text:
    SUMERALL v. STATE.
    No. 21010.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    Rehearing Denied June 26, 1940.
    Lester Settegast, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged by information and complaint that he, an adult male, made an aggravated assault upon Augusta Sum-erall, a female, on or about October 21, 1939, the complaint being filed on October 23, 1939, this trial being had before a jury on November 2, 1939, and resulted in a conviction and a fine of $500.

It appears from the record that the complaining witness was the divorced wife of appellant, who had married another wife a short time after the divorce from prose-cutrix. The Ladies Auxiliary of the Plumbers’ Union of Houston gave a party and ball, and the prosecuting witness — who had been a former member of this auxiliary, but after her divorce had lost her membership — was present as the guest of one Mrs. Lockwood.

The State’s case shows that prosecutrix was drinking to some extent, and while seated at one of the tables in the room where the party was held appellant and his new wife sat down at a table close to the one at which prosecutrix was seated, and eventually she turned around and offered appellant’s wife a drink, and then offered appellant a drink. Appellant said nothing, and prosecutrix turned her -back on appellant. Soon thereafter prosecutrix said appellant poured a bottle of beer down her back, and she raised up and asked him why he was doing that; that appellant grabbed her left arm and twisted it and pulled her around towards him, and she threw a glass containing whisky on appellant’s shirt, and threw the whisky bottle at him. Appellant then struck her in. the face with a beer bottle and broke the cheek bone in three places, causing a paralysis of the nerves in that side of the face. Prosecutrix then started down the table and threw some glasses at appellant, who then threw a bottle at her, striking her in the side and breaking her rib.

Mrs. L. C. Lockwood, prosecutrix’s companion, corroborated Augusta Sumerall as to the appellant starting the difficulty by pouring the beer down prosecutrix’s back, and the whisky throwing by appellant, the stroke on the face by appellant with a beer bottle, the throwing of glasses by prosecu-trix, and the striking of her in the side by a thrown beer bottle, and the further fact of appellant possessing himself of a chair, and the end of the melee. This all occurred about midnight of October 21, 1939.

A doctor testified that he waited on prose-cutrix on Sunday October 22, 1939, and that he found her right cheek bone fractured in three places, her eye swollen shut with a decided discoloration, and the tenth rib on the left side fractured, and the right side of the face partially paralyzed, rendering it difficult for her to speak.

Appellant testified at the trial in his own behalf, and we set forth his entire testimony herein:

“My name is Tom Sumrall. I am a plumbing contractor here in Houston, Harris County, Texas, and have been for •some years. On the night of October 21, 1939, my wife and I were at the Elks Club to attend a dance given by the Ladies’ Auxiliary. Upon arriving there I walked around over the hall for sometime, greeting my friends. There were some ISO or 200 people there, practically all of whom I knew. When I came back to the table where we had been originally seated I saw my former wife seated next to where we sat Her back was turned to me and she sometime thereafter turned back to the table at which I was seated and offered me a drink. I said nothing. I did not refuse the drink or accept it, I just didn’t say anything, at which time the complainant threw the glass containing some liquid, I don’t know what, on the front of my shirt. She was standing over me and then threw a bottle containing whiskey, that struck me on the head. She then continued on down the other or north side of our table throwing anything she could get her hands on at me, and in self-defense I threw a water glass at her to try to make her stop. It struck her in the left side. I had not had any previoüs trouble with Mrs. Sumrall and I know of no reason for her to throw the drink on' me unless she had been drinking too much. I do not know where she received her injuries. I did throw a water glass at her and she stopped it.
“Cross-Examination: I am not attempting to tell the jury that I did not strike her. It may be possible that I did, because I'had a bottle of beer in my left hand, like this,.and when I straightened up and threw my arm out to defend myself, I could have struck her. I do not recall doing it. I did throw a glass at her, 'but that was after she had thrown the bottle and the other things at me. The bottle she threw hit me in the middle of the forehead , but did not break the skin or leave any mark. When she was throwing these things at me I attempted to pick up a 'chair in front of me, but this was prevented by the crowd, and my former wife thereafter quit throwing things at me. Nothing else happened that I know of.”

Appellant also introduced a witness, Mrs. Ward Nepper,'who corroborated appellant in some minor details. He also introduced his present wife whose testimony is here set out in full: “My name is Mrs. Tom Sumrall; I am the wife of the defendant. We were married in August 1939, .a short time after Mr. Sumrall was divorced from Mrs. Augusta Sumrall. I was at the Elks Club the night of October 21, 1939, with the defendant. I was seated next to him on his left. I saw the former Mrs. Sumrall offer him a drink which he refused, after which time she threw the drink on the front of his shirt. I got up at that point and walked away, and when I looked back a crowd was gathering around Tom Sumrall. I did not see him strike her, and I did not see him pour 'any beer down her back. I am not attempting to say he did not strike her. I merely say I did not see it.”

It seems that upon the calling of this case appellant made no motion for a continuance, but did say that he was not ready; that he desired the presence of Mrs. Ward Nepper; that the court ordered a subpoena returnable instanter for Mrs. Nepper, and the appellant then announced ready for trial, and a jury was selected, and the case proceeded to trial with appellant being represented by an attorney of his own choice. He asked for no further time, nor for further subpoenas for witnesses.

Upon his conviction he filed an amended motion for a new trial in which he alleged that upon being arrested and giving bond,' one Howard, a mutual friend of himself and his first wife, told him that upon the payment of $25 to his ex-wife, the amount of the doctor’s bill, she would drop these proceedings in court against him. That he agreed to do so, and thought the case was settled. That his present wife became seriously ill about this time, and he dismissed this case from his mind. That on the day prior to this trial he ascertained that the doctor’s bill, etc., would amount to about $150, and that unless paid prosecutrix would insist upon a trial of the case. That he thereupon began a diligent search for witnesses, and to employ a lawyer for his defense. That he was forced to go to trial on the next day with only two witnesses beside himself, and one of these witnesses, Mrs. Nepper, was easily confused and her testimony discredited before the jury. He brings the testimony of newly discovered witnesses before the court in the form of affidavits relative to what their testimony would be.

The State controverted this motion by alleging that appellant was arrested on the 28th day of October 1939, on a capias issued on October 25, 1939, and immediately gave bond, and the case was set for trial on November 2, 1939, and defendant appeared on that date, and his attorney of record announced ready when the cause was called. There was no motion for continuance filed, but a subpoena was issued for Mrs. Nepper on that day and she appeared and testified. Appellant offered no testimony relative to his alleged agreement with Mr. Howard. This answer also traversed many other allegations contained in such motion for a new trial.

The affidavit presented of R. C. Malitz, Jr., states that he had heard the prosecutrix say that she would get even with appellant if it was the last thing she ever did. That prosecutrix had some drinks, and that he saw her after the difficulty and he saw no bruises on or about her face, and did not hear her make any exclamations nor gestures of pain.

V. J. Walker would testify to practically the same as that above quoted, with the exception that he made no mention of threats. His wife, Grace Walker, merely signs the affidavit of her husband saying that these facts are true.

The affidavit of Harry Brown says that he did not see appellant pour any beer down prosecutrix’s back. That the affair started with prosecutrix throwing whisky on appellant, and the only thing he saw appellant do was after prosecutrix threw things at appellant, he threw a bottle at prosecutrix; that he saw no injuries to her face, and never saw appellant strike prose-cutrix in the face with his hands nor any other object. Mrs. Virginia Brown states practically the same thing as Harry Brown.

Walter Hill and his wife state in their joint affidavit that they were seated at the same table with appellant and his present wife, and offered no further pertinent testimony.

Appellant was bound to have known that all these witnesses whose affidavits he presents were present at the scene of the difficulty, and were seated at the table with him or immediately adjacent thereto, and yet he did absolutely nothing, according to this testimony, to obtain their attendance at this trial. He had nine days after the filing of the complaint and five days after.his arrest to attempt to locate these very witnesses whose testimony he alleges to be newly discovered. He could not rely upon what he claims was the supposed agreement with prosecutrix, which he did not mention at his trial; nor does he offer the affidavit of Mr. Howard relative thereto; nor did his attorney mention the same to prosecu-trix while she was on the stand. The fact remains that he was negligent in preparing his defense herein, and affter having voluntarily gone to trial without summoning the persons in his company at the time of the difficulty, and after having received a more onerous punishment than anticipated, he asked the trial court to give him a new tffal in order that he might take this matter more seriously by evidencing some diligence in procuring witnesses to substantiate his theory of the case.

The trial court in his ruling on the motion for a new trial certifies that none of the matters contained therein were called to his attention; that the major portion of such proffered testimony was negative only ; that appellant announced ready for trial, and made no request for a continuance.

We think appellant was entirely without diligence in failing to interview the very persons sitting with him at or near the same table at the time of the difficulty.

That the penalty may be heavy seems to be patent, but the legislature has seen fit to fix the limits much higher for an aggravated assault punishment; it is an aggravated assault for an adult male to strike a female, and this penalty is within the limits set forth in the law.

We see no error evidenced herein, and the judgment is affirmed.

On Motion for Rehearing

KRUEGER, Judge.

Appellant, in his motion for a rehearing, contends that we erred in several respects in our original opinion. His main contention seems to be that the trial court erred in declining to grant him a new trial upon alleged newly discovered evidence. We are not in accord with his contention. The record shows that the alleged offense was committed on the night of October 21, 1939. A complaint was filed against him on the 23rd of said month. He was arrested on the 28th, when he gave bond for his appearance in court at which time his case was set for trial for November 2nd. He made no effort to obtain process for any witnesses and to secure their attendance although there were approximately ISO to 200 people present when the alleged offense was committed, all or nearly all of whom he knew, but so far as this record shows, he did not interview a single person of those who were present.

On the morning of his trial he made a verbal request for a continuance by reason of the absence of Mrs. Nepper. The court had process issued for Mrs. Nep-per who, in response to a summons, appeared and testified for appellant. He claims some agreement with the injured party that she would not prosecute the case if he would pay the doctor’s bills, etc. After the complaint was filed, the prosecu-trix could not legally enter into an agreement to stop the prosecution for an offense denounced by our statutes. The evi-dence, in our opinion, is sufficient to sustain the conviction. Although the punishment may be somewhat severe, yet it is within the limit prescribed by law for such an offense, and we would not, under the facts, be justified in holding it to be excessive.

The motion is overruled.

PER CURIAM.

The foregoing opinion by 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: CHRISTIAN, Judge.

license: Public Domain

text:
    BLACK v. STATE.
    No. 20967.
    Court of Criminal Appeals of Texas.
    April 24, 1940.
    Rehearing Denied June 28, 1940.
    A. R. Eidson, of Hamilton, and Tom L. Robinson, of Gatesville, for appellant. '
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed John L. Leach by striking him with a brush axe. The death of deceased grew out of a dispute appellant and deceased had had relative to some land. At the time appellant killed deceased he and deceased were with a surveyor who had been employed to make a survey of the land in an effort to properly divide it between, appellant and deceased. According to the testimony of the state, appellant, without provocation, struck deceased with a brush axe. According to appellant’s version, he (appellant) acted in self-defense in striking deceased. Deceased thereafter died from the wound he had received at the hands of the appellant.

No bills of exception are brought forward.

The charge of the court appears to have adequately presented the case to the jury.

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: KRUEGER, Judge. GRAVES, Judge.

text:
    ELY v. STATE.
    No. 20712.
    Court of Criminal Appeals of Texas.
    May 29, 1940.
    Rehearing Denied June 26, 1940.

      Roy A. Downey, of Royalty, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is murder; the punishment assessed ⅛ death.

The record shows that on or about the 15th day of May, the appellant (a boy of eighteen years), Orvil Chance, Glenn Osborn and Z. L. Huggins, came from Jal, New Mexico, to Monahans, Texas. Upon their arrival, they engaged a cabin at a tourist camp. On the evening of the next day they went to a restaurant and ate chili. Osborn and appellant returned to the cabin about 10 P. M. and retired for the night. During the night, Osborn, who was sleeping with appellant, became sick. Appellant was awakened by his vomiting and after a short time the two boys became hungry and decided to get something to eat. They started to a restaurant, büt had gone only a block or two from their cabin when the deceased, a deputy marshal, stopped and questioned them. They told him their names, where they were from, etc. He then asked them to get into his automobile and he drove them to the home of the city marshal. The city marshal questioned the boys upon the same subject and they gave him about the same answers that they had given to the deputy. He then instructqd the deputy marshal to carry them to jail and confine them there for the night. When they arrived at the jail, the deceased made them go inside. There appellant drew a pistol and shot him. It appears from the record that the deceased did not know the appellant had a pistol. Both of the boys ran outside after the shooting. Appellant alone entered the deceased’s car and attempted to escape but was arrested a short time later and placed in jail. He was indicted on the following day and tried eleven days later, which resulted in the assessment of the penalty above stated.

Appellant testified in his own behalf and claimed that his pistol was accidentally discharged, and that this resulted in the death of the deceased. This theory of the case, however, was not submitted to the jury, and no objection was interposed by appellant for the omission. Therefore, in fairness to the court and to the defendant, we feel impelled to dispose of the case upon the theory upon which it was tried. Any other course would be out of harmony with the well-established rules of this court, Consequently, the main question which we need to discuss at length is whether the evidence shows a killing with malice aforethought. The uncontradicted evidence shows that appellant was illegally arrested by the deceased and the trial court so instructed the jury. This being true, appellant had the legal right to use such force as appeared to him at the time to be reasonably necessary to attain that end. Of course, if he at once used greater force than was necessary under the circumstances and in doing so he killed the deceased he would, in the absence of any showing of malice or former ill-will, be guilty of murder without malice which formerly constituted manslaughter prior to its repeal. It is true that whether or not malice existed is ordinarily a question of fact to be determined by the jury. However, where there is no evidence of express malice, it must be inferred from an illegal, wanton or reckless act. In this case the undisputed evidence shows that the deceased and appellant were not acquainted. They had never met prior to the night in question, and there was no evidence of any ill feeling on the part of appellant toward the deceased. Consequently, if any ill-will arose, then when did it arise and what produced it? Was appellant provoked to act ? If so, was the provocation such as would commonly produce in a person of ordinary temper that degree of anger, rage or sudden resentment arising from an adequate cause such as would render his mind incapable of cool reflection? If so, then the homicide is murder without malice. If, however, the pistol was accidentally discharged, it would not be murder, but at most negligent homicide. But the case was not tried or submitted to the jury on such a theory. Hence, we need not any longer dwell on that aspect of the case. It may be contended, and we concede that it is ordinarily true, that whether a homicide is committed with or without malice is a question of fact to be determined by the jury from the previous relationship existing between the parties, as well as the surrounding facts and circumstances at the time of the homicide. See Art. 1257a, Vernon’s Ann.P.C. No previous relationship existed as appears from the record. Consequently, such is not a basis for a conclusion of malice. This relegates us to the surrounding facts and circumstances at the time and place of the killing, and if they are undisputed so as to leave no room for the minds of reasonable men to differ, then it is no longer a question of fact but becomes one of law.

In the case of Parks v. State, 131 Tex.Cr.R. 464, 99 S.W.2d 943, 944, the appellant was an officer. He and a soldier had gone to a beer tavern to get a drink. The deceased and a friend were in the tavern at the time. Appellant, the soldier and the friend of the deceased engaged in throwing dice for the drinks. Appellant won. The deceased accused appellant of cheating his friend and immediately knocked appellant down. Appellant, who was armed, made no effort to draw a pistol. He told the deceased that he had not cheated the friend. Deceased then offered to apologize and offered to shake hands. Appellant declined to shake hands, turned and started to leave. The deceased again knocked him down and when appellant arose, the deceased again threatened to strike him, whereupon appellant shot twice. The second shot proved to be fatal. In that case Judge Christian said: “Nothing in the record points to coolness or deliberation on the part of appellant when he fired the fatal shot. * * * All of the evidence shows that there was no premeditation, and so strongly indicates that appellant was not in a condition where his mind was capable of cool reflection as to lead us to the conclusion that a conviction for murder with malice was unwarranted.”

This is virtually a restatcme.nt of the doctrine hereinabove stated that when the facts are undisputed and are such as to leave no room for the minds of reasonable men to differ, then it is no longer a question of fact but one of law. Judge Hawkins, in an opinion on a motion for rehearing in the same case, said: “The punishment assessed * * * was eight years, therefore, the jury must have found that appellant was prompted by malice aforethought. Our purpose in the original opinion was simply to hold that from all the facts and circumstances proven by the State the jury was unwarranted in finding that the killing was upon malice aforethought. We did not intend to leave the impression that there must of necessity be evidence of premeditation or previously formed design to kill. A killing might occur under circumstances where malice could be inferred.”

Now, what facts or circumstances have we in the instant case which show malice or a previously formed design on the part of the appellant to kill the deceased? None. Appellant, without having violated any law, was illegally arrested, restrained of his liberty and was thrown into a jail by the deceased without any cause at the time that he fired the fatal shot. The Constitution (Vernon’s Ann.St.Const. art. 1, § 19) provides that no citizen shall be deprived of his liberty without due process of the law. Appellant had a right under the law and the Constitution to extricate himself from the illegal arrest and to use such force and such means as were available to him at the time and as appeared to him to be necessary to attain that end. This being true, where is the showing of malice aforethought necessary to sustain a conviction of murder with malice and the assessment of the death penalty? No unusual cruel disposition on the part of the appellant, other than the mere killing, was shown. We conclude that the evidence did not show that the appellant killed the deceased with malice aforethought.

By Bill of Exception No. 1, appellant complains of the action of the trial court in permitting the District Attorney, on cross-examination of appellant, to inquire of him if he did not make a statement to him (the District Attorney) to the effect that he pulled the safety off the gun when he saw the deceased and Osborn “over there.” Appellant, through his counsel, objected thereto on the ground that such statement was not shown to have been made in a confession. (The State had theretofore introduced appellant’s confession, but it did not contain any such statement.) To appellant’s objection, the District Attorney replied, “We will see about that.” Thereupon the court remarked: “If there is any other statement made under the rules (other than the one which had already been admitted) it will be admitted.” Appellant then insisted that the State be required to show that the rule with reference to taking confessions was complied with in this second statement. This request was overruled and then the District Attorney propounded to appellant the following questions and received the following replies, to-wit:

“Q. Have you seen me before? A. Yes, sir.
“Q. In Monahans the day that you were arrested? A. Yes, sir.
“Q. Did you make a written statement to me? A. Yes, sir.”

Then the District Attorney proved that appellant made a written statement to him after he had been warned as provided by law. But instead of introducing said claimed second confession, if any, he continued to propounded the following questions to him:

“Q. Will you say whether you did or did not in that statement say you were pulling' that gun off safety while he, deceased, was over there with Osborn? A. I won’t say whether I did or didn’t. If I did I don’t know it.”

At this juncture the District Attorney turned the witness back to appellant’s counsel for re-direct examination. Whereupon appellant, through his counsel, requested the court to instruct the jury to disregard all evidence concerning the statement claimed to have been made because the claimed written statement had not been introduced. Whereupon the District Attorney remarked: “We have the statement in our possession and at the proper time we will offer it or not offer it.”

Appellant insisted that the District Attorney be required to introduce it and that he not be permitted to exercise his own judgment as to whether he would or would not. The court overruled all of appellant’s objections and contentions on the ground that the District Attorney could introduce it any time before the case was closed, but he never offered it in evidence.

It is obvious that in the manner in which the matter was handled it left the impression with the jury that appellant had made such a statement; otherwise the District Attorney would not have made the inquiry. This was an attempt on the part of the District Attorney to impeach appellant, who had testified that the pistol was accidentally discharged and upon which he relied as a defense. If the District Attorney had a second written confession which contained the statement contended for by him, he should have offered it. A verbal statement, not embraced in the -written confession, is not admissible in evidence because not made in compliance with Art. 727, C. C. P. Not having offered it, the only reasonable deduction to be drawn from such act is that the written confession did not embrace the statement. That appellant was under arrest at the time must be conceded. We think that this case falls within the holding of this court in the case of Lera v. State, Tex.Cr.App., 134 S.W.2d 248. In that case a somewhat similar situation arose as here presented and this court held that appellant could not be impeached by attempting to show on his cross-examination that he made a statement to the County Attorney at the police station at variance with his testimony of how the killing occurred. Here, we have, in effect, the same thing. We quote from the headnote in the case of Parker v. State, Tex.Cr.App., 57 S.W. 668: “Acts and statements of the accused, in the nature of confessions, while under arrest, are inadmissible for the purpose of impeaching him, unless he has been warned before making them.”

While, of course, the State had a right to impeach the appellant as to prior inconsistent statements, this was certainly an improper manner of doing so. The statute concerning confessions requires that if an accused is under arrest, his statements must be reduced to writing and so forth. Had the State sought to impeach him on this material matter by introducing his statement, taken in accordance with the statute, no complaint could have been urged by appellant. See Hill v. State, 72 Tex.Cr.R. 109, 161 S.W. 118, and authorities there cited.

Moreover, we think that if the claimed written statement contained all that the " District Attorney contended it did, he should have offered such part thereof and given the appellant an opportunity to offer the remainder of it under the well-established rule that when the State offers a part of a written statement or confession the defendant may offer the balance of it. See Art. 728, C.C.P. We think this bill reflects reversible error.

The other matters complained of by appellant need not be discussed in view of the disposition we are making of the cause. However, we may state that in the event of another trial, we fail tc see the materiality of the proof introduced by the State relative to what schools appellant attended.

For the error pointed out the judgment is reversed and the cause remanded.

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

The State in its motion herein re-; quests a clarification of the fpllowing portion of our original opinion in order that it might be governed thereby in the event of a new trial. The portion of such opinion complained of being as follows: “Now,'what facts or circumstances have we in the instant case which show malice or a previously formed design on the part of the appellant to kill the deceased ? None.”

The State’s attorney is apprehensive of the fact that such a holding would effectually bar him from the effort to introduce certain testimony relative to statements made by appellant showing a possible previously formed design to take the life of any peace officer attempting his arrest, whether legal or illegal, as well as other statements and actions upon appellant’s, part evidencing a heart regardless of social duty and fatally bent on mischief towards any and'all officers with whom he might come in contact.

The complained of excerpt from the original opinion, of course, could only apply to the record as was therein presented to us, and would not preclude the State from an endeavor to show excessive force in effecting an enlargement from custody, for instance, nor would it preclude an endeavor to show a malicious intent. Nor did we mean to say that malice could not be shown in this case upon a new trial thereof, but merely meant to say that the present record did not, in our opinion, show such a condition of appellant’s mind at the time of the killing.

We again refer to the quotation in the original opinion from Parks v. State, 131 Tex.Cr.R. 464, 99 S.W.2d 943, and reiterate that quoted portion thereof wherein it was said: “We did not intend to leave the impression that there must of necessity be evidence of premeditation or previously formed design to kill. A'killing might occur under circumstances where malice could be inferred.”

We do think that under the instant facts presented to us herein no malice was shown.

With these remarks the motion is overruled.


author: CHRISTIAN, Judge. HAWKINS, Presiding Judge.

text:
    RUMFIELD v. STATE.
    No. 20884.
    Court of Criminal Appeals of Texas.
    March 20, 1940.
    Rehearing Denied June 26, 1940.

      Bennett & Bennett, of Normangee, and R. M. Allen, of Henderson, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is swindling; the punishment, confinement in the penitentiary for two years.

Appellant was engaged in the brokerage business in Henderson. Andrew J. Hardy, the injured party, gave appellant an order to buy for him (Hardy) 100 shares of Ohio Oil Company stock at a price of $12.50 per share, and 200 shares of Cities Service stock at a price of $2 per share. The total amount Mr. Hardy was to pay appellant after the stock had been purchased was $1,677.50, including commissions appellant was to receive. According to the agreement, Mr. Hardy was not to pay for the stock until appellant had bought it for him. About ten days after the order had been placed appellant advised Mr. Hardy that he had bought the stock, and requested that he pay him the amount due him. Mr. Hardy testified that he believed the representation made by appellant to the effect that he had bought the stock was true, and that, relying upon such representation, he .delivered $1,677.50 to appellant. The proof developed that at the time the representation was made the stock had not been bought. Appellant spent the money he received from Mr. Hardy notwithstanding the stock at no time was purchased and delivered to Mr. Hardy.

Appellant testified that one of his employees had informed him before he (appellant) made the representation in question to Mr. Hardy that the stock had been bought and that he (appellant) believed his employee and acted in good faith in stating to Mr. Hardy that such stock had been bought for him. Appellant .denied any intention to perpetrate a swindle.

It is appellant’s contention that the offense, if any, shown by the evidence is embezzlement and not swindling. We are unable to agree with this contention, We quote from 39 Texas Jurisprudence 1054, as follows: “Embezzlement differs from swindling in that in embezzlement the property is fraudulently appropriated by the person to whom it had been entrusted, whereas in swindling the property is wrongfully acquired in the first instance by means of some false pretense or device.” In the present cáse the property of Mr. Hardy, according to the testimony of the state, was wrongfully acquired in the first instance by means of an alleged false representation by appellant to the effect that he had bought the stock in question for Mr. Hardy. Hence the offense was swindling and not embezzlement.

Appellant contends that the indictment is insufficient in failing to describe the stock with greater particularity. We are also unable to agree with this contention. The statement appellant made relative to the purchase of the stock was the alleged false representation which, according to the averments of the indictment, induced the injured party to part with the title and possession of his money. It was only necessary to set out the representation in such manner as that its nature and substance could be known from the averment. See Mathis v. State, 113 Tex.Cr.R. 164, 18 S.W.2d 920. Under this rule we think it is clear that the false pretense was sufficiently alleged and that it was not necessary to describe the stock involved with greater particularity in order to make known the nature and substance of such alleged false pretense.

In bill of exception No. 7 it is shown that the court refused to permit a physician to testify that he had advised appellant not to give any attention to his business during the year 1937. No facts or circumstances are set forth in the bill of exception to show the materiality of the proffered testimony. Hence the bill fails to reflect reversible error.

The court submitted appellant’s requested instruction as follows: “I charge you as part of the law in this case that if you believe from the evidence that Hall Burton told the defendant that he had purchased for Andrew J. Hardy the 100 shares of oil company stock and the 200 shares of City Service stock, and that, acting upon said advice, and believing the same to be true, the said J. E. Rumfield did tell Andrew J. Hardy that he had bought for him said stock at the time when said money was paid to said J. E. Rumfield by Andrew J. Hardy, then' you will acquit the defendant.” Appellant submitted other requested instructions which the court refused to give. We think the main charge and the requested instruction the court gave covering appellant’s affirmative defense adequately submitted to the jury the issues involved in the case.

After carefully considering all contentions made by appellant, we are constrained to hold that reversible error is not presented.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

HAWKINS, Presiding Judge.

In his motion for rehearing appellant again urges that his offense, if any, is embezzlement, and not swindling. In view of such insistence we have reexamined the record. If Mr. Hardy had placed money in the hands of appellant to use in the purchase of stock and appellant had converted the money to his own, use instead of buying the stock, appellant would be guilty of embezzlement of the money which had thus come into his hands, as Hardy’s agent. However, as we understand the record, Hardy was not to furnish; any money or pay for the stock until appellant had bought it for him. ' Therein we think lies the distinction. Appellant falsely represented to Hardy that he had already purchased the stock, whereupon. Hardy delivered to appellant the $1,677.50' to cover the purchase price, when in fact no purchase had been made.

It is appellant’s further proposition that if he is not guilty of embezzlement he should have been prosecuted for theft by false pretext and not swindling. It is sometimes difficult to distinguish between those two offenses. In swindling the false representation must be as to an existing fact or to a past event. Such are the facts here, false representations as to a purchase of stock already consummated; whereas, in theft by false pretext the representations may and usually do involve future promises upon which reliance is placed in parting with property. As illustrative see Haley v. State, 127 Tex.Cr.R. 177, 75 S.W.2d 272; Anderson v. State, 77 Tex.Cr.R. 31, 177 S.W. 85; Contreras v. State, 118 Tex.Cr.R. 626, 39 S.W.2d 62; Sherman v. State, 124 Tex.Cr.R. 273, 62 S.W.2d 146; Rundell v. State, 90 Tex.Cr.R. 410, 235 S.W. 908; White v. State, 123 Tex.Cr.R. 282, 58 S.W.2d 530; Lovine v. State, 136 Tex.Cr.R. 32, 122 S.W.2d 1069; Baldwin v. State, 132 Tex.Cr.R. 427, 104 S.W.2d 872.

Believing proper disposition of the case was made by our original opinion, appellant’s motion for rehearing is overruled.


author: HAWKINS, Presiding Judge.

text:
    Norman TURNER v. STATE.
    No. 21225.
    Court of Criminal Appeals of Texas.
    June 26, 1940.
    Louis Crump, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for theft of an automobile, punishment assessed being two years in the penitentiary.

Appellant has filed his affidavit advising this court that he does not longer desire to prosecute his appeal.

At appellant’s request the appeal is dismissed.


author: CHRISTIAN, Judge. GRAVES, Judge

text:
    TUBB v. STATE.
    No. 21128.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    Rehearing Denied June 26, 1940.
    Oscar B. Jones, J. H. Broadhurst, and Harvey P. Shead, all of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

At the time notice of appeal was given the court entered no order extending the time for filing bills of exception. The term of court at which appellant was convicted adjourned March 2, 1940. In the absence of an extension order, appellant had thirty days from the date last mentioned in which to file his bills of exception. See Subdivision; 5, Art. 760, C.C.P. On the 29th day of April, 1940, the court undertook to grant appellant ninety days from January 30, 1940 —the date notice of appeal was given — in which to file bills of exception. Having been entered more than thirty days from the date of adjournment of court, the extension order came too late.

Appellant’s bills of exception were filed April 29, 1940. Having been filed more than thirty days from the date of adjournment, the bills cannot be considered.

Sam Thomas, the injured party, was proprietor of a store. According to his testimony and tbe testimony of his father, George Thomas, appellant and D,. S. Barlow came into the store and asked for a blank check. A quarrel ensued between appellant and Barlow. Finally appellant began to use profane language. The injured party remonstrated with appellant, saying to him that language of the character appellant was using was not permitted in his place of business. He asked appellant and Barlow to leave. Opening his knife, -appellant started toward the injured party. He (the injured party) attempted to call over the telephone for help. Barlow ran from the store. Appellant continued to advance upon the injured party, and he hit him in the face with the receiver in an effort to protect himself against the knife. Appellant staggered backwards and continued to hold the knife in his hand. The injured party got in between appellant and George Thomas. He again requested appellant to leave, but appellant “shoved” him and he threw a bottle of snuff at appellant. Appellant then cut him on the arm and across the throat. He was taken to a hospital for treatment, where he remained several days.

The attending physician testified that the wounds the injured party received were dangerous. It was shown that the knife appellant used had a blade three and one-half or four inches long.

Appellant testified that he was being attacked by George Thomas and the injured party and that he acted in defense of himself at the time the injuries were inflicted upon the injured party. His testimony was given support by that of his wife and Barlow.

The evidence is deemed sufficient to support the judgment of 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.

On Motion for Rehearing.

GRAVES, Judge

Appellant complains because of our failure in the original opinion herein to consider his bills of exceptions because the same were not filed under a proper order of the court. He attempts to show by affidavit that such failure was not due to any fault upon his part, and that he has been wrongfully deprived of his right to have his case reviewed in this court.

We have examined the bills of exception and find two of them in question and answer form without any certificates of a necessity therefor by the trial judge. The third and only other bill is so vague and indefinite 'that to say the least no error is therein shown, and the motion is therefore overruled.


author: CHRISTIAN, Judge. GRAVES, Judge.

text:
    MURPHY v. STATE.
    No. 20861.
    Court of Criminal Appeals of Texas.
    May 15, 1940.
    Rehearing Denied June 26, 1940.

      W. H. Barnes and Morris Brin, both of Terrell, and Ross HufTmaster, of Kaufman, for appellant.
    Fred V. Meredith, Asst. Co. Atty., of Terrell, Fred T. Porter, Co. Atty., and Carlisle & Henry, all of Kaufman, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is rape; the punishment, death.

Appellant is a negro; prosecutrix, Mrs. Sally Cauthen, a white woman. Prosecu-trix and her husband lived on a farm in the vicinity of Terrell, Texas. On the 9th of August, 1939, she started to a neighbor’s house. After walking down the road about a quarter of a mile she met the appellant. Immediately after she passed him he grabbed her by the arm and threatened to kill her if she refused to go with him. He had an open knife in his hand. She endeavored to free herself from the appellant and struck him on the arm in an effort to knock the knife out of his hand. She hollered for help twice, and appellant grabbed her by the throat, again telling her he would kill her. Choking her, he dragged her into a cane patch and threw her down. She was exhausted and unable to move. Appellant had an act of sexual intercourse with her, after which he stabbed her twice with his knife. She had fought him to her utmost but was unable to prevent the outrage. She positively identified appellant as her assailant. The foregoing is, in brief, the testimony prosecutrix gave upon the trial.

Appellant’s testimony raised the issue of alibi. He introduced witnesses who supported his testimony.

The state introduced witnesses whose testimony warranted the conclusion that appellant’s defense of alibi was fabricated;

The evidence is sufficient to support the judgment of conviction.

Appellant is a negro. When the case was called for trial he made a motion to set aside the indictment on the alleged ground that the negro race had been discriminated against in the selection of the grand jury. The court heard the testimony of several witnesses.

A deputy sheriff, who had held office in Kaufman County for twenty years, testified on his direct-examination by appellant’s counsel that during all the time he had held office he had never seen any member of the colored race on the grand jury of the county. He said: “I don’t remember of any member of the colored race being subpoenaed to serve on the grand jury, and never heard of it.” On cross-examination he testified: “I am not testifying that negroes have never been selected from among those from which the grand jury was actually drawn.”

The county clerk testified on direct-examination by appellant’s counsel that he had been around the courthouse for about twenty-six years, and had never known of any member of the colored race serving on the grand jury of the county. He did not know how many negroes lived in the county. However, he said: “There are quite a good many taxpaying members of the negro race in the county. According to the law, I would think there are negroes in this county who are qualified to render jury service, a good many of them.” On cross-examination the witness testified: “I am not testifying to the fact that ne-groes have not been selected to come here from which the grand jury w.ould be drawn.” He testified, further, that he had not examined the tax rolls and the poll tax list in order to determine how many ne-groes had paid their poll taxes. (The indictment was returned at the June term, 1939.) Again, he testified: “As a matter of fact I do not know whether there was any qualified negroes for grand jury service in Kaufman County for this year (1939).”

A former district judge who lived in Kaufman County in 1938 testified on direct-examination by counsel for appellant that he had served as district judge from 1917 until 1934; that during the. time he sat as district judge no members of the colored race served on the grand jury; that he was unable to say whether there were negroes in Kaufman County during that period of time who were qualified to serve on grand juries; that at one time he worked in the tax collector’s office and learned while there that there were poll-tax payers and property-tax payers among the negroes; that a great many negroes were “heads of families.” On cross-examination the witness testified that during his 18 years of service upon the bench negroes had been summoned as petit jurors; that he did not know that any had served on the jury. At this juncture we quote from the testimony of the witness, as follows: “I am not testifying, so far as I know, that there is a single negro in Kaufman County that is qualified as a grand juror. I couldn’t testify that there are any. As long as I was district judge here I did not give instructions to any jury commission each term of the court that selected the grand jurors and the petit jurors for the next term — I never officially instructed that commission not to select any members of the colored race to serve on the grand jury or petit jury. There never was any instructions of that kind given to the jury commission of this county as long as I was district judge.”

Upon redirect-examination the witness testified that he only recalled three or four instances in which negroes had been summoned to serve on the petit jury; that these negroes had the same initials as white men that he had known in the same locality. He said: “None of these three or four negroes during those years served on the petit jury. They were excused from the panel before the panel was ever questioned for jury service. No negro ever served on the jury commission.” On recross-examination the witness testified as follows: “Those negroes who were excused from the petit jury, their names were called in the usual manner, and they would usually arise when I would ask for excuses, they would ask to be excused, which I would gladly do.”

The trial judge testified that he had been practicing law in Kaufman County since 1910, and had served as district judge for a little more than four years; that he was county attorney from 1916 to 1920; that he had never known any member of the negro race to serve on the grand jury; that he did not know whether negroes had been called to serve on the grand jury. We quote in part from the testimony of the witness as follows: “I have known of ne-groes on several occasions being called here either on the grand jury, the sixteen that are called for grand jury service, or on the petit jury, I don’t remember which just now. Some have been called on the grand jury or petit jury and been excused; I don’t remember which. I do remember that on several occasions that ne-groes have been in the court room for jury service. As to whether any of them ever served on the jury, my recollection is that when excuses were called for, the court would always excuse them.”

On cross-examination by the state the witness testified that he did not instruct the jury commissioners not to select any negroes for grand jury service. He testified further: “I have always told the jury- commissioners to select grand jurors, petit jurors and venire-men who were qualified voters and given them the general instructions as to what a qualified voter was under the law, always telling the jury commission to select the very best men in the county that they could find for grand jury service and for petit jury service, as well as on the venires, and that is the instruction I gave this jury commission that selected this grand jury for the June term, 1939.” On redirect-examination the witness testified that he did not appoint a member of the colored race on the jury commission. Again, we quote from the testimony of the witness: “I was practicing law and was county attorney when Judge Hawkins was judge. I never did know of him appointing any member of the colored race on the jury commission. You ask me about the statement I made, awhile ago about my instructing the jury commission to get the best citizens, and then you ask if the ‘best citizens’ aren’t the white citizens. I don’t think there is any question about that.”

On recross-examination the witness said:

“That is a matter of opinion that I left to the individual opinion of the jury commission.”

The tax collector of the county was called to the stand by appellant. According to his testimony, he was county auditor from 1917 to 1934. During the time he had been around the courthouse he had never observed any members of the colored race serving on the grand jury. He kept the tax rolls showing the number of qualified voters in the county paying poll taxes and taxes on property. He testified that for the year 1938 there were 3,317 poll taxes paid. There were 45 in the county who were exempt from the payment of a poll tax. He said: “I think there is about 50 colored poll taxes, approximately that number. This is -for last year, 1938. I have it for 1937. I am sure that the 1929 records are down there. It would take about an hour to get a list of those white tax payers and colored tax payers for ten years back.” On cross-examination the witness testified: “There is a number of the approximately fifty negro poll-tax payers that are women. I made a list of the colored voters' of this county, the negro voters of this county who have paid their poll taxes. The paper that you have there is the list that I made for you, which ■shows about 25 on there that I know are women. That is approximately 50 percent of the negro voters of this county that are women, who, of course, are disqualified for grand jury service. Of the men who are on that list there are three school teachers, that I know of, and one preacher, who, of course, are exempt from jury service. There are a good many on there that I ■don’t know. That would leave, then, approximately twenty that might be qualified out of 3,350 qualified voters of the county. I have been in this county fifty eight years, and have never been called as a grand jur- or in this county and I have always paid my poll tax every year.”

The witness testified that he had been exempt from service as a juror practically all of that time. At this juncture we quote further from his testimony, as follows:

“I have here the poll-tax figures for the last ten years that you asked me about. In 1929 there were 5,256 whites and 197 colored. In 1930, there were 3,350 whites and 61 colored. In 1931, 4,284 whites and 61 colored. In 1932, 2,584 whites and 83 colored. 1933, 4,975 whites and 74 colored. 1934, 3,484 whites and 55 colored. 1935, 5,485 whites and 103 colored. 1936, 3,420 whites and 62 colored. In 1937, 5,435 whites and 102 colored. I believe I testified as to ’38 this morning.
“Those figures I have testified about for the negro voters doesn’t mean that they were all negro men. That is all of the colored men and women who qualified. During that time that I have been in office, it was about 50 — 50, approximately as many negro women paid their poll tax as men; I didn’t take the other figures. That same thing .doesn’t apply to the white people, those numbers I gave for all those years. There is less women that paid poll taxes than- men. That same rule doesn’t apply to the negroes, for the reason that the negro rarely ever pays his poll tax unless he has real property rendered and they are required to under the law if they have real property rendered.”

The state called one of the jury commissioners, whose testimony we quote, as follows: “In selecting the grand jurors for the June Term (1939) there was no reference or mention by any one of us at any time with reference to whether the person selected was white or black. There was no expression by any of us at any time that we wouldn’t put a negro on the grand jury or on the petit jury of this county. We went at it in a systematic manner and tried to select — in other words, we tried to carry out the Judge’s precautions as to selecting good men for the jury, but the fact as to whether they were colored or white was not mentioned at any time while we were in session. To aid and assist us in drawing and making up our grand jury and petit jury list, we had a list of the qualified voters, just a usual list, you know, and we had a list of the ones who had served on the previous term, that we had to check to be careful not to use the same men over again. We selected sixteen men for grand-jury service, and in our selection of those sixteen men, we were not guided by their color or race in any way. We did not designedly and purposely omit from the grand jury selection persons of the negro race. To aid us in the selection of the grand jury, as well as the petit juries, we had the poll-tax list of Kaufman County for 1938. You ask me if I had drawn out some negro’s name that I knew was there while drawing for the grand jury, whether I would have left him on there. I will answer that question in this way: That I know some negroes that I have got in my mind that would be all right on the grand jury. In other words, I am not prejudiced against the colored race, you understand, hut in this particular case, we didn’t discuss it pro and con. It just didn’t happen to come up. We just didn’t discuss it either way; the question didn’t come up. I presume the reason it wasn’t necessary to discuss them was that we didn’t draw them. I don’t recall that I ever saw any negroes on the jury here in this county. However, I haven’t been around the courthouse much. We selected a special venire list too.”

The federal census for 1930 showed that Kaufman County had a population of 40,-905, consisting of 27,274 whites and that 11,511 were negroes.

Art. 339, C.C.P., reads as follows:

“No person shall be selected or serve as a grand juror who does not possess the following qualifications:
“1. He must be a citizen of the State, and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county; but, whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes can not be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a juror.
“2. He must be a freeholder within the State, or a householder within the county.
“3. He must be of sound mind and good moral character.
“4. He must be able to read and write.
“5. He must not have been convicted of any felony.
“6. He must not be under indictment or other legal accusation for theft or of any felony.”

The women poll-tax payers were not eligible for grand-jury service. According to the testimony we have detailed, omitting those exempt from service, there were approximately twenty negro men who had paid their poll taxes. It was not shown that any of these twenty were qualified, under Art. 339, supra, for service on the grand jury. In short, it' was not shown that any one of them could read and write. Nor was it shown that they were householders in the county or freeholders in the state, unless it can be said that the statement of the tax collector that negroes, rarely ever paid their poll taxes unless they had real property is sufficient to warrant the conclusion that the twenty negroes who-had paid their poll taxes were freeholders, in the state. We think the broad statement of the witness should not be held by us sufficient to show that they were freeholders. There is no proof in the record that they were householders. There is. nothing to show that they were not available as witnesses. It would appear that if they were qualified to serve on the grand juries appellant could have established that fact. In short,'the testimony fails to show how m'any of the negro poll-tax payers, were qualified for grand jury service. The case of Ryan v. State, 136 Tex.Cr.R. 140, 123 S.W.2d 659, presents a somewhat similar situation., In that case it was insisted that the indictment should be set aside on the alleged ground that the negro race had been discriminated against in the selection of the grand jury which returned the-indictment. In affirming the judgment, this court reached the conclusion that Ryan had failed to sustain his contention that discrimination had been practiced. After the motion for rehearing had been overruled. Ryan filed in the Supreme Court of the United States a petition for writ of certi-orari, which was denied. See Walter Ryan v. State of Texas, 307 U.S. 609, 59 S.Ct. 828, 83 L.Ed. 1493. We quote from the opinion of the Court of Criminal Appeals in Ryan’s case as follows: “The two bills. of exception found in the record relate to-the appellant’s effort to have the indictment set aside on the alleged ground that the negro racé had been discriminated; against in the selection of the grand jury which returned the indictment. The court heard the testimony of three witnesses, two of whom stated that there were more ne-groes in the county than white people and that for approximately twenty-five years no negro had been selected for service on a grand jury. It was not shown how many negroes paid poll taxes, nor how many were women, nor how many could read and write, nor how many were householders in the county or freeholders in the state. In short, the testimony fails to show how many of the negro poll tax payers were qualified for grand jury service. It is true that a witness for appellant testified on his direct-examination that there were as many qualified voters and people for jury service among the negroes as there were whites. However, on his cross-examination he said: ‘I do not know how many negroes during the year 1937 paid their poll tax. I know a good many of them did so. I could not say how many negroes paid a poll tax in 1937. All I could say is that I know that some of them paid. I would not say a very, very small percent of negroes paid a poll tax. It is not a fact that there is a very small percentage of the negro race whose names are on the tax rolls of this county. They are on the tax rolls. I do not know what percentage of the negro population is on the tax roll. I judge all of them, pretty well all of them; the same percent as the white people. I think the percentage among the negroes would be the same as among the white people whose names appear on the tax rolls. Of course, I could not know without examining the records.’ It is manifest from the testimony of this witness that he was merely expressing his opinion that there were negro poll tax payers who were qualified for grand jury service. He expressly stated that he would not know such to be the fact without examining the records. The jury commissioners were not called by appellant in an effort to support his claim that there had been an intentional discrimination against the negroes because of their race or color. Hence it appears that the claim of discrimination was based largely on the fact that for many years in San Jacinto County no negroes had been drawn or served on grand juries. That fact alone would not show an intentional discrimination against them because of their race or color. Ross v. State, Tex.Cr.App., 7 S.W.2d 1078. The third witness merely gave testimony that the school census showed that there were more ne-groes than whites in the schools of San Jacinto County. It is our conclusion that the evidence fails to show that the omission to draw any negroes upon the grand jury which indicted appellant was the result of purposeful discrimination against the negroes because of their race or color-Hence appellant’s complaint can not be sustained. Ross v. State, supra.”

It is our conclusion in the present case that the evidence fails to show that the omission to draw any negroes upon the grand jury was the result of purposeful discrimination against the negroes because of their race or color.

It is also appellant’s contention that his motion to quash the venire should be sustained upon the alleged ground that the negro race had been discriminated against in the selection of the jurors composing the special venire. Having overruled appellant’s contention that the jury commission practiced discrimination in selecting the grand jury, and the proof being the same on the question of discrimination in selecting the jurors who composed the venire, it is unnecessary to discuss the question further than to say that, in our opinion, the evidence fails to show that the omission to draw negroes for jury service was the result of purposeful discrimination against negroes because of their race or color.

Appellant moved for a change of venue, making affidavit thereto and supporting same by the affidavits of two compurgators, as is the requirement of Art. 562, C.C.P.; the only ground laid being that there existed against him in Kaufman County so great a prejudice as that he could'not obtain a fair and impartial trial. In its traverse of the motion the state questioned the means of knowledge of appellant’s com-purgators, and denied the existence of prejudice.

Appellant introduced excerpts from newspapers and also the testimony of witnesses who were connected with such newspapers to show the circulation of the papers in Kaufman County. The first witness was connected with the Dallas News. He testified that all he knew about the circulation in Kaufman County of the Dallas News was that some of the papers came into the county. He did not know what sections of the county these papers reached. In response to a question by appellant’s counsel, the witness stated that he had come to Kaufman County after he had learned that the offense had been committed, and talked to the county attorney. He denied that that official made any statement to him concerning the intensity' of the feeling of the people. He said: “I didn’t quote Mr. Porter (referring to the county attorney) with .reference to any mob violence or high feeling. I think the quotation as to the crowd in the man hunt is correct.” The witness testified that he was in Kaufman County in the-City of Terrell four or five hours, and that he heard nothing that gave any evidence that appellant could not get a fair and impartial trial in said county. He stated that he did not hear any expression of antagonism against the appellant. However, he said that there were a good many officers and rangers in the county at the time making an effort to apprehend the appellant. We quote from his testimony: “They had bloodhounds there when I was there. I went with the posse when they went to look for the guilty party. I heard no shots fired.”

The next witness introduced by the appellant was the general manager of the Daily Tribune of Terrell. He testified that his paper had a paid circulation in Kaufman County of 2,997, and a “free distribution” of 138. Further, he testified that the paper went into every precinct and voting box in the county. Continuing his testimony upon his direct-examination, he said: “I have heard a lot of resentment against this negro.” However, it was the version of the witness that he had heard nothing about “any mob violence.” At this juncture we quote from his testimony as follows: “There has been some talk and bitter feeling about this, and there is now. I don’t know whether there is talk and bitter feeling all over the county or not. I haven’t been all over the county. There is a good deal of talk concerning the case wherever I have been.” On his cross-examination the witness testified that he had not heard any “prejudgment or bias over the entire county, or prejudice” against the appellant. He said: “I do not know of any reason from what I have heard talked why this negro, Florence L. Murphy, couldn’t get a fair and impartial trial in Kaufman County.” The witness was called upon by counsel for appellant to estimate the crowd in the courtroom. He stated that in his opinion there were six hundred in the courtroom and “a good many downstairs and outside downstairs.” He also testified that he heard some of the people knocking on the doors and had observed officers guarding the doors. His testimony was to the further effect that there were a good many officers in the courtroom.

The editor of the Kemp News, another paper in Kaufman County, was introduced by appellant. He testified that his paper had a circulation of about 800 in the county. He was of opinion that appellant could obtain a fair, and impartial trial in Kaufman County. He said: “I have not heard any great amount of.talk and expressions of sentiment and prejudice against this particular negro.”

The editor: of the Mabank Banner, a paper published in the county, testified that the total circulation of his paper in Kaufman County was about 375. Upon his cross-examination the witness expressed the opinion from what he had heard that appellant could obtain a fair and impartial trial in the county.

The publisher of the Kaufman Herald, which was a weekly paper, testified that the circulation was about 2,500. His paper reached all portions of the county. On cross-examination he said: “I don’t know of any reason from what I have heard and talked to people and read why this Florence Murphy could not get a fair and impartial trial in Kaufman County.”

The sheriff of the county was introduced as a witness by the appellant. He testified that, although a large crowd had assembled after the offense had been committed, he heard no expressions showing public resentment and bitter feeling against the negro who had perpetrated the crime. In short, it was his. version that there was nothing indicating mob spirit. He admitted that, as' a precautionary matter, he and several other officers carried the appellant to Dallas and placed him in jail. In going to Dallas from Kaufman appellant was carried by Tyler and not through Terrell, which was near the scene o-f the alleged offense. The sheriff also testified that there were a number of officers present who were helping him guard the appellant. At this juncture we quote from his testimony, as follows: “Since this matter occurred over there near Terrell on Monday night I have been in and around over the county. I have not heard any expressions from over the county that indicates or leads me to believe that this negro coiil'd not get a fair and impartial trial in this county. I haven’t heard anything like that.”

Appellant failed to introduce his com-purgators.

The state introduced several witnesses who testified to the effect that they had never heard any expression of opinion with reference to mob spirit against the appellant. One witness for the state testified that if he were basing his conclusion upon what he had read in the papers he “would have to say” that appellant was guilty. Some of the witnesses for the state gave testimony indicating that appellant’s compurgators had not gone over the county after the commission of the offense in-an effort to determine the ■ sentiment of the people.

In rebuttal, appellant introduced a witness who testified that shortly after the rape he had heard a number of people talking around Terrell about mobbing the appellant. This witness, however,' was ' unable to remember the names of any-people who had suggested mob violence.

Appellant introduced the grand jury report, which, in part, thanked the officers for the efforts put forth in apprehending the appellant.

The articles from the newspapers in the main seem to present statements “reasonably in consonance with the facts of the case” as developed on the trial, and do not appear to be colored to the extent that they might “reasonably create feeling or resentment more than would arise in the breast of any citizen hearing such facts related.” Manifestly, there was an issue as to the existence of prejudice. Our examination of the newspaper articles leads us to the conclusion that they are not adequate to support the inference of prejudice necessary to secure a change of venue. We quote from Parker v. State, 91 Tex.Cr.R. 68, 238 S.W. 943, 945, as follows: “We gather that the evidence of prejudice, upon which the appellant relies, is traceable to the alleged consequences of newspaper publications. Those set out in the document to which we have referred appear to be such only as might come within the scope of the proper functions of a newspaper, in informing the public of current events. Such publications alone have not, within our knowledge, been held adequate to support the inference of prejudice necessary to secure a change of venue. Cox v. State [8 Tex.App. 254, 34 Am.Rep. 746]supra; Ruling Case Law, vol. 27, p. 818, § 36. Our statute upon the selection of individual jurors recognizes that even opinions formed from reading newspaper accounts may not disqualify the juror from sitting in a particular case. Code of Crim.Proc., art. 692, subd. 13; Grissom v. State, 4 Tex.App. 374; Rothschild v. State, 7 Tex.App. 519; McKinney v. State, 31 Tex.Cr.R. 583, 21 S.W. 683; Ashton v. State, 31 Tex.Cr.R. 479, 21 S.W. 47; Groszoehmigen v. State, 57 Tex.Cr.R. 241, 121 S.W. 1113; Maxey v. State, 66 Tex.Cr.R. 234, 145 S.W. 952; Myers v. State, 71 Tex.Cr.R. 594, 160 S.W. 679; Myers v. State, 77 Tex.Cr.R. 239, 177 S.W. 1167. It is not to be expected that the men of intelligence from whom our juries are drawn and whose judgment is potent in forming public opinion will not inform themselves of the events of the day as they are reflected in the press, nor that they will generally form from such reports an opinion so fixed as to render them incapable of forming an impartial judgment from hearing the evidence revealed by the witnesses, under oath, in a given case.”

See also Willis v. State, 128 Tex.Cr.R. 504, 81 S.W.2d 693.

The burden was upon appellant to support by evidence the averments in his motion for a change of venue. Parker v. State, supra. It was the duty of the trial judge to try the issue raised by the testimony. We would not be warranted in overturning his judicial discretion unless it is clearly made to appear that such discretion has been abused. Lacy v. State, 30 Tex.App. 119, 16 S.W. 761. We quote from Carlile v. State, 96 Tex.Cr.R. 37, 255 S.W. 990, 992, as follows: “The statute fixes the measure of the court’s duty upon an application for a change of venue, namely, to grant the motion where, upon the uncontroverted motion or upon the evidence adduced, it is made to appear that there exists in the county ‘so great a prejudice against (the appellant) that he cannot obtain a fair and impartial trial.’ Code of Crim.Proc. art. 628. The burden is upon the appellant to prove the existence of such prejudice, and, where evidence is heard, the issue is to be determined by the trial court. The discretion is upon the trial court to weigh the evidence, and, if from it there arises two conflicting theories, the trial court has the discretion to adopt either. In the absence of the abuse of this- discretion, the judgment will not be disturbed on appeal. If, however, the evidence is such that it leads to the conclusion that the bias, prejudice, or prejudgment of appellant or his case is such as renders it improbable that a fair and impartial trial can be given him, the trial court is without discretion to refuse the application. Dobbs v. State, 51 Tex.Cr.R. [629] 632, 103 S.W. 918. Injury is shown when it is made evident that under the procedure provided by law it is improbable that an impartial jury can be impaneled to determine the guilt of the accused, and a change of venue is denied. Barnes v. State [42 Tex.Cr.R. 297] 59 S.W. [882] 883 [96 Am.St.Rep. 801]; Randle v. State, 34 Tex.Cr.R. [43] 59, 28 S.W. 953; Cox v. State, 90 Tex.Cr.R. 106, 234 S.W. 72, and cases cited.”

See also Walker v. State, 124 Tex.Cr.R. 112, 60 S.W.2d 455.

From a review of all the evidence relating to the motion for change of venue, we find nothing which leads to the conclusion that the trial judge abused the discretion vested in him to determine the matter. We are therefore constrained to hold that the motion was properly overruled.

Bill of exception No. 4 is concerned with appellant’s motion for a continuance. The application was based upon the ground that there was such prejudice and high feeling against the appellant that he could not obtain a fair and impartial trial. The court qualified the bill of exception as follows: “Upon the hearing of defendant’s motion for continuance as complained of in this bill of exception 12 witnesses, residents of Kaufman County, were called by both the state and the defendant, of whom 11 testified. that there was no prejudice against the appellant in their respective communities, and that, in their opinion, the defendant could receive a fair and impartial trial in Kaufman County, and the twelfth was not asked about either of these matters. It was upon this testimony, which was all of the testimony offered upon said motion, that the court overruled defendant’s motion for a continuance.” We think the bill of exception fails to reflect error. The trial court was warranted in concluding from the testimony heard that appellant could obtain a fair and impartial trial. The trial court was warranted, in the first place, in overruling appellant’s application for a change of venue. It follows that there was no abuse of discretion in denying the continuance.

Bill of exception No. 6 relates to argument of the assistant county attorney to the effect that the sheriff and his deputies and the other officers believed that they had “the right man.” The court qualified the bill of exception as follows:

“While the statement was being made, two of the attorneys for the defendant, Mr. Morris Brin and Mr. Jack Bond, arose from their seats, and one or the other came around to the Court’s bench and stated in a whisper or undertone, that they objected to the argument made, and at this junction the full statement had been completed. No request was made by the attorneys for the defendant that the Court instruct the jury not to regard the statements so made. Mr. Barnes, who made the closing argument in behalf of the defendant, made the same kind and character of speech to the jury, stating 'Gentlemen, I wish I knew whether this defendant is guilty or not. We — ’ referring to co-counsel ‘ — have spent days talking to witnesses in Dallas and in other parts of the country, talking to the defendant, spending our own money, traveling in our own automobiles trying to make up our minds whether this defendant is guilty. I don’t know now, but I wish I did. From the evidence in this case he is probably guilty, but there is a possibility that he is not.’
“The statement so made by the Assistant County Attorney was based upon the testimony introduced upon the trial, and is a reasonable deduction therefrom, and in no manner prejudiced or affected the rights of the defendant herein.”

Appellant did not except to the qualification, and we must therefore appraise the bill in the light of the qualification.' The qualification not only shows that the argument was invited, but recites that it was based upon testimony introduced upon the trial, and was a reasonable deduction from such testimony. Under the circumstances, we would not be warranted in holding that the bill of exception ’ reflects reversible error.

Bill of exception No. 7 recites that on his voir dire examination Venireman Watkins testified that he had read the headlines of the newspapers relative to the rape of the prosecutrix; that from reading such headlines he formed no opinion that appellant was the guilty party; that he probably formed the opinion that the crime of rape had been committed; that he had not heard many people discuss the case; that after appellant had been apprehended he had heard some people say that the officers “got the right negro”; that he would allow appellant to prove that he was not the guilty party, but that he did not know whether he would require him to or not. Appellant's peremptory challenges had been exhausted, and he interposed a challenge for cause, which was overruled. In qualifying the bill of exception, the court stated that Mr. Watkins did not testify that he would require defendant to offer proof that he was not the guilty party. The qualification also states that the juror testified that he had formed no opinion as to the guilt or innocence of appellant, and at that time entertained no opinion as to whether he was guilty or innocent. It is further stated in the qualification that the juror testified that he would require the state to prove the defendant guilty beyond a reasonable doubt and would go into the jury box presuming him innocent and would presume him innocent until proven guilty. We think it is manifest from the qualification that the court was warranted in overruling the challenge, as it cannot be said that the juror was of fixed opinion that appellant was guilty.

We think bill of exception No. 8, as qualified, fails to reflect error. It is true that appellant was required to testify that he had been convicted of a felony in 1929. It might be that the former conviction would be held too remote if it were not for the fact that it is shown in the qualification appended to the bill of exception that appellant’s counsel elicited from appellant the fact that he had been convicted in Rusk County of the offense of assault with intent to rape in 1932 and assessed a punishment of twenty years confinement in the penitentiary. In Anderson v. State, 113 Tex.Cr.R. 450, 21 S.W.2d 499, it is shown that on cross-examination the state elicited from Anderson that he had been indicted for murder more than twenty years before the present trial and that he had been tried in a federal court on a charge of peonage twelve years before the present trial. Proof of the conviction and charges mentioned was objected to on the ground that the transactions were too remote. We sustained the action of the trial court in permitting such proof, and cited Shipp v. State, 104 Tex.Cr.R. 185, 283 S.W. 520, in support of our conclusion that error was not presented. In Shipp’s case, in discussing the question as to whether testimony of the character now under consideration is too remote to warrant its being received in evidence, this court said: “At what period of time testimony of a prosecution for an act of the accused which is discrediting to his veracity becomes too remote to warrant its receipt in evidence seems to the writer one that cannot be arbitrarily determined by the courts. Entering into the relevancy of such testimony, there would seem to be many circumstances. For example, the period of the life of the accused at which the discrediting act took place and his subsequent conduct are elements that must be taken into account. Supposing the accused to be a youth, indiscretion amounting to a criminal offense committed by him ten years previous at a time when he was a mere child of tender years would seem, in the absence of supporting testimony showing prosecutions indicating continued evil disposition, to be too remote. Supposing the accused to be of middle age or more, and the discrediting fact to have taken place ten years or more antecedent to the time the proof of it was offered in evidence, his .freedom from accusations of crime during the intervening space of time would seem of weight upon the relevancy of the proof. In the due administration of justice, the idea of reform — the fact that an individual once bad may have amended his ways — is not to be ignored by the courts. One may have been bad and become good, or may have borne an excellent character and a good reputation at no distant time and had become profligate and criminal in his tendencies. This court has oftentimes been called upon to consider, and has considered, the admissibility of testimony to the effect that the accused had been charged with an offense at some time previous to that for which he was on trial, but it has never, so far as the writer is aware, undertaken to fix arbitrarily and absolutely a space of time which would characterize such testimony as too remote. In the opinion of the writer, the nature of things precludes such a declaration. The receipt of such testimony should primarily determined by the trial judge after an investigation, in the absence of the jury, to learn whether, under the ascertainable facts, the act is too remote. The exercise of such discretion is subject to review, and, in case of abuse, to be revised.”

Making application of the holding in Shipp’s case, we are constrained to- overrule appellant’s contention that the bill of exception presents reversible error. See, also, Oates v. State, 67 Tex.Cr.R. 488, 149 S.W. 1194; Stratton v. State, 110 Tex.Cr.R. 254, 8 S.W.2d 171; Fritts v. State, 119 Tex.Cr.R. 412, 42 S.W.2d 609.

It is shown in bill of exception No. 9 that in argument the county attorney stated that after the commission of the rape prosecutrix was lying on the ground in her own blood. The qualification to the bill of exception is to the effect that appellant stabbed the prosecutrix and that blood flowed from her wounds while she was lying on the ground. As qualified, the bill fails to show error.

Bill of exception No. 11 recites that appellant challenged the venireman Huddleston for cause after he had testified upon his voir dire examination to the effect that after the rape there appeared to be some resentment and feeling against appellant. The bill recites that the juror said that he had heard the case discussed by people who thought that appellant had been positively identified as the assailant of the prosecutrix. The bill recites further that the court overruled the challenge and that appellant’s peremptory challenges had been exhausted. In his qualification to the bill the court sets forth at some length the testimony of the juror on his voir dire examination. In short, the qualification shows that the juror had formed no opinion- as to the guilt or innocence of appellant, and, further, that he would require the state to prove his guilt beyond a reasonable doubt before he would find him guilty. No error is reflected.

Bilí of exception No. 12 is also concerned with the action of the trial court in overruling a challenge for cause to a venireman. This bill, as qualified, is in the same attitude as the foregoing bill.

Bill of exception No. 13 shows that after the court had overruled a challenge for cause to a venireman appellant exercised a peremptory challenge. The qualification to the bill shows that appellant used his fifth peremptory challenge in standing the juror aside, leaving appellant ten peremptory challenges. We find nothing in the bill of exception showing that appellant was forced to take an objectionable juror after his peremptory challenges had been exhausted. This court has uniformly held that where the court erroneously fails to sustain a proper challenge of a juror for cause, a reversal will not result unless it is made to appear that the error brought injury to the accused. Injury will not be inferred where it is made to appear that the challenged juror was excused by the accused upon a peremptory challenge. It must appear from the bill that all of the peremptory challenges of the accused were exhausted, and that thereafter there was placed upon the jury an objectionable juror. Johnson v. State, 108 Tex.Cr.R. 499, 1 S.W.2d 896. It is also held that by the term “objectionable juror” is not meant that the juror is subject to challenge for cause, but that his examination must show some degree of disqualification, such, for example, as the formation of some character of opinion as to the guilt or innocence of the accused. Johnson v. State, supra, It is essential that the bill of exception relating to the matter be so framed as to bring before this court knowledge of the facts from which it is claimed that a juror forced upon the accused is objectionable. Johnson v. State, supra. The bill in the present case fails to show that any objectionable juror sat in the trial of the case. Hence it fails to reflect reversible error.

Bill of exception No. 15 relates to the action of the court in overruling appellant’s challenge for cause to a venireman. It is recited in the bill that on his voir dire examination the juror testified that he had formed the opinion that the officers, in arresting the appellant, had gotten the right man. The court qualified the bill of exception to the effect that the jur- or testified from what he had heard and read he had formed no opinion that appellant was guilty. Further, the bill is qualified to show that the juror testified that he would require the state to prove appellant guilty beyond a reasonable doubt, and would presume that he was innocent until such proof was made. The court stated in the qualification: “From the entire examination, of the venireman, which is only partly set out here and in the bill, the venireman showed himself to be unprejudiced, unbiased, and without any fixed opinion that would prejudice him in any way from sitting as a juror in the case, and showed that he should and would make a fair and impartial juror in the trial of the case.” The qualification was not excepted to, and we are bound by it. As qualified, the bill of exception fails to reflect error.

A careful examination of all of appellant’s contentions leads us to the conclusion that reversible error is not presented.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

Appellant again insists we were in error in our holding that his bill No. 1 evidences no error wherein we held that same did not show an intentional discrimination against the negro race in the selection of the persons who served on the grand jury that indicted this appellant for this alleged crime of rape.

We again note that under the testimony and the statute there were approximately twenty-five persons of the colored race who might have been qualified to sit on a grand jury in said county, and there is no other or further showing that such colored persons met the requisites of the statute as set forth in Art. 339, C.C.P. as follows:

“No person shall be selected or serve as a grand juror who does not possess the following qualifications:

“1. He must be a citizen of the State, and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county; but, whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes can not be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a juror.

“2. He must be a freeholder within the State, or a householder within the county.

“3. He must be of sound mind and good moral character.

“4. He must be able to read and write.

“5. He must not have been convicted of any felony.

“6. He must not be under indictment or other legal accusation for theft or of any felony. (Id., p. 78; O.C. 289; Const., art. 16, sec. 19; Acts 1903, 1st C.S. p. 16.)”

Although there may have resided in this County of Kaufman about 11,000 negroes, there were shown to be but about 50 who had paid their poll tax, and about one-half of these being women, not eligible to jury service, the eligibles from the poll tax section alone of Art. 339, supra, fell to about 25. We do not find in the record any proof relative to Section 3'of article 339, nor of Section 4 of said article, nor of Section 5 thereof, nor do we find any proof relative to Section 6. In other words, no proof appears of the qualifications of any negro for grand jury service save that there are about 25 male negro freeholders within Kaufman County who paid their poll tax.

We do not think that a failure to find one of these upon a grand jury would evidence a discrimination against the colored race, especially in view of the testimony of the jury commissioners who selected the grand jury list, under the instructions of the court, and the law governing such matters.

It is insisted also that among these negro tax payers and freeholders would be found the names of negro doctors or physicians, as well as negro school teachers, but it is also observed that all doctors and physicians under our statute are exempt from jury duty.

That some one committed a crime in Kaufman County that would shock the conscience of any right minded citizen can not be denied. It is also patent that the peace officers, with full knowledge of what the probable effect of such a crime would have on any community, took all reasonable precautions to protect the person charged with such crime, and were present at all times for the purpose of guaranteeing to this unfortunate prisoner his full rights under the law of a public trial in the courts of the land. The careful district judge did all in his power to see that a fair trial was had, and brought to bear all the machinery of the law in order to protect appellant’s rights. Appellant was placed in closq proximity to the alleged crime by disinterested witnesses at about the time of its commission, and was positively identified by the victim, the mother of four children, who testified not only to her ravishment but also to the fact that her despoiler had twice stabbed her in the throat with a knife, and on appellant’s knife there was afterwards found human blood.

Appellant offered an alibi, which was contradicted by members of his own race, and his eventual confusion in his testimony evidently went far to cause a reasonable mind to disbelieve his story.

The further matters herein complained of have been treated in our original opinion correctly, so we think, and we will not further discuss them.

We think the trial accorded appellant was a fair one and that which he was entitled to under the law, and we see no other alternative than to overrule this motion, which is accordingly done.


author: BEAUCHAMP, Judge. GRAVES, Judge.

text:
    POTTER v. STATE.
    No. 21061.
    Court of Criminal Appeals of Texas.
    May 15, 1940.
    Rehearing Denied June 26, 1940.
    R. E. Eubank, of Paris, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

From a conviction in the District Court, 102nd Judicial District, Red River County, in which a fine of $250 was assessed for a violation of the liquor laws, appellant brings this appeal.

The first bill of exception complains of the charge of the court and quotes from it the following: “You are instructed that Red River County, Texas, is a dry area as defined by the Statute ***** and you are instructed to assess his fine not less than $100.00 nor more than $1,000.00 or by imprisonment in the County Jail for not to exceed one year.”

Appellant was tried by a jury on a plea of not guilty. The charge was an oral one and the judge approved the foregoing as a part of his charge. It will be noted that five stars are in the second line, probably indicating that something had been left out of the quoted paragraph, but we are unable to supply the missing part either for the support of the bill or to destroy it. The objection raised is as to the weight of the evidence, but relates only to that part which says Red River County is a dry area. The court was justified in giving this. There is no objection to the rest of it.

Appellant’s bills of exception Nos. 2 and 3 are considered to have no merit and are overruled.

Appellant’s bill of exception No. 4 as prepared reflects error, but as qualified by the court we think all the harm was waived by.appellant and that the evidence was admitted without objection.

Appellant’s bill of exception No. 5, presenting a matter somewhat similar to that in bill No. 4, is qualified by the court adopting his qualifications to bill No. 4 as applicable to No. 5 without recopying it. We are hardly able to fit the statement found in the qualifications to bill No. 4 to that in No. 5 and feel that such qualification is not sufficiently definite and certain to destroy the bill. Neither the affidavit for the search warrant nor the search warrant itself are admissible before the jury. They are for the consideration of the court only to determine the admissibility of the evidence which may have been found as a result of the search. The trouble, however, is in the bill itself. It fails to show just what was read to the jury and also the resulting harm therefrom.

The other matters complained of in the trial of the case are not of sufficient importance to require a reversal of the .case and are, therefore, passed without comment.

The case is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant again complains because of what he terms a failure in the corresponding of the allegata and probata in that the complaint and information allege that an election had been held in Red River County in 1902 to determine whether or not the sale of intoxicating liquors, to-wit: whisky, should be prohibited, etc., in said county.

We are cited to Article 16, Section 20 of the State Constitution, prior to the amendment of 1919, which reads as follows : “The legislature shall at its first session enact a law whereby the qualified voters of any county * * * or * * * subdivision * * * as * * * designated by the commissioner’s court * * * may by a majority vote determine from time to time whether, the sale of intoxating liquors shall be prohibited within the prescribed limits.”

It is shown that the sale of intoxicating liquors was by a majority vote prohibited in such county in the year 1902, and the complaint now presents itself that the information and complaint should not have specialized by using the word “whisky” wherein there occurs the phrase “after an election had been held by the qualified voters of said county in accordance with law to determine whether or not the sale of intoxicating liquors, to-wit: whisky, should be prohibited in said county,” etc.

Evidently such a complaint would be unquestioned under the amendment to the State Constitution which allows elections to be held in order to determine the sale of different kinds and character of intoxicating liquors. In our judgment the word “whisky” under this prosecution is but sur-plusage, and could be eliminated and do no violence to good pleading. The pleadings allege that such an election was held relative to prohibiting the sale of intoxicating liquor, which was the only kind of election permissible under the Constitution in force in 1902, and we think the statement of the general term “intoxicating liquor” includes all intoxicants of any kind, and the word “whisky” can be treated as surplusage and still leave a good complaint and information. It seems to us that this makes a fair correspondence between the allegation and the proof.

In the condition in which we find this record we think the original opinion herein properly disposed of all further contentions set forth in this motion, and the same is overruled.