text:
    LAMAR v. STATE.
    No. 21495.
    Court of Criminal Appeals of Texas.
    March 19, 1941.
    L. C. Counts, of Olney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is rape; the punishment, confinement in the penitentiary for five years.

Prosecutrix, Bertha Lee Hilley, was thirteen years of age at the time of the alleged assault, which, according to her testimony, occurred on the 20th of July, 1940. It was her version that she and appellant had been together on numerous occasions, and that on the date heretofore mentioned appellant had carried her in his automobile to a pasture about four o’clock in the afternoon. At this juncture we quote from the testimony of prosecutrix as follows:

“The defendant put his hands on me, he stripped me, and then he got on top of me, and he had intercourse with me; yes, sir, he did something to me. I know what sexual intercourse is. He had sexual intercourse with me. Out there on that afternoon he put his private parts in my private parts. I am telling you this is what happened on the afternoon of July 20, 1940.
“It was about four o’clock in the afternoon when we were out there in the pasture; we went out in the pasture after we had gone out on the Newcastle road. That is when he stripped me, out in the pasture, and by that I mean he took off my clothes, pulled my underclothes off of me.
“After he took my underclothes off of me he got on top of me and then he put his privates in my privates and we had intercourse; then we come back to town. I don’t remember whether he used any rags or towels out there that time or not. He did not use any rubber.
“I went out there in his car with him; it was the car he drives as a taxi cab. What I have testified to happened here in Young County, Texas, on or about the 20th of July. The next day after this happened, that I have just testified about, I took Mr. Grantham out to the place where it happened and showed him. I showed him some rags out there that day. I don’t remember whether those rags were left there by J. D. Lamar or not.”

C. G. Grantham, a member of the State Highway Patrol, testified to having gone to the point in the pasture designated by the prosecutrix for the purpose of making an investigation. • He said: “I found several things out there, among them was a rubber and some rags. I put these rags and rubber in the car and brought them into town. I later sent them to the chemist at the state laboratory in Austin to have them examined and tested. * * * Those articles were later returned to me'and I have them now.” The witness also testified that he examined the tires on appellant’s car and found that they made “the same kind of a track as the tracks” he found in the pasture where it was alleged the assault had been committed. He said: “That was the only car track out there in the pasture that I found.”

The chemist for the Department of Public Safety testified to having examined the rubber and rags sent him by Mr. Grantham. We quote from the testimony of the witness : “My examination of this yellow rag and tissue paper — it was the discharge from the private organs of a man — I found some of that on the yellow rag and also on the rubber, none on the tissue paper.”

Testifying in his own behalf,» appellant admitted that he had associated with prose-cutrix and her family. He denied that he had ever had sexual intercourse with prose-cutrix. His testimony raised the issue of alibi, and upon this point he introduced witnesses who corroborated him.

We have only undertaken to set out enough of the testimony to show that the jury were warranted in accepting the version of the state. We deem the evidence sufficient to support the judgment of conviction.

Appellant made a motion to quash the indictment on the ground that it was duplicitous. It appears to be his position that two offenses are charged in the single count of the indictment. Omitting the formal parts, the indictment reads as follows: “J. D. Lamar * * * did then and there unlawfully in and upon Bertha Lee Hilley, a female then and there under the age of eighteen years, did make an assault, and the said J. D. Lamar did then and there ravish and have carnal knowledge of the said Bertha Lee Hilley, the said Bertha Lee Hil-ley not being then and there the wife of the said J. D. Lamar * *

In Schroeder v. State, 92 Tex.Cr.R. 7, 241 S.W. 169, 170, this court, speaking through Judge Morrow, used language as follows:

“In the indictment, it is charged:
“That the appellant ‘ * * * did then and there unlawfully in 'and upon Rada Bowers, a female, then and there under the age of eighteen years, and other than the wife of the said J. E. Schroeder, did make an assault and did then and there by force and without her consent attempt to ravish and have carnal knowledge of the said Rada Bowers against the peace and dignity of the state.’
“Our statute defining rape does not create two offenses. If the assault be committed upon a woman above the age of 18 years, it must be by force; threats, or fraud. If upon a female under the age of 18 years, it is rape whether with or without consent, and with or without the use of force, threats or fraud. Penal Code, art. 1063. The averment in the indictment that the carnal knowledge was had by force, and without the consent of the prosecutrix, did not render it duplicitous, nor otherwise render the indictment inadequate.”

We are constrained to overrule the contention that the indictment is duplicitous.

It was appellant’s further contention, as shown in his motion to quash, that the indictment failed to show that it was presented “upon the oaths” of the grand jurors. This contention is based upon the fact that instead of using the word “their” before the word “oaths” the pleader used the word “the.” The indictment shows that the grand jurors had been duly organized. This being true, we would not feel warranted in holding that the error mentioned is substantial. We quote from Branch’s Ann.Texas P.C., section 471, as follows: “It is not essential to allege in the indictment that the grand jurors were sworn or that the presentment was made upon their oaths or affirmations. Chevarrio v. State, 17 Tex.App. 390. Vanvickle v. State, 22 Tex.App. 627, 2 S.W. 642. Hart v. State [Tex.Cr.App.] 44 S.W. 1105.”

Because it was shown that prose-cutrix had been taken into custody by the officers and questioned relative to the transaction involved herein, it is appellant’s position that the provisions applicable to coerced confessions, as set forth in Article 727, C.C.P., should apply and that his motion to withdraw the testimony of prose-cutrix from the consideration of the jury should have been sustained. In the course of her testimony prosecutrix said: “I told this on Dude Lamar (appellant) because he did this to me. I didn’t tell it on him to keep from laying it off on somebody else. I told it because he did it.” We think appellant’s motion was properly overruled. We do not think the provisions of Article 727, C.C.P., relating to confessions, are applicable to the situation here presented. The fact that prosecutrix had been taken into custody and questioned at length concerning the transaction did not render her testimony inadmissible. She affirmed on the stand that she had told the truth when she stated to the jury that appellant had had sexual intercourse with her on the occasion in question. Pier credibility and the weight to be given to her testimony were for the jury. It might be added that the circumstances heretofore pointed out strongly corroborated her. We say this in view of the fact that it is also appellant’s contention that under the circumstances reflected by the record the testimony of prosecutrix is without cogency.

Appellant’s exception to the charge on the ground that it failed to embrace an instruction covering the law of circumstantial evidence was properly overruled. Prosecutrix testified positively that appellant had an act of sexual intercourse with her.

We deem appellant’s bills of exception relative to the testimony of Mr. Grantham and the chemist to be without merit. It was proper for the state to show by Grantham that he visted the scene of the alleged assault and found the articles mentioned in his testimony to which reference has been made. Moreover, it was proper to permit him to testify that he found tracks at the scene of the alleged assault and that the tires on appellant’s car made similar tracks. Again, there was no error in permitting the chemist to testify as to his examination of the articles delivered to him by Grantham. Whether appellant was present or not was immaterial. The testimony in question was not hearsay.

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

The judgment is affirmed.

PER CURIAM.

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


source: Caselaw Access Project

author: KRUEGER, Judge.

license: Public Domain

text:
    KEE v. STATE.
    No. 21511.
    Court of Criminal Appeals of Texas.
    March 19, 1941.

      No attorney for appellant.
    Llóyd W. Davidson, _ State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

The indictment appears regular. The record is before us without a statement of facts or bills of exception. Nothing has been presented authorizing a reversal of the conviction.

The judgment of the trial court is therefore affirmed.

PER CURIAM.

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


author: PIAWKINS, Presiding Judge.

text:
    Ex parte TALIAFERRO et al.
    No. 21557.
    Court of Criminal Appeals of Texas.
    March 19, 1941.
    J. D. Todd, Jr., of Corpus Christi, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   PIAWKINS, Presiding Judge.

Relators were charged by complaint in justice court No. 1 of Refugio County with the murder of John Ryals. Upon a hearing before the justice of the peace they were denied bail. Relators then secured a writ of habeas corpus from the Plonorable Howard P. Green, Judge of the Twenty-Fourth Judicial District, and upon a hearing before him they were again remanded without bail and it is from such judgment this appeal is prqsecuted.

Mr. Ryals was the operator of a cafe in Refugio. A witness went into the cafe about ten thirty at night on November 11, >1940. From the testimony of this witness we glean the following facts. The two re-lators were strangers to the witness. They and Ryals were talking. Witness could understand what Ryals said because he naturally spoke rather loudly, but could not understand what either Mr. or Mrs. Talia-ferro said. Witness heard Ryals say to them: “Judie works for me and her conduct in my place of business is all right. What she does on the outside is her personal affairs and does not concern me and I rather not know anything about it.” Either Mr. or Mrs. Taliaferro said something to Ryals .which witness did not understand and Ryals replied: “If you are going to talk about her I will have to ask you to leave my place of business.” At this point Mr. and Mrs. Taliaferro and also Mr. Ry-als stood up. Ryals raised both hands, palms out, up even with his shoulders. At this point a young lady who was working behind the counter screamed: “Watch him! He has got a knife.” About this time Ry-als and the two relators went together and the three of them got down on the floor. Ryals was on top of Taliaferro but apparently was trying to get up, having his hands on the floor and pushing away from Talia-ferro, who was holding Ryals and cutting him with a pocket knife having a blade three or more inches long. While persons present were trying to get Taliaferro’s knife and separate the parties, Mrs. Talia-ferro was hitting Ryals over the head with a sugar bowl and both she and her husband were calling Ryals a “rat s- of a b-.” Mr. Taliaferro fled and was apprehended in San Angelo some nine or ten days later. Mrs. Taliaferro was arrested the night of the assault. A doctor described the wounds of Ryals which were fourteen in number. They resulted in his death.

The record is silent as to the relationship existing between the Taliaferros and Judie and as to the reasons moving them to register complaint about her to Mr. Ry-als.

The record does reflect a most vicious attack by Mr. Taliaferro upon Ry-als while he was apparently trying to get away from Taliaferro and his knife. We think the trial judge, under the evidence before him, was warranted in holding Mr. Taliaferro without bail. The record, however, shows that Mrs. Taliaferro is about four months advanced in pregnancy and that to hold her in jail might jeopardize her health. We conclude therefore that the judgment remanding Carl Taliaferro without bail should be affirmed but that the judgment so remanding Marion Taliafer-ro without bail be reversed and that she be admitted to bail in the sum of five thousand dollars, and it is so ordered.


author: CHRISTIAN, Judge.

text:
    HILL v. STATE.
    No. 21323.
    Court of Criminal Appeals of Texas.
    Feb. 19, 1941.
    Fred Whitaker, of Carthage, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is murder; the punishment, death.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Nellie Mae Hill by throwing the said Nellie Mae Hill down, pouring gasoline on her and setting her afire.

The state introduced in evidence appellant’s confession in which he admitted that he had burned the deceased to death by pouring gasoline on her and setAg her afire. The dying declaration of deceased introduced in evidence corroborated appellant’s confession. Testifying in his own behalf, appellant repudiated the confession. It was his version that he accidentally ignited gasoline which had been poured on deceased. He disclaimed any intention of killing her.

The fragments of burned clothing of the deceased were brought into the courtroom in a sack and placed on the counsel table within ten feet of the jury. They bore the odor of gasoline. Some of the fragments of clothing were taken out of the sack, identified by a witness and introduced in evidence. The clothing did not serve to elucidate or illustrate any point or solve any disputed question. It was uncontro-verted that gasoline had been poured on the deceased, that such gasoline had been ignited, and that she received severe burns. In short, there was no question as to the condition or extent of the burns nor as to how they were inflicted. Proper objection was interposed by counsel for appellant at the time the fragments of clothing were introduced. The opinion is expressed that the bill of exception reflects reversible error. A similar question was involved in Huntsman v. State, 95 Tex.Cr.R. 460, 254 S.W. 1108, in which the conviction was for an aggravated assault. It is shown in that case that the state introduced in evidence, over Huntsman’s objection, the bloody clothing worn by the injured party. In concluding that reversible error had been committed, this court, speaking through Judge Hawkins, used language as follows:

“The state introduced in evidence over objection the bloody hat, bloody shirt, and bloody overalls worn by the assaulted party. Objection was urged on the grounds: (a) That the clothing did not serve to elucidate or illustrate any point or solve any disputed question; (b) that there was no question as to the nature and extent of the wounds, nor as to how they were inflicted; (c) and that such testimony could only serve the purpose of inflaming the minds of the jury against appellant.
“The state, through her Assistant Attorney General, concedes error in the admission of the articles named because the infliction and nature of the wounds was not controverted, and the clothing would serve no purpose to solve any controverted issue, and further admits that their introduction was evidently inflammatory. As supporting his reasons for making such concessions, we are referred to the cases cited under Branch’s Ann.Penal Code, § 1855; Cole v. State, 45 Tex.Cr.R. [225] 232, 75 S.W. 527; Aldridge v. State, 91 Tex.Cr.R. 648, 241 S.W. 145.
“We quote from Cole’s Case, supra, as follows:
“ ‘It sometimes becomes relevant testimony to admit the clothes of a deceased to explain the nature of the wound or some connecting fact, or to assist in developing the case in some way. This character of testimony has been the' subject of many decisions, and usually it has been held that their admission was proper. But in this case there was no necessity for it. It explained no fact and. was relevant to no controverted issue. That' deceased was shot by appellant was an admitted fact. The nature of the wound, the character of it, its location and everything in connection with it was clearly proved; and there was no controversy about it. The admission of the bloody clothes before the jury could serve no purpose except to inflame their minds against accused. If it was relevant to any fact, and was properly admitted, the fact that it may have had an injurious effect upon appellant’s case would not render its admission improper; but the exhibition of clothes, like any other fact, is admissible or not, as it may or may not be pertinent or relevant to some issue in the case. These clothes could explain nothing, and the sole tendency was to create prejudice.”

In Huey v. State, 81 Tex.Cr.R. 554, 197 S.W. 202, 204, it is shown that a penalty of ninety-nine years’ confinement in the penitentiary was assessed upon conviction for murder. The bloody clothes of the deceased were introduced in evidence when they served to elucidate no issue in the case. It was held that the bill of exception relating to the matter presented reversible error. We quote the language of Judge Davidson in the opinion as follows:

“There was nothing in the case before the jury at the time the clothes were admitted upon which to contradict appellant. It was while the widow of the deceased was on the stand testifying and through her that these clothes were admitted. The bill is quite lengthy and unnecessary to repeat. She was the second witness placed on the stand by the state in making out its case originally. The defendant had not testified, and there was nothing to contradict so far as he was concerned. The court, it would seem from his qualification, admitted the clothes only as bearing upon the location of the wound. There was no question about the location of the wound and none raised on the trial. Deceased was shot in front with a shotgun at close range, because the shot did not scatter. The wound went in about 2 or 2½ inches on the right side from medial line of the deceased’s body and through the waistband of his pants. This was the only wound on him. There was but one shot fired. None of the shot entering the body went through. There could be no issue on the question as to the location of the wound on the body of deceased. The clothes were not admitted to contradict appellant, because appellant had not testified. The bill with reference to this matr ter is rather lengthy, and it is deemed unnecessary to embody it in the opinion.”

See, also, Aldridge v. State, 91 Tex.Cr.R. 648, 241 S.W. 145, and Garrison v. State, 129 Tex.Cr.R. 32, 84 S.W.2d 477.

The following is taken from 18 Texas Jurisprudence, p. 340: “And the courts frequently have held such garments to be inadmissible — a bloody hat, coat; shirt or. pants, a powder-burned jumper-r-the basis of decision being that in the circumstances the garments did not tend to elucidate any disputed question and that they served only to create prejudice on the part of the jury. ‘That such evidence has a tendency to inflame the minds of the jury is a recognized incident of criminal law.’ ”

In view of the fact that the death penalty was assessed against appellant, we would not feel warranted in holding that the minds of the jury were not inflamed by the introduction of the clothing of the deceased.

Over appellant’s proper objection, the state’s counsel was permitted to elicit from appellant that he was in bed with a woman in Louisiana at the time he was arrested. There is nothing in the record to indicate that appellant killed deceased because of any affection he entertained for another woman. No previous relationship between appellant and any woman other than his wife is shown in the evidence. It was the theory of the state that appellant and deceased had been having trouble relative to matters which had no connection with appellant’s relationship with any other woman. Hence we are unable to perceive the relevancy of such testimony. It should not have been admitted.

Appellant’s plea of former jeopardy was properly overruled. Deceased had not died at the time appellant entered a plea of guilty to an indictment charging 'him with having assaulted her with intent to murder her. It is true that the conviction for assault to. murder involved appellant’s act in pouring gasoline on deceased and setting her afire. However, as pointed out, deceased had not died at the time of such conviction. We quote from Johnson v. State, 19 Tex.App. 453; 53 Am.Rep. 385, as follows:

“On August 10, 1884, the defendant cut John Davis with a knife. He was indicted for an assault with intent to murder said Davis by said act of cutting, and under said indictment was, on the 16th of October, 1884, convicted of an aggravated assault and battery, and fined $25, which fine he paid. On November 12, 1884, John Davis died from the effect of said cutting, and thereafter the defendant was indicted for the murder of said John Davis by the same act of cutting, and was convicted of manslaughter; from which conviction this appeal is prosecuted.
“Defendant pleaded in bar of this prosecution his former conviction of an aggravated assault and battery, and the evidence fully sustained this plea, and showed that said assault and battery was the same transaction charged in the present indictment, except that at the time of said former conviction the death of Davis had not occurred. This special plea was properly submitted to the jury, and they found against it; and in this we think there was no error. Mr, Wharton says: ‘Where, after a conviction of assault, the assaulted person dies, the conviction of assault is no bar to a conviction for murder. The reason is that as at the time of the conviction of ássault there could have been no conviction of the murder, the prosecution for the murder is not barred by the conviction of the assault.’ (Whart.Cr.Pl. & Prac., § 476.) Mr. Bishop says: ‘If, after a battery and a conviction for it, the assailed person dies of his wounds, an indictment may be maintained for the homicide; not, it appears, because the battery is the less offense, but because the blow which had not produced death is, when viewed in the light of its results, a thing different from the blow which had produced death.’ (1 Bishop, Cr.Law, § 1059.)
“There never can be the crime of murder or manslaughter until the party assaulted dies; these crimes have no existence in fact or law till such death. It cannot, therefore, be said that one is tried for the same crime when he is tried for assault during the life, and tried for murder or manslaughter after the death, of the injured party. The death of the assaulted party creates a new crime. At the time the defendant was convicted of the assault and battery upon Davis, the court in which such conviction was had did not have jurisdiction of the offense here prosecuted, because said offense had not then been completed, and could not then have been prosecuted. Hence there is no conflict between the rule announced above and our statute, and the decisions under that statute. (Code Crim.Proc.,. art. 553.) It is true that the greater offense always includes the lesser. And it is also true that where an offense consists of different degrees, and the defendant, upon indictment or information, is convicted or acquitted of any grade of such offense, such conviction or acquittal is a bar to any further prosecution of the offense. (Code Crim. Proc., art. 553; Givens v. State, 6 Tex. 344; Thomas v. State, 40 Tex. 36; Vestal v. State, 3 Tex.App. 648; White v. State, 9 Tex.App. 390.) But these rules do not apply where the higher grade of the offense has not been completed at the time of the conviction or acquittal of a lesser grade included within it, because such higher grade did not then exist. We think the court correctly instructed the jury upon this subject, and the jury correctly found against the special plea of 'former conviction.”

In Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 251, 56 L.Ed. 500, Ann.Cas. 1913C, 1138, the court said: “The homicide charged against the accused in the court of first instance and the assault and battery for which he was tried before the justice of the peace, although identical in some of their elements, were distinct offenses both in law and in fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had. not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense.”

Among the cases cited in support of the conclusion of the court is Johnson v. State, supra. See, also, Curtis v. State, 22 Tex. App. 227, 3 S.W. 86, 58 Am.Rep. 635; 8 Ruling Case Law 148; 16 Corpus Juris 275 ; 22 C.J.S., Criminal Law, § 287; Wharton’s Criminal Law, 12th Ed., vol. 1, p. 532; 12 Texas Jurisprudence 563.

The case at bar is distinguishable from Doggett v. State, 130 Tex.Cr.R. 208, 93 S. W.2d 399, in that the deceased in that case had died prior to the conviction for the robbery. In short, the state had carved one time out of a completed transaction and secured a conviction.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


author: CHRISTIAN, Judge. HAWKINS, Presiding Judge.

text:
    SCHWARTZ v. STATE.
    No. 21437.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1941.
    Rehearing Denied April 2, 1941.

      T. F. Monroe (of Hughes & Monroe) and Harold Young, all of Dallas, for appellant.
    Chas A. Pippen, of Dallas, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is receiving and concealing stolen property; the punishment, a fine of $500 and confinement in jail for ninety days.

During the month of March, 1940, Roger Moore was an employee of Volk Brothers of the City of Dallas. During the same time appellant and his father'operated the Day and Night Pawn Shop in Dallas. Volk Brothers handled Edwin Clapp shoes, which sold for $20 a paid. Moore stole several pairs of these shoes from his employers and sold them to appellant. According to Moore’s version, appellant paid him four or five dollars a pair for the shoe's. Again, Moore testified that he wore the uniform prescribed by Volk Brothers when he went to appellant’s place of business. The uniform, as well as the shoes, carried the name of Volk Brothers. Upon the trial Moore testified, in effect, that he told appellant the shoes were stolen. It was appellant’s version, given support in his testimony, that he was not aware at the time he purchased the shoes that Moore had stolen them. In short, appellant testified that his transactions with Moore were legitimate.

It was incumbent upon the state to prove beyond a reasonable doubt that the shoes had been acquired by theft, and that appellant, knowing them to have been so acquired, received or concealed them. Branch’s Ann.Texas P.C., Section 2535; Poon v. State, 120 Tex.Cr.R. 522, 48 S.W.2d 307. Upon the motion for new trial the witness Moore retracted that part of his testimony to the effect that appellant knew the witness had stolen the shoes. In short, he testified upon the hearing of the motion that he had not told appellant that he had stolen the shoes, but stated to him that he bought them from Volk Brothers, where he worked. If the testimony given by the witness on the motion for new trial was true he had testified falsely upon the trial as to an inculpatory fact, that is, the fact of guilty knowledge on the part of appellant when he bought and received the shoes. In Branch’s Ann.Texas P.C., page 131, it is said: “Where an inculpatory witness makes affidavit after verdict that he or she testified falsely or was mistaken as to an important inculpatory fact a new trial should be granted.” In support of the text many authorities are cited, among them being Mann v. State, 44 Tex. 642; Brown v. State, 13 Tex.App. 59; Heskew v. State, 14 Tex.App. 606; McCleavland v. State, 24 Tex.App. 202, 5 S.W. 664; Zedlitz v. State, Tex.Cr.App., 26 S.W. 725; Brown v. State, 42 Tex.Cr.R. 176, 58 S.W. 131; Carter v. State, 75 Tex.Cr.R. 110, 170 S.W. 739. See, also, Douglas v. State, 122 Tex.Cr.R. 171, 54 S.W.2d 515, and Rhea v. State, 96 Tex.Cr.R. 11, 255 S.W. 757.

Giving application to the announcement of the decisions, we are constrained to hold that appellant’s motion for new trial should have been granted.

The judgment is reversed and the cause remanded.

PER CURIAM.

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

On Statens Motion for Rehearing.

HAWKINS, Presiding Judge.

In view of the State’s motion for rehearing, we have again examined the evidence of Roger Moore as given on the trial of appellant and also his testimony given on the hearing of the. motion for new trial. The evidence recanted by Moore is upon the vital issue involved in the case. It would be highly speculative to hold that the verdict of the jury would have been the same had Moore omitted from his testimony the criminative facts he later claimed to be untrue. In addition to the authorties cited in our original opinion, we refer to the following: Cooper v. State, 106 Tex.Cr.R. 118, 290 S.W. 537; Wadkins v. State, 102 Tex.Cr.R. 292, 277 S.W. 684; McConnell v. State, 82 Tex.Cr.R. 634, 200 S.W. 842; Green v. State, 94 Tex.Cr.R. 637, 252 S.W. 499; Cottrell v. State, 91 Tex.Cr.R. 131, 237 S.W. 928.

The motion for rehearing is overruled.


text:
    WHATLEY v. STATE.
    No. 21505.
    Court of Criminal Appeals of Texas.
    March 26, 1941.
    Scott & Hall, of Marshall, B. F. Whit-worth, of Linden, and Carney & Carney and Tom J. Mays, all of Atlanta, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is murder without malice; the punishment, confinement in the penitentiary for five years.

The trial was had in Harrison County on a change of venue from Marion County.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed E. R. Todd by shooting him with a pistol.

The state’s theory, given support in the evidence, was to the effect that appellant killed deceased without provocation.

Appellant’s testimony raised the issue of self-defense. According to his version, deceased had drawn his pistol and had it in his hand in an effort to kill him. Believing that his life was in danger, he drew his pistol and fired the shots that resulted in the death of the deceased.

The court charged on self-defense, but overruled appellant’s objection to the charge for its failure to embrace an instruction covering the provisions of Article 1223, P.C. We quote the provisions of said article, as follows: “When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapon or means used by the party attempting or committing such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury.”

Appellant’s testimony clearly showed an attack by deceased with a weapon of the nature described in the statute. It has been held by this court that, where the evidence raises the issue of the use of a deadly weapon by the deceased, it is an absolute presumption, imperative to juries, as well as courts, that the deceased intended to inflict the injury mentioned in Article 1223, supra; and further, the provisions of the article must be given in charge to the jury. Yarborough v. State, 129 Tex.Cr.R. 177, 84 S.W.2d 729; Gaither v. State, 109 Tex.Cr.R. 154, 3 S.W.2d 814; Strickel v. State, 117 Tex.Cr.R. 433, 33 S.W.2d 451; Holland v. State, 112 Tex.Cr.R. 164, 15 S.W.2d 626; Carter v. State, 97 Tex.Cr.R. 508, 262 S.W. 79; Mason v. State, 88 Tex.Cr.R. 642, 228 S.W. 952; Bailey v. State, 112 Tex.Cr.R. 550, 17. S.W.2d 1051. Giving effect to the -decisions, we are constrained to hold that the court fell into reversible error in failing to respond to appellant’s exception to the charge.

If another trial be had note should be taken of the holding in Best v. State, 58 Tex.Cr.R. 327, 125 S.W. 909, and Lewis v. State, 89 Tex.Cr.R. 345, 231 S.W. 113, relative to the application of the law of murder to 'the facts where self-defense is an issue.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


author: CHRISTIAN, Judge. BEAUCHAMP, Judge.

text:
    CORLEY v. STATE.
    No. 21491.
    Court of Criminal Appeals of Texas.
    March 12, 1941.
    Rehearing Denied April 9, 1941.
    B. P. Maddox, of Tahoka, for appellant.
    Lloyd 'W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

Conviction for a misdemeanor; punishment being assessed at a fine of $10.

The prosecution originated in the justice court. After an appeal to the county court, and, upon a trial de novo, judgment was entered assessing a fine of $10 against the appellant. Article 53, C.C.P., reads as follows: “The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases. This article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court or county court at law, in which the fine imposed by the county court or county court at law shall not exceed one hundred dollars.”

Under the terms of the statute, this court has no jurisdiction of the appeal. Nichols v. State, 129 Tex.Cr.R. 44, 84 S.W.2d 725; Harlan v. State, 138 Tex.Cr.R. 47, 134 S.W.2d 289.

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 Motion for Rehearing.

BEAUCHAMP, Judge.

Appellant has filed a motion for rehear-, ing and to have his appeal reinstated, in which he attacks the jurisdiction of the justice court to try the case originally, and of the county court on appeal.

We do not think that the question of jurisdiction of these courts may be raised in this manner. We adhere to our holding that we have no jurisdiction to decide any matter presented, and the motion for rehearing is denied.


author: BEAUCHAMP, Judge. ' CHRISTIAN, Judge.

text:
    HARRIS v. STATE.
    No. 21478.
    Court of Criminal Appeals of Texas.
    March 5, 1941.
    Rehearing Denied April 2, 1941.

      Virgil R.' Parker, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State! ■
   BEAUCHAMP, Judge. '

The appeal of Tommie Harris is from the death penalty assessed by a jury in Tarrant County for - the murder of Mrs. Edna Earl Allen, a white woman, by striking her with a hammer and with a metal weight and by striking and stabbing her with an ice pick.

The victim’s husband worked in a grocery store in Grandview, Johnson County, and the tragedy was committed in their home about a mile from the town at something like 4 o’clock in the afternoon of August 8, 1940. There is evidence of ravishing her body in addition to the murder, and the state’s theory is that the murder was committed to prevent being identified by his victim. Soon thereafter her condition was discovered by her mother and sister who had come to visit her and she was taken to a hospital in Fort Worth, Tarrant County, where she died late in the evening of August 10, 1940.

The appellant was arrested on the same afternoon on a highway near Grandview and was taken to Fort Worth by the sheriff of Johnson County to be placed in jail.

It is not necessary to repeat the horrible evidence detailing the condition of the victim, her wounds, the circumstances indicating the attack upon and the ravishing of her body, nor the evidence connecting him therewith. There is no denial of the testimony, no objection to its introduction, and it is sufficient upon which the jury may find the appellant guilty and amply warrants the extreme penalty which they assessed.

Upon the death of Mrs. Allen in a hospital in Fort Worth a complaint was filed in the justice court of precinct No. 5, Johnson County, charging appellant with murder. He was arrested and held in jail on this charge. Thereafter the grand jury of Tarrant County returned an indictment charging the murder. The complaint was pending in the justice court of Johnson County, but was dismissed and no indictment had been returned by the grand jury of that county.

It is presented that the filing of the complaint in the justice court of Johnson County fixed the jurisdiction for the prosecution- of this case in Johnson County. , It is provided by Art. 64 of the Code Cr.Proc. 1925, that whenever two or more courts have concurrent jurisdiction of any criminal offense, the court in which an indictment or complaint shall first be filed retains jurisdiction of such offense to the exclusion of all other courts. The complaint was filed in the justice court of Johnson County, which had no jurisdiction to try the case. The indictment was first returned in the district court of Tarrant County to a court which did have jurisdiction and it thereby assumed and held exclusive jurisdiction of the case. See, also, Art. 195, C.Cr.P.1925. Navarro v. State, Tex.Cr.App., 43 S.W. 105; Watson v. State, 84 Tex.Cr.R. 115, 205 S.W. 662.

It is further complained that the indictment does not allege that the acts inflicting the fatal wound were committed in Johnson County, and that subsequently the decease was in Tarrant County. The indictment simply alleges the offense committed in Tarrant County. This allegation is specifically authorized by Art. 210, C.Cr. P. See, also, Stone v. State, 111 Tex.Cr.R. 547, 15 S.W.2d 18.

There being no error shown by the record, this court has no jurisdiction of any question presented by the appeal. The judgment of the trial court is affirmed.

On Motion for Rehearing.

CHRISTIAN, Judge.

The evidence is amply sufficient to support the judgment of conviction. In addition to many circumstances which tended to show that appellant killed the deceased, there is in the record a confession by the appellant in which he stated that he killed the deceased after having raped her.

The original opinion dealt with the questions presented in the appeal. We are unable to perceive any error in the record. The evidence being sufficient to support the judgment of conviction, and no error being presented in the bills of exception, we are constrained to overrule the motion for rehearing.

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.

text:
    EARP v. STATE.
    No. 21528.
    Court of Criminal Appeals of Texas.
    March 26, 1941.
    E. T. Adams, of Glen Rose, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Complaint was filed in the corporation court of the city of Glen Rose charging appellant with failing to appear and work the streets, or to furnish, an able substitute, when summoned to do so on the 17th day of June, 1940.

We gather from the record that appellant was tried in the city court and appealed to the county court of Somervell County where he was again tried on the 9th day of October, 1940, and assessed a fine of $5, from which he attempts to bring the appeal to this court.

The fine assessed in the county court being less than $100, this court has no jurisdiction of the appeal. It is accordingly dismissed.


text:
    SHELLEY v. STATE.
    No. 21519.
    Court of Criminal Appeals of Texas.
    March 26, 1941.
    Ralph Gibbons, of Houston, for appellant (on appeal).
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is burglary. The indictment embraced averments showing that appellant had theretofore been twice convicted of felonies less than capital. Because of repetition of offenses, the punishment was assessed at confinement in the penitentiary for life.

Appellant gave notice of appeal on the 22nd day of July, 1940. The statement of facts was not filed in the trial court until January 21, 1941, which was approximately seven months after notice of appeal was given. This was too late.

No bills of exception are brought forward.

The judgment is affirmed.

PER CURIAM.

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


text:
    SNOWDEN v. STATE.
    No. 21453.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1941.
    Motion to Reinstate Appeal Granted March 26, 1941.
    Victor Gleclder, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is misdemeanor theft; the punishment, a fine of $25 and confinement in jail for one day.

After the adjournment of court appellant executed an appeal bond which was approved by the county clerk. It was not approved either by the county judge or the sheriff. Hence this court is without jurisdiction. Article 830, C.C.P., reads as follows : “When the defendant appeals in any misdemeanor case to the Court of Criminal Appeals, he shall, if he be in custody, be committed to jail unless he enter into recognizance as provided by law. If for any cause the defendant fails to enter into recognizance during the term at which he' was tried, but gave notice and took an appeal from such conviction, he shall be permitted to give bail and obtain his release from custody by giving, after the expiration of such term of court, his bail bond to the sheriff with two or more good and sufficient sureties, in which the defendant and his sureties shall acknowledge themselves severally indebted to the State of Texas in the sum conditioned as provided in recognizance on appeal. Before the defendant shall be released on such bail bond the same must be approved by the sheriff or the judge trying the cause or his successor in office. When such bail bond is so given and approved, the defendant shall be released from custody.”

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 Motion to Reinstate Appeal.

The motion to reinstate the appeal is granted.

The appeal is from a conviction in the county court of Travis County assessing a penalty of $25 and one day in jail on a charge of theft.

The prosecution relies upon the testimony of the witness W. F. Flow who testified to seeing appellant and one Turner together in an automobile on August 23, 1940, at about 8 o’clock in the evening. They were driving west on Fifth Street. They then drove back east, making several stops. At 600 Neches Street he stopped and got out and left, the car after having a conversation with Turner. . While he was gone the witness saw Turner working on a Dodge Sedan that was parked nearby. Later, appellant came back and both got into his car and, after driving about a block, Snow-den again left. Turner took some tire tools out of the car and went across the street where he took a wheel and tire off of another car and carried it to the Snow-den car, at which point he was arrested by the witness. Snowden was not present and apparently was not close by, as the officer took Turner in custody and carried him away without Snowden. Later, however, the officer arrested appellant at the corner of Sixth and Neches Streets. The witness testified, “No, I did not see Snowden anywhere around there while Turner was removing the tire and wheel from the car and putting it into Snowden’s car.”

The owner of the car was called and testified that he did not give appellant or any other person permission to take the tire and wheel from his car. Appellant, testifying in his own behalf, accounts for his acts and conduct on that occasion by saying that he had loaned his car to Turner to make a trip to some other place in the city, and at the particular time he was looking for a young lady whom he was to meet near that place to take to visit in his home. After being delayed, he let Turner have the car and did take the young lady in a ten-cent taxi to his home where he got the money from his mother to pay the fare, and then returned to town and was waiting for Turner’s return when arrested by the officer. In this he was corroborated by his mother. He declares that he had no knowledge of the theft nor of Turner’s intention to commit it. Turner, who was serving a sentence in jail, also testified in defendant’s behalf and took entire responsibility for his acts, declaring that appellant was not there and knew nothing of what he was going to do and did do, and otherwise corroborated appellant’s story leading up to the theft.

We do not view the evidence as sufficient to warrant the jury in returning a verdict of guilty. At most, the state proved only suspicious circumstances. O’Mary v. State, 139 Tex.Cr.R. 294, 139 S.W.2d 800.

The judgment of the trial court is reversed and the cause remanded.


text:
    RUTHERFORD v. STATE.
    No. 21520.
    Court of Criminal Appeals of Texas.
    March 26, 1941.
    Cunningham, Lipscomb & Cole, of Bon-ham, for appellant.
    Lloyd W.' Davidson, State’s Atty., of Austin, for. the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the district court of Fannin County on a charge of driving an automobile while intoxicated.

The record is before us without statement of facts or bills of exception. The procedure appears to be regular and there is nothing presented for our review. The judgment of the trial court is accordingly affirmed.


author: GRAVES, Judge. KRUEGER, Judge.

text:
    SIMONS v. STATE.
    No. 21417.
    Court of Criminal Appeals of Texas.
    Feb. 19, 1941.
    Rehearing Denied April 2, 1941.

      Carney & Carney and Tom J. Mays, both of Atlanta, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

This is the second appeal of this case. The opinion in the former case will be found in Tex.Cr.App., 139 S.W.2d 119, where a succinct statement of the facts will be found.

In this trial .appellant received a penalty of five years in the penitentiary under a verdict of murder without malice for the killing of Roy Young, an eighteen year old boy. All parties are negroes.

Appellant complains of the court’s charge on self-defense wherein the court applies the law to the facts in this case. It is contended that in such application the court required the jury to view the transaction that resulted in the death of deceased as the same appeared to such jury at the time of the trial, whereas the court should have required the jury to have viewed such matter from the appellant’s standpoint as such appeared to him at the time of the fatal difficulty.

The charge of the court, when taken as a whole, seems to us to be susceptible of the construction that the transaction that culminated ip the death of the deceased should be viewed by the jury in the light that same appeared to the appellant, it being stated therein that it was not necessary that actual danger be present, but that such danger reasonably appeared to appellant to be present at such time. Again, in the second paragraph of the court’s charge it is said that if the acts of deceased, from appellant’s knowledge of the character and disposition of the deceased, caused him (appellant) to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear of death or serious bodily injury, appellant killed the deceased, then the jury should acquit the appellant.

We are not impressed with the contention that such latter portion of the charge deprived the appellant of the right to have these facts viewed from his standpoint alone. We think the jury understood that if this transaction impressed the appellant that he was being .assaulted in a dangerous manner by the deceased, then appellant had the right to take the life of the deceased in his own self-defense. We think all the portion of the court’s charge on self-defense should be considered together, and no one portion thereof should be expected to contain all the elements of such a proffered defense. It is also shown by a comparison thereof that the court’s charge in this cause is practically a copy of the one given in the former trial, which charge was therein approved by this court. 139 S.W.2d 119.

After a careful reading of the testimony, and especially that of appellant, we must confess that the testimony raising the issue of self-defense, upon the part of appellant, is difficult to find therein. In its strongest light, from the defense standpoint, it would seem that while certain boys, among them the deceased, were raising some kind of disturbance near appellant’s mother’s home, he went up there and ordered the boys to keep quiet. Two boys other than the deceased had been fighting. The deceased, so appellant testified, cursed appellant and struck him with a club about six feet long and about two or three inches in thickness. Appellant took this club away from deceased, who said no more, nor did anything further but “was just standing there.” Appellant then struck deceased with this club on the right side of the head and crushed his skull, causing his right eye to protrude from the socket, and from which blow the deceased died. On cross-examination appellant testified: “The boy had a club when I got there,—he hit me on the shoulder and then I took it away from him and hit him. And he cursed me. I didn’t have much trouble taking the stick away from him,—just reached over and got it, and he didn’t fight me. He didn’t try to do nothing. I could not tell whether he had a knife or gun or anything. Me and him were standing up there talking when I reached and got the stick from him, and I turned my face like this and come around on my left hand side and hit him on the head. I don’t know what side it was. I just come around this way, and I guess that killed him. He fell.”

Again, appellant testified: “The boy didn’t hit me with his fist after he hit me with the club, didn’t touch me, was just standing up there. He was standing up there when I hit him with a club,—and he hit me too. He hit me with the club first, and I took it away from him and hit him. He didn’t try to. take the club away from me. He was just standing up there straight when I hit him with a club. I don’t know what part of the head I hit him on, but I hit him a back handed lick, but I don’t know whether it was sufficient to break his skull. It isn’t a fact that I had both hands on the club, and drew it over my right shoulder and came down on that boy as he turned to go to Bloom-burg. I guess if I burst his skull, I must have hit him hard. I can’t explain to the jury how I' hit with a back hand stroke on the back of the head, I don’t know. I don’t know how that happened.”

Again he testified on direct examination: “They had been raising sand up there about 30 or 40 minutes before I went up there, and some of them were cursing. You could hear it all down to my house, about as far as from here to the street from my mother’s; and I went on down from my house and went out and told them to quiet down some, but they didn’t quiet down. Roy didn’t say anything to me at that time. It was about 20 or 30 minutes before I went out there again, and then I told them to get on off and not be disturbing the people around there. They started leaving, and General left on .out, and this other boy, he was the one doing all the cursing and raising sand there, he came up there with a stick and hit me with it, and I grabbed the stick out of his hand and hit him. He also cursed me, called me a black son-of-a-bitch, and said he wasn’t going no place. I got the stick I hit him with from him. It was about 4 feet long, one of these little old slabs from a saw mill. I hit him with it, but I sure didn’t have any intention in the world of killing him. I was just trying to get him quiet. If he had gone on like I asked him to and quit cursing, I would not have hit him. I had tried before to get him to leave my mother’s place and not disturb the people around there, and they would not leave.”

From the testimony thus offered to us it seems that appellant struck the death dealing blow because the deceased refused to leave the premises near the appellant’s mother’s house and not in his own self-defense. According to all the State’s testimony from numerous witnesses, the deceased at the time he was struck was moving away from where appellant was, and was saying nothing and doing nothing evidencing any intention to assault appellant. According to appellant’s testimony, the deceased had already cursed him and struck him with this club, but appellant had taken the club away from deceased, and deceased was doing nothing but “just standing there,” when appellant struck him a “back-handed” lick which broke the club, and witnesses say “sounded like a pistol shot,” which blow caused deceased’s death.

Had the jury desired to find ■ that appellant acted in his own necessary self-defense, upon what grounds could they base such defense? There must be some testimony showing such a defense, and under the above-quoted testimony we confess that we are at a loss to find the same. Had the jury believed that the deceased had previously cursed and struck appellant, nevertheless he no longer had possession of such club, nor was he either doing or saying anything to evidence an intention of killing or seriously injuring appellant, but, according to appellant’s own testimony, the deceased was “just standing there,” and was killed not in self-defense, but because upon appellant’s order he would not leave the place at which he was standing.

Appellant has many bills of exceptions in the record, the majority relating to special charges refused by the trial court, the major portion of which are on the weight of the testimony and should not have been given.

Appellant’s bill of exceptions No. 9 requests a charge on intervening cause. We do not think the facts call for such a charge.

Appellant’s bill of exceptions No. 10 relates to a requested charge as to the character of the stick used in the striking of the deceased, relative to same being not a deadly weapon. In his brief, it is appellant’s contention that his right of self-defense rests upon the fact that the deceased had first assaulted him with this same stick and that from such an assault arose appellant’s right of self-defense because of the deadly character of such weapon; but is seems that when such weapon was used by the appellant, it lost its deadly characteristics. It is noted that this club was described as being six feet long, from two to three inches wide, and being a green pine slab, and it is shown that it was used by appellant, a man thirty years of age and weighing 187 pounds, on an eighteen year old hoy’s head. 'It is our opinion that such would be called a deadly weapon from the mode and manner of its use, and the results obtained therewith.

We think that a witness who1 had seen the licks struck and heard the impact could be allowed to say whether such lick was an easy one, a back-handed stroke, or a straight hard lick, and we overrule bill No. 13.

We also overrule bill No. 14 which is concerned with the fact that the court asked a witness whether the witness had described the stick that was used in this case. The court qualifies this bill by saying that a witness had told about the striking with this stick and a portion thereof breaking off, and the court, not understanding what the witness had said, asked the witness if he had described the stick, how big around it was, — at which time the witness was asked by the district attorney to describe the stick, which the witness then did. Appellant objected to the court thus asking the witness this question. The court states in his qualification that other witnesses described said stick as well as the appellant in his testimony. We are not impressed with the seriousness of this matter, and no error is shown herein.

Appellant’s bill of exceptions No. IS relates to the testimony of the undertaker relative to the wound on the head of the deceased. The bill is defective in that it does not state the answer of the witness “as to whether or not such wound was made with some sort of an instrument or not.” Suffice it to say, it seems that this man who had much experience with the handling of dead bodies and the observing of injuries should be allowed to say whether a wound that crushed the skull and caused the eye to protrude from its socket was made by a blow from some blunt instrument. Again there were other witnesses who testified to actually seeing the blow delivered and the results thereof, and no objection was registered to such testimony.

We have carefully gone over and considered all bills of exception not specifically written upon and do not think any error is shown therein, and they are overruled.

We find no error herein shown, and the judgment is therefore affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

In his motion for a rehearing, appellant contends that in the original opinion in this case we erred in two respects: First, in holding that the court’s instruction on the law of self-defense, although not technically correct, would not require a reversal of the judgment because the issue of self-defense was not raised; and, second, because the court failed to comply with appellant’s request to instruct the jury that if appellant went to the home of his mother for the purpose of quelling a disturbance and to eject the disturbing parties therefrom, he had the right to use such force as appeared to him to be reasonably necessary to accomplish that object.

We do not deem it necessary to again enter upon an extended discussion of the first question presented. There is no testimony in- the record which, in our opinion, even meagerly raises the issue of self-defense. Appellant testified that the deceased struck him on the arm with a stick; that he took the stick away from the deceased, who then stood there; that while standing there appellant told deceased to leave and when he failed to do so, appellant struck him. We quote from the appellant’s testimony as it appears in the record: “I was just trying to get him quiet. If he had gone on like I asked him to and quit cursing, I would not have hit him. * * * He didn’t try to do nothing. I could not tell whether he had a knife or gun or anything.”

If appellant struck the deceased while he was standing there doing nothing and that he would not have struck him if he had gone away, then it follows that appellant struck the deceased because he would not leave and not because of any real or apparent danger to himself. Consequently when the court gave appellant any kind of a charge on self-defense, he gave him more than he was entitled to. Of course, had the issue of self-defense been raised by any evidence or by the testimony of some other witness, then appellant, nevertheless, would have been entitled to a proper instruction on the law of self-defense, but such is not the case here. '

Appellant was not entitled to the second requested instruction. The disturbance which appellant claims he wanted to quiet did not take place on his premises nor where he lived, but upon the premises of his mother. He had no legal right to make any one leave unless requested to do so by his mother; and according to his testimony, she did not ask him to do so, nor did she complain of the disturbance. If she was satisfied, then certainly he would not have any right to complain. He had no more legal rights there than any one else. His mother could have made him leave as well as any other person had she so desired.

Believing that the proper disposition of this case was made on the original submission, as reflected by the opinion of this ■court, the motion for a rehearing is overruled.

PER CURIAM.

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


author: HAWKINS, Presiding Judge.

text:
    CROZIER v. STATE.
    No. 21517.
    Court of Criminal Appeals of Texas.
    March 26, 1941.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for receiving and concealing stolen property, the punishment assessed being fifteen days in jail.

The transcript shows that there was a docket entry of the notice' of appeal but nothing to indicate that it was ever carried into the court’s minutes. It has been held repeatedly and consistently that a docket entry does not comply with the requirement of Art. 827, C.C.P. See authorities cited under said article in Vernon’s Ann.Tex.C.C.P., Vol. 3; Branch’s Ann. Tex.P.C., p. 302, sec. 588; 4 Tex.Jur., secs. 77 and 78.

In the face of consistent holdings that, in order to give this court jurisdiction, the notice of appeal must be entered in the minutes of the court, it is surprising how many cases still reach us in which the record either shows no notice of appeal at all or a docket entry only.

The appeal is dismissed.


author: GRAVES, -Judge.

text:
    TOMERLIN v. STATE.
    No. 21499.
    Court of Criminal Appeals of Texas.
    March 26, 1941.
    ' Ivan Irwin, of Dallas, and W. V. Gep-pert, of Teague, for appellant.

      L. L. Geren, Co. Atty., and Clarence Ferguson, Asst. Co. Atty., both of Groes-beck, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, -Judge.

Appellant was charged with a nighttime burglary of the store of Godfrey Jennings for the purpose of committing the crime of theft, and w.as by the jury convicted and given a term of three years in the penitentiary.

There are no bills of exceptions found in the record. The objections to the court’s charge that appear in the record are not authenticated by the signature of the trial judge, and will not be considered ■ by us. There is nothing left for us to consider other than the sufficiency of the facts.

It is shown by the testimony that on the night of January 24, 1940, the store of Mr. Jennings in Kosse, Texas, was broken into, the safe rifled and money, checks and some three leather jackets stolen. That when he opened his store the morning after the burglary, just outside the rear door, which was where the entry was made, in a trash can he found an old blue corduroy jacket. In the latter part of January, 1940, appellant was arrested in Dallas, and at such time he had on what looked like a new leather jacket, of a certain kind and color. Appellant was also seen in Fairfield some few’ days after the burglary, and he had a leather jacket on at that time. The old corduroy jacket was also placed on appellant and it fitted him, even to the bend in the elbows. The officers then took a new leather jacket similar to the one that appellant had on when arrested, and — intending to send it, together with the jacket worn by appellant when arrested, to the chemist at the Public Safety Department at Austin — when they approached appellant’s cell in the county jail they found there was no jacket there, although appellant had same on when placed in this cell about fifteen minutes before such time. They then searched the cell and found pieces of leather on a bunk under the mattress and under the blanket, and sent same to the chemist. The chemist testified that the pieces of jacket handed to him corresponded in color, texture, kind and pattern to the complete jacket handed to him, and identified as having been one of those not stolen but in the burglarized store at the time of the burglary. He called attention to the same size, color and kind of thread used in both jackets, the same jacket material, the same kind of basting tape underneath, and some similar textures, the vent holes under the arm pits similarity, as well as giving testimony that such jacket and pieces of a jacket were in his opinion the same pattern and model jackets.

The court gave a charge on circumstantial evidence, which seems to be a correct one. We have often held that the possession of recently stolen property, taken by means of burglary, is sufficient upon which to predicate a verdict of guilt. See Lewis v. State, 131 Tex.Cr.R. 163, 97 S.W.2d 476; Richardson v. State, 109 Tex.Cr.R. 204, 4 S.W.2d 72. We quote the rule laid down by Mr. Branch in his Penal Code, Sec. 2482, page 1342: “The State may trace by positive or circumstantial evidence the property alleged to have been stolen, and whether the property shown to have been in the possession of defendant was the identical property stolen is in most cases a question for the jury. Bagley v. State, 3 Tex.App. [163], 166; Polin v. State [Tex.Cr.App.] 65 S.W. 183; Hooten v. State, 53 Tex.Cr.R. 6, 108 S.W. 651; Lynne v. State, 53 Tex.Cr.R. [375], 376, 111 S.W. 729; Suggs v. State [65 Tex.Cr.R. 67], 143 S.W. 186.”

We have thus carefully set forth all the circumstances relied upon in order to establish appellant’s guilt of the offense charged. We are inclined to doubt their sufficiency. It is nowhere shown that appellant was in Kosse about the' time of the burglary. No closer contact than within two years prior to the time of the burglary is shown with the old corduroy j acket; no time shown circumstantially as to when the old jacket was placed in the trash barrel, and it is also shown that the new jackets were purchased from wholesale firms who doubtless sold many of them to stores throughout the State. The most cogent circumstance shown against the appellant is his supposed destruction of the leather jacket while in the jail. It is also shown, however, that there was another prisoner confined in said jail at such time, and he was not able to be produced at this trial. Under all the circumstances shown we are not willing to say that the facts herein produced are sufficiently strong to exclude every other reasonable conclusion than that of appellant’s guilt.

The judgment will therefore be reversed and the cause remanded.


text:
    BELL v. STATE.
    No. 21509.
    Court of Criminal Appeals of Texas.
    March 19, 1941.
    H. Womack, of McCamey, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was indicted for the murder of Wiley Bell on the 12th day of March, 1937, and, upon being found guilty by a jury, his punishment was assessed at five years in the penitentiary. This was made to run concurrently with another sentence of fifty years.

The record is before this' court without bills of exception or statement of facts, and ' we are unable to find any matter presented for our consideration.

The judgment of the trial court is affirmed.


author: KRUEGER, Judge. BEAUCHAMP, Judge.

text:
    WEST v. STATE.
    No. 21449.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1941.
    Rehearing Denied April 2, 1941.
    Wallace Hughston, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for driving an automobile upon a public highway while intoxicated. The penalty assessed is a fine-of $50 and confinement in the county jail-for a term of five days.

The indictment appears to be im due form. The record is before us without a statement of facts or bills of exception. Appellant entered a plea of guilty to the-offense charged and waived a jury upon, the trial of the case.

No error having been presented, the-judgment of the trial court is affirmed.

PER CURIAM.

The foregoing opinion of the Commis-sion 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.

BEAUCHAMP, Judge.

Appellant states in his motion for-rehearing that the indictment does note ■charge any offense known to the laws of Texas; that it is vague, uncertain and not sufficiently specific to appraise the appellant of the evidence to be introduced against him.

When arraigned on the indictment with his attorney present he pleaded guilty to the charge and thereafter brought this appeal. There is no attack made on the indictment in the court below and we do not think that it is subject to the objection stated in the motion for rehearing.

The motion for rehearing is accordingly overruled.


author: GRAVES, Judge. CHRISTIAN, Judge.

text:
    HODGES v. STATE.
    No. 21461.
    Court of Criminal Appeals of Texas.
    March 12, 1941.
    Rehearing Denied April 9, 1941.
    Owen & Bohannon, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted by the jury of running an open saloon, and was assessed a fine of $500, hence this appeal.

The first bill of exceptions complains of the introduction in evidence of an assessment of taxes sheet taken by a deputy tax assesssor and collector of Brown County who took the assessment of taxes of appellant on January 27, 1939, it being about twelve days prior to the date alleged in the complaint and information as that on which this open saloon was operated. The pertinent portion of such assessment being the fact that such instrument bore the annotation of “Inventory of Property — Owner W. H. Hodges; Address 416 S. Broadway, Bwd.,” and which instrument was signed by appellant as “W. H. Hodges”.

The point at issue between the State and appellant was that because of an allegation in the complaint and information that this alleged open saloon was located at 416 S. Broadway, it was incumbent on the State to prove this exact location, appellant contending that such was not the correct location of his cafe. It seems that the above statement, signed by appellant, which contained the statement that the property thereon inventoried was located at 416 S. Broadway, showed that cafe fixtures were assessed at a valuation of $150. While this tax assessor' may have made statements that could have been called contradictory, he did finally say: “I put clown what he (Hodges) told me was his address. That is the address he told me — 416 South Broadway.” Doubtless the jury accepted this written statement and in conjunction therewith the latest statement made by the assessor. We think the assessment sheet signed by appellant was admissible as a statement against interest affecting the very defense now offered by him.

The second bill of exceptions complains because of the fact that the Liquor Control Board agent, who testified that he purchased two drinks of whisky from appellant, had no search warrant at the time he entered appellant’s place of business, and therefore that the whisky obtained by him from the appellant was obtained in violation of the law prohibiting unreasonable searches and seizures. The testimony shows that this agent made no search of any kind, but that he merely entered appellant’s cafe on February 11, 1939, at about 8:30 A. M., and had breakfast there in the morning of that day. He got acquainted with Mr. Hodges, and asked him if he could get a drink of whisky, and Hodges obligingly served him with a drink of whisky, which the appellant paid for. He went back again about 11:30 A. M. and ordered a cup of coffee, and was served another drink of whisky for which he paid the sum of twenty-five cents. The agent had a small syringe with him and managed to siphon this last drink of whisky into the syringe and put same in his pocket, and after leaving the cafe he placed this whisky in a bottle and delivered same to the county attorney of that county. We are at a loss to see in what manner the agent searched anything or violated any law in thus going into a public place of business and purchasing liquor as well as food from the proprietor of a cafe, such being a public place. This testimony' is further objected to as being prejudicial to the appellant. We feel sure such is true, but it is also true that most of the State’s testimony should of necessity be prejudicial to the defense, otherwise much of it would be inadmissible. We see no error reflected in this bill. To the same general effect is bill No. 3, and we also overrule that bill. Bill of exceptions No. 4 also reiterates objections to portions of the Liquor Control Board agent’s testimony upon the general grounds as set forth in bill No. 2, and it is overruled for the reasons therein stated. To the same effect is bill of exceptions No. S, based on the invalidity of a so-called search of the cafe premises. It is again noted that there was no search of any kind made of this cafe; the agent merely asked for a drink of whisky and was sold such drink by appellant. All remaining bills are based on the lack of the same search warrant complained of above, and relate to further testimony of this Liquor Control Board agent as to what happened in the cafe at these sales, and we overrule all such further bills.

There is offered a further contention relative to the failure of the allegation and proof to correspond in that it is alleged in the complaint and information that this open saloon was kept at 416 South Broadway in Brownwood, Brown County, Texas, and appellant’s claim that at such number and street there was a garage and not appellant’s place of business. We note that the Liquor Board agent testified that he purchased these two drinks of whisky from appellant at the Owl Cafe at 416 South Broadway, in Brownwood, Brown County, Texas. Mrs. John Mason also testified as follows: “I am Mrs. John Mason. I know the defendant Bill Hodges. I have known him all of-last year. I have a cafe at 416 South Broadway in Brown County, Texas. About February 11 of last year, Bill Hodges operated a place of business at 416 South Broadway, where I am now located. * * * ”

It is shown by the testimony that there are two businesses in a building with a partition between a garage' and this cafe, and the witness continues: “Charlie Day owns both the cafe and the garage. * * * They are (both) entered under one number. All I know is that they are entered under one number. ‘416’ is the number that Mr. Hodges had it under. * *

We are of the opinion that the facts sufficiently show that appellant was selling whisky by the drink for beverage purposes at 416 South Broadway in Brownwood, Brown County, Texas, and was therefore guilty of operating an open saloon in defiance of the law.

We perceive no error in the record, and the judgment is therefore affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

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

The motion for rehearing is overruled.

PER CURIAM.

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


text:
    GARCIA v. STATE.
    No. 21455.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1941.
    Rehearing Denied April 2, 1941.
    E. P. Lipscomb, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged by indictment with knowingly having in his possession for sale, and keeping for sale, and selling and distributing pamphlets and magazines devoted ■ mainly to the publication of scandals, whoring, lechery, assignations, intrigues between men and women, and immoral conduct of persons, and was by the jury convicted and given a penalty of two years in the penitentiary.

There are no bills of exceptions in the record. It seems clear from the facts that appellant had a small news selling place on a public street of the city of San Antonio, and there had in such place of business obscene and lecherous literature of sexual matters, and that he sold to a sixteen year old high school boy two pamphlets describing and picturing sexual intrigues between a man and woman. We are convinced, that such pamphlets, which were filed as exhibits and are present in the record, are certainly immoral publications such as are denounced by the statute. Vernon’s Ann.P.C. art. 527. We think the proof is ample to support the allegations in the indictment.

It could serve no useful purpose to set forth in detail the lecherous matters shown in such publications. It is sufficient to say that same represented and set forth immoral conduct between men and women, and our only surprise is as to the leniency of the jury which awarded appellant the lowest penalty.

The judgment is affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

In his motion for rehearing appellant, for the first time, takes the position that the indictment is insufficient to charge him with the sale of the alleged .obscene pamphlet because it fails to state the name of the person to whom the alleged sale was made, as required by Art. 406, C.C.P., and that therefore the affirmance by this court of the conviction for the offense of selling obscene literature cannot be sustained. If the sale were the only offense charged in the indictment, a very serious question would be presented, but such is not the case. Omitting the formal parts, the indictment reads as follows: “ * * * that on or about the 13th day of May, A.D., 1940, and anterior to the presentment of this indictment, in the County of Bexar and State of Texas, Jose Garcia did then and there unlawfully and knowingly have in the possession of him, the said Jose Garcia, for sale and did keep for sale and did sell and distribute a pamphlet and magazine, to-wit, 'Confessions of a Young Venus , devoted mainly to the publication of scandals, whoring, lechery, assignations, intrigues between men and women, and immoral conduct of persons, etc.”

Article 527, P.C.1925, provides as follows : ■ “Whoever shall within this State engage in the business of editing, publishing or disseminating any newspaper, pamphlet, magazine, or any printed paper devoted mainly to the publications of scandals, whoring, lechery, assignations, intrigues between men and women and immoral conduct of persons; or shall knowingly have in his possession for sale, or shall keep for sale or distribute or in any way assist in the sale or shall give away any such newspaper, pamphlet, magazine or printed matter in this State shall be confined in the penitentiary not less than two nor more than five years.”

It appears to us that the indictment charges several offenses in one count and by reason thereof it would have been subject to a motion to quash on the ground of duplicity, but such a motion was not made; hence the question of duplicity passes out of the case.

The court in his charge submitted the' case to the jury upon every offense charged in the indictment, including the defective one charging a sale of the obscene pamphlet. The jury returned a general verdict finding appellant guilty as charged in the indictment and assessed his punishment at confinement in the state penitentiary for a term of two years, the minimum punishment prescribed by law for said offense. Upon said verdict the court adjudged appellant guilty of the offense of sale of an immoral publication. We think in this the learned trial court committed an error because the charge in the indictment of a sale of an immoral publication was totally defective and would not sustain a conviction. However, the charge of knowingly having in his possession for sale and also the charge of keeping for sale and distribution of the obscene pamphlet were sufficient and amply supported by the evidence to justify and sustain his conviction. If the court had applied the verdict to the count charging appellant with knowingly having in his possession for the purpose of sale the obscene literature, the judgment would have found support in the verdict of the jury. Consequently, under Art. 847, C.C.P., and the authority of Rozier v. State, 90 Tex.Cr.R. 337, 234 S.W. 666, the judgment will be reformed so as to adjudge appellant guilty of knowingly having in his possession for the purpose of sale an immoral publication.

The motion for rehearing will 'be overruled but the judgment and sentence will be reformed in the manner stated.

PER CURIAM.

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


text:
    CASTILLO v. STATE.
    No. 21434.
    Court of Criminal Appeals of Texas.
    March 26, 1941.
    Julian La Crosse, of Del Rio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Upon reconsideration of this case the original opinion is withdrawn and the following substituted in lieu thereof.

Appellant was charged by complaint and _ information with having in her possession, “an illicit alcoholic beverage containing more than one half of one per cent of alcohol by volume, and capable of use for beverage purposes alone and when diluted, to-wit, mescal, in a container to which no tax stamp showing the payment of the tax on said beverage due to the State of Texas was affixed, and to which so unstamped container no valid evidence was affixed showing the payment of the tax on such beverage due to the State of Texas.”

The penalty assessed by the jury’s verdict was thirty days in jail.

A representative of the Liquor Control Board testified that he and a deputy sheriff went to the home of appellant on May 7, 1940, in the city of Del Rio and asked for permission to search for mescal. This was granted, and four gallons of mescal were found in the northeast corner of her bedroom under a trap door in the floor. The trap door was hidden by a trunk. Later they found a gallon jug with some mescal in it in another room. The officers had a search warrant, but, having secured the permission of appellant to search her house, they did not present their search warrant.

The evidence details fully the finding of the mescal in containers named, but there is no evidence found in the record which states, or even indicates, that there was no stamp showing the payment of taxes due the State of Texas or evidence thereof, as charged in the complaint and information. The State has wholly failed to offer proof upon which the jury.would be warranted in returning a verdict of guilty under the charge.

Other questions raised in the appeal will not likely occur upon another trial. The judgment of the trial court is reversed and the cause remanded. The, state’s motion for rehearing is overruled.


author: GRAVES, Judge. KRUEGER, Judge. CHRISTIAN, Judge.

text:
    HENRY v. STATE.
    No. 21477.
    Court of Criminal Appeals of Texas.
    March 5, 1941.
    Rehearing Denied April 2, 1941.
    Application for Leave to File Second Motion for Rehearing Denied April 9, 1941.

      John Davenport and W. W. Ballard, both of Wichita Falls, for appellant.
    Millard Threet and James W. Harvey, Co. Atty., both of Archer City, McDonald & Anderson, of Wichita Falls, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

This is a companion case to Johnnie Ralph v. State, 148 S.W.2d 401, and J. C. Willis v. State, 148 S.W.2d 397. The appellant being convicted under Chapter Two of the Penal Code defining and punishing riots, and under Art. 467, P.C., the object of such riot having been alleged ■ not to have been accomplished, the punishment accorded appellant was imprisonment in the county jail for four months.

Appellant raises the/ question of a demanded severance herein and its refusal by the trial court as the basis of his first bill of exceptions.

It is noted that from the bill presented to us, and the testimony taken at the time of the hearing of this motion, that there was filed such a motion in a companion case of Jackson v. State, he being charged with the commission of the same offense as was this appellant, together with many others. In the hearing of that motion for a severance it was agreed on the order of trial of J. L. Reese, T. J. Cossey, E. H. Pierce, Lloyd Henry and Sam Smith in the order named. Upon the calling of the companion case of J. L. Reese, upon motion of the State, the court dismissed said cause from the docket. It was then shown that T. J. Cossey was not charged in any court with this offense of rioting, thus disposing of his preference. E. H. Pierce’s case was next called by the court, and he agreed to go to trial; whereupon the State’s attorney moved to dismiss the case against E. H. Pierce. Appellant’s case was next called, and he'was asked if he was now ready, with these other men out of the way, and he answered that he was. The State announced ready in this instant case, and so did the appellant, and this cause proceeded to trial.

We might gather from the record that, as an afterthought from the above outlined proceedings, the appellant filed a severance motion in his case, not in consonance with the one agreed to by him in the Jackson matter. If such be true, then we find a statement'herein that these two defendants being unable to agree upon their precedence in the matter of a trial, the court ordered appellant to trial first, and overruled the motion of appellant for a severance. See Art. 652, C.C.P. It is also to be noted that no order of trial is mentioned in the motion filed by appellant, which gives a further effect of Art. 652, C.C.P. We also find that the State’s attorneys were within their statutory rights when they dismissed the cases as to the other defendants named in the order of preference. See Art. 653, C.C.P.

Bill of, exceptions No. 8 relates to the trial court overruling the appellant’s motion for a new trial, and embodied therein seems to be the entire testimony taken upon the hearing of such motion, based upon alleged misconduct of the jury. From such testimony it can be gathered that, upon the jury retiring to their room to deliberate, a juror said that he wondered why the defendant did not take the witness stand; that another juror said he also wondered why; that at such time a third juror said that they could not consider that; the jury had been instructed not to consider that; and that no further reference was made thereto, and said jurors stated that they did not further discuss nor consider such fact.

Not every casual reference to a defendant’s failure to testify constitutes reversible error, and the cases so holding are numerous. Mullins v. State, 124 Tex.Cr.R. 368, 61 S.W.2d 829; Sowell v. State, 126 Tex.Cr.R. 138, 70 S.W.2d 422; Camp v. State, 130 Tex.Cr.R. 280, 93 S.W.2d 1142; Day v. State, 120 Tex.Cr.R. 17, 48 S.W.2d 266; Jenkins v. State, 49 Tex.Cr.R. 457, 93 S.W. 726, 122 Am.St.Rep. 809; Combs v. State, 102 Tex.Cr.R. 633, 277 S.W. 1087; Carter v. State, 102 Tex.Cr.R. 517, 278 S.W. 840, and many other cases.

There are many bills of exceptions relative to the refusal of certain special charges, as well as many objections and exceptions to the court’s charge. In each instance it is necessary that we be properly informed as to the facts in the case in order to be able to fully understand the matters set forth in such exceptions. We can not consider the statement of facts because same does not appear to have been signed and approved by the county judge, nor does the same appear to be agreed to by appellant’s attorneys. No signature nor approval appears thereon of such judge. See Art. 760, § 2, C.C.P. Vernon’s Ann.C.C.P. art. 760, subd. 2. Hence the instrument presented will not be considered by us, and we are therefore left with no statement of facts, and can not review the bills of exceptions relative to the court’s charge. See Thompson v. State, Tex.Cr.App., 79 S.W.2d 867; Pinkston v. State, Tex.Cr.App., 81 S.W.2d 530; Robertson v. State, 127 Tex.Cr.R. 648, 78 S.W.2d 964; Allison v. State, 127 Tex.Cr.R. 322, 76 S.W.2d 527; Id., 296 U.S. 717, 55 S.Ct. 828, 79 L.Ed. 1672.

Bill No. 9 relates to the introduction of certain photographs of a certain car, and one of a person named Lawson who appeared to be injured in the objected to photograph. These photographs were testified to by the taker thereof as a correct representation of the things and person as such existed soon after the occurrence charged herein as being unlawful, and were also connected up with the riot that hád happened a short time prior to the taking of such pictures.

Mr. Branch in his Penal Code says, page 1032, § 1857: “If a photograph would serve to illustrate any fact in the case or to shed light upon the transaction, it is admissible in evidence, but it is not admissible if it is neither necessary or instructive and when it would only tend to inflame the minds of the jury or tend to create confusion,” citing numerous authorities.

There are numerous citations also found under Art. 703, note 127, Vernon’s Annotated C.C.P., Vol. 2. We find no error in such bill as presented to us.

We are also of the opinion that this record as presented to us evidences no error, and the judgment is accordingly affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

In his motion for rehearing appellant vigorously psserts that we erred in two respects in our original opinion delivered in this case: First, in holding that there were two motions for a severance by the defendants who failed to agree as to who should be first tried and therefore the court was authorized to direct, as he did, the order of the trial; and second, because we overruled his contention that the trial court committed error in declining to give his requested instruction to require the jury to first find whether appellant had participated in an unlawful assembly and then determine whether he was guilty of engaging in a riot.

We will discuss each of the con-. tentions in the order presented. However, before beginning the discussion of the questions, we deem it proper to state that since the original opinion was delivered by this court appellant has caused to be filed a supplemental transcript in which all the proceedings and discussions had in the trial court, together with all agreements between the State and the appellant, are fully set forth. It appears from the supplemental transcript that when Cause No. 2415, styled State of Texas v. Jim Jackson, was called for trial, he (Jackson) made a verbal motion for a severance with the request that same be reduced to writing by the court reporter and then verified by Jackson and filed as of that time of the proceeding, to which the State and the court agreed. In the motion for a severance, which was subsequently reduced to writing but never verified by Jackson, he indicated the order in which he desired the trial of the following co-defendants to proceed, to-wit: (1st) J. L. Reese, (2nd) T. J. Cossey, (3rd) E. IT. Pierce, (4th) Lloyd Henry, and (5th) Sam Smith. Thereupon, the State inquired of J. L. Reese if he was ready for tidal, to which he replied'that he was. The County Attorney then moved to dismiss the State’s case against Reese, as well as Cossey and Pierce which motion was granted. Then the case against the appellant (Lloyd Henry) was called, and he was asked if he was ready for trial, to which he replied that he was, whereupon the State and the appellant both announced ready and proceeded with the trial. This being true, appellant has no just ground of complaint even though the order of- trial as indicated by him or by any of the co-defendants was not followed. Insofar as the appellant was concerned, he had a right to waive the order of trial. The record fails to disclose that any motion to withdraw such an annouuncement was thereafter made. Under the circumstances, appellant’s contention that he was denied the order of trial as indicated .by him is without merit. See Landry v. State, 96 Tex.Cr.R. 350, 257 S.W. 561; Rueda v. State, 101 Tex.Cr.R. 651, 277 S.W. 116.

We will now discuss appellant’s second contention as hereinabove indicated. It is our opinion that appellant was not entitled to the requested instruction to require the jury to make a separate finding as to whether appellant and others .engaged in an unlawful assembly. The indictment in this case contains but one count in which it was charged that the appellant and others therein named unlawfully assembled to do an illegal act, specifying it, which constituted a riot as defined by Articles 455 and 464 of the Penal Code. An unlawful assembly is a separate and distinct offense from that of a riot and is fully defined by Article 439, P.C. The punishment prescribed for that offense is different from that prescribed for the offense of riot.

In the instant case, the evidence shows that appellant and his co-defendants, by a pre-arrangement, met on the highway on the afternoon of the commission of the alleged offense and laid in wait for their victims who, when returning from the place where they had been engaged in their daily occupation, were set upon by the appellant and his confederates and severely beaten with wrenches, pick-handles, etc., which acts on the part of tie appellant and his co-defendants constituted a riot under the articles of the statute above referred to. Hence, it was the duty of the trial court in his charge to apply the law to the facts of the case and not to charge on an issue which is not supported by the evidence. Of course, an unlawful assembly is a necessary element of the offense of riot. Without an unlawful assembly there could be no riot within the meaning of the statute. The court is not required to instruct the jury to make a separate finding on each of the several elements constituting the offense. Under the court’s instruction the jury, in order to convict, were required to find that all the elements of the offense were proven beyond a reasonable doubt.

Believing that the case was properly disposed of on the original submission, the appellant’s 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.

On Appellant’s Application for Leave to File Second Motion for Rehearing.

CHRISTIAN, Judge.

After examining the appellant’s application for leave to file second motion for rehearing, we remain of opinion that proper disposition has been made of the appeal.

Appellant’s application for leave to file second motion for rehearing’ is denied.

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.