author: BEAUCHAMP, Judge. CHRISTIAN, Judge.

text:
    LEWIS v. STATE.
    No. 21241.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1940.
    Rehearing Denied Dec. 18, 1940.
    W. C. Wofford, of Taylor, and J. E. Chumney, of Georgetown, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Willie Lewis was given a penalty of two years in the penitentiary by a jury in Williamson County on a charge of assault to murder, and from it he appeals.

The indictment alleges that he “then and there unlawfully cut Myrtle Lewis with a knife with the intent then and there to murder the said Myrtle Lewis * * The court submitted an issue to tbe jury on assault to murder with malice and without malice. The jury returned the following verdict: “We the jury find the defendant guilty of an unlawful assault with the specific intent to kill the said Myrtle Lewis by cutting her with a knife and assess his punishment at confinement in the State Penitentiary for a term of two years.”

The State has conceded that this verdict is insufficient upon which the court may impose a valid sentence under the holdings of this court in Pleasant v. State, 137 Tex.Cr.R. 154, 128 S.W.2d 813 and the authorities there cited and discussed. We think the State’s admission is correct. Accordingly, the judgment of the trial court is reversed and the case remanded.

On State’s Motion for Rehearing.

CHRISTIAN, Judge.

The Honorable W. K. McClain, Criminal District Attorney of Williamson County, has filed a motion for rehearing herein in which he calls attention to the fact that the indictment embraced no averment -that the assault was committed with malice. Stated in another way, the indictment, in failing to allege malice, can only support a conviction for an assault to murder without malice. In view of this fact the contention is made that the verdict of the jury evidences a finding that the conviction was for assault to murder without malice. In view of the fact that the court gave instructions to the jury covering an assault to murder with and without malice, and of the further fact that the jury failed to show in their verdict whether they found appellant guilty of assault to murder with or without malice, we are of opinion that the trial court was not in a position to give effect to the Indeterminate Sentence Law. See Article 775, C.C.P., Vernon’s Ann.C.C.P. art. 775. It is observed that, in sentencing appellant, the trial court directed that'appellant be confined in the penitentiary for a term of two years. If the conviction was for an assault to murder without malice the jury were warranted in assessing the penalty at not less than one nor more than three years. In that event, in making application of the Indeterminate Sentence Law, it should have been directed that appellant be confined in the penitentiary for not less than one nor more than two years. The penalty assessed by the jury was confinement in the penitentiary for a term of two years, which is within the limits of the punishment prescribed for an assault to murder with malice, as well as for an assault to murder without malice. Johnson v. State, 137 Tex.Cr.R. 82, 128 S.W.2d 384, 385, directly supports our conclusion herein that the motion for rehearing should be overruled. In that case, Judge Krueger, speaking for the court, used language as follows:

“Appellant next contends that this case should be reversed because the court, in his charge to the jury, instructed them on a phase of an offense not included in the indictment in this: That the indictment merely charged him with an assault to murder, while the court instructed the jury on the law of an assault to murder with and without malice.
“This conveyed to the jury the idea that the indictment was sufficient to sustain a conviction of murder with malice. The matter seems to have been further impressed upon the minds of the jury by the court’s instruction that they were bound to receive the law from the court as given to them in the charge and be governed thereby. The jury returned a verdict finding appellant guilty as charged in the indictment and assessed his punishment at confinement in the state penitentiary for a term of two years, which is within the limits of the punishment prescribed for an assualt to murder with malice as well as without malice. He was sentenced by the court to confinement for a period of two years.
“Assuming that the jury found him guilty of an assault to murder with malice as they were authorized to do under the court’s charge, then this judgment cannot be upheld, becaus^, the indictment does not charge such a grade of offense. The court evidently: thought that the jury found appellant guilty of an assault to murder with malice, because in sentencing him, he failed to make application of the indeterminate sentence law. We must assume that the court complied with the law in pronouncing the sentence. This leaves us in such a state of uncertainty that we would not feel authorized to hold as a matter of law that the jury found appellant guilty of an assault to murder without malice. If the jury had said so in express words, we would have no difficulty in deciding the question, but the jury found him guilty as charged in the indictment. The court in his charge told them that they could find him guilty .under the indictment of an assault to murder with malice.
“Under the circumstances and the provisions of the law mentioned above, due to the imperfect verdict, the trial court was in no position to give effect to the indeterminate sentence law and neither is this court in a position to give effect to the verdict because it does not know of what grade of offense the jury intended to convict the accused. In the absence of such knowledge, which should have been contained in the verdict before it was received by the trial court, this court does not feel authorized to sanction the imprisonment of the accused upon the verdict in question.”

Giving application to the holding in the Johnson case, we are constrained to adhere to the conclusion expressed in the original opinion herein.

The motion for rehearing is overruled.

PER CURIAM.

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


source: Caselaw Access Project

author: GRAVES, Justice. HAWKINS, Presiding Judge.

license: Public Domain

text:
    Ex parte HENSLEY.
    No. 21201.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1940.
    Rehearing Denied Dec. 18, 1940.
    Cox & Cox, of Sherman, for appellant.
    Lloyd W. Davidson, State’s A tty., of Austin, for the State.
   GRAVES, Justice.

Relator filed an application with the District Judge of the Fifteenth Judicial District Court of this State, at Sherman, in which he alleged that 'he was about to be restrained of his liberty illegally by one W. O. Taylor, a designated agent for the State of Oklahoma, for the purpose of being removed from this State to Oklahoma. He set forth in this application many reasons why he should not be turned over to said ag'ent, and closed with a request that the court issue a warrant for relator’s arrest in order that he might be brought before the trial court and the legality of such detention inquired into.

The court set the matter down for a hearing at a future date, and did issue a warrant to the sheriff of Grayson County, which warrant was executed, and relator was by such sheriff taken into custody, and on February 24, 1940, a hearing was had on such application, and the said application was refused by the trial court, and relator was ordered held by the sheriff to be delivered to W. O. Taylor, the Oklahoma agent.

Proper notice of appeal was given and entered, and same is brought here for review.

The statement of facts shows that on October 5, 1939, in Grayson County, Texas, a complaint was filed charging relator with being a fugitive from justice from Oklahoma, and under such a complaint a warrant was issued for his arrest, and upon a hearing before a proper officer, relator was remanded to the custody of the sheriff of Grayson County, the order providing for his enlargement upon bail in the sum of $750.

The facts further show that for a period of ninety days from October 5th relator was not arrested under a warrant from the Governor of this State, and we therefore gather from the record that he was discharged by the operation of Art. 1003, C. C.P. However, immediately after the expiration of the ninety days from October 5, 1939, on February 8, 1940, the Governor of this State did issue his warrant commanding the arrest of relator and his delivery to W. O. Taylor to be taken back to the demanding State. This was in accordance with the statute as shown in Art. 1004, C.C.P., as follows: “A person who has once been arrested under the provisions of this title and discharged under the provisions of the preceding article or by habeas corpus shall not be again arrested upon a charge of the same offense, except by a warrant from the Governor of this State.”

There is no complaint made of either the manner or the form of the Governor’s warrant, but it is contended that on account of the fact that the State of Oklahoma failed to take possession of relator during the time he was held under the warrant of the justice of the peace as a fugitive from justice, that he could not again'be apprehended for the same alleged offense, but that he was at the end of the ninety-day period, set forth in Art. 1003, C.C.P., entitled to his discharge.

This above statement is true in so far as it relates to being again held as a fugitive from justice, by virtue of Art. 1004, C.C.P., but that same article further provides: “* * *. except by a warrant from the Governor of this State.” As we have already indicated, we find present herein a warrant from the Governor of this State ordering relator’s arrest.

In relator’s brief he requests this court to set aside the judgment of the trial court remanding him to the custody of the sheriff of Grayson County, to be delivered to the Oklahoma agent, and that this court strike this cause from the docket of the trial court and of this court, leaving this cause to take the course of a dismissal. This we decline to do. Relator himself requested that a warrant be issued for his arrest, and such was done, and he voluntarily submitted himself to the jurisdiction of the trial court under his application for a writ of habeas corpus. The sheriff arrested him and brought him into court, and the trial court, upon a hearing, refused to grant such writ of habeas corpus, refused to discharge relator as prayed for by him, and remanded him to the custody of the sheriff to be turned over to -the Oklahoma authorities. The requisition of the Governor of Oklahoma seems to be in proper and legal form, and the Governor of Texas’ writ also seems to be in proper and legal form, and it is our opinion that the trial court entered the proper order in this cause.

The judgment of the trial court is therefore affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

In his motion for rehearing relator asserts that the offense with which he was charged in Oklahoma and upon which the application for requisition was based charged him with a misdemeanor only, and that he is not subject to extradition upon a misdemeanor charge. We do not discuss or express an opinion upon the question as to whether relator could be extradited upon a misdemeanor charge, but upon that point cite Ex parte Bergman, 60 Tex.Cr.R. 8, 130 S.W. 174, and Ex parte Mendell, 92 Tex.Cr.R. 321, 244 S.W. 146.

In Harlow’s Oklahoma Statutes of 1931, Section 2216, 21 Okl.St.Ann. § 701, provides that homicide is murder: “* * * When perpetrated by any a.ct imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual”.

Section 2222, 21 Okl.St.Ann. § 707, fixes the punishment for murder at death or imprisonment in the penitentiary for life, at the discretion of the jury.

Section 2220, 21 Okl.St.Ann. § 70S, provides : “Homicide perpetrated by an Act imminently dangerous to others and evincing a depraved mind, regardless of human life, is not the less murder because there was no actual intent to injure others.”

Section 2228, 21 Okl.St.Ann. § 716, provides : “Every killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.”

For the construction of Section 2228 by the Criminal Court of Appeals of Oklahoma we refer to Sprouse v. State, reported in 52 Okl.Cr. 184, 3 P.2d 918.

By Section 2234, 21 Okl.St.Ann. § 722, every person guilty of manslaughter in the second degree is punishable by imprisonment in the penitentiary for not more than four years and not less than two years, or by imprisonment in the county jail not exceeding one year, or by a fine not exceeding $1,000, or by both fine and imprisonment.

The complaint upon which the extradition writ was requested alleges that relator did: “* * * unlawfully, wrongfully, knowingly, wilfully and feloniously without authority of law, in a manner eminently dangerous, and with a reckless disregard of human life, and without due regard to the subsequent consequences of his acts, grossly neglecting to use ordinary precaution in that he was driving at such a' rate of speed that he could not properly guide and control his automobile, and failing to keep a proper outlook and to observe the course of his automobile so as to avoid a collision with the deceased, and failing to observe due caution and and circumspection or to sound any kind of warning, make an assault in and upon one Malcom Ray May with a certain 1932 'Plymouth coupe automobile, which said automobile was then and there had and held in the hands of him, the said Leon Hensley, and the said Leon Hensley did then and there with said automobile so had and held as aforesaid, unlawfully, wrongfully, recklessly, wantonly and feloniously, without authority of law, and with a reckless disregard of human life, and grossly neglecting to use ordinary precaution, in a cruel and unusual manner strike, injure and would the said Malcom Ray May, then and there and thereby inflicting certain mortal wounds in and upon the body of the said Malcom Ray May, of which said mortal wounds so inflicted so aforesaid, the said Malcom Ray May did linger, suffer and on the 30th day of September, 1939, die * * *

In view of the averments in the complaint and the Oklahoma statute referred to we see no basis for relator’s contention that he was charged with a misdemeanor.

The motion for rehearing is overruled.


text:
    MAXEY v. STATE.
    No. 21196.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1940.
    Rehearing Denied Dec. 18, 1940.
    M. Neal Smith, of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was charged upon indictment for the offense of unlawfully and knowingly transporting motor fuel and gasoline upon which a tax is required to be paid under a false manifest. The jury found him guilty and returned into court the following verdict: “We, the jury, find the defendant guilty as charged in the indictment and assess his punishment at One Hundred Dollars ($100.00) fine and six months in the Gregg County jail and we further find that the defendant has never before been convicted of a felony in this state or in any other state, and we recommend to the Court that the Jail sentence only against the defendant in this case be suspended during the good behavior of the defendant.”

The appellant had not asked for a suspended sentence. .The court was without power or authority of law to enter a judgment of conviction embracing the terms of the jury’s verdict. In compliance therewith, the trial court, undertook to do so, decreeing that appellant should pay the fine of $100 and that the imprisonment for six months should be suspended.

This judgment, for the reason stated, is void. The cause is reversed and remanded for a new trial.

On State’s Motion. For Rehearing.

CHRISTIAN, Judge.

In the State’s motion for rehearing it is pointed out that we were in error in stating in our original opinion that appellant made no application for a suspended sentence. It appears from the record that an application for a suspended sentence was timely filed and submitted to the jury in the charge of the court.

The state contends that the jury were warranted in recommending that sentence be suspended as to that part of the punishment relating to the confinement of the appellant in jail for a term of six months, and in withholding such a recommendation as to the fine they assessed. We are unable to agree with this contention. The right to have the sentence suspended is given in our statutes relating to the subject. See Article 776, C.C.P. We know of no statute authorizing the sentence in a felony case to be suspended as to part of the punishment. The present prosecution was for a felony, notwithstanding that part of the penalty assessed was a fine. There being no authority in law authorizing the procedure disclosed by the record herein, we are constrained to hold the verdict of the jury and the judgment based thereon to be void.

The motion for rehearing is overruled.

PER CURIAM.

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


author: KRUEGER, Judge. BEAUCHAMP, Judge.

text:
    ALMAZAN v. STATE.
    No. 21180.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1940.
    Rehearing Denied Dec. 18, 1940.
    T. Gilbert Sharpe and Nicholas Cos-grove, both of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense for which appellant was convicted was as an accomplice to burglary. The punishment assessed is confinement in the state penitentiary for a term of four years.

Appellant challenges the sufficiency of the evidence to corroborate Louis Loncario, the self-confessed burglar, to justify and sustain the conviction.

Loncario testified that he met appellant for the first time at a domino parlor on the corner of Medina and Commerce Streets in the City of San Antonio, Texas, about one and one-half years prior to the commission of the alleged offense; that appellant asked him at that time if he desired to make some “easy money”, to which he replied that he did not; that a few days later he met appellant at about the same place, who again asked him if he desired to make .some “easy money”; that he (Lon-cario) then inquired of him how they could make this “easy money”, whereupon appellant told him that there was a trapdoor in the floor of the Alamo Pecan Shelling Company building, through which he could get into the building, steal pecans and sell them; that thereafter he did enter the building many times at night through the trapdoor, steal pecans, sell them and give appellant one-half of the proceeds of the sale. Loncario testified that the trapdoor was not always at the same place; that sometimes it would be in the toilet, sometimes in the middle of the floor and sometimes at another place. He said that on two occasions when he was in the building at night committing theft other parties would come into the building through the trapdoor and also commit theft; that during the times when such other parties were in the building he would hide until they left and then he would leave with his loot. He claimed that at no time was the appellant present or did he in any way aid him in the burglary except to make the trapdoor and advise him as to where it was. He said that he was in the building on Sunday a short time before he was caught.

While this testimony would show appellant to be an accomplice to the offense of burglary, yet, under Article 718, C.C.P., this is not sufficient to justify his conviction unless there is some testimony from other sources which corroborates Loncario upon some material and criminative fact tending to connect appellant wilth the commission of the offense charged.

Now, let us take the testimony of the witness, Jack Horkheimer, the owner of the Alamo Pecan Shelling. Company, and see if it corroborates the testimony of Loncario upon some material part. We quote from his testimony as follows:

“I know James Almazan. * * * He was employed by me a little over three years to take care of the cracking machine and to make whatever minor repairs were necessary to the building and the general equipment. He was a sort of a foreman of that department. * * * I did not have a regular night watchman, but on occasions I would leave a man there, but when I did so none of my employees knew I was leaving a night man. Almazan knew a night man was being left there. The door was not padlocked on the outside, but was bolted on the inside. * * James Almazan had done a little repair work around there. He looked after the carpenter work on the floor. No one did any work on the floors except Almazan. I have seen him in the men’s toilet, and there was some work done in front of one of the toilets some two or three months before this man was caught.”
“I made an examination of the premises on the occasion this man was caught in there, and I had occasion to look at the men’s toilet. This man took us there, and he showed us how he got in. When he took us to this wash room I found practically a normal floor, and he took a screw driver or something * * * and took this board up. * * * You will notice the nails have been clipped. This board set on two sills and had wing nuts on it. You could not notice it was loose from the inside of the toilet. * * * Loncario had the wing nuts in his pocket.”

On cross-examination the witness testified: “He (Almazan) repaired the floor portion of the toilet, he having said that there was a weak board in there that should be replaced and I told him to go ahead and replace it. I did not at any time inspect it either before or after he repaired it. I spend the majority of my time in the building. There were other people in the toilet. As to whether or not one of the other employees might have put that board in there, I will say I know only by the fact it would not seem logical to me that some one who was employed to do one job would gratuitously do another. * * * That is my opinion.”

Horkheimer further testified that he knew appellant well; that he loaned him money when he would get behind in the payments on his automobile, and he would pay him back out of his wages. “This was during the time I was loosing the pecans, I never saw anything which led me to believe that he had any other source of income than what I paid him.”

Amando Flores testified that he had worked for Mr. Horkheimer about five years and was still working for him; that he saw Almazan fixing the floors some two or three different times; that he never saw anyone else work on the floors; that whenever Almazan was fixing the floors there were a lot of people working and everybody could see him around there.

Jack Hart, who was employed by Hork-heimer to watch the building and who was in the building on the night in question, testified, among other things, as follows: “I saw the trap door in the rest room when he (meaning Loncario) showed it to me. I could not see it before he showed it to me. This board you exhibit here is what he showed me. It was in the floor.”

Oscar Velber testified, among other things, as follows: “These boards were in the men’s toilet. * * * They were part of the floor and it would hold a person’s weight. When they were in place you could not notice that there was such a board in the floor. * * * One end- of this rested on-the joist, and you could step on it and it would, not give. This board was in the middle of the floor in the men’s toilet. There are plenty of boards like that all over the building. That building has a patched-up floor. He (Horkheimer) employed about three hundred people and part of them were men.”

Mr. Lankford, a city detective, testified that he was summoned to the Alamo Pecan Shelling Company building on the night in question; that he asked Louis Loncario how he got into the building. He said that he got in through the floor. From the testimony of the witness we quote: “He (meaning Loncario) took us to the men’s toilet, and we found there a board about eighteen inches long. * * * It appeared to be a regular floor board. This man reached down with his finger and pulled the board out. I searched the man and found on him a car key, or set of car keys, and two nuts that fit that bolt.”

Mr. Hardcastle, another city detective, testified, among other things, as follows: “Loncario gave his name as Albert Unis. I had a conversation with him and asked him how he got in and he said he was locked in; and he took us to the men’s toilet and showed us where he came through. * * * I saw this trap * * * and it had a thumb bolt * * * ‘ and you could screw this downf. * * * After we had him at the office and talked to him, we made the'remark that it was an inside job and that it looked like he was on the spot, and he said, ‘Well, I will tell you everything.’ He described the other man, and Mr. Horkheimer called -this man’s name and we went out and got him and brought him in. . Loncario identified this man. * * * When he got in there he did not know the man’s name, but he described him, * '* * his height and .weight. He also said he had been working with the boy for over a year. He did not know his name. He called him Joe.”

The foregoing are the salient facts testified to by the witnesses, and in our opinion are insufficient to meet the requirements of the law.

In the case of McInnis v. State, 122 Tex.Cr.R. 128, 54 S.W.2d 96, 98, this court, speaking through Judge Hawkins, said:

“Evidence which corroborates the accomplice witnesses only on immaterial facts is not sufficient. To meet the requirements of the statute it must be as to some criminative fact which tends to connect accused with the commission of the offense charged. [Authorities citedjl The corroboration may, of course, consist of proven circumstances, as well as direct evidence, and, where the state relies upon circumstances proven by various nonaccomplice witnesses, the rule has been stated in Minor v. State, 108 Tex.Cr.R. 1, 299 S.W. 422, 429, as follows: ‘It is the combined and cumulative weight of the evidence furnished’ by nonaccomplice witnesses which supply the test. If by this rule it appears on appeal that before the jury there was proof confirming the testimony of the accomplice (witness) to material facts tending to connect the accused with the * * * offense, the law is satisfied.’
“Of course, it must be understood in this connection that the combined and.cumulative testimony of the nonaccomplice witnesses would not be as to material facts, unless the facts established by this combined and cumulative, testimony were of a criminative character, that is, such as tended to connect accused with the commission of the offense charged.”

In the case of Fields v. State, 131 Tex.Cr.R. 281, 98 S.W.2d 209, 210, this court said: “Our statutes will not permit a conviction of one accused of crime upon the uncorroborated testimony of an accomplice or accomplices. Therefore, the state was" required to corroborate the accomplice witnesses upon material facts which tended to connect the accused with the commission of thé offense. In determining the sufficiency of the corroborating testimony, we usually eliminate- the testimony of the accomplice from consideration and look to the other testimony of the case to ascertain if it tends to connect the accused with the commission of the offense. If so, the corroboration is sufficient; if otherwise, it is not. Applying the foregoing rule to the testimony disclosed by this record, we. do-not believe that the facts of this case meet the requirements of the law. That appellant, Echols, Pierce, and Board were seen together on the streets of Sherman between 6 and 7 o’clock prior to the alleged burglary, and that appellant and Echols went to the home of Echols’ father and talked to some person over the telephone, who they took to be Pierce’s wife, and that they were seen together the next day, does not tend to connect appellant with the commission of the offense.”

See also Clark v. State, 131 Tex.Cr.R. 402, 99 S.W.2d 927.

In the present instance, there is not any evidence from any source that appellant and Loncario were ever seen together; that Loncario at any time ever gave any money to the appellant as part of the proceeds from the sale of the pecans. There is no evidence that appellant, during the time of the theft as related by Lon-cario, ever had any income from sources other than his wages. No one saw the appellant under the building putting the nuts on the bolts by which the plank was held in position, although many persons were employed and were working in the building; nor is there any evidence that appellant did any work on the floor except during business hours. It occurs to us that no one could have put the wing bolts in there and fastened the nuts unless he got under the building, because Loncario could not remove the nuts from the bolts except from the outside of and under the building. Consequently the only evidence which might be deemed to corroborate Loncario is the fact of a trapdoor in the building, not that appellant put it there but that he had the opportunity to place it there. Who made the trapdoor in the middle of the building through which Loncario entered on former occasions? Was it the appellant? If so, why did Loncario fail to say so?

Having reached the conclusion that the testimony of the accomplice has not been sufficiently corroborated on material and incriminative facts to sustain the appellant’s conviction, it is therefore ordered that the judgment of the trial court be and the same is hereby reversed and the cause remanded.

PER CURIAM.

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

On Rehearing.

BEAUCHAMP, Judge.

The State’s motion filed in this cause reviews the testimony upon which it relies to find corroboration for the accomplice witness.

We have considered the testimony of each witness referred to in the motion and conclude with the language of the State’s attorney that, “the finger of suspicion points to the appellant and the appellant alone”, by reason of such testimony. However, suspicious circumstances are not sufficient, standing alone, to corroborate the testimony of an accomplice witness.

One proposition of law is asserted in the motion which we desire to notice. It is said that the law does not require that all of the essential facts be corroborated. We think that all of the essential facts must be corroborated by circumstances or otherwise than that of the evidence of the accomplice, and they must be more than merely suspicious circumstances. A chain is no stronger than its weakest link, and if the State must rely on the accomplice’s testimony for some material fact without any corroboration whatsoever, the conviction cannot stand. It is unfortunate that designing criminals sometimes so lay the scene of their activities that there is great difficulty in proving their guilt, and more unfortunate still is it that frequently the State is not able to do so, but such is no argument in favor'of a rule which would permit the conviction of innocent people on the testimony of a party or parties involved in the crime, or that reliance may be had on, “the finger of suspicion”. For the purpose of corroborating testimony which is considered too unreliable to take human liberty, something stronger is required than mere suspicion. This court has always so held.

Furthermore, it is implied by the state in its motion for rehearing that if the accomplice is corroborated in one essential fact, that may be sufficient to sustain the verdict. If the brief presenting the question is to be so understood, then our position should be made clear that every essential fact testified to by the accomplice alone must be corroborated by nonaccomplice testimony tending to connect appellant with the commission of the offense charged. It is conspicuously lacking in this case in one particular, in that there is no. evidence showing that appellant had any connection with this accomplice witness. He testified that appellant would meet him at a certain place and they would divide the money. 'This connects appellant with the offense, but there is no evidence to corroborate this, without which the state’s case must fall.

If we should assume that there is evidence showing that appellant had constructed the trapdoors in the floor as a means of entrance to commit theft, it may be pointed out also that the evidence shows other people entered through this same trapdoor for this purpose. It could as well be assumed, in the absence of proof connecting appellant with the particular crime charged, that the witness gained his information about the opening in some other way than from appellant. In all events, the evidence must connect appellant with Louis Loncario and with the offense which he committed. This the state has failed to do, as pointed out in our original opinion, the -reasoning of which, after further consideration, is adhered to.

The motion for rehearing is overruled.


author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    WEST v. STATE.
    No. 21117.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    Rehearing Denied Dec. 18, 1940.

      Theodore Andress, Charles Owen, and Fryer & Milstead, all of El Paso, for appellant.
    Roy D. Jackson, Dist. Atty., and Harold S. Long, Asst. Dist. Atty., both of El Paso, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

The appellant and W. F. Carr were jointly indicted for having swindled the American Smelting & Refining' Company of El Paso, Texas, out of $5,857.19. Appellant asked for and obtained a severance and he alone was placed on trial.

It appears from the record that appellant and Carr claimed to be engaged in mining gold and silver in the state of New Mexico in the year 1938. Some time in the summer of said year they made arrangements with the American Smelting & Refining Company to ship to it ore in carload lots, which was to be paid for by the company at the prevailing market price, which was $35 per ounce for gold and 65 cents per ounce for silver. A sample was taken out of the ore as it was being run through a crusher and pulverized. The value of the mineral per ton was determined by an assay thereof, the richer the sample the greater value per ton. During the months of October, November and December, 1938, and January and February, 1939, appellant and Carr shipped several carloads of rock and dirt from dumps of abandoned mines. These dumps, according to the testimony, had been discarded by the miners many years ago because they did not contain sufficient minerals to justify thejpaying of shipping charges. Appellant and Carr shipped this discarded ore to the American Smelting & Refining Company at El Paso, Texas; and when it was run through a crusher and a sample was being taken, they were seen loitering about the place in close proximity to the sample bucket. The samples taken from the following cars disclosed the percentage of mineral per ton to-wit: S. P. car No. 93,257 contained .47 of an ounce of gold, 2.8 copper and 120.7 ounces of silver. S. P. car No. 46,840 contained 1.24 ounce of gold, 28.8 ounces of silver. S. P. car No. 46,213 contained .82 ounce of gold, 21.5 ounces of silver. S. P. car No. 44,339 contained .78 ounce of gold and 17.2 ounces of silver. S. P. car No. 91,763 contained .54 ounce of gold and 46.3 ounces of silver per ton. On December 10th, appellant and Cárr shipped one carload from the same dump which, according to the analysis of a sample thereof, was worthless and did not contain sufficient mineral to pay the shipping charges. On December 19, 1938, they shipped another car from the same dump which, according to the analysis thereof, disclosed a high percentage of metal content, and they received for said carload (which was the one in question) the sum of $5,857.19.

Refugio Hernandez, an employee of the company whose duty it was to convey the sample from the crusher to the assay room, testified that in the early part of 1939, the appellant and Carr came to his home at night and told him that they suspected they were being watched by some of the employees of the American Smelting & Refining Company and offered him $35 per car and agreed to furnish him pulverized gold and silver which he was to mix and mingle with the sample before it was taken to the assay room; that at first he declined their proposition b.ut finally accepted it They then paid him $70 in advance. This testimony indicates that they had been padding and bolstering the samples themselves but had become fearful that they might be apprehended and therefore sought the services of Hernandez.

Appellant took the witness stand and testified in his own behalf. He protested his innocence and want of fraudulent intent. On cross-examination he admitted, however, that they shipped three carloads of ore from the old abandoned dump at the Atwood Mine which netted them good returns; that when he made a sworn report to the Treasury Department at Washington, D. C., relative to his mining business, he stated in said report that the ore was newly mined and came from the Last Chance Mine in the Gold Hill District of New Mexico. He said they next shipped six cars from the Chapo Mine at Hachita, New Mexico; that during the months of November and December, 1938, and January, 1939, these six cars were taken from, an old abandoned dump. However, when he made his report to the Treasury Department at Washington, D. C., he reported that the mineral was newly mined ore, all of which was shown to be untrue-. He denied that he mixed and mingled any pulverized gold and silver in the sample or caused it to be done before it was taken to the assay room. He also denied having bribed Hernandez or paid him any money or offered to do so for padding and bolstering the samples. His employees who loaded the ore to be shipped all testified that all the ore shipped from the Hachita Mine came from an old dump and that none of it was newly mined. The foregoing constitutes a brief statement of the facts.

Appellant’s first complaint is of the action of the trial court in declining to sustain his motion to quash the indictment on the ground t|iat it was vague, indefinite and uncertain and did not advise him to whom the false and fraudulent pretenses and representations were made. It is charged in the indictment that on or about the 31st day of December, 1938, W. F. Carr and M. N. West, by means of false pretenses and devices and fraudulent representations made by them to the American Smelting &.Refining Company, a corporation, did induce the said American Smelting &• Refining Company, to part with the title and possession of the sum of $5,857.19, the same being the corporeal personal property of and belonging to the American Smelting & Refining Company, and to deliver said sum of money to the said W. F. Carr and M. N. West; and the said W. F. Carr and M. N. West did acquire said money from the American Smelting & Refining Company with the intent then and there to deprive the said American Smelting & Refining Company of the value of the same and to appropriate it to the use and benefit of them the said W. F. Carr and M. N. West; said false pretenses, devices and fraudulent representations so made being as follows, to-wit:

“That prior to December 31st, 1938, the said W. F. Carr and M. N. West had made arrangements with the American Smelting and Refining Company to ship cars of mineral hearing ore to said American Smelting and Refining Company at El Paso, Texas, which ore was to be brought by said American Smelting and Refining Company, the price to be determined by the current prices of the minerals contained and the richness of the ore, that is, the number of ounces per ton of such minerals as were found in commercial quantities in said ore; the mineral content of such ore to be determined by assays made of representative samples of each shipment of ore so to be purchased; that on or about December 31st, 1938, the said W. F. Carr and M. N. West shipped to said American Smelting and Refining Company at El Paso, Texas, a carload of ore and tendered same for sale to said company; that there was taken from said car a representative sample of ore to be assayed to determine the value thereof and the said W. F. Carr and M. N. West did then and there willfully, knowingly and fraudulently place and cause to be placed in said sample before the same was assayed, a quantity of high grade ore containing a high percentage of gold and silver thereby greatly increasing the percentage of gold and silver in said sample and which sample when assayed showed a higher percentage of gold and silver than the car of ore of which it purported to be a representative sample actually contained; that by said false pretenses and devices and fraudulent representations so made by the said W. F. Carr, and M. N. West to the American Smelting and Refining Company they thereby falsely and fraudulently represented to the American Smelting and Refining Company that said entire car of ore was of a richness and contained a percentage of gold and silver equal to that of said sample so assayed and was of the value as shown by said assay, to-wit: the sum of Five Thousand, Eight Hundred Fifty-seven Dollars and nineteen cents after deducting the costs of shipping and smelting, and did by such false pretenses and devices and fraudulent representations induce the said American Smelting and Refining Company to pay to the said W. F. Carr and M. N. West the said sum of Five Thousand, Eight Hundred Fifty-seven Dollars and Nineteen cents for such ore, and the said American Smelting and Refining Company did then and there rely on said false pretenses and devices and fraudulent representations of said W. F. Carr and M. N. West that all of said car of ore was of the richness and contained the percentage of gold and silver as was shown in said assay and did pay to them the said sum of Five Thousand, Eight Hundred Fifty-seven Dollars and Nineteen cents believing the said representations to be true and that said ore was of 'said value; when in truth and in fact the said ore did not contain a high percentage of gold and silver and was not rich in said minerals and did not contain the percentage of gold and silver as was shown in said assay and was not of the value as represented but was worth Two Hundred Fifty Dollars and the said W. F. Carr and M. N. West then and there well knew that said pretensés, 'devices and representations were false, against the peace and dignity of the State.” •

Appellant contends that since the American Smelting & Refining Company is alleged to be a corporation, neither he nor Carr or either of them could have made any false and fraudulent representations to it, but that if any were made they must have been made to some agent or officer of the corporation by and through whom it acted; that therefore the agent or officer oj: the corporation to whom the false representations were made should have been named in the indictment in order to give him notice of what he would be required to meet upon the trial of the case. In support of his contention he cites us to the case of Pruitt v. State, 83 Tex.Cr.R. 148, 202 S.W. 81. If the alleged fraudulent representations had been made verbally then there might be some merit in the appellant’s contention, and the rule announced by this court in the case of Pruitt v. State, supra, might be applicable; but in the instant case it was specifically charged that appellant and Carr padded and bolstered the samples of the alleged ore by placing a high-grade pulverized metal of gold and silver into the sample, or caused it to be done, which was a pretense, device and act and not a verbal representation. It was definitely charged in the indictment that W. F. Carr and M. N. West wilfully and fraudulently placed, or caused to be placed, in the sample a quantity of high-grade ore of gold and silver, thereby increasing the percentage of gold and silver in said sample which, when assayed, showed a higher percentage of gold and silver per ton than the car of ore of which it was purported to be a representative sample actually contained. We deem this sufficient to put the appellant upon notice of what he would be required to meet upon the trial; that is, that the fraudulent pretenses and devices resorted to by the appellant and Carr, as charged in the indictment, were acts committed for the purpose -of misleading the assayist of the corporation by and through whom they expected to swindle it out of the amount of money charged in the indictment. The as-sayist, whoever he was, had certain well-defined duties to perform under his employment with the corporation. An assayist is a person who, as the name implies, makes an examination and analysis of metals, etc., just as much so, as the name cashier implies that he is a person who pays and receives money for a corporation or institution. But a cashier’s duty under his employment would not carry with it the duties of an assayist, nor would the duties of an assayist carry with it the duties of a cashier. Hence the false pretenses and devices resorted to and employed by the appellant and Carr to defraud the American Smelting & Refining Company was by and through an innocent agent, namely, the assayist. Without reference to what his name was, they knew that the padding and bolstering of the sample with a high-grade metal would deceive and mislead the assayist; that the result of the analysis by him of the sample would be reported to the corporation which would act upon the report and thus act to its injury. This was in contemplation of the appellant and Carr when they conceived the scheme which they carried out, as reflected by the record. Since no verbal representations were made by the appellant and Carr we believe that the rule announced by this court in the case of Cochrain v. State, 93 Tex.Cr.R. 483, 248 S.W. 43, is applicable here. Hence we overrule the appellant’s contention.

Bills of Exception Nos. 1 to 6, inclusive, involve the same legal questions and will be treated and considered by us together. In said bills appellant complains of the admission in evidence of the shipment of a certain number of carloads of rock and dirt by the appellant and Carr to the American Smelting & Refining Company at El Paso, Texas, during the months of September and October, 1938, from an old dump at or near the Atwood Mine and to all evidence relative to the shipment by them of any car of ore to the American Smelting & Refining Company at El Paso, Texas, prior and subsequent to the time of the alleged offense as charged in the indictment. It appears from the record that the purpose of the State was to show that the appellant and Carr had resorted to the same means and method and entertained the same intent to swindle the corporation out of some money by shipping carloads of rock and dirt from old dumps which did not contain ore in sufficient quantities to yield the amount of gold and silver as disclosed by an assay of a representative sample thereof. Appellant objected to said testimony upon the following grounds: first, that they were extraneous offenses and did not tend to connect him with the offense charged; and second, that it was no part of the res gestae and does not tend to show intent, identity or system. We are not in accord with the appellant’s contention. However, the appellant and Carr had shipped rock and dirt to the corporation from an old dump which had been discarded by miners for approximately twenty years, a representative sample of which disclosed, a high content of precious metals, from which an inference arises that it was padded and bolstered and tends to show scienter and fraudulent intent. Moreover, the fact that they abandoned the Atwood Mine dump although the shipments from it had netted them valuable returns and moved to the dump at the Hanover Mine and shipped from there would, in our opinion, disclose poor business capacity on their part if it actually contained the amount of metal as disclosed by a representative sample thereof. Why abandon a dump which yielded them such marvelous wealth? In each instance they resorted to the same means and employed the same method to perpetrate a fraud upon the corporation. It seems to us that each shipment was but a part and parcel of the entire scheme by which they fleeced the corporation. By “system”, as we understand the term, is meant the use of the same means, the same manner and method of accomplishing a previously planned objective. It tended to show that the samples were padded and bolstered, as contended for by the State, from which an inference of the fraudulent intent arises. If appellant did not “salt” the sample and did not cause it to be done, then no offense was committed.

Branch, in his Ann.Tex. P.C., p. 98, sec. 166, states the rule as follows: “When an extraneous crime or other transaction is a part of the res gestae, or tends to show intent when intent is an issue, or tends to connect defendant with the offense for which he is on trial, proof of same is admissible.”

It occurs to us that here the question of intent, identity and motive were issues in the case and therefore the evidence was admissible.

The appellant’s contention that the State was permitted to prove over his objection that he and Carr stole two carloads of rock and dirt from the old dump at the Atwood Mine is without merit. The record shows that Mr. Augustine, the owner of the dump, gave them permission to take some of it for experimental purposes without designating the amount. After they had taken two carloads they paid him $20 for it. Hence there was no evidence of any theft having been committed by them. Consequently, we overrule his contention as being without merit.

What we have heretofore said in disposing of Bill of Exception Nos. 1 and 2 disposes of all the remaining bills wherein appellant complains of the introduction of similar testimony which he contends shows extraneous offenses.

The introduction in evidence of the reports made by the appellant to the Treasury Department at Washington, D. C., which were false, were, in our opinion, admissible as tending to show scienter and fraudulent intent on the part of the appellant.

By Bill of Exception No. 7 appellant complains of the following statement made by the court in the presence and hearing of the jury: “Gentlemen, I believe that I can explain that matter, but I will not do so in the presence of the jury. If I did, I would get in trouble, because if I said that the sun was shining, it would cause trouble.”

It appears that upon the trial of the case where was present a witness whose name did not appear on the list of the witnesses handed to the appellant at his request by the District Attorney before the beginning of the trial. When this witness, whose name did not appear upon the list, was called to the witness stand to testify, the appellant objected thereto, and the court overruled the objection, making the remark above quoted. This was not any rebuke of counsel for the defendant as now claimed by him. It was merely a statement by the court to counsel that the matter was capable of explanation but he would not do so at that time in the presence of the jury but wottld do so later in order that there would be no, question of his making any improper remark in the presence of the jury. No objection seems to have been made to the testimony given by the witness and no bill is brought forward complaining of the testimony of said witness. The court’s remark was nothing more than informing counsel for the appellant that he could explain the reason for the failure of the name of the witness to appear on the list handed to appellant’s counsel by the District Attorney. In support of what we have stated here, we quote from the opinion of the court in the case of Dailey v. State, Tex.Cr.App., 55 S.W. 821, 822, as follows: “During the trial, counsel for both sides ‘were making objections and wrangling over testimony to such an extent that the whole progress of the court was interfered with; at which point defendant’s counsel, M. Carter, objected to a question asked witness. The court overruled the objection, and directed the county .attorney to proceed; when said Carter again objected, stating that he was trying to prove “so and so.” The court then said: “You will be seated, Mr. Carter. You will not let us prove anything.” ’ Appellant excepted because it was calculated to influence the jury. The court certainly had the right to keep order during the trial and prevent unnecessary wranglings and objections, and to require attorneys to be seated. If this is the portion of the remarks to which this objection relates, there certainly can be no merit in it. The whole statement is objected to without pointing out which portion of it is objectionable. But, if the remainder of the sentence is objected to, we believe the court should not have used the remark, but it was not a comment upon the testimony, and was hardly calculated to influence the jury against appellant.”

We think the case of Hood v. State, 52 Tex.Cr.R. 524, 107 S.W. 848, is very much in point, and a reference to it without quoting from the opinion is deemed sufficient. Just how appellant construes the statement complained of as a reprimand of his counsel is not clear to us. We therefore overrule his contention.

By Bill of Exception No. 9 appellant complains of the court’s instruction on the law of principals. We think that the evidence in this case is clearly such as to call for an instruction on the law of principals. The charge of the court is in accord' with the charge on principals approved by this court in the case of McDonald v. State, 34 Tex.Cr.R. 556, 35 S.W. 286, and subsequently approved by this court in the case of Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W. 1046.

By Bill of Exception No. 10 appellant complains of the action of the trial court in declining to instruct the jury relative to the law of alibi. The appellant’s contention here, as in the trial court, is that if the offense was committed as charged in the indictment, he was not present and did nothing in furtherance of the original design, if any, at the time of the commission of the offense and therefore would not come within the definition of a principal. Article 65, P.C., defines “principals” as follows: “All persons are principals who are guilty of acting together in the commission of an offense.”

Article 66, P.C., having reference to the same subject, reads as follows: “When an offense is actually committed by one or more persons, but others are present, and knowing the unlawful intent, aid by acts or encourage by words or gestures, those actually engaged in the commission of the unlawful act, or who, not being actually present, keep watch so as to prevent the interruption of those engaged in committing the offense, such persons so aiding, encouraging or keeping watch are principal offenders.”

Art. 67, P.C., reads thus: “All persons who shall engage in procuring aid, arms or means of any kind to assist in the commission of an offense, while others are executing the unlawful act; and all persons who endeavor at the time of the commission of the offense to secure the safety or concealment of the offenders are principals.”

Art. 69, P.C., reads as follows: “Any pGrson who advises or agrees to the commission' óf an offense and who is present when the same is committed is a principal whether he aid or not in the illegal act.” "

It is the appellant’s contention that the testimony does not bring him within the definition of a principal, as defined by statute, because the proof shows that the car of ore in question arrived at the plant of the American Smelting & Refining Company on the 22nd day of December, 1938; that an analysis of the sample was not made until after Christmas; that appellant was not in El Paso, Texas, at the time, having left there several days before Christmas and consequently was not present when the offense was committed, if it was committed. If, however, the evidence brings appellant within the definition of principals, then he would not be entitled to an instruction relative to the law of alibi.

Now, let us take the testimony, that is, all the facts and circumstances adduced upon the trial and see if it brings him within the rule of principals. The appellant and Carr shipped several cars of ore from an old dump, and when this ore was being run through a crusher, where a sample was being taken, they were seen loitering about the place while the crusher was in operation. This ore, or rather rock and dirt, from an old dump which they shipped, disclosed, according to an analysis by the assayist, quite a quantity of gold and silver, the shipping of which, if it really, actually and truly contained that quantity of the precious metal, would soon have enriched the appellant and his co-conspirator Carr. However, for some reason undisclosed by the record, they moved from that dump to another old dump at an old mine and shipped from there. One of the cars shipped from said dump disclosed that it contained practically no minerals of any value. At least the returns thereof were not sufficient to pay the freight charges. A few days later they shipped another car from the same dump, which is the car in question, and it showed such a high content of gold and silver that the corporation, according to the analysis by the assayist, paid them $5,857.19. just why this difference in the two shipments is not explained or attempted to be explained. The testimony shows that the appellant shipped this particular car and that he received the check that was given to him in payment for the car; that he cashed it and received the money. Conceding for the sake of argument that he was not present at the very moment that the sample of the car was padded and bolstered, yet, when he shipped that load of rock and dirt from that old dump which he claimed was ore, he laid the predicate for the sample to be padded by Carr or some other co-conspirator. If he had not shipped the car of dirt down there, his co-conspirator could not have accomplished the fraud, because he would not have had anything with which he might mingle the pulverized gold and silver in his pocket or in his bag. Consequently, he did something in furtherance of the common design of both. Then, when he received the check, endorsed it and obtained the money, he committed another overt act. If he had not received the check, had not endorsed it, and had not cashed it, no injury would have resulted even though the car had been shipped and the sample padded as aforesaid.

In the Bass case, Bass v. State, 59 Tex.Cr.R. 186, 127 S.W. 1020, 1025, this court said: “If the party charged, though not actually present, is engaged in or is doing something in the chain of causation which leads up to the offense and is a necessary part of its accomplishment, he is a principal, though he may not be at the immediate time actually present.”

So, in this case, the appellant who shipped the car of ore in question to the American Smelting & Refining Company at El Paso, Texas, was thereby laying the groundwork for the sample to be padded and bolstered. However, if nothing further had been done in furtherance of the original scheme and design of the appellant and his alleged co-conspirator, no swindling would have been perpetrated, nobody would have been injured and the company would not have lost anything or parted with anything of value. Consequently, the offense was not consummated until the appellant went to El Paso, received the check, endorsed it and obtained the amount of money therein specified. Then, and not until then, was the offense complete. Hence, we think that the appellant comes within the definition of a principal as defined by statute and was not entitled to a charge on alibi. See Coy v. State, 131 Tex.Cr.R. 489, 100 S.W.2d 1016; McInnis v. State, 122 Tex.Cr.R. 128, 54 S.W.2d 96, 98, and cases there cited.

We think that the case of Robertson v. State, 137 Tex.Cr.R. 535, 132 S.W.2d 276, although not directly in point, by analogy supports the views expressed in this opinion.

Appellant urged quite a number of objections to the court’s charge and requested a number of special instructions. We have examined the same in connection with the court’s charge and reached the conclusion that none present any reversible error inasmuch as the court’s instruction to the jury on the law applicable to the facts of this case is a fair, adequate and concise charge.

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 Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

Appellant reiterates his contention that bill of exception No. 3 .reflects reversible error, his positiori*being that it is shown in the bill that the state improperly elicited testimony from the witness J. L. Augustine tending to show that appellant had been guilty of stealing a quantity of ore from said witness.

According to the testimony of Mr. Augustine, as shown in the bill of exception, appellant asked his permission to take some ore from a dump at a mine near Lordsburg, New Mexico. The witness understood that a small quantity of such ore was to be taken by appellant for experimental purposes, and that the experiments were to be made in the State of Arizona. The quantity of ore to be taken was not designated and the witness had no intention of receiving any remuneration in the transaction. He did not give appellant'permission to take two carloads, and if he had known that a large quantity of the ore was to be taken he would have expected to have been paid for it. After he and appellant had their conversation relative to the taking of the ore appellant met him and paid him $20. He did not know at the time that appellant had taken a carload of ore and that he was going to ship a second car from the mine. If we understand the testimony of the witness, it was to the further effect that he would not have given' appellant permission to take a large quantity of the ore in the absence of an agreement as to the price to be paid. . Other than the $20 mentioned, he received nothing from appellant to compensate him for the. two carloads of ore. The bill of exception shows that witnesses introduced upon the trial testified that' at least two carloads of .ore were taken from Mr. Augustine’s dump near Lords-burg, New Mexico.

We are unable to reach the conclusion that proof of the manner in which the ore was obtained from Mr. Augustine was inadmissible on the ground that it tended to show appellant acted dishonestly in the transaction. It has been observed that appellant was jointly indicted with W. F. Carr for swindling the American Smelting and Refining Company of El Paso County, Texas, on or about December 31, 1938. The charge grew out of the shipment to the smelting company of a number of cars of ore represented by the appellant and Carr to be rich in minerals. It was the theory of the state, given support in the testimony, that the purportedly rich ore was, in fact, of little or no value, and that its apparent value was obtained by the process known as “salting” the sample. The state’s evidence involved appellant and Carr in the shipment to the smelting company of several cars of ore of little or no value. Two of these cars were from the mine of the witness Augustine near Lordsburg, New Mexico. According to the testimony of the state, with the exception of one car, the samples taken from the several cars delivered to the assayist of the smelting company had been “salted.” All of the ore had little value. The samples of the cars shipped from Lordsburg had been “salted.” The fraud that was alleged to have been practiced resulted in great loss to the smelting company.

While the two cars of ore which had come from the mine of Augustine in Lordsburg were not charged upon in the indictment, proof that the smelting company had been swindled by the appellant and Carr in the transaction in which such ore was purchased by the company was properly admitted by the court as a part and parcel of the entire scheme which was allegedly used to defraud the company. As said in the original opinion, such proof tended to show system, and was calculated to aid the jury in drawing the inference that the intent of the appellant was fraudulent in the transaction of December 31, 1938, which is reflected in the indictment set forth in the original opinion. The opinion is expressed that it was proper for the state to prove that appellant and Carr had obtained two carloads of ore from Mr. Augustine’s mine, and that such ore had little or no value; and, again, that such ore was sold to the smelting company after a “salted” sample prepared or caused to be prepared by appellant and Carr — which indicated that the ore was of high value— was delivered to the assayist of the company. The fact that appellant might have acted dishonestly in obtaining the ore from Augustine afforded no reason for excluding any part of the testimony relating to the entire transaction. Such evidence constituted a detail of the whole criminal scheme. See Claxton v. State, 109 Tex.Cr.R. 345, 4 S.W.2d 542. It tended to establish a fraudulent intent as well as system. We quote from 18 Tex.Jur. 59, as follows:

“The rule against the admission of evidence of other crimes does not apply where such evidence logically tends to prove defendant’s guilt of the crime charged. Stated, in another way, evidence which is pertinent and'tends to prove the crime alleged is not rendered inadmissible because it also tends to prove the commission of other crimes. But in order that a collateral crime may be relevant as evidence it must be connected with the crime under investigation as part of a general and composite transaction.
“While it is impossible to state the cases in which evidence of extraneous crimes is admissible with categorical precision, generally speaking such evidence is admissible when it tends to establish identity, intent or guilty knowledge, motive, or system, or when other crimes are part of the res gestae.”

Appellant again insists that the trial court committed error in failing to submit an instruction covering the law of alibi. We are unable to agree with this contention. It was the state’s theory, given support in the testimony, that appellant was a principal although he might not have been present in El Paso at the place where the swindle charged upon in the indictment was perpetrated. According to appellant’s testimony, all of his transactions with the smelting company were free of fraud. If appellant was guilty as a principal, notwithstanding he was absent from El Paso upon the occasion in question, a charge on alibi was not called for. See Walker v. State, 78 Tex.Cr.R. 237, 181 S.W. 191. The defense of alibi arises when there is evidence that the accused is at a point where he could not have been guilty of participating in the offense. Funk v. State, 84 Tex.Cr.R. 402, 208 S.W. 509.

The motion for rehearing is overruled.

PER CURIAM.

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


author: KRUEGER, Judge. GRAVES, Judge. BEAUCHAMP, Judge.

text:
    COX v. STATE.
    No. 21066.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    On Rehearing Oct. 23, 1940.
    Rehearing Denied Dec. 18, 1940.
    Robert Emmett White and H. L. Mc-Cune, Jr., both of El Paso, for appellant.
    Roy D. Jackson, Dist. Atty., and Harold S. Long, Asst. Dist. Atty., both of El Paso, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

Appellant was indicted by the grand jury of El Paso County, Texas, .for the offense of robbery. Upon the trial he took the position that if any offense was committed, it was committed in the State of New Mexico and not in the State of Texas. There is no question as to where the boundary line between the states was established in 1929, and the line is well marked by monuments duly established by the Federal Government. According to that line the offense was committed approximately 290 feet from the boundary line in the State of New Mexico. There •is no dispute as to where the automobile stopped in which the .parties connected with the offense were riding, including the injured party. That point is definitely located, and from that point north or a little northeast sixty-five yards is the point where the injured party was knocked down and robbed; and that point is something like 290 feet in the State of New Mexico from the boundary line between the states. A person standing at the point where the car stopped and drawing a straight line from Monument - 95 to Monument 96 and thence to the canal or drain along the same course, would leave the impression that the offense was committed' in the State of Texas, but the boundary line at Monument 96 turns almost at right angle in an easterly direction and therefore is’ not in a straight line from Monument 95 by way of Monument 96 to the Montoya Drain', but runs northeast of the drain 485 feet or approximately so. Consequently, according to the official map in the record, the offense was not committed in the State of Texas but in the State of New Mexico. Therefore the District Court of -El Paso County was without jurisdiction to try appellant for the offense charged. Consequently, we are constrained to reverse the judgment and remand the case, and it is so ordered.

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

The State has filed a vigorous motion for a rehearing herein, in which it is contended that we were in error when we held as a matter of proof that this offense was committed, if at all, within the State of New Mexico and not in the State of Texas.

Venue need not be proven beyond a reasonable doubt. See Branch’s Penal Code, Sec. 450; also proof of venue may be made by inference. We quote Sec. 451, p. 235, Branch’s Penal Code:

“It is not required that venue should be established by direct testimony nor that it should be proved beyond a reasonable doubt. Venue may be proved by circumstantial evidence, as any other fact, and if the evidence be reasonably sufficient to satisfy the jury that the offense was committed in the county alleged, their finding on that issue will not be disturbed on appeal. Deggs v. State, 7 Tex.App. 359; Hoffman v. State, 12 Tex.App. 406; McGill v. State, 25 Tex.App. [499], 512, 8 S.W. 661; Bowman v. State, 38 Tex.Cr.R. 14, 40 S.W. 796, 41 S.W. 635; Murphree v. State, 55 Tex.Cr.R. [316], 318, 115 S.W. 1189; Pye v. State [71 Tex.Cr.R. 94], 154 S.W. 222; Reynolds v. State [71 Tex.Cr.R. 454], 160 S.W. 362; Belcher v. State [71 Tex.Cr.R. 646], 161 S.W. 459; Himmelfarb v. State [76 Tex.Cr.R. 173], 174 S.W. 586.”
“It is not error to charge the jury that it is not incumbent on the State to prove the venue beyond a reasonable doubt. Lyon v. State [Tex.Cr.App.], 34 S.W. 947; Reynolds v. State [71 Tex.Cr.R. 454], 160 S.W. 362.”

In the early case of Hoffman v. State, 12 Tex.App. 406, we held: “It is not essential that venue be established by positive testimony. If from the facts in evidence the jury may reasonably conclude that the offense was committed in the county alleged, it is sufficient. The doctrine of reasonable doubt does not apply to the merely jurisdictional fact of venue. (Deggs v. State, 7 Tex.App. 359; Achterberg v. State, 8 Tex.App. 463.)”

The offense was alleged to have been committed in El Paso County on or about July 27, 1939, the indictment was filed on September 18, 1939, and the trial was had on November 7, 1939. The complaining witness was taken in an automobile by appellant and several others from the city of-El Paso in a westerly direction, and when some five or six miles away from such city he was knocked in the head and became unconscious, and was robbed of a sum of money. It appears from the facts that upon regaining consciousness he obtained aid at a nearby house, and eventually reported the matter to the peace officers, one of whom, Joe Neely — a graduate of the F.B.I. school for police officers — went out that same night to the scene of the difficulty and made an "investigation on the ground, and testified in part as follows:

“Yes, he told me what had happened to him at that time. I made an investigation out at the scene of the alleged robbery, just a preliminary examination that night, yes sir. Yes, I went back the next morning, twice next morning, I went just as soon as it got light enough to see. Yes, I was able to find evidences out there. And then later I went back with this witness Carnes some time about noon or shortly after noon the next day. Yes, following down the Gibson Drive from Plighway 80 I know where Camera’s house is. Yes, I know approximately where the Texas-New Mexico boundary is. It is marked every so often By monuments set by the United States government, every so often, I haven’t any idea about whether these lines are straight or not, I presume they are.
“I found where the automobile had left the Highway and gone out into this field road; no, this road doesn’t lead anywhere, it is a dead end road, leads out into this field. Yes, I followed up the tracks of the car up by the side of that drainage ditch, canal and along into the cotton field. Yes, J found several tracks at the point where it stopped. Yes, I found tracks of persons as if persons were running over in the cotton field, there were four tracks leading off into the field.
“Yes, down in the field I found evidence of a person being down on the ground, and blood, there was blood there, yes. I never did search very closely to see where these tracks lead, I just found where the tracks came back into the Gibson Drive, about the intersection of the Gibson Drive and the Montoya canal there were evidences where these tracks had come back and gotten in the car there.
“The point where the car had stopped was in New Mexico.
“The point where I found that this man had been down and bleeding to my knowledge is in Texas.
“I sighted with monuments there to determine that. * * *
“Yes, when I said that the point where this man had been down and bleeding was on the Texas side I meant that, it was in the County of El Paso and State of Texas. * * *
“Yes, I testified that the spot where Kay Carnes fell was in Texas; if it was in Texas it is also in El Paso County. It was in Texas, that was my impression, yes sir. At the time I made the preliminary survey there I went over to two monuments and then sighted between them and that is as near as I could get. As far as any instruments I didn’t use any instruments whatsoever on it; I am not a surveyor, even if I am an expert. * * *
“I think it a couple or three days ago when I was asked about pointing out the place to Mr. Caldwell where this complaining witness had been knocked down and I found the blood, I think it was last Saturday. Yes, that was out in the middle of the cotton field. It had not' been plowed and worked. O, yes, it has been worked by way of cultivation several times and irrigated. The only fixing of the place I could possibly have would be the approximate distances.
“O, yes, the monuments that the County Surveyor based his sighting on were the government boundary monuments, I am sure of that. Yes, they were in the same place and in the same way on July 27th. Yes, I at that time viewed the spot where I found this blood these same monuments in my opinion determined it was in El Paso County, Texas.
“I paced it off the first time I went out there and found the blood on the ground, I paced it, it was approximately 65 paces.
“I testified that the occurrence of this affair was in El Paso County, that particular part of it. Why there has always been a reasonable doubt about that New Mexico line up there, it is as crooked as three dogs’ hind legs. I haven’t any idea about what the Supreme Court did about establishing that line. In my opinion I believe from an investigation that this crime or alleged crime took place in El Paso County, State of Texas, partly. It couldn’t have all taken place there. I believe that the investigation shows that he was struck once right near the car or maybe right by the side of the car even before he ever attempted to run because there was some blood or splotches even down to the point where the pool of blood was on the ground.
“Yes, I am still contending that it was in Texas; no sir, the whole thing was not in Texas. No sir, not from the beginning to the end I don’t say it was in Texas. Yes, the beginning or the ride, that was in Texas, in El Paso. Yes, the car crossed the line.
“In my opinion the man was knocked down in Texas. No sir, my opinion is not based on the 65 paces that I took. My opinion is based on a preliminary examination the day after this thing when I went up there; the cotton- was very small and I could sight from one of these monuments to the other; these monuments could be seen at that time. I just went and sighted from one monument to the other; I didn’t have a surveyor’s instrument, I just looked from one to the other and established in my mind that it was a straight line.
“I think the numbers of these monuments are 97 and 96.”

It is observed, however, that the county surveyor, Mr. Caldwell, together with appellant’s attorney, and in company with Mr. Neely, on or about November 5, 1939, went out to the scene of the alleged robbery and the surveyor unqualifiedly testified that if the occurrence took place where Mr. Neely ' said the evidences showed such on July 28, 1939, then such occurrence was bound to have taken place in New Mexico.

Again we.note that the trial court in a portion of his charge to the jury gave a liberal charge relative to venue, and instructed the jury that unless they believed beyond a reasonable doubt that such offense occurred in El Paso County, they should acquit the appellant.

It also appears that the jury in their deliberations balloted on the fact of venue, and finally determined such to be in El Paso County, Texas, thus accepting the statement of Mr. Neely as to what his impression and belief was on the morning after the commission of the alleged offense. This was their calm and deliberative verdict, and unless there is no credible testimony to support the same, we feel it our ■ duty under the law not to set that finding aside, although there may be evidence in contradiction thereof. It was the jury’s duty and province to decide this matter, presented to them as it might have been on conflicting testimony, and we do not think their function should be usurped by this court. The signs of the struggle were gone on November 5th, and the blood in the cotton field had surely disappeared at that time; and it was just as reasonable for the jury to say that Mr. Neely was mistaken when he attempted to point'out the location of this spot of blood more than three months after he had seen the same, as it was to say that he was mistaken when he sighted between the two boundary markers while the blood was fresh on the ground.

We think we were in error and usurped the function of the jury when we reversed this cause and held that the .undisputed testimony showed that this offense took place in the State of New Mexico. This holding disposes of appellant’s bill No. 1.

Appellant’s second bill of exceptions complains of practically the same question as submitted in bill No. 1. We again can only say that this matter was submitted to’ the jury on contradictory testimony, and after balloting thereon, they found their verdict as based on the State’s version of the locality of this alleged offense. To the same effect is bill No. ’3, and we observe the same ruling thereon.

Bill of exceptions No. 4 relates to an alleged misconduct of the jury wherein it was alleged that the remark had been made, in substance, during their deliberations, that the man on trial was guilty of the alleged offense regardless of where the crime was committed, and that the venue thereof was immaterial. Eleven of the jurors were questioned on the hearing of the motion for a new trial, and the trial- court seemed to have been of the opinion, to which we agree, that no such remark was made by any member of the jury in their deliberations, and we see no error shown in such matter. This bill is overruled.

The remaining bills of exception seem to be based on an effort to obtain a new trial, and arose on the hearing of a motion for a new trial, in order to offer testimony of an impeaching nature relative to that given by a witness in the trial of this case.

Usually newly discovered evidence which only tends towards an impeachment of a witness is not sufficient grounds for the granting of a motion for a new trial. See Branch’s Penal Code, p. 129, Sec. 202.

The State’s motion for a rehearing is granted, the judgment of reversal is set aside, and the judgment is affirmed.

On Appellant’s Motion for Rehearing.

BEAUCHAMP, Judge.

This case was reversed on original submission and the State’s motion for rehearing was granted. It is, therefore, not necessary to pass on appellant’s application for permission to file motion for rehearing. He has that right under the rules.

This case has occasioned unusual consideration by all members of the court, particularly on the evidence bearing on the question of jurisdiction. We concluded that the evidence as presented left the matter for the jury to determine, and this they did contrary' to appellant’s contention. It is true, as contended in appellant’s motion for rehearing, that a rriap is found in the record on which are some pencil marks apparently placed there by someone other than the maker of the map. The evidence fails to disclose who did do so in such a way as to enable this court to accept this proof as conclusive. The matter as to the location of the scene of the tragedy was still a controverted issue and the jury has settled it.

All questions raised by appellant in his motion for rehearing were thoroughly considered by the court on the State’s motion, as well, as on original submission, and, we think, sufficiently discussed in the opinion on rehearing to make clear our position. The county surveyor testified positively that the crime was committed in New Mexico, while the deputy sheriff, with equal positiveness, asserted that the spot was in Texas. The argument presented in this motion goes to the weight of the evidence and that was a matter which the jury, in all probability, duly considered. At least, it is their province and not within the powers of this court.

Appellant’s motion for rehearing is overruled.