinent to the present contention. We refrain from quoting, but emphasize the case mentioned.

Referring now to the charge against appellant, in order to make applicable the principle quoted, it is clear beyond controversy from the averments in the complaint and information that ap-' pellant was the representative of Mrs. Mahar, and acting for her and in her behalf in the matter of seeking temporary alimony in a divorce proceeding. It is equally clear from the averments that in doing what he did he was (1) not attending to his own business; (2) he was not preparing abstracts; '(3) he was not a bank or trust company; (4) he was not adjusting insurance or freight rate claims; (5) he was not a collecting agency paying occupation tax as such; (6) he was not a real estate agent collecting rents for his employer; (7) he was not a notary public. ' If the things which appellant is alleged to have done in violation of the statute were so inconsistent with the exceptions mentioned as to substantially negative them it was not necessary to negative them in express terms.

Such we think to be the case .in the present instance, and therefore appellant’s contention must fail.

The motion for rehearing is overruled.


text:
    Ex parte SALAMY.
    No. 21501.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    Clem Calhoun, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

The relator is held by virtue of an order of the justice of the peace of precinct No. 1 of Potter County, requiring him to give bond in the sum of $300 conditioned that he keep the peace for a period of one year. He refused to give such bond, and under the justice’s order, and as provided by statute, Art. 85, C.C.P., upon his refusal or failure to give such bond, relator was committed to jail for the term of one year, or until he gave such bond.

Relator sued out a writ of habeas corpus before the county judge who, upon a hearing thereon, remanded the relator to the custody of the- sheriff of Potter County under the terms of the original order.

That the justice of the peace had the power to enter the order herein complained of we have no doubt. See Art. 79, C.C.P., which reads as follows: “Whenever a magistrate is informed upon oath that an offense is about to be committed against the person or property of the informant,- or of another, or that any person has threatened to commit an offense, it is his duty immediately to issue a warrant for the arrest of the accused, that he may be brought before such magistrate or before some other named in the warrant.”

That such a matter is reviewable by means of the writ of habeas corpus seems to have been decided in the case of Ex parte Wilkerson, 102 Tex.Cr.R. 336, 278 S.W. 426, in w;hich we held, in substance, that because of the fact that the statute had provided for no appeal from the order of a magistrate requiring a peace bond, the relator could resort -to the writ of habeas corpus, and under that Section 16, Art. 5 of our State Constitution, Vernon’s Ann.St., empowering judges of the county court to issue writs of habeas corpus in certain cases, the writ was properly granted by the county judge. In that case it was also held that the county jqdge had the power to inquire into the facts supporting the entry of the order of the justice of the peace. To the same effect is the case of Ex parte Montez, 134 Tex.Cr.R. 315, 115 S.W.2d 912, and also Ex parte Allen, 113 Tex.Cr.R. 73, 19 S.W.2d 58.

It is provided joy Art. 79, supra, that the magistrate shall be informed upon oath of the contemplated act as a basis o>f this action. In other words, it seems to-contemplate the filing of a complaint in or-' der to initiate such before the magistrate. We also find what is denominated a complaint in the record. The jurat thereto we find to be fatally defective. Such jurat reads as follows: “Sworn to and subscribed before me on this the 25th day of July A. I). 193 — .” We observe that the date of the alleged offense is set forth in the complaint as July 25, 1940, but the-jurat seems to be no possible date. Mr. Branch in his Penal Code, page 250, says: “A complaint is fatally defective if it appears from the face of the jurat thereon that the complaint was sworn to on a date anterior to the date of the offense. Lanham v. State, 9 Tex.App. 232; Jennings v. State, 30 Tex.App. 428, 18 S.W. 90; Watson v. State [Tex.Cr.App.], 45 S.W. 718.”

It is our opinion that the complaint under which this relator is held herein is fatally defective in that the jurat thereon bears an improper date, and that the relator should have been discharged by the county judge under 'this writ.

The judgment of the trial court herein is reversed and the relator ordered discharged.


author: BEAUCPIAMP, Judge.

text:
    PADGET v. STATE.
    No. 21427.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    Dan E. Archer, of Perryton, and Hoover, Hoover & Cussen, of Canadian, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCPIAMP, Judge.

Appellant was convicted in the county court of Ochiltree County on a charge of selling liquor, and assessed a fine of $100,. from which he appeals.

The complaint alleges that appellant sold “whiskey to Loy R. Jones, in a dry area, to-wit, on the premises at Lot 18, B. 24, City of Perryton, etc.” As certified by the 'court in approving bills of exception numbers six and nine, the proof failed to show the- sale of liquor at the place described. Loy R. Jones testified in behalf of the state that he bought two half pints of whiskey from appellant, “at his house here in Perry-ton”. He further says that he went to the residence of Ed Padget, “located at 406 South East First Street in Perryton, Ochil-tree County, Texas.” It is further described as the third house south of the American Legion Hall. We do not find in the record proof that it was sold at the place alleged. In view of the allegations made, we think that became necessary and that there is a variance between the information and the proof.

There are thirteen, bills of exception calling attention to other matters presented as irregularities. We think that none of these would likely occur again and that it is not necessary to discuss them.

Because of the variance between the pleading and the proof, the judgment .of the trial court is reversed and the cause remanded.


author: GRAVES, Judge. HAWKINS, Presiding Judge.

text:
    McHENRY v. STATE.
    No. 21288.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1940.
    Rehearing Denied Feb. 12, 1941.

      W. T. Barber, of San Marcos, and David J. Pickle and Horace H. Shelton, both of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the ‘State.
   GRAVES, Judge.

Appellant, a woman, was convicted of murder with malice in that. she killed Emma Jean Blocker, and was sentenced to serve twenty-five years in the penitentiary.

The statement of facts herein appears with the following qualification of the trial judge appended thereto:

“This statement of facts was filed by the attorney for the defendant with the Clerk of the District Court of Hays County, Texas, on June 29, 1940, without ever having been submitted to the District Attorney or to this Court, for approval, and the same was for the first time presented to this Court for approval on this the 27th day of July, 1940. At no time up to this date has the attorney for the defendant ever presented any statement of facts in this cause to me for my. approval, nor has any such statement of facts ever been presented by defendant’s attorneys to the District Attorney for his approval up to this date. And the above and foregoing statement of the true facts was filed by the defendant’s counsel in the District Clerk’s office June 29, 1940, without having been presented to the District Attorney or the Court, and this Court having found the above and foregoing statement of facts on file, approves the same on this the 27th day of July, A. D. 1940.
“The above statement of facts was not presented, and no other statement of facts was presented in this cause, to the Court or to the District Attorney for approval within the time allowed by the Court’s orders herein, nor within the time allowed by law, and no agreed and approved statement of facts was filed in this cause in this Court within such time allowed by the Court’s orders and the law.
“This the 27th day of July, A. D. 1940.
“M. C. Jeffrey
“Judge, District Court,
Hays County,. Texas.”

The motion for a new trial in this case was overruled on April 6, 1940, and it therefore appears that this statement of facts was approved by the trial court on July 27, 1940, or a total of 112 days after the overruling of the motion for a new trial. It is true that such statement was filed by the district clerk of Hays County at an earlier date and within the prescribed time, but such an act was unauthorized by law, the statement of facts-not having been approved by the trial court, and same should not have been thus filed without the court’s approval. We will be unable to consider such statement.

It further appears from the record that immediately upon the overruling of appellant’s motion for a new trial, notice of appeal was given and entered of record, and 75 days from April 6, 1940, was granted within which to prepare and -file statement of facts and bills of exceptions. Upon affidavit made and filed by appellant, the trial court entered its order directing the court reporter to "furnish appellant a complete statement of facts in this case without cost to her,” said order being dated May 13, 1940, and said statement was prepared and completed on June 5, 1940. On some date not shown appellant’s attorneys made application to the trial court for an extension of ten days relative to the time for filing statement of facts and bills of-exception, which time was by the court granted and the final date for such filing extended ten days after June 20, 1940.

It will be observed that without presenting to, or receiving the approval of, the trial court, the bills of exception were filed with the district clerk on the 29th day of June, 1940, and thereafter handed to the district attorney on July 1, 1940, and by him taken to the town of Bellville, to the judge, trying the case, on July 2, 1940, which date was beyond the time prescribed for the approval and filing of such bills. We also note that these bills were not approved and signed by the trial court until July 19, 1940, 20 days after the 85 days allowed had elapsed.

“It was the duty of counsel for the appellant to see to it - that a statement of facts and bills of exception are presented to the judge, and to follow them up and see that they are approved and filed in time. * * * Nor can. counsel excuse himself by showing negligence in the officers of the court or others whom he has attempted to make his agents to file bills or a statement.” 4 Tex.Jur. p. 446, § 309, and authorities there cited.

Under these circumstances we dq not think this court would be justified in considering either the statement of facts or the bills of exceptions; all filed too late.

The proceedings considered by us appear to be proper and regular in form, and this judgment is therefore affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

Notwithstanding the condition of the record pointed out in the original opinion no showing was made or attempted to be made that the case wás brought under any exception which would authorize this court to consider a statement of facts or bills of exception, although filing thereof was delayed.

Counsel for appellant now files his affidavit in connection with' a motion for rehearing seeking to bring this case within an exception to the rule relating to the time limit for filing the record.

It appears that when the motion for new trial was overruled on April 6th the court granted seventy-five days in which to file bills of exception and statement of facts. Ten days later, on April 16th, counsel for appellant prepared and filed a request for an order directing the court reporter to prepare a statement of facts. The requested order was not made by the trial judge until May 13, nearly d month after it was filed, but there is no showing made that it was earlier called to the trial judge’s attention. Diligence required that this should have been done. See 4 Tex.Jur. p. 413, 414, Sections 282 and 283, with cited cases. The statement of facts was certified by the court reporter on June 5th. There is no showing, when it was delivered to counsel for appellant. Not until June 17th was the trial judge notified that counsel for appellant thought the statement of facts as prepared by the court reporter was incorrect, and was granted ten days additional, which made the time for filing bills of exception expire on June 30, and the ninety days for filing statement of facts, under the statute, Art. 760, C.C.P., subdivision 5, expired on July 5th. At the time this second extension order was made the trial judge advised counsel for appellant that no changes would be made in the statement of facts as prepared by the reporter unless they were agreed to by the district attorney. Counsel for appellant says in his affidavit: “Either at this time or very soon thereafter, I told the District Attorney (or his assistant) of our objections to the statement of facts but at that time no action was taken towards correcting the same.”

There is no showing where the statement of facts or bills of exception were at the time mentioned, but it is not claimed that they had ever been delivered to either the district attorney or the trial judge. On June 29th both the statement of facts and bills of exception were delivered to the clerk of the trial óourt, and filed by him— which he was unauthorized to do — none of them having been approved by the trial judge. On July 1 counsel for appellant secured the bills from the clerk and took them to Lockhart and delivered them to the district attorney who in turn delivered them to the trial judge, but the statement of facts was left with the clerk. The bills were never placed in the hands of either the district attorney or the trial judge until after the time for filing them had expired. Counsel for appellant told the district attorney at the time the bills of exception were delivered to him at Lockhart that the statement of facts was in the clerk’s office at San Marcos and requested him to approve it before July Sth. Although told by the district attorney that he would be compelled to go either to La-Grange or Bellville the next morning on account of court convening there, counsel for appellant seems to have made no effort to get the statement of facts into the hands of the district attorney, but let it remain in the clerk’s office in San Marcos. Soon after this, just when not being shown, the assistant district attorney made inquiry of the clerk for the statement of facts. The clerk, presumably believing counsel for appellant had taken the statement of facts at the same time he took the bills of exception, told the assistant district attorney that counsel for appellant had the statement of facts, and upon being so informed counsel for appellant went with the assistant district attorney to the clerk’s office where the statement of facts was found.

When it finally was corrected and presented to the trial judge for approval the ninety days had long expired, as shown by the certificate of the trial judge.

There being a contention on the part of counsel for appellant that there was some omission from the statement of facts which was corrected we have been at some pains to investigate the correction sought as the added matter appears in the statement of facts. It relates to an objection interposed by appellant to a witness testifying because it was claimed the witness had violated the rule. The amended statement of facts contains three pages of questions and answers, objections and replies thereto of counsel, and discussions between counsel and the court. It occurs to us that this was no proper part of the statement of facts and furnished no proper reason for a delay in having the statement of facts approved and filed.

During our examination of the record to ascertain the facts claimed to have been omitted from the statement of facts by the court reporter it has been necessary to examine the record, and we are of opinion that even if the statement of facts and bills of exception were in a condition to be considered nothing would be presented calling for a reversal of the judgment.

The motion for rehearing is overruled.


text:
    BANKS v. STATE.
    No. 21411.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    R. W. Webb, of Snyder, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

The offense is possessing whisky in a dry area for the purpose of sale; the punishment, thirty days’ confinement in the county jail.

Fred W. Winch testified that he was an inspector of the Texas Liquor Control Board, and that he bought one-half pint of whisky from .appellant in Scurry County on the 24th of June, 1940, and paid him seventy-five cents therefor. It was shown by agreement that the county was a dry area. The appellant did not introduce any testimony.

The record contains no bills of exception.

The evidence is deemed sufficient to support the conviction.

The judgment is affirmed.


text:
    BANKS v. STATE.
    No. 21412.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    R. W. Webb, of Snyder, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing beer in a dry¡ area for.the purpose of sale; the punishment, confinement in jail for thirty-five days.

Fred W. Winch, an inspector of the Texas Liquor Control Board, testified that on the 24th of June, 1940, he bought four cans of Schlitz Beer from the appellant, paying him twenty cents a can. It was agreed between the parties in open court that Scurry County was a dry area, and further that the beer it was alleged1 appellant possessed was intoxicating liquor. Appellant did not' testify but entered a plea of guilty.

The complaint and information appear to be in proper form. The evidence is sufficient to support the conviction.

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: BEAUCHAMP, Judge.

text:
    BANKS v. STATE.
    No. 21413.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    R. W. Wqbb, of Snyder, for appellant.
    Lloyd W. Davidson, State’s Atty.‘, of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the county co'urt of Scurry County on a charge of violating the liquor laws, and his punishment assessed at forty days in jail.

The proceedings appear regular and the facts are sufficient to warrant the conviction. No bills of exception are presented and there is nothing for this court to consider.

The judgment of the trial court is affirmed.


author: KRUEGER, Judge. GRAVES, Judge.

text:
    WESLEY v. STATE.
    No. 21276.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1940.
    Rehearing Denied Feb. 12, 1941.

      H. G. Goodrich, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is rape. The punishment assessed is death.

The record discloses that about 2 P. M. on the 23rd day of April, 1940, three young negroes appeared at the home of Sam D. Grogan during his absence and by force raped his wife. Mrs. Grogan testified that the three negroes appeared at her home and asked for a drink of water; that she directed them to the well; that after they had drunk they asked for something to eat. She told them that she had nothing cooked. They then asked for work. She told them to go and see her husband and directed them to a tenant house where she thought he had gone to make some repairs. They left but soon returned, stating that he was not there; that they could not find him. At this time she noticed that her screen door was not hooked and when she undertook to fasten it with the hook, the appellant grabbed her and she began to call for help. The other two ne-groes came to the assistance of appellant and they carried her into the kitchen where they threw her upon the floor and two of them held her while the third one raped her. This procedure continued until each one of the three had had an act of sexual intercourse with her. Mrs. Grogan resisted them with all her might and strength but without avail. After the culprits had completed their fiendish deed they took with them an alarm clock, a locket and a lavalier. This all took place in Dallas County, Texas.

A short time after the occurrence her husband returned and she reported the matter to him who in turn notified the officers who immediately responded to the call. The officers obtained a description of the three negroes and about 6 P. M. on said day the three were arrested on. the corner of Olive and San Jacinto Streets in the north part of the City of Dallas. They were placed in jail.

On the afternoon of the .next day, appellant, after being duly warned by Bill Decker that he did not have to make any statement concerning the offense with which he was charged but that any statement he might make could be used in evidence against him, made a voluntary confession in which he admitted that he and his companions by force raped Mrs. Grogan. Upon information given by appellant to the officers they found the lavalier in the creek where he said he had thrown it. All the other articles were recovered from his companions.

Dr. Duncan, who examined the injured party within a short time after the occurrence, testified that he found unmistakable evidence that she had been attacked. She was bleeding freely and the whole vagina was red and irritated. Two or three days later he again examined her and found evidence of gonorrhea and chancroids which are associated with venereal diseases. An examination of Albert Wesley, the defendant, failed to show any veneral disease but that of McDay, his companion, did. He had both gonorrhea and chan-croids.

Appellant-did not testify and did not repudiate the confession or any part thereof. He filed a plea for a suspension of sentence in the event of his conviction and introduced proof in support thereof.

The court in his charge fully and fairly applied the law to the facts in the case and no objections were urged thereto.

By bill of exception No. 1 appellant complains of the introduction in evidence of his purported confession. He claims that he objected to its introduction in evidence on the ground that it was made under duress and while in custody and that he was forced by the officers to sign it; that it was taken in violation of Articles 5 and 14 of the Federal Constitution and the due process clause of each of said amendments. This bill is qualified by the trial court who states in his qualification that there is not a scintilla of evidence that any character of force or duress was used in securing the confession, but, on the other hand, the evidence shows that the defendant was properly warned and after being so warned he dictated the statement and signed the same in the presence of witnesses after it had been read to him.

J. E. Decker, Chief Deputy Sheriff of Dallas County, testified that he placed the defendant in jail on April 24th and the defendant made the statement on the afternoon of said date, or it may have been on the afternoon of the 25th afterhe had been identified. Mr. Decker further testified that the defendant was warned that he did not have to make any statement at all and that any statement he made might be used in evidence against him upon the trial of the case for which the same was taken; that after being so warned the defendant dictated the statement which was reduced to writing and then read back to him by Decker, whereupon the defendant signed it in the presence of the witness Decker, Judge Sterrett, Justice of the Peace, and Robert Finkleá, reporter for the Dallas News. The witness Decker also testified that he did not deny to the defendant the right to see any of his relatives or talk to any attorney; that while the defendant was in jail he could talk to others and did so; that he was in the open corridor and could have talked to outsiders; that on the afternoon of the day he made the statement, Mr. Decker took appellant out to his (defendant’s) home where he talked to his mother; that during the time he was in jail he was not deprived of any meals; that he was not whipped or threatened with punishment; that as a -result of the information conveyed by appellant to Mr. Decker as to where he had thrown the lavalier, he was taken to the place indicated and there in his presence the lavalier was recovered in a creek where it was submerged in water.

The court’s qualification to the bill, as herein set forth, is fully supported by testimony found in the record. Appellant -did not controvert the testimony given by the persons present when he made the statement, nor did he undertake to controvert the .truth of the facts therein stated; neither is there any testimony from any other source that he was coerced, mistreated or by any manner induced to make said statement. Consequently the action of the court in admitting said statement in evidence was proper.

By bill of exception No. 2 appellant next complains of the action of the trial court in declining to sustain his motion to quash the special venire based on the ground that it was drawn on the 28th of May, 1940, and that on the following day (May 29th) he, through his counsel, made .a demand upon the Clerk of the District Court for a certified copy of the names of the persons drawn as a special venire from which a jury to try him would be selected, but that the clerk of said court failed and refused to comply with the request. The court qualified the bill and in .his qualification thereto states that the case was first set for trial on the 6th day of May, 1940, at which time it was passed at the request of the defendant and was then re-set for trial on the 13th of May, at which time the co-defendant, Muldrow, was tried with that, venire and the appellant’s case was passed until the 27th; that on this date the case was again passed and re-set for trial on June 3, 1940; that on the 27th of May, a special venire of 250 men was drawn in the manner and form prescribed by law and made returnable on the 31st day of May, 1940. On the 29th of May, counsel for appellant came to the office of the judge and asked for a copy of the venire. The court informed him that the venire list was made returnable-on the 31st day of May; that the court did not know whether or not the sheriff had summoned the veniremen as yet, but that the defendant would be served with a list of veniremen on the 31st day of May; that prior to the drawing of the names from the jury wheel the defendant’s attorney waived personal service and agreed that the veniremen could be summoned by postal-card service; that on the 31st day of May, 1940, the sheriff served the defendant with a copy of the special venire list and made his return of that service on said date, which gave the defendant two full days, that is, Saturday and Sunday exclusive of the date of service, and return, in which to examine the names appearing on the list; that on the 3rd day of June, 1940, when the case was called for trial the defendant filed a motion to quash the venire panel on the ground that he was not given a copy of the venire list when demanded on the 29th of May. The State filed an answer to said motion which is referred to and made a part thereof and in addition thereto, filed affidavits signed by J. E. Decker, Deputy' Sheriff, and Eli Nollette, Deputy District Clerk of Dallas County; that Decker in his affidavit, which is attached to the contest in reply to the motion, stated that he served a copy of the list of the veniremen upon the appellant and made out the precept under oath; that he personally served said copy of the special venire list on the defendant on the 31st day of May, 1940. Eli Nol-lette, in his affidavit which is also attached to the contest of the State, stated that he made a certified copy of the list of the special veniremen and delivered same, together with the precept, to J. E. Decker on the 31st day of May, 1940; that Decker made a return of the precept showing that he served the appellant with a copy of the list of said special venire on the 31st day of May, 1940.

This court will take judicial knowledge of the fact that Dallas County, according to its population, is required to function in the selection of special veniremen under Article 591, Vernon’s Ann. C.C.P., which reads as follows: “In all counties having * * * therein a city of twenty thousand or more population, as shown by the preceding Federal Census, whenever a special venire is ordered, the District Clerk, in the presence of and under the direction of the Judge, shall draw from the wheel containing the names of the jurors the number of names required for such special venire, and prepare a list of such names in the order in which 'drawn from the wheel, and attach said list to the writ and deliver same to the sheriff. The cards bearing such names shall be sealed in an envelope and kept by said Clerk for distribution, as herein provided. If from the names so drawn, any of the men are impaneled on the jury and serve as many as four days, the cards bearing their names shall be put by the Clerk in the box provided for that purpose, and the cards bearing the names of the men not impaneled shall again be put by the Clerk in the wheel containing the names of eligible jurors.”

Art. 601, C.C.P., reads as follows: “No defendant in a capital case shall be brought to trial until he has had one day’s service of a copy of the names of persons summoned under a- special venire, except where he waives the right or is on bail. When such defendant is on bail, he shall not be brought to trial until after one day from the time the list of persons so summoned have been returned to the clerk of the co.urt in which said case is pending; but the clerk shall furnish the defendant or his counsel a list of the persons so summoned, upon their application therefor.”

It will be noted from the article last quoted that it requires that the clerk shall furnish the defendant or his counsel a list of the persons so summoned upon their application therefor. It is obvious from the language of the statute that the law does not require the officers to furnish the defendant or his counsel with a list of persons drawn from the jury wheel before they are summoned. It occurs to us that it was the intention of the Legislature that the defendant should 'be f served not with a copy of the list of names drawn from the jury wheel but with a copy of the list of those actually summoned to appear in court so that he may have a correct list of all persons summoned as prospective jurors for at least one full day exclusive of the day of service and the day of trial in order that he may acquaint himself with the names of the men actually summoned. We do not believe there is any merit in the appellant’s contention. See Harrison v. State, 3 Tex.App. 558; Foster v. State, 38 Tex.Cr.R. 525, 43 S.W. 1009.

Finding no reversible error in the record, the judgment of the trial court is in all things 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 in his motion alleges that this court was in error in its original opinion herein where it overruled his bill of exceptions No. 1, which bill complained of the admission of a purported confession or voluntary statement in which appellant implicated himself in the attack upon Mrs. Grogan, which was the basis of the indictment in this cause.

Sitting as an appellate court, we can only take the record as presented to us and, with our best ability, garner therefrom the facts proven at the trial as a basis for our ruling on such matters. We have again carefully read the facts, and from them we have been unable to find any basis for a belief that the statement of appellant was other than voluntarily made. There was an interview with the appellant shown by the testimony, but such is not prohibited by 'law; there was a trip made with him to his mother’s home, and near such, at his direction and under his guidance, there was discovered a piece of jewelry concealed in a stream of water, which, j ewelry was shown to have been stolen from the home of Mrs. Grogan at the time of the alleged offense. There is not a word shown in the testimony that intimates any force, coercion or intimidation of any kind was used caúsing this appellant to make a statement relative to this matter, and, under his failure t® offer any such testimony, we are unable to see any reason to set aside such statement. While not called upon to find a motive for this statement having been made, it may have come from a desire upon the part of persons not yet hardened in the ways of criminality to clear his conscience of the burden of a hidden crime by making a clean breast of facts that were of a disturbing character in his memory. Surely this court has not had the duty placed upon it of disbelieving the witnesses whose testimony is not even challenged by one who was bound to have known the facts relative to the transaction. The jury are the judges of the facts in this State. They see the witness face to face, they watch his demeanor, and catch • the fleeting expression that may point them unerringly to the truth that they are seeking. They have the added privilege of seeing the accused and his actions come under their observation throughout the whole trial; and under the laws of this State we have no right to set aside their verdict on a question of fact unless it is so clearly wrong that reasonable minds can not differ thereon. They are in so much better position to judge of matters of fact that such matters are relegated to .their judgment subject only to a reviewing power in the event of a palpable abuse thereof.

For another reason do we believe this statement to be admissible. Art. 727, C.C. P., relative to the use of confessions, reads as follows: “The confession shall not be used if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless made in the voluntary statement of accused, taken before an examining court in accordance with law, or be made in writing and signed by him; which written statement shall show that he has been warned by the person to whom the same is made: First, that he does not have to make any statement at all. Second, that any statement made may be used in evidence against him on his trial for the offense concerning which the confession is therein made; or, unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed. If the defendant is unable to write his name, and signs the statement by making his mark, such statement shall not be admitted in evidence, unless it be witnessed by some person other than a peace officer, who shall sign the same as a witness.”

It is the long established doctrine in Texas that although the confession itself was involuntary and could not be used against the accused, on that objection being offered, nevertheless if the accused therein makes statements which conduce to establish his guilt, such as the causing of the finding of secreted or stolen property, then the whole of the confession becomes admissible. We have recently held in Hamon v. State, 135 Tex.Cr.R. 347, 119 S.W.2d 1057, 1058, as follows:

“In this connection we quote from 18 Tex.Jur. 179, as follows: ‘Regardless of whether the accused was under arrest or had been warned, his verbal, or written confession is admissible where the facts and circumstances stated have been found to be true and conduce to establish his guilt. Such facts and circumstances may consist of finding of secreted or stolen property or the instrument with which the crime was committed, or of the discovery or identity of the remains, clothing, jewelry or personal effects of the person whom the accused is charged of having murdered. This is true even though the confession was involuntary or was procured by force, threats or intimidation, persuasion, assurance of protection against mob violence or deception.’
“In support of the text many authorities are cited, among them being Washington v. State, 86 Tex.Cr.R. 327, 216 S.W. 869; Brown v. State, 26 Tex.App. 308, 9 S.W. 613; Ferguson v. State, 118 Tex.Cr.R. 57, 40 S.W.2d 107; Singleton v. State, 87 Tex.Cr.R. 302, 221 S.W. 610.”

Also see the late cases of Ramirez v. State; 135 Tex.Cr.R. 442, 125 S.W.2d 597; Herrera v. State, 136 Tex.Cr.R. 88, 124 S.W.2d 147; Whitehead v. State, 134 Tex.Cr.R. 579, 116 S.W.2d 703; Stelman v. State, 123 Tex.Cr.R. 330, 58 S.W.2d 831; Queseda v. State, 132 Tex.Cr.R. 497, 105 S.W.2d 666; Haggins v. State, 133 Tex.Cr.R. 564, 113 S.W.2d 192; Keppler v. State, 133 Tex.Cr.R. 623, 113 S.W.2d 900; Brooks v. State, 134 Tex.Cr.R. 269, 115 S.W.2d 678.

While holding that the confession introduced in evidence was admissible as a voluntary statement, we also think such statement was admissible upon the further 'ground that such statement conduced to the finding of further evidence that established the guilt of the accused to the satisfaction of the minds of the jury. While the verdict is a severe one, the act charged was an outrageous one, and one that the legislature has seen fit to authorize the extreme penalty in punishment therefor. We have no right, under our duty as we see it, to do aught other than to overrule this motion on a record that we think is free from error.

The motion is overruled.


text:
    LILLEY v. STATE.
    No. 21415.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant has filed a brief in this cause asking that the appeal be dismissed, as well as the prosecution in the court below. Several complaints in his motion, or brief and' argument, whichever he intended it should be, complain of the irregular procedure through which appellant has been compelled to go. Some of the things stated by him would be subjects for consideration by this court if he had brought them here properly by record and had effectively invoked the jurisdiction of this court. We even find more irregularities than he mentions. Plowever, it appears that they are chargeable to the diligence of appellant and not altogether to the prosecution.

First, there is no caption stowing when the term of court began and ended. Second, there is no judgment of conviction to be found in the record. The clerk has copied-only what appears to be a docket memorandum of the jury’s action, which does not purport to be a judgment of the court thereon. Third, a motion for new trial was filed in the case. The record does not show that this motion was ever acted on. Fourth, a bond was filed by appellant and, as copied in the transcript before us, is fatally defective in that it permits the appellant to “depart without leave of this court, in order to abide the judgment of the Court of Criminal Appeals of the State Texas.”

Finally and fatally from “kivver to kivver” there is no notice of appeal, without which this court has no jurisdiction of the irregularities either of the prosecution or of the defense. Accordingly, the appeal is dismissed.