author: HICKMAN, Commissioner.

text:
    TEXAS EMPLOYERS INS. ASS’N v. KENNEDY.
    No. 2315—7515.
    Commission of Appeals of Texas, Section A.
    Oct. 16, 1940.

      Lawther, Cramer, Perry & Johnson, and Wm. M. Cramer, all of Dallas, for plaintiff in error.
    Clint & Eades, D. B. Eades, Allen Eades, and Eric Eades, Jr., all of Dallas, for defendant in error.
   HICKMAN, Commissioner.

This suit was instituted by defendant in error, W. W. Kennedy, against plaintiff in error, Texas Employers Insurance Association, to cancel and set aside a compromise settlement agreement theretofore executed by Kennedy and the Association and approved by the Industrial Accident Board, on the ground of alleged fraud in its procurement. At the close of the testimony the jury was peremptorily instructed to return a verdict for the Association and, upon the verdict returned in accordance with the instruction, judgment was rendered that Kennedy take nothing. That judgment was reversed by the Court of Civil Appeals and the case remanded, one of the justices dissenting. 121 S.W.2d 434.

It is disclosed by the briefs and record that the Association contended in the trial court, and still contends, that the plaintiff failed to make out a prima facie case in three particulars, viz.: First, by failing to show the filing of a claim for compensation with the Industrial Accident Board within six months after the alleged injury, or an excuse for not so filing; second, by failing to show a tender back of the consideration paid him for the agreement; and, third, by failing to show that actionable fraud was practiced on him.

The majority opinion of the Court of Civil Appeals overruled the first and third contentions, but sustained the second, thereby holding that plaintiff neither pleaded nor proved a fact essential to his right to recover, namely, a tender back by him of the amount paid him under the agreement. That court nevertheless reversed the trial court’s judgment and remanded the cause. We agree with the dissenting opinion upon the proposition that, if any one of the three contentions is upheld, the judgment of the trial court should be affirmed, for an appellate court is not authorized to reverse an errorless judgment. Simmons v. Dickson, 110 Tex. 230, 218 S.W. 365; Wiggins v. Stephens, Tex.Com.App., 246 S.W. 84; Perego v. White, 77 Tex. 196, 13 S.W. 974; Fowler v. Hardee, Tex.Civ.App., 16 S.W.2d 154.

The above holding brings about this situation in this court: The Association alone filed an application for writ of error from the judgment of the Court of Civil Appeals, and since the holding of that court was favorable to its contention on the question of the necessity of a tender back by the plaintiff, no assignment was brought by it to this court challenging that holding. There was such an assignment brought to the Court of Civil Appeals by Kennedy. In such situation the Supreme Court is not limited to a consideration of the assignments brought forward in the application. If the Court of Civil Appeals has rendered a correct judgment, that judgment should be affirmed, provided the record before that court affords a ground for such affirmance. The rule has therefore been developed, and has become well established, that when it is determined that the Court of Civil Appeals erred in basing its judgment on a particular ground, the Supreme Court is authorized to consider the briefs filed in that court, not for the purpose of reversing its judgment, but for the purpose only of determining whether, by considering other assignments therein, it could affirm such judgment. Cox, Inc., v. Humble Oil & Refining Co., Tex.Com.App., 16 S.W.2d 285; Jordan v. Morten Investment Co., 127 Tex. 37, 90 S.W.2d 241; Garcia v. Moncada, 127 Tex. 453, 94 S.W.2d 123. We have therefore considered the assignment brought to the Court of Civil Appeals by defendant in error, Kennedy, presenting the question of the necessity of a tender, back by him of the consideration received for the settlement agreement as a condition precedent to his right to maintain this action.

The general equitable rule is that a plaintiff in a suit for the rescission or cancellation of a contract to which he is a party must return, or offer to return, any consideration which he has received under the contract. Many Texas authorities so holding are collated in Casualty Reciprocal Exchange v. Bryan, Tex.Civ.App., 101 S.W.2d 895.

The above is a rule of equity, and not a fixed rule of universal application. For example, in a common law action for damages for personal injuries and to cancel a release and settlement agreement executed by the plaintiff and the defendant, it is well established in this jurisdiction that such tender or offer to tender is not required. Smith v. Atchison, T. & S. F. R. Co., Tex.Com.App., 232 S.W. 290; Texas & P. R. Co. v. Jowers, 110 S.W. 946, writ refused; International & G. N. R. Co. v. Shuford, 36 Tex.Civ.App. 251, 81 S.W. 1189, writ refused; Galveston, H. & S. A. R. Co. v. Cade, Tex.Civ.App., 93 S.W. 124, writ denied.

In such case the facts entitling a plaintiff to have the release cancelled negative the existence of any duty'to tender back, for he is not entitled to have it can-celled unless he establishes injury, that is, that he has received less than he was entitled to receive. Manifestly, if. he establishes that fact, no duty would rest upon him to make a tender. The rights of the defendant can be protected in the judgment by allowing a credit for the payment theretofore made. Similarly, in cases like the instant one, in order for a plaintiff to recover he must establish that he has been injured, that is, that he has a meritorious claim for compensation in an amount greater than that which he has received, and if he makes that proof, he should not be required to make a tender. The difference between the two classes of cases lies in the fact that no relief can be granted in cases like the instant one other than that of cancellation. Lumbermen’s Reciprocal Association v. Henderson, Tex.Com.App., 15 S.W.2d 565; Commercial Casualty Insurance Co. v. Hilton, 126 Tex. 497, 87 S.W.2d 1081. If the court had jurisdiction to proceed in this action to litigate the Association’s liability to pay the compensation, then obviously the rule obtaining in common law actions for damages would have application. Under the authorities last above cited, a finding in this case that plaintiff has a meritorious claim for additional compensation, will not be binding in a subsequent action for such compensation. This results from the fact that the court has no jurisdiction of actions for compensation , except in cases appealed from the Board.

It is conceivable that in rare instances it may be held in a suit to cancel an agreement for fraud that plaintiff has received less than he was entitled to, and a contrary holding be made in the compensation case. Notwithstanding such possibility, we have concluded that cases like the instant one should be governed by the rule applicable to cases brought to set aside a release and recover damages in a common law action. We, therefore, hold that plaintiff was not required to tender back the amount received as a condition precedent to his right to obtain relief herein.

This question has been before the courts of this state in several cases, but has never heretofore been written upon by this court. In the following cases, in which it was held that a tender back was not necessary, applications were dismissed. Indemnity Ins. Co. v. Kelley, Tex.Civ.App., 44 S.W.2d 756; Indemnity Ins. Co. v. Sterling, Tex.Civ.App., 51 S.W.2d 788; Traders & General Ins. Co. v. Towns, Tex.Civ.App., 130 S.W.2d 445.

In the. opinions in each of those cases much weight, if not controlling effect, was given to the fact that plaintiff was poor and unable to tender back. That probably accounts for the fact that the applications were dismissed rather than refused. It has been held that the fact that a plaintiff is able to make a tender affords no basis for creating an exception to the rule obtaining in suits for damages. Smith v. Atchison, T. & S. F. R. Co., supra.

In the case of Traders & General Ins. Co. v. Towns, supra, we find that error was assigned here to the holding of the Court of Civil Appeals that plaintiff was not required to tender back. By dismissing the application for writ of error in that case a judgment was permitted to stand and become final which decreed the cancellation of a settlement agreement in a compensation case where plaintiff had not tendered co the compensation carrier the amount received under such agreement. The effect of our order in dismissing that application was to approve that judgment. That case is, therefore, authority for the conclusion above announced.

But little need be written on the other questions presented. Under the facts of this record it was not necessar)' that plaintiff make a showing that he had theretofore filed his claim for compensation with the Industrial Accident Board. As stated above, it did devolve upon him to establish in this proceeding that he had a meritorious claim for compensation. Of course, if the record disclosed that he will not be able to recover any compensation at all, he has not been injured and is therefore not entitled to the relief sought in this proceeding. But the record contains no such showing. It discloses that the compromise settlement was made within the six month period following the alleged injury. When that agreement was entered into and approved the Industrial Accident Board lost its jurisdiction to consider any claim in this case or award compensation to plaintiff until same should be set aside. Henderson and Hilton cases, supra. Certainly the plaintiff would not be required to do the useless thing of filing a claim with a board which had no jurisdiction to consider and pass upon same. If the agreement is can-celled, plaintiff must then be diligent in filing his claim.

On the remaining question of whether there is any evidence at all raising the issue of fraud on the part of the Association in the procurement for the release, we have come to the conclusion that the opinion of the majority with reference thereto should be permitted to stand. Probably no question which reaches the appellate courts is more essentially one of fact than that of whether or not a given course of conduct amounts to a legal fraud. From reading the record in this case we are not greatly impressed by plaintiff’s alleged case of fraud, but we are unwilling to hold, as a matter of law, that there is no evidence whatever raising such an issue. The majority opinion of the Court of Civil Appeals sets out sufficient of the evidence to raise an issue, and, since the case must be retried on its merits, no reason is perceived for our restating the evidence in this opinion.

The judgment of the Court of Civil Appeals is affirmed.

Opinion adopted by the Supreme Court.


source: Caselaw Access Project

author: GRAVES, Judge. BEAUCHAMP, Judge.

license: Public Domain

text:
    HUNTSMAN v. STATE.
    No. 21046.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Rehearing Denied Oct. 16, 1940.
    Willis & Via, of Pampa, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of an assault to murder with malice upon Fred Keehn, and given a penalty of three years in the penitentiary.

The State’s testimony showed that appellant was a tenant in a hotel belonging to the injured party, and had fallen behind in the payment of the rent for his rooms in such hotel. That the prosecuting witness had removed appellant’s belongings from the room occupied by appellant and had locked such belongings up in another room, holding them until appellant paid his bill, the witness claiming that the hotel law gave him such powers. On the night of the difficulty Mr. Keehn had gone into a cafe and ordered a meal and same was served to him at a counter where stools with removable seats were used for patrons to sit on. While the prosecuting witness was seated and eating his meal, appellant came into the cafe, and upon perceiving the complaining witness appellant lifted the moveable seat off one of these stools and made a striking downward motion, and although no one saw this stool strike Mr. Keehn, evidently the same did strike him upon the head, the doctor testifying that he was suffering from a concussion of the brain soon after the difficulty. The two men then began fighting and soon passed through the outer door of the cafe into a street of the city of Pampa, where this trouble occurred. Witnesses outside of the cafe then say they saw appellant draw a white handled knife from his pocket, and this fight proceeded along and among some parked cars on the street, eventually winding up some short distance down the street with the witness Keehn on top of appellant, and appellant with a white handled knife in his left hand. Mr. Keehn was cut in his body and on his face eleven or twelve times, some of the wounds being dangerous ones. The attending physician thus described Keehn’s wounds: “When I first saw him he was in a state of very severe shock, with the following injuries: Wound on his left anterior chest, just below the nipple line, deep wound; deep wound in left axillary, running from about the middle down to about tenth or eleventh rib; and just behind the axillary and below the last rib there was a deep horizontal cut; two superficial cuts on left arm; one below left shoulder, and one on top of shoulder extending to. the.neck; one in the back on left hand side, and one below that on left side at about the tenth rib; there was on the right side, on the anteri- or axillary line, about the location of the tenth rib, another wound which pierced the lung and diaphragm on that side, causing collapse of the lung. The wound on the left side just below the twelfth rib punctured the intestine, the large descending intestine, causing a subsequent peritonitis. There was a wound beginning at the angle of the mouth, extending to the back part of this muscle in the neck; another wound on top, on left side, extending from the temple clear on back to the nap of the neck; the left ear was almost severed, with numerous cuts in the helix, in the main part of the ear. That was about the extent of the injuries; he was also suffering from concussion, which is a state of the brain, and he was a little addled. I would say that the majority of these wounds were rather deep; one of them pierced the lung, and another pierced the abdominal cavity, through the diaphragm and punctured one of the intestines. There were eleven or twelve cuts in all. Most of the wounds on the left side seemed to be going toward the mid-line of the body, — going in, and down. He was given about five transfusions all together.”

We think from this testimony the jury was justified in saying that appellant cut the complaining witness with a knife, the blade- of which was described as from two and one half to three inches in length. There was also some testimony relative to threats upon the part of appellant towards the injured party a short time before the difficulty.

Appellant’s defense was self-defense, and the fact that he was so injured and addled by strokes on his body by Keehn that he had no recollection of cutting Keehn; that as he passed through the outer door of the cafe, fighting with Keehn, appellant’s head struck the door and he only returned to full consciousness when he was found on the ground with Keehn on top of him. He denied that the knife exhibited at the trial, and identified by witnesses as being taken from his hand, was his knife.

There are no bills of exception taken as to the testimony, but there are twenty-two bills of exceptions taken to the trial court’s refusal to give certain special charges to the jury.

The first proposition in appellant’s brief relates to the 21st requested charge and is directed at the following paragraph of the court’s charge:

“Now, bearing in mind the foregoing definitions and instruction, if from the evidence you believe beyond a reasonable •doubt that the defendant, B. H. Huntsman, ■on or about the 27th day of August, 1939 in the county of Gray and State of Texas with a deadly weapon, to-wit, a knife, ane with malice aforethought, as that term has hereinbefore been defined to you, did assault the said Fred Keehn, with the specific intent then and there to kill him, the said Fred Keehn, you will find the defendant guilty of an assault to murder with malice aforethought, and assess his punishment at confinement in the penitentiary for a term of not less than two nor more than fifteen years; but unless you do so find and believe from the evidence beyond a reasonable doubt, you will acquit him of assault to murder with malice aforethought; hut if, from the evidence, you believe beyond a reasonable doubt that the defendant Huntsman, on or about the 27th day of August, 1939, in the county of Gray and State of Texas, with a deadly weapon, to-wit, a knife, and without malice aforethought, as that term has been hereinbe-fore defined to you, did assault the said Fred Keehn, with the specific intent then and there to kill him, the said Fred Keehn, then you will find the defendant guilty of assault to murder without malice, and so say by your verdict, and assess his punishment at confinement in the penitentiary for a term of not less than one nor more than three years; but unless you do so find and believe from the evidence beyond a reasonable doubt, you will acquit him of assault to murder without malice.”

The main objection to said charge is because the same omits to use the phrase “and not in his own necessary self-defense”, or one of like import, in each instance where it deals with murder with malice and with murder without m'alice. We do observe, however, that the trial court, in more than a page of his charge to the jury, gave a full and complete charge on self-defense, and applied the law to the facts. He covered real danger and apparent danger. Again, relative to .appellant’s standpoint, he instructed the jury that they must view this matter as it reasonably appeared to appellant at the time, and in fact gave a very comprehensive charge relative to self-defense, and finally instructed the jury to acquit appellant if they believed, or had a reasonable doubt thereof, that the appellant believed his theory of self-defense. We think the charge must be taken as a whole, and viewed from its four corners; that it is neither feasible nor proper to combine all its constituent elements in one paragraph; and we feel sure that the jury could and did the more easily understand the matter when such charge is divided into its different paragraphs; and that they surely understood that if this appellant cut Keehn in his own necessary self-defense, then it was their duty to acquit him, regardless of whether such statement relative to self-defense was incorporated in each and every phase of the case charged upon, or embodied in one comprehensive paragraph charging the law of self-defense. We do not think such charge subject to the criticism leveled thereat, nor do we think the cases cited to us hereunder to be in point.

Appellant’s second proposition of error complains because of the following portion of the trial court’s charge: “Now if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, with a deadly weapon, did make an assault upon Fred Keehn, but you further believe from the evidence, or have a reasonable doubt thereof, that at such time the said Fred Keehn was making or was about to make what appeared to him, the defendant, as viewed from his standpoint at the time, an unlawful attack upon him, the defendant,” etc., the point being urged that such charge placed the burden of proof upon the defendant to establish beyond a reasonable doubt that he first assaulted Keehn before he would have the benefit of his right of self-defense. We think that although all persons are surely possessed of the right of exercising the right of self-defense, a charge on such right does not become material unless some act is done that is claimed to have been done under the sanction of such right. It is one of defense, and unless an accused has done some affirmative act under the claim of self-defense, it would be idle to charge the jury on such a right. Had appellant done nothing at all in the transaction, there would have been no case in which he could have pleaded his defensive right. There must first be an offense before there can be a defense. We do not think this proposition evidences error.

Appellant’s third proposition complains because therein it is said that the trial court erred in his charge to the jury in that it required the jury to view all the circumstances of this case from the jury’s standpoint rather than that of the defendant. We do not think the charge subject to such a criticism. It told the jury in so many words that they must view the transaction from the defendant’s standpoint, and arrive at their conclusion as such facts reasonably appeared to appellant at the time and from his standpoint alone.

The fourth proposition presented relates to the trial court’s refusal to give a peremptory instruction to the jury to find appellant not guilty. From what we have said in the beginning of this opinion relative to the State’s testimony it is shown that such an instruction should not have been given.

Appellant’s fifth proposition, when sifted down to its last analysis, seems to be based upon the court’s refusal to embody in its charge a specific instruction that an intent to kill must have been had by appellant at the time of the assault, and not an intent to maim, or to commit some other offense. The careful trial court did instruct the jury relative to an assault to murder both with and without malice ; that such a specific intent had to be present, but said nothing about any other intent such as an intent to maim. The court is required to instruct the jury on the different phases that arise by reason of the indictment and the facts, and we do not think that the facts demanded a charge on any assault with intent to maim or commit any further offense than to destroy life, or do serious bodily injury, and the trial court would not have been justified in charging on any other intent in such assault.

Appellant’s sixth proposition complains because the trial court failed to charge the jury that if at the time the defendant made the assault upon the injured party he was incapable of cool reflection because of certain conditions of his mind, etc., then they could only convict him of an assault to murder without malice. The testimony upon which this charge was claimed to be based came from the defendant, and was to the effect that he was partially unconscious because of having bumped into a door with his head at the beginning of the difficulty,, and that he merely had flashes of consciousness from time to time, and did not know what was going on and did not know whether he cut ICeehn or not. We think the trial court met this situation as testified to by appellant in the following charge: “You are further instructed that if you believe from the evidence that the defendant Huntsman cut the said Fred Keehn with a knife, but that at the time he cut him, if he did cut him, he was in such state of mind, from any cause, that he did not know or realize what he was doing, or if you have a reasonable doubt as to whether he knew and realized what he was doing, you will acquit the defendant and say by your verdict not guilty.”

We think the seventh proposition of error presented by appellant was met by the court’s charge. To write thereon would unnecessarily lengthen this opinion.

We have carefully gone over each and every requested charge not given, and not here written upon, and where the same were pertinent we find that the court has embodied them in the charge read to the jury. The ones not given nor embodied in such charge and not here written upon, in our opinion, should not have been given: The court in addition to the main charge gave four of the requested charges and refused twenty-two thereof. The charges thus given seem to us to be a fair presentation of the law as applied to the facts, and all assignments based on such refused charges not herein treated are expressly overruled.

The judgment is affirmed.

On Motion for Rehearing.

BEAUCHAMP, Judge.

Appellant has filed a motion for rehearing in this cause in which he insists that this court review the authorities cited on page two of his brief. The original opinion properly disposes of these authorities by saying that they are not pertinent. We have re-examined them and adhere to the original conclusion.

Further complaint on motion for rehearing is found in the contention that this court in its original opinion did not have evidence to justify its conclusion that the jury was warranted in finding that appellant intended to take his life when he cut the complaining witness with a knife. In addition to the evidence on this subject as copied in the opinion, Dr. Johnson said: “I would say that the knife here exhibited to me is an instrument capable of causing death.” Considered with the nature and number of the wounds, the jury was justified in finding as a fact that appellant intended to take the life of Keehn. When the weapon used is a deadly weapon per se, the-intention will be presumed. When the instrument is shown to be a deadly weapon and the facts and circumstances will justify, the jury may so find, and this finding is presumed from the verdict of guilt. Butler v. State, 131 Tex.Cr.R. 543, 100 S.W.2d 707; Govan v. State, Tex.Cr.App., 20 S.W.2d 1049; Hanners v. State, 108 Tex.Cr.R. 302, 300 S.W. 71; Studdard v. State, 112 Tex.Cr.R. 55, 14 S.W.2d 69; Scroggins v. State, 119 Tex.Cr.R. 32, 45 S.W.2d 983; Hawkins v. State, 115 Tex.Cr.R. 163, 29 S.W.2d 384; Branch’s Annotated Penal Code, Section 1638 and 1639.

Believing that the proper conclusion was reached in the original opinion, the motion for rehearing is overruled.


author: GRAVES, Judge. KRUEGER, Judge.

text:
    PHILLIPS v. STATE.
    No. 21147.
    Court of Criminal Appeals of Texas.
    June 19, 1940.
    Rehearing Denied Oct. 16, 1940.
    B. F. Word, of Meridian, E. T. Adams, of Glen Rose, and J. A. Johnson, of Ste-phenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of the offense of maiming, in that he put out the eye of the prosecuting witness, and was by the jury sentenced to serve a term of three years in the penitentiary.

There are no bills of exception in the record, but appellant insists that the indictment is insufficient to charge the offense, and should have been quashed, and that the evidence is insufficient to show his guilt.

The facts are brief and consist alone in evidence given by the State’s witnesses, appellant offering no testimony.

It is shown from the evidence that on Halloween night, October 31, 1939, appellant and a friend were in attendance at a store owned and run by the father-in-law of the complaining witness, whose name was Mr. McMichael. The mother-in-law of McMichael had ordered appellant out of the store, where he had been creating some kind of a disturbance. This seemed to have displeased appellant, as was evidenced by his invitation to the mother-in-law to “send any of your kinfolks on the outside then.” Later Mr. McMichael with his wife took two of his sisters-in-law and some children in a pick-up truck to their home, appellant and a companion having just previously left the store on a horse, riding hare-back. McMichael took the sisters-in-law to their home, and when returning he came to a bridge on the road, and on the bridge there were piled some rocks, both small and large, and he slowed down the car, at which time appellant appeared from a ditch on the side of the approach to such bridge and threw a rock into the windshield of such car, the broken glass and portions of the rock striking McMichael in his eyes, as well as cutting and bruising his face. From the effects of such wounds the witness lost the sight of his right eye. Appellant was positively identified by both Mr. McMichael and his wife as the person who threw the rock into the car, and pieces of the rock were found in the car. There were also footprints made near the scene of the offense that were identified as being similar to ones made by appellant, as well as other circumstances that were strong enough that taking the testimony as a whole it was convincing to the jury of appellant’s guilt.

The statute on maiming reads as follows, Art. 1166, P.C.: “Whoever shall wilfully and maliciously cut off or otherwise deprive a person of the hand, arm, finger, toe, foot, leg, nose or ear, or put out an eye or in any way deprive a person of any other member of his body shall be confined in the penitentiary not less than two nor more than ten years.”

We do not think that the meaning of such statute is restricted to the depriving a person of the eyeball itself, but that the deprivation of the sight of an eye means to put out an eye, as contemplated by Art. 1166, supra. We think the total destruction of the sight of an eye would constitute the offense of maiming as denounced by the statute.

The second count in the indictment is as follows: “ * * * and the grand jurors aforesaid upon their oaths aforesaid do further present in and to said court that heretofore, to-wit: On the 31st day of October, A. D. 1939, one Buster Phillips did then and there unlawfully in the county and State aforesaid, did willfully and maliciously deprive W. P. McMichael of a member of his body, to-wit: his right eye, by then and there wilfully and maliciously petting out his said eye' with a rock, and the said Buster Phillips did then and there thereby maim the said W. P. McMichael against the peace and dignity of the State.”

It was admitted that the word “petting” was but a typographical error and should have read “putting”. We think the indictment was sufficient to charge an offense, against the law relative to maiming.

Appellant offered no testimony whatsoever in defense of his action, nor any denial thereof. That the same was maliciously and wilfully done could be inferred from his actions by the jury seems plain, to us.

Appellant contends, however, that the proof does not show the total loss of sight in-the complaining witness’ right eye because,, among other things, the witness testified' that the doctor had removed the lens from, such eye about a week before the trial hereof. It is worthy of note however that the witness testified: “On last Wednesday a week ago he (the doctor) operated on my-eye and took the lens out of it. I can not see out of that eye at all. I am totally blind: in that eye. That is my right eye. That is the eye that I was hit in with the rock. This defendant Buster. Phillips is the man. that hit me in the eye with that rock.”

We do not find any objections to the-court’s charge, nor do we find any requested charges in the record, nor bills of exception, of any kind. We do find a motion in arrest of judgment which can not operate, however, as an objection and exception to the-court’s charge.

Finding no error herein the judgment is. affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

Appellant, by his attorney, has filed an able motion for a rehearing in which he contends that we failed to take note of his. objections to the court’s charge and especially to the third paragraph thereof.. He contends that Article 1166, P.C., under which this prosecution was brought, requires that the act depriving a person of an.eye, toe, hand, etc., must be wilfully and maliciously done; and he further contends that the court in his charge failed to so, instruct the jury. We quote from said paragraph of the court’s charge as follows: “Now, if you should find and believe from, the evidence beyond a reasonable doubt, that on the 31st day of October, A. D., 1939,. in Bosque County, Texas, one Buster Phillips did then and there unlawfully and in the County and State aforesaid, wilfully and maliciously deprive W. P. McMichael of a member of his body, to-wit, his right eye, etc.”

Preceding this paragraph the court properly defined “wilfully” and “maliciously”. It will thus be noted that the appellant’s contention is without merit.

The issue of accident was not raised by any evidence; consequently, there was no necessity for an instruction thereon.

All other matters urged by appellant in his motion have been carefully reviewed and considered by us and are deemed to be without merit.

The motion is overruled.

PER CURIAM.

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


author: KRUEGER, Judge. CHRISTIAN, 'Judge.

text:
    BRAY v. STATE.
    No. 21070.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    Rehearing Denied Oct. 16, 1940.

      J. F. Mangum, of Crockett, and M. E. Gates, of Huntsville, for appellant.
    Lloyd W. Davidson; State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

The State’s testimony shows that before and at the time of the alleged homicide appellant operated a beer tavern and dance hall near Crockett in Houston County. On the night of December 10, 1938, the deceased, accompanied by Mr. and Mrs. Norman Graham, went to the tavern where they engaged in dancing; that about twelve o’clock, while the deceased was standing at the counter drinking Coca-Cola out of a bottle, the appellant, without any apparent cause, excuse or justification, shot the deceased inflicting a mortal wound.

According to the testimony adduced by the appellant, the deceased waived a bottle of Coca-Cola and spilled some of it on the dress of a young lady; that appellant asked the deceased not to do so and attempted to take the bottle away from him; that a scuffle ensued but the deceased retained the bottle and raised his hand in a position to strike, when appellant drew a pistol and fired. The bullet entered the body at the upper end of the breast-bone, and struck and shattered the vertebra.

By Bills of Exception Nos. 2 and 3, the appellant complains of the action of the trial court in permitting the State to offer in evidence the dying declaration of the deceased which is in the following words:

“My name is Bill Barnhill. I am in the Butler Hospital. I was shot by Gloma Bray on Saturday night at Fallstaff Tavern. I realize that I am going to die and this statement is made so you may know how it happened. I am sane and conscious. I was not doing anything at the time Bray shot me. I was standing by the bar and was drinking a Seven-Up. I had not said anything to him or done anything to him. He just walked around the bar to where I was and shot me; he did not say anything to me after he shot. I do not know why he shot me; that night was the first time I had met him.”

“Bill Barnhill.”

It appears from the dying declaration that the deceased realized that he was going to die 'and that he made the statement to the County Attorney so that he might know how and by whom the injuries from which he was suffering were inflicted. It shows that the deceased was sane and conscious at the time of the making of the declaration. Appellant objected to the introduction of the same on the ground that it was hearsay and the predicate for the introduction thereof should have been incorporated in the written dying declaration; that it was not dated and was not in compliance with Art. 725, C.C.P. It appears from the bills that the declaration was made by the deceased to the County Attorney of Houston County, who reduced the same to writing, and that within a short time thereafter the deceased departed this life. The hearsay rule has no application to dying declarations; nor do we think it necessary that the written declaration should be dated. This may be shown by parol testimony as well as the predicate for the introduction of same. It occurs to us that the State complied with Art. 725, C.C.P. by proving by the County Attorney (to whom the declaration was made) that the deceased was conscious of the approaching death; that he stated to the County Attorney that he was going to die and that the declaration was voluntarily made by the deceased; that the County Attorney did not in any way persuade or urge the deceased to make the statement; that the same was not made in reply to any questions. It appears from the record that the proper predicate for the introduction of the dying declaration was laid by the State. The rule seems to be fairly well settled in this state that where the deceased made two statements about the same time, one of which was oral and the other reduced to writing, that both, upon proper predicate having been laid, are admissible. See Ryan v. State, 64 Tex.Cr.R. 628, 142 S.W. 878. See also 22 Tex.Jur., secs. 230-232, We see no good reason why a predicate for a dying declaration reduced to writing, could not be made by parol proof, as well as where the dying declaration rested in parol.

In the case of State v. Schmidt, 73 Iowa 469, 35 N.W. 590, the State offered in evidence a written dying declaration which did not contain any part of the predicate for its introduction, but the proper predicate therefor was established by parol testimony. The Supreme Court of that state held the dying declaration admissible. It occurs to us that the dying declaration in the present case relates to how and by whom the mortal wound was inflicted. The predicate for its introduction is quite a different thing. It has no relation to the transaction itself. It merely shows the condition of the injured person’s mind, his consciousness of approaching death, and that his declaration was voluntarily made, etc.

Appellant contends that the verdict in this case is so indefinite and uncertain and does not specify whether the jury found appellant guilty of murder with or without malice and therefore was not a proper basis for a judgment thereon. He cites us to many cases as sustaining his contention. We have examined those authorities and find that they were rendered at a time when we had different degrees of murder and manslaughter, but under our present statute, we have no degrees of murder. Vernon’s Ann.P.C. art. 1256. The only provision we find in the statute is whether the offense of murder was committed with malice or without malice. However, in either instance, it would be murder. In the instant case, the appellant was charged in the indictment with murder with malice aforethought. The court, in his charge, instructed the jury upon murder with malice and also upon the law of murder without malice. The jury, after having received the law in the charge of the court, retired and thereafter brought into court the following verdict;

“We, the jurors, find the defendant guilty and assess his punishment at 5 years in 'the penitentiary. We recommend that sentence be not suspended.

“Price Brown, Foreman.”

The court entered judgment on that verdict and sentenced the appellant to confinement in the penitentiary for a term of not less than two nor more than five years. Suppose that the jury should have stated in their verdict that they found him guilty of murder with malice and assessed his punishment at five years. Appellant could not have complained. Suppose the jury had found him guilty of murder without malice and assessed his punishment at five years’ confinement in the state penitentiary. No complaint could have been made because the punishment assessed was authorized by law, whether they found him guilty of murder with or without malice. If this had been returned at the time of the old statute Specifying the degrees of murder which prescribed different penalties, then appellant’s contention might be tenable; but this conviction was under the present murder statute which makes no distinction in the degrees of murder, and therefore the same rule that formerly prevailed under the old murder statute would not obtain in the instant case.

We quote from 22 Tex.Jur. p. 649, sec. 139, as follows: “It is not necessary in a murder case for the verdict to specify whether the accused is found guilty of murder with or without malice.”

See also Davis v. State, 110 Tex.Cr.R. 605, 10 S.W.2d 116. We therefore overrule the appellant’s contention.

Having reached the conclusion that no revfersible error was committed, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Appellant’s Motion For Rehearing.

CHRISTIAN, 'Judge.

As pointed out in the motion for rehearing, we were in error in stating in the original opinion that appellant operated a beer tavern. According to the statement of facts, he operated a dance hall where soft drinks were sold, there being nothing to indicate that he was engaged in the business of selling beer.

Appellant contends that we were not warranted in stating in the original opinion that he shot deceased without “any apparent cause, excuse or justification.” The statement complained of was made in that part of the opinion setting forth the substance of the testimony of the state. In short, the opinion states that, according to the state’s testimony, the shooting was without excuse or justification. The opinion clearly shows that, according to the testimony of appellant and his witnesses, appellant acted in self-defense. The jury had the right to reject appellant’s testimony and that of his witnesses.

Appellant also complains of the failure of the original opinion to refer to the testimony of witnesses for appellant to the effect that about five minutes before the shooting deceased, while under the influence of intoxicating liquor, knocked one of appellant’s patrons down, refused to leave the dance hall and cursed appellant. A detailed statement of such testimony is not deemed necessary.

Appellant contends that the verdict is fundamentally defective, his position being that it should have recited whether appellant was guilty of murder with 'malice or murder without malice, or else recited that he was guilty as charged in the indictment. This court has expressly held that it is not necessary for the jury to specify in their verdict whether the appellant is found guilty of murder with or without malice. In the case of Wright v. State, 113 Tex.Cr.R. 297, 21 S.W.2d 507, 508, in which a three-year penalty was assessed upon a conviction for murder, it was insisted that the jury should have been instructed by the court to state in their verdict whether appellant was found guilty of murder upon malice or without malice. In overruling this contention, the court said: “The jury was properly instructed what .punishment might be assessed under either finding. There is no merit in the objection.” In Williams v. State, 117 Tex.Cr.R. 459, 34 S.W.2d 886, 888, we said: “Appellant insists that the verdict of the jury should have specified whether he was found guilty of murder with or without malice; it being further contended that without such a finding the verdict is too indefinite to support a judgment. Davis v. State, 110 Tex.Cr.R. 605, 10 S.W.(2d) 116, is direct authority against the contention. See, also, Wright v. State, 113 Tex.Cr.R. 297, 21 S.W.(2d) 507.”

Appellant concedes that the verdict would have been sufficient if it had recited that he had been found “guilty as charged.” In the present case no offenses included in an indictment for murder were submitted to the jury. It not being necessary for the jury to specify whether they found appellant guilty of murder with malice or without malice, the finding of the jury that he was guilty was tantamount to a finding that he was “guilty as charged,” that is, guilty of murder. See Steinberger v. State, 35 Tex.Cr.R. 492, 34 S.W. 617, and 42 Texas Jurisprudence 466. In 42 Texas Jurisprudence 453 it is said:

“In construing a verdict the main object is to ascertain the intention of the jury. * * * All reasonable presumptions and intendments are made in order to sustain the verdict; * * * Indeed it has been said that a verdict should not be set aside unless it is so defective and uncertain that the court cannot know for what offense to pass judgment.

“The verdict may and should be construed in connection with the indictment or information and the charge of the court, especially where the intention of the jury would not otherwise be clear. It is said that it must always be presumed that in expressing their finding the jury have reference to the charge of the court, unless they also state something which shows that such was not their intention.”

Viewing the verdict herein in the light of the principles controlling, we are constrained to hold that it is sufficient to support the judgment.

The motion for rehearing is overruled.

PER CURIAM.

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


author: HAWKINS, Presiding Judge. KRUEGER, Judge.

text:
    COLLEY v. STATE.
    No. 21150.
    Court of Criminal Appeals of Texas.
    June 28, 1940.
    Rehearing Denied Oct. 16, 1940.
    Gray & Pope, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for receiving and concealing stolen property, punishment assessed being four years in the penitentiary.

The indictment alleged that appellant received the property from Moses Manning. It is appellant’s contention that a variance arises between said allegation and the proof. By their own testimony Moses Manning and Aaron Manning were joint thieves of the property, and jointly delivered it to appellant. Aaron was carrying the property at the time and took from appellant the money which they received for it, but testified: “Both of us delivered the stuff to Mr. Colley.” It being a joint delivery by two persons, one of whom was tine party named in the indictment, no variance arises under the authority of Metaxes v. State, 127 Tex.Cr.R. 313, 75 S.W.2d 888. A similar question arose in McGee v. State, 112 Tex.Cr.R. 450, 17 S.W.2d 50, where a sale of liquor was alleged to have been made to one certain named party, and the proof showed it to have been a joint sale to the one named and others. The majority opinion held no variance occurred. The present writer dissented, but the majority opinion was followed in Stapler v. State, 120 Tex.Cr.R. 263, 47 S.W.2d 837; Petty v. State, 121 Tex.Cr.R. 218, 53 S.W.2d 300. Under the circumstances we see no reason to depart from the direct holding in the Metaxes case, supra.

The gist of the offense charged against appellant was that he fraudulently received from Moses Manning certain described property and fraudulently concealed it knowing it to have been stolen.

Art. 718, C.C.P., prohibits a conviction “upon the testimony of an accomplice un-léss corroborated by other' evidence tending to connect the defendant with the offense committed * *

It has long been established that where the State uses the thief as a witness against-one charged with receiving stolen property from such witness, that the’ thief (an accomplice witness) must be corroborated both as to the theft of the property and the receiving of it by accused with knowledge of the theft. Branch’s Ann.Tex. P.C. p. 1367, Sec. 2535; Johnson v. State, 42 Tex.Cr.R. 440, 441, 60 S.W. 667; Hanks v. State, 55 Tex.Cr.R. 405, 117 S.W. 149; 36 Tex.Jur. p. 372, Sec. 43, and cases cited in the notes thereunder. The two Manning witnesses were boys, one 16 years of age, the other 12. They had plead guilty to the theft of the property in question and had been sent to. the reformatory. Each of them testified upon appellant’s trial that before they stole the property they had told appellant they could get the property and that he advised them to steal it and he would buy it from them; that they did steal it, and sold it to appellant for fifty cents or one dollar. The property was shown to be worth more than fifty dollars. The court properly instructed the jury that the two- Manning boys were accomplice witnesses, ’ that they must be corroborated, and that they could not corroborate each other. No testimony is found in the record corroborating their testimony that appellant received the property from them, or that it was received under such circumstances and at so inadequate a price as-to charge appellant with knowledge that it was stolen.

An officer testified that appellant told him where he (appellant) had sold the property in Dallas, and went with the officer to Dallas and the property was recovered at the place designated by appellant. The officer further testified that appellant told him from whom appellant got the property, but upon objection being interposed that appellant was under arrest the court declined to admit appellant’s statement as to the person from whom he received the property. The record discloses 'no further reason for excluding said statement. It appears that the’ trial court committed an error against the State. If the statement excluded was made in connection with his other information to the officer about where the property might be found, and the information was true and the property found as a result thereof, such statement as to where he obtained the property would be admissible.

Article 727, C.C.P., forbids the use of a confession made while accused is under arrest, save under certain formalities, and with some exceptions, one being that: “ * * * unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed. * * * ” See McClure v. State, 100 Tex.Cr.R. 545, 272 S.W. 157; Branch’s Ann.Tex. P.C. p. 36, sec. 63. The excluded statement might furnish the necessary corroboration.

If the evidence of the two accomplice witnesses be true that appellant advised them — mere boys — to steal property to be purchased by him for a mere pittance of its value, he would appear to be the worse offender, but by forbiddance of Art. 718, C.C.P., we are bound not to permit a conviction to stand ’ unless the corroboration of the accomplice witnesses measures up to the requirements of the law.

The judgment is reversed and the cause remanded.

On State’s Motion for Rehearing.

KRUEGER, Judge.

At a former day of the preceding term of this court, we reversed the judgment Of conviction and remanded the case because the testimony of the accomplice witnesses upon whom the State relied for a conviction was not sufficiently corroborated. The State, by and through its District Attorney, has filed an able motion for a rehearing in which he takes issue with the court upon the question of the want of any evidence corroborating the testimony of the accomplices upon material matters establishing the offense charged. We have again reviewed the record in the light of the State’s motion and see no reason for receding from the conclusion expressed in our original opinion. Where is there any corroboration of the testimony of the two negro boys who committed the theft that appellant received the property from them? The officer who recovered the property undertook to testify as to what appellant told him which led to the recovery thereof, but the court, upon objection of the appellant, would not permit him to do so. As a result of such ruling the State was deprived of that testimony. We said in the original opinion and reiterate it here that the court was wrong in its ruling. See Kyle v. State, 86 Tex.Cr.R. 471, 217 S.W. 943; Hughes v. State, 86 Tex.Cr.R. 611, 218 S.W. 1048; Elliott v. State, 83 Tex.Cr.R. 366, 203 S.W. 766; Torrence v. State, 85 Tex.Cr.R. 310, 212 S.W. 957.

The motion for rehearing is overruled.

PER CURIAM.

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


author: BEAUCHAMP, Judge. GRAVES, Judge.

text:
    BREWER v. STATE.
    No. 20799.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Rehearing Denied Oct. 16, 1940.

      Wimberly & Wimberly and. Reginald Bourke, all of Yoakum, and J. W. Rags-dale, of Victoria, for appellant.
    Howard P. Green, Dist. Atty., of Refugio, S. P. Plebert, Co. Atty., and Crain & Hartman, all of Cuero, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted of murder in the District Court of DeWitt County and his punishment assessed at five years in the penitentiary. The victim was a five months’ old baby.

The indictment contains two counts, the first being a charge of murder with malice by causing an automobile to collide with another car on the public highway, resulting in the death of the baby. The second count alleges murder by operating an 'automobile upon the public highway while-intoxicated and through accident and mistake, while so driving the car, killing a child. The charge of the court submitted' both counts to the jury and the verdict returned is a general one.

A large number of witnesses testified in the case, detailing observations of transactions with and conduct by the appellant and his companion throughout a large portion of the day, during which time both-parties were shown to have been intoxicated. The car which they were driving belonged to the appellant. He had placed the same in the hands of Leo Spears, his companion, who drove the car at all times while the appellant sat by his side on the front seat. Both were credited with conversations and participation in incidents of the day. They visited many way-side drinking and eating places, both in Yoakum and in Cuero. The only business which they transacted was that of leaving a check with one party for the payment of a debt owing to another. From all indications, the two men were engaging themselves voluntarily in association with each other for the purpose of “staging a drunk” in the appellant’s 1937 Ford V-8 on the highways and at such places as they may choose to go, which were many. At several stations they were so drunk upon their arrival, or before leaving, that the proprietors refused to sell them further drinks. They were admonished to keep off the highways and to retire to some place so that they could sober up. This they refused to do and boasted that they could stay on the highway drunk and not be disturbed. This boast they made good until in the afternoon when the tragic event culminated in the death of an innocent baby and the injury to others, wrecking two automobiles and sending himself and his companion to the hospital, still too drunk to realize fully what had taken place.

Further details of the facts may not be essential to a proper disposition of the case except as they are hereinafter stated in connection with the issues discussed.

Both parties were indicted and the appellant was separately tried. When his-case was called, a vigorous motion for a continuance was made on the ground that his brother, a close companion, was very ill and the appellant desired to be with him. and to look after him. It is further set out that because of his troubled mind over-the illness of his brother, he would not be able to properly conduct his defense. It is not shown how long the brother had been ill and whethér or not the appellant had had an opportunity, since the enactment of the tragedy, to converse with his lawyers and lay before them the facts of the case from his viewpoint. The motion ■does not raise a legal ground for a continuance but one which would under ordinary circumstances appeal to the sympathy of the trial court. It probably did so in this case, but the court, under all the facts ■and circumstances, overruled the motion for a continuance and placed the appellant on trial. It is not for this court to say that he abused his discretion in doing so.

The appellant did not testify on the trial of the case in his own behalf but produced a long list of witnesses, prominent ■citizens of the county in which he lives, who testified to his good reputation up to that time. Further than that the defense is technical, reliance being had on the contention that appellant was not driving .the car, that he was too intoxicated to have authorized his companion to drive it; and that without knowledge of the presence of the deceased on the highway, and under the other admitted facts there could be no malice; and that the court, therefore, committed an error of. law in his charge to the jury on murder with malice.

There are about thirty bills of exception found in the record but these will not be discussed separately. A consideration of the questions of law raised may be applied to the facts of the case by giving general consideration to them.

First, we will consider whether or not the appellant, under the circumstances of the case, may be held to be responsible for the acts of his companion in whose hands he had placed the automobile. The case of Schorr v. State, 137 Tex.Cr.R. 625, 132 S.W.2d 898, is relied upon. That case is an important one, but we do not believe it helpful to the appellant. Under Article 69 of the Penal Code, it is provided that a person who advises or agrees to the commission of an offense and who is present when the same is committed is a principal whether he aid or not in the illegal act. In the Schorr case, it was held that the appellant had not advised or agreed to the commission of the offense and that his presence when the offense was committed was not, under the facts of that case, sufficient to constitute him a principal offender. If the appellant has advised and agreed to all the acts and conduct of a companion whom he has placed in charge of his car and acts with him for hours, as in the instant case, in recklessly driving upon the streets and public highways in an intoxicated condition, where it may be known that the driver of the car is incapable of judicious control and the owner who places it in his hands continues with him and permits him to use it while in that condition, watches him make one reckless drive after another, as the record discloses in this case, crashing into other automobiles, a cattle-guard, into and across ditches, and repeatedly acts without judgment or discretion and without 'regard for the rights of others, it would seem that there would be no difficulty in concluding that he is responsible as a principal for whatever might result therefrom, provided it .could have been reasonably anticipated as a result. This conclusion is not contrary to the Schorr case, supra, but is clearly indicated by the citation in that opinion of the case of Story v. United States, 57 App.D.C. 3, 16 F.2d 342, 344, 53 A.L.R. 246, in which it is said: “If the owner of a dangerous instrumentality like an automobile knowingly puts that instrumentality in the immediate control of a careless and reckless driver, sits by his side, and permits him without protest so recklessly and negligently to operate the car as to cause the death of another, he is as much responsible as the man at the wheel.”

We have held that an automobile is not a dangerous weapon per se, but when placed under the control of “alcohol at the wheel and gasoline in the tank” and driven upon the highway, the results are so uncertain that the owner agreeing thereto may be held responsible for the resulting death as though he himself had, with his own hands, ’ guided the' wheel. We think that the facts of the Story case justify us in applying the law as there laid down to the facts of the case at bar. The trial court properly held that the appellant was responsible as a matter of law under the facts before him.

The next question for our consideration is that raised by the objections to the court’s charge on murder with malice. In Cockrell v. State, 135 Tex.Cr.R. 218, 117 S.W.2d 1105, 1108, the drunken driver of a car recklessly and negligently ran into two small boys and killed them. He was given forty-five years. The question of malice was considered in an opinion by Judge Graves of this court, the opinion on motion for rehearing being by Judge Hawkins. It was there held that the facts pf that case were sufficient to give the jury “some substantial ground upon which to base their belief that he was possessed of a heart regardless of social duty and fatally -bent on mischief.” The opinion further applies the law of malice to the facts of that case in a very logical and forceful discussion of the authorities, and the reasoning there may well be adopted for this case. For a further consideration of the subject, see authorities discussed in the Cockrell case.

By Bills of Exception Nos. 3 to 12, inclusive, appellant complains of the admission in evidence of testimony showing his conduct and drunken condition at several places during the day preceding the collision resulting in the death for which he is charged. There is no denial in the record of his drunken condition, and we think that this testimony is pertinent and proper to show malice. By this is not meant a mature intent to take a human life but it shows a continuous conduct, dangerous to others, so recklessly and wantonly as to manifest a depravity of mind and disregard for human life, supplying the constituent elements embraced in an accepted definition of malice.

Bills of Exception Nos. 13 to 19, inclusive, complain of proof as to the extent of the injuries received by the occupants of the car in which the deceased child was riding. Pictures of both automobiles involved and testimony relating to the condition in which they were found as a result of the collision are in the record. All of this testimony reflects that the appellant and his companion were driving at an exceedingly high rate of speed. They approached the car from the rear, traveling in the same direction, and struck it with such force as to demolish the bodies of-both cars. The mother of the child had it in her lap and was on the front seat with her husband who was driving the car. An eight-year-old girl was in the, rear seat, looking backwards and observing the approach of appellant. When the car struck, the doors of the car which was occupied by deceased burst open.and the occupants on the front seat (the father, mother and the baby) were thrown to the right side a distance of about eleven feet. The baby was described as going “into the air”. It fell on the pavement and its skull was crushed. This was Saturday evening and it died the following Monday about noon. The force with which the car was struck, as reflected by the demolishing of the cars and the injuries to the occupants, is the most pertinent fact to determine whether the father of the deceased was reckless in driving on to the main street and in front of the appellant or whether the appellant was driving with such spéed and in such a reckless manner that he should be charged with the responsibility for the accident. The evidence on the subject is so overwhelming and - so forceful as to leave no doubt that the jury was justified in reaching the conclusion that it did.

Complaint is made of the argument of the prosecuting attorney, the objection being that it was prejudicial and inflammatory. Compared to the detailed conduct of the appellant throughout' the day, and his expressed disregard for law and order, the argument of counsel is mild, very mild. No juror, the father of a child, could listen to the facts of this case detailing the death of an infant knocked from the lap of its mother, the fruitless struggle of the dazed father to render _ aid and the cries of the little girl for her baby brother, the frantic appeal of the mother for her child in the presence of the appellant, who was uttering disconnected words and cursing his unknown victims, would be very much impressed or have his mind inflamed bjr the argument of counsel, who said:-“And they were going to see about having the baby baptized the next day — instead of that child being annointed with the consecrated water in the hands of a Minister of God, its innocent blood was crushed from its tiny brain by the hand of death guided by the wanton act of that man and his companion. That child had a right to live.”

The attorney merely detailed the facts of the case. The horror of this argument rested in the truthfulness of it. The jury’s verdict denies the existence of any inflammatory influence.

We find no error in the ruling of the court or in his charge.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant files a lengthy motion questioning many of our conclusions in the original opinion drawn from the facts as shown by a statement covering 154 pages. In order to clarify many of the challenged statements we will attempt to give a short synopsis of the salient points of the State’s case from which such conclusions are drawn.

About 1 o’clock on the day of the accident appellant and Spears came to Luers-sen’s house. Brewer fell out of the car. Spears came to the house and asked Luers-sen the whereabouts of a certain person. Upon leaving he said: “We are drunk as hell”. They left at a high rate of speed and tore off the left side of a cattle guard. About 1:30 the highway foreman saw appellant and his companion driving on their left-hand side of the road, and again astraddle of the black line in the center of the road. Between 2 and 3 o’clock these same two companions came to the home of Mrs. Horace Chaddick. Mr. Brewer was staggering and fell on the steps of the house. They came in the house and Spears signed Brewer’s name to a check. “Brewer was too drunk to sign the check.” Neither .one of them could stand up straight. Mr. Chaddick testified that he- saw these men leave his house. “They were kind of staggering. When they left they left in high speed in the direction towards town, towards Cuero. I saw them pull away from my place in high speed, I mean they were going wide open.” This was at 2 o’clock. He saw them again at 5 o’clock in town driving fast, barely missing cars on the street. Another witness told.about the trip to Chaddick’s home, and about their staggering, and leaving at a high rate of speed. Mr. Dentler saw these men at 2:30 in town; he sold them each a bottle of beer, and refused to sell them any more; he thought they were drunk. At this point they ran into Mr. Nixon’s car which was parked at or near the sidewalk. Nixon got mad about it but would not accept pay for the damage. However he, with others, told these two men that they were too drunk to drive a car and should lie down somewhere and sleep it off. Appellant said that they could drive a car as good as anyone, and refused to take his advice. They again got in the car and started away pretty fast, Spears driving, both parties drunk in witness’ opinion.

Mr. Bludworth saw the occurrence in Dentler’s place, both Brewer and Spears seemed to be intoxicated. He advised these two to get off the street and stop. Brewer said that he could drive a car as good as anybody.

Mr. Brantley was proprietor of the “Doll House,” a lunch and beer stand. He saw Brewer and Spears at his place of business about 3 o’clock. He refused to sell them any beer; he thought they were under the influence of intoxicating liquor.

Walter Newman was working across the street from the “Doll House,” and he saw Spears and another person whom he took to be Brewer come out of the Doll House.' One of these men, Brewer, stumbled over the front right fender of his car, and then urinated on the sidewalk in front of the Doll House; there were two ladies sitting possibly thirty or forty feet away in another automobile. This was around 4:30 in the afternoon.

B. 0. Brantley testified that these two men ran their car into his car in front of the Doll House. Both of them got out of the'ir car and they were drunk.

Leske testified that between 3 and 4 o’clock these two men came into his beer stand and he sold them two bottles of beer; they drank about one third out of the bottles and both turned the bottles over and spilled the contents. They then ordered two more bottles and he refused to, sell them any more; they were drunk. Spears tried to put a nickel in the music machine and couldn’t do it, and Leske put it in for him. After being refused more beer, Spears and Brewer got up and went out and got in the car and then Brewer cursed Leske, saying “You damn s— of a b — , I don’t need your beer, I have whiskey in the car.” They then started off at a sharp speed, knocking up rocks and gravel. They then drove into a ditch on Main Street at a fast rate of speed. -

Mr. Schaefer testified that he was driving into a street 110 feet wide, called Broadway, in the city of Cuero; that he stopped before driving into said street and looked east and saw no one; he then turned west on the right-hand side of the road, and after having driven about 50 feet his car was struck from behind and knocked some distance toward the west, and he, his wife and the baby were thrown out of the car on the right-hand side thereof. He was knocked unconscious, and when he regained consciousness he was about 14 feet from the car. His shoulder blade was broken, and he had numerous cuts and bruises on his body; he stayed in the hospital nine days. His wife’s left shoulder blade was broken, and her right arm was broken. The baby died two days thereafter. This happened about 7 o’clock in the evening.

Dr. Wagner testified that the Schaefer baby died of a fractured skull and a hemorrhage of the brain two days after the collision. It was a well .developed infant about four and a half months old, in sound health before the accident.

Dr. Boothe treated the baby immediately after the injury; .it had a fracture of the skull, and a severe injury on the side, and severe injuries on the back of the skull, and a brain injury. It died at the hospital from the results of these injuries; they were the direct cause of its death. This doctor also saw appellant the night of the accident, and treated him; he was drunk, was intoxicated. ■

Elizabeth Gerhold, a leader of the Girl Scouts, was across the street some short distance from the scene of the collision, 'and she saw the Brewer car coming fast, zigzagging, when it neared the Schaefer car. She saw the collision; the Brewer car struck the Schaefer car in the rear. The Schaefer car “went up in the air, and the baby flew down on the pavement. I saw the baby fly up in the air. The Schaefer car flew up and landed on four wheels.”

Robert Heyer, an undertaker, heard the noise of the collision, and saw the cars, and immediately obtained an ambulance and took Mrs. Schaefer and the two children to the hospital, and returned and found appellant at the scene of the accident, drunk . and cursing. He continued cursing while in the hospital. There were many ladies there and the witness threatened to hit Brewer if he did not stop using such language. After he took Brewer to the hospital the witness returned to Brewer’s car and saw several broken beer bottles in the car.

The constable, Mr. Jacobs, went to the scene of the accident and saw the cars, and saw appellant lying on the ground on the side of the car. He looked inside of the car that was up against the fence (Brewer’-s car) and saw a pint and a half of liquor and a bottle of beer, and a broken beer bottle in there. There was a full pint and a half pint of whisky. The half pint was open.

Mrs. Schaefer, the mother, testified that she was in the car that was struck, and that when they turned into Broadway there was no car in sight either from the east or west. The first she knew of appellant’s car was when the Schaefer car was struck from behind. She was knocked unconscious. At the time of the crash she had the baby on her lap. When she came to she heard the little girl crying and saying she wanted the baby, and the husband picked the baby up and laid it down beside the mother.

The appellant introduced a large number of witnesses who testified as to his good reputation as a peaceable law-abiding citizen. He then introduced certain portions of an alleged confession in which he made the statement that he, appellant, was so drunk that he did not remember anything about the accident.

We are asked to show what facts are in evidence to show that Brewer was a principal offender in this case.

It is unquestioned that appellant owned the car that caused the baby’s death; that he as well as his companion were drunk practically the whole afternoon of the accident ; that they both said so; that appellant was bound to have known the drunken condition of Spears, the driver; that Spears had at least three times evidenced his inability to properly operate an automobile; that regardless of warnings and experiences, these two men continued their movements in Brewer’s automobile, in Brewer’s presence, by his selection and consent, and came down a public highway, and at an immoderate rate of speed, and crushed out the life of this innocent babe, which was the inevitable consequences of the act of Brewer in allowing his drunken companion to thus recklessly endanger the lives of innocent persons rightfully on this public highway. That these continued acts of Brewer, drunk or sober, evidenced a heart regardless of social duty and fatally bent on mischief, meeting the legal definition of that elusive term — malice.

We find the only defense that was offered seems to be the drunken condition of appellant, as evidenced by all excerpts from his statement made to the county attorney. We suppose that such is offered as an excuse for the fact that he directed and permitted the drunken Spears to operate his automobile. Drunkenness is never an excuse for crime, Art. 36, P.C., Vernon’s Ann.P.C. Aft. 36, though oftentimes the cause therefor, and we are forced to believe that drunk or sober appellant was bound to have known the condition of the man to whom he had intrusted the driving of this automobile, and that he encouraged and abetted Spears in the series of acts that culminated in the death of the child. That he did not tell the driver to strike the child, of coarse, is true, but that he aided, abetted and encouraged the driver in doing the very things that were calculated to and did end in its death is equally true. Such reasoning, if correct, inevitably leads to the conclusion that appellant was a principal in the fatal accident.

In a 42 page motion for a rehearing appellant challenges many of the conclusions set forth in our original opinion herein; the major portion of such conclusions impress us with the conviction of their justness. Our judgment tells us that these two men were “staging a drunken drive,” that they were admonished not to drive in their then condition, and made the statement that they could drive and not be disturbed, and viewing the pictures of the wrecked cars, both seemed to be practically demolished, — and that they did drive across a ditch at a rate of speed that caused their car to jump up. The motion concerns itself with an effort to minimize many of the circumstances relied upon by the State to show a reckless disregard of other’s rights, and an evidence of a heart fatally bent on mischief, and should such contentions have been accepted by the jury, doubtless a different verdict might have been rendered. Unfortunately for the appellant, such version did not meet with the jury’s approval, and we are confronted with the facts proven by the State in support of the verdict.

We are asked to review appellant’s further suggestion of error in which complaint is made relative to an excerpt from the argument of Hon. August Hartman. In order to conserve space, in this extensive opinion, we will only say that we do not think such an argument of sufficient force to cause a reversal of this case.

The case of Story v. United States, 57 App.D.C. 3, 16 F.2d 342, 53 A.L.R. 246, is peculiarly in point. In that case Story and O’Connor, both drinking, picked up another drunken person named Jarvis, in Story’s automobile. After taking a few drinks all three got out of the car, and Jarvis walked on down a narrow lane. Story permitted O’Connor to drive the car, which they both got in, and they claimed Jarvis staggered around and finally got in front of the car and was run over and killed. The court’s opinion resulted in the quotation found in the original opinion. Such opinion also cites Ex parte Liotard, 47 Nev. 169, 217 P. 960, 961, 30 A.L.R. 63: “One who is so careless of the rights of others as to use a dangerous instrumentality while incapacitated by drink, or who permits others to do so, as here shown, invites the consequences. He must pay the penalty.”

We think that the testimony heard relative to the different episodes connected with the drinking, and the drinking of appellant and his companion throughout the afternoon of the fatal accident, was properly admitted. They surely went far ‘to show the condition of both parties relative to drunkenness and threw some light upon appellant’s knowledge of the condition of Spears, who was engaged in driving the automobile. We are impressed with the idea that it went far to show that appellant knew of Spears’ drunken condition, not only from the fact of Spears drinking, but also from the exhibition of his driving.

It is again noticed that appellant complains because of the trial court’s failure to charge on contributory negligence. It will be observed that such a doctrine does not operate in a criminal cause of this character, and is not a defense in such matters as here under consideration. See Anderson v. State, 135 Tex.Cr.R. 104, 107, 117 S.W.2d 465. However we note that a paragraph of the court’s charge embodied such a doctrine as applied to the negligence of the father of the dead child. We also note that the trial court charged on an unavoidable accident. We do not think appellant was entitled to either of such charges. At the time of the collision the driver of appellant’s car was unquestionably intoxicated, as was shown by un-contradicted testimony, and such driver was acting in violation of the law, and we quote from Menefee v. State, 129 Tex.Cr.R. 375, 377, 87 S.W.2d 478, 480: “This unlawful act was the direct and proximate cause of the injury to the little girl which resulted in her death. Hence, he was not entitled to a charge on unavoidable accident any more than he would have been entitled to a charge on contributory negligence.”

See Vasquez v. State, 121 Tex.Cr.R. 478, 52 S.W.2d 1056; • also for an interesting discussion thereof see Sheffield v. State, 124 Tex.Cr.R. 605, 72 S.W.2d 245.

We have again considered all assignments of error and they do not impress us with the showing of any error. We have also re-read the entire record, as well as the interesting brief of attorneys, ■ but remain of the convictions expressed in our original opinion.

The motion is overruled.


author: GRAVES, Judge. CHRISTIAN, Judge.

text:
    THAMES v. STATE.
    No. 21157.
    Court of Criminal Appeals of Texas.
    June 26, 1940.
    Rehearing Denied Oct. 16, 1940.
    Callaway & Callaway, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of receiving and concealing stolen property, and by the jury awarded a penalty of two years in the penitentiary.

F. G. Mills, a negro cook at the home of J, Tom Padgitt, in Coleman, Texas, testified that he found two diamond rings on a shelf in the home of Mr. Padgitt and took the same. That a day or so afterwards he went to appellant’s home and offered to sell, and did sell, one of the rings, a small one with one diamond set, to appellant for $2, which ring was afterwards valued by an expert at four or five hundred dollars. That about two days thereafter Mills again approached appellant at his café, and sold him another diamond ring with two diamond stones for the sum of $4, and appellant told the witness to keep his mouth shut, the latter ring being valued by an expert at approximately $1500. Mills further testified that at a latpr date appellant met’ him and asked him “Have the laws said anything to you?” and he said “No”.

Mrs. J. Tom Padgitt, while on the witness stand, identified these two rings as her property, and said that she missed them on November 26, 1939, and that they were taken without her consent, and that the rings then shown to her, the one with the one diamond and the one with the two diamonds, were her rings.

It appears from the record that upon being apprehended Mills, the original taker, confessed to the theft, and told what he had done with the rings. The officers then approached appellant, and he, after studying awhile, admitted that he had the rings, and said it would take about thirty minutes to get them, and asked the officers not to go with him when he went to his home as their presence there might frighten his mother. Appellant soon returned and said that he wanted to go the county attorney’s office, and he and the officers went there. While there and talking to the officers appellant said “this is pretty big stuff,” and that he wanted some time to think it over; that he did not want to get anybody else in trouble, and wanted to know if any charges had been filed against him. He was told there had not been any charges filed. The county attorney testified that appellant then said: “I have the rings, but I can’t get them for awhile'. I will plead guilty to a misdemeanor; this is pretty big stuff.” There had been no complaint filed, and none was filed until two days thereafter.

We are of the opinion that the appellant was not under arrest at such time, the testimony establishing rather conclusively that he was not arrested until some two days thereafter, and that he went to the county attorney’s office on his own volition, and was not in the custody of any officers, although in their company, at such time, nor under any restraint or constraint that would have caused him to think that he was under arrest at the time of the making of the above-quoted statement. It is also here worthy of note that appellant did not testify nor offer any testimony of any kind, being content merely with a cross-examination of the State’s witnesses. We think such statements admissible, and also that they went far to show knowledge upon appellant’s part that a negro cook’s acquisition of approximately $2,000 worth of diamond rings could not have been otherwise than unlawful.

Appellant contends that the statement made to the county attorney by him (appellant) was made while he was under arrest, and was inadmissible because of the fact that same was not in writing and made after a statutory warning. It is our impression that appellant was not under arrest at the time this conversation took place, and in support of our conclusion we quote the following testimony of the sheriff, Mr.sRoby:

“Q. At the time you went down there and talked to him, you had already talked to the negro, F. G. Mills? A. Let’s get it straight: You mean that I had talked jo the negro first?

“Q. Yes. A. I had already talked to the negro.

“Q. You already had his statement as to what he had done with the rings? A. Yes, sir.

“Q. Then you went down and talked with Mr. Thames ? A. Yes.

“Q. And it was your object and purpose, of course, at that time to arrest him . for the offense ? A. No, sir, I didn’t arrest him then.

“Q. With reference to the time you went to his place and talked to him about the rings: how long was it before you arrested the defendant, or put him .under control at all? A. I think it was about two days after that.

“Q. You did not arrest him at that time, or on that day? A. No, sir.”

This disposes of bill of exceptions No. 3.

To the same effect is bill of exceptions No. 4, with the exception that such bill complains of the testimony of the county attorney to the same effect as that just above pomplained of from the sheriff, and our ruling thereon is the same.

Bill of exceptions No. 1 is based upon the admission in evidence of the first transaction between appellant* and the negro Mills wherein appellant paid Mills $2 for the small diamond ring two or three days prior to the time he purchased the ring with the two large diamonds for $4.

These two rings were stolen by the same man at the same time, and the transactions of their sale to the appellant were had at approximately the same time. They were exhibited to the appellant at the same time, both said to be on the negro’s hand and worn by him. They were both turned over to the officers by appellant at the same time, and evidently kept by appellant at the same place prior to turning them over to such officers. There was no denial that they were both held by appellant, and recognized by him as “big stuff,” and his conversation with the officers related to both of such rings.

It is also to be noted that Mrs. J. Tom Padgitt testified without objection to the following:

“The two articles you show me’are two diamond rings, one having two stones in it and one having one stone in it. Those were my rings on or about November 19th, 1939. The last time I saw those rings they were secretly put away at my home.

“At that time I had .colored help in the person of a boy named F. G. Mills. I first missed those rings on November 26th, 1939.

“I did not give F. G. Mills, or anyone else, my consent to take those rings; I later recovered the rings after losing them. Those rings were stolen from me in Coleman, Coleman County, Texas.”

We do not think error is evidenced in this bill.

Bill of exceptions No. 2 relates to the trial court’s ruling in allowing the State, after it had rested its case, to reopen the same for the purpose of placing before the jury the testimony of the officers as to their communications with appellant, which action was objectionable to appellant’s attorneys. This was a matter that lay within the discretion of the trial court, and we see no reason why such should not have been done. Evidently the State had overlooked this rather important testimony, and the jury was entitled to have the full facts legitimately presented before it.

Guilty knowledge upon the part of appellant that such rings had been acquired by theft at the time he received and concealed the same was a necessary element of this offense, and we find such a doctrine laid down by the trial court in his charge to the jury. That such knowledge must have been shown by other corroborating testimony than that of the negro boy Mills is also argued to us by appellant’s attorneys. And after a careful review of the testimony, we are impressed with the fact that such testimony is here present. That a negro boy should be possessed of two diamond rings worth in the aggregate $2,000, and was willing to sell the same for $6, might go far-to show that this negro boy did not know the value of the same, and thought that they were mere worthless costume jewelry. But again, the fact that appellant purchased both these rings for such an inadequate price might have some bearing on the fact that he knew their value was greater' than that of costume jewelry.. Again the jury had a right to consider the statement of the negro boy when he said that appellant told him to keep his mouth shut, and also when he asked the negro if the “laws” had said anything to him; and again when it was shown that appellant told the officers that this was “big stuff”.

The trial court in his charge laid down the law of the necessity of a corroboration of the testimony of an accomplice, and also the fact that guilty knowledge had to be shown upon the part of appellant. He also gave an approved charge on circumstantial evidence, and we are of the opinion that the circumstances were of sufficient cogency to base thereon a conclusion that appellant was bound to have known that such a valuable article as this diamond ring had been acquired by this negro boy by theft when appellant received the same.

Under the record presented to us we perceive no error, and the judgment is affirmed.

On Appellant’s Motion for Rehearing:

CHRISTIAN, Judge.

Appellant insists in his motion for rehearing that we were in error in holding that it was not shown that he was under arrest at the time he made the declarations concerning his possession of the rings in question. Appellant’s bills of exception relating to the matter were qualified. The qualifications, not having been excepted to, are binding upon this court. The bills, as qualified, are to the effect that the officers to whom appellant made the declarations in question testified that they had no intention of arresting appellant and that it was two days after they had their conversation with him relative to the rings before he was arrested. It appears that appellant did not testify that he believed he was under arrest. We quote from Burton v. State, 102 Tex.Cr.R. 110, 277 S.W. 390, as follows: “Whatever be the intention of the officer, if he had not arrested accused and accused was not apprised of his- intention to arrest him at the time the statements are made, they are admissible, if accused did not reasonably believe himself to be under arrest. It is not altogether the intention of the officer that governs the matter. Many cases are cited by Mr. Branch in his Ann.Tex.P.C. under section 62, which illustrate the principle just stated.”

The following is taken from Section 62 of Branch’s Ann.Texas P.C.: “Although the officer would not have permitted defendant to depart, yet if defendant did not reasonably believe himself to be under arrest, proof of his unwarned confession is admissible.”

See, also, Hernandez v. State, 137 Tex.Cr.R. 343, 129 S.W.2d 301.

We are constrained to adhere to the conclusion expressed in the original opinion that the record fails to show that appellant was under arrest.

It might be plausibly argued that appel.lant’s statements relative to the rings were res gestae. He was apparently still in possession of the rings and concealing them. We quote from Harris v. State, 110 Tex.Cr.R. 410, 10 S.W.2d 551, 552, as follows: “He [Harris] was in possession of the stolen shoes. His statement was admissible as res gesta of his possession when his right was first challenged. The explanation of possession of property alleged to be recently stolen, made while the possession lasts, if made when the party is first directly or circumstantially called upon to explain, is a part of the res geste of possession, and as such is admissible against the accused. Underhill’s Criminal Evidence (3d Ed.) § 471; Wharton’s Criminal Evidence, vol. 2, § 761; Perry v. State, 41 Tex. [483] 486; Taylor v. State, 15 Tex.App. [356] 359; Seebold v. State, 89 Tex.Cr.R. 563, 232 S.W. 328. Res geste is independent of, superior to, and cannot be restricted or limited by the rules relating to confessions or admissions made after arrest. Gowans v. State, 64 Tex.Cr.R. 401, 145 S.W. 614.”

Appellant contends that the' evidence is insufficient to show that he knew the rings were stolen. Appellant’s declaration to the officers, when questioned about the rings, to the effect that “it was pretty big stuff and that he didn’t want anybody else in trouble” indicated guilty knowledge. Again, according to the testimony, appellant inquired whether any charges had been filed against him. Again, appellant went to the county attorney and said to him: “I will plead guilty to a misdemeanor; this is pretty big stuff.” According to the testimony of F. G. Mills, the confessed thief, when he sold appellant one of the rings appellant told him to keep his mouth shut. Later, according to the witness’ testimony, appellant asked him, in effect, whether the officers had said anything to him.

Looking to the testimony in its entirety, and taking into consideration the value of the rings, as mentioned in the original opinion, we would not feel warranted in holding that the evidence touching appellant’s knowledge that the rings were stolen is insufficient.

The motion for rehearing is overruled.

PER CURIAM.

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


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

text:
    BURROWS v. STATE.
    No. 21073.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    On Reinstatement of Appeal June 12, 1940.
    Rehearing Denied Oct. 16, 1940.

      E. C. Stovall, of Canton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing whisky in a dry area for the purpose of sale; the punishment, a fine of $1,000. '

The recognizance is fatally defective in that it shows that appellant stands charged with a misdemeanor. There is no statement in the recognizance that appellant has been convicted. Under the circumstances, this court is without jurisdiction.

It appears that no judgment of conviction was carried into the minutes of the court. The record shows a docket entry. This is not sufficient to confer jurisdiction on this court. A formal judgment of conviction should have been carried into the minutes of the court.

The appeal is dismissed.

PER CURIAM.

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

On Reinstatement of Appeal.

GRAVES, Judge.

Appellant was convicted by the court upon a plea of guilty to a violation of the liquor laws of this State, and was by the court sentenced to pay a fine of $1,000.

This appeal has been heretofore dismissed because of a failure to show therein a final judgment, and attention was called in said dismissal to a defect in the recognizance.

The proper judgment now appears to have been entered, and a proper recognizance is also here present.

The only complaint offered for a reversal of this judgment is relative to the amount of the fine, same being the highest fine permitted by law for this offense. Appellant sets forth in his brief that when he pleaded guilty to this charged offense before the county judge, he expected to pay a fine therefor, but did not expect the fine assessed against him to be so large, and he says that such punishment was cruel and excessive, and violated Art. 7, C.C.P., as well as Art. 1, Sec. 13 of the State Constitution, Vernon’s Ann.St., which prohibit the imposition of excessive fines.

The usual rule, long established, is thus declared by Mr. Branch on page 334 in his Penal Code: “When the verdict has received the approval of the trial court, and the punishment imposed is within the limits prescribed by the statute, it will not ordinarily be held excessive on appeal,” citing numerous cases.

Appellant cites us to the case of Robinson v. State, 25 Tex.App. 111, 7 S.W. 531, which was a case of an aggravated assault by an adult male made upon a female. There was testimony only that the accused caught the female by the sleeve and she jerked aloose and tore the sleeve. This was all the assault proven. The accused was awarded a penalty of a fine of $500 and twelve months in jail. This court said that such punishment was excessive, but the cause was reversed on a further point, and 'that was a failure in correspondence between the allegations in the complaint and information, as well as the ex-cessiveness of the verdict.

We are also cited to the case of Calhoun v. State, 85 Tex.Cr.R. 496, 214 S.W. 335, which was a death penalty awarded for the rape of a white woman by a negro. The court therein reviewed the testimony at great length, and on account of the severity of the penalty and the various contradictions and weaknesses of the State’s testimony a new trial was granted, more on account of the unsatisfactory condition of the facts rather than the excessiveness of the verdict.

It is here observed that the sentence of appellant, while rather onerous, is not as great as could have been pronounced upon him; he could have been given a two-year jail penalty; and under the record as here presented we do not think we have the power to set the verdict aside as excessive.

The former opinion herein dismissing this appeal is set aside, the appeal is reinstated, and the judgment is affirmed.

On Motion for Rehearing.^

HAWKINS, Presiding Judge.

Appellant moves for a rehearing, asserting that the State’s motion requesting entry of a nunc pro tunc judgment was filed on May 27, 1940, and notice of said motion served on appellant the same day, and that the hearing on said motion was had on May 28, 1940, and the nunc pro tunc judgment entered that day. It is appellant’s position that he was entitled to three days’ notice. He seems to reach the conclusion that any judgment entered prior to the expiration of the three days would be a nullity. In this we think appellant is in error. If he had interposed objection to the court acting on the motion before the three days had expired we would have a different question. In Madison v. State, 17 Tex.App. 479, one of the cases upon which appellant relies, the court undertook to enter the judgment nunc pro tunc over accused’s objection before the three days’ notice expired. In the present case the judgment recites that appellant was present when the motion was acted upon and the judgment entered. No objection to the court’s action was interposed. Art. 11, C.C.P., as amended in 1931, Vernon’s Ann.C.C.P. art. 11, reads as follows: “The defendant in a Criminal prosecution for any offense, may waive any right secured him by Law except the right of a trial by a Jury m a felony case when he enters a plea of not guilty.”

Appellant could waive the three days’ •notice. Presumably the court would not have acted on the motion at the time he did unless appellant had waived the three days.

The motion for rehearing is overruled.