author: KRUEGER, Judge. GRAVES, Judge.

text:
    YOUNG v. STATE.
    No. 21029.
    Court of Criminal Appeals of Texas.
    May 1, 1940.
    Rehearing Denied June 19, 1940.

      Harry W. Flentge, of Gatesville, for appellant.
    Lloyd, W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is theft of property under the value of $5. The punishment assessed is a fine of $75.

Appellant first complains of the court’s action in overruling his motion to quash the complaint and. information on the ground that it does not give a definite description of the kind and quality of the tire alleged to have been stolen, nor does it give the factory number.

We note that the complaint and information charges that on or about the 19th day of December, 1938, Walter Young,' in the County of Coryell and State of Texas, did then and there unlawfully and fraudulently take one automobile tire of the value of $3.50, the same being the corporeal personal property of Kirby Hanes, without the consent, etc. We deem the description of the property sufficient. If he had been charged with stealing one suit of clothes, or one hat, it is oúr opinion that it would not be seriously contended that a more particular description of the property by collar size, etc., was necessary. This case is not like that of Scott v. State, 125 Tex.Cr.R. 396, 67 S.W.2d 1040. In that case, the property was merely described as “certain lubricating oil” without any averment as to the amount, quality or kind.

Appellant next challenges the sufficiency of the evidence to justify and sustain his conviction.

The State’s testimony shows that some one, without the knowledge or consent of Hanes, the owner, took a tire from his tractor. Hanes, who had written the serial number of his .tire on a piece of paper and preserved it, later found that tire on a wheel of appellant’s automobile. On the trial appellant admitted taking the tire but testified that he thought he had Hanes’ permission to do so. Bill of Exception No. 1 shows that on cross-examination he was asked if he did not state to the officers, in the presence of Hanes, when his possession of the tire was first questioned, that he had purchased it in Waco. He admitted making such statement. He said, however, that things got so “messed up” that he did not know what to say. Appellant objected to said testimony on the ground that he was under arrest at the time, or at least thought that he was, and not having been warned as .required by law, the State should not, on cross-examination of him, have elicited such statement. We are not in accord with his contention. The facts show that his statement to the officers was made contemporaneously with his arrest, if he was under arrest, at a time when his possession of the stolen property was first questioned. Hence, the same was admissible under the holding of this court in the case of Murrell v. State, 137 Tex.Cr.R. 92, 127 S.W.2d 896, and authorities there cited. See also Black v. State, 111 Tex.Cr.R. 372, 13 S.W.2d 100.

By Bill of Exception No. 2 appellant complains of the following testimony of the sheriff and his deputy: “While we were looking at the tire Mr. Young came up and said he bought the tire in Waco. Walter Young said he got it over at Waco on Elm Street; he had forgotten the name of the place, and I said: Well, get in my car and we will be over there in just a little while.’ ”

The deputy testified in substance to the same statement. Appellant objected to this statement on the ground that he was under arrest at the time; that the statement was not reduced to writing and signed by him, nor had he been warned as required by Art. 727, C.C.P. We are of the opinion that this statement was made when appellant was found in possession of the stolen property and his'possession of it was first being questioned, and therefore comes within the rule announced in the case of Murrell v. State, supra. Whether or not appellant was under arrest was a disputed fact. If appellant was under the impression that he was under arrest he must have reached such a conclusion from both guilty knowledge and the presence of the officers. The mere presence of the officers alone would hardly cause an innocent man to believe that he was then and there under arrest. However, what we have heretofore said disposes of the question.

Appellant in his able brief has cited us to a number of authorities upon which he relies as supporting his contention. We have reviewed them all, but find ourselves unable to agree with him.

Finding no error in the record, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

Appellant vigorously attacks the jurisdiction of the county court to try this appellant, it being his contention that under the State Constitution the justice court has original and exclusive jurisdiction over all criminal cases where the fine that could be imposed does not exceed $200. He cites Art. 5, Sec. 16, and Art. 5, Sec. 19 of the State Constitution, Vernon’s Ann.St. The point he presents is interesting, and could occupy a large portion of this opinion except for the fact that same has been decided adversely to his contention in the Patterson case, Patterson v. State, 122 Tex.Cr.R. 502, 56 S.W.2d 458, and the Kugle case, Kugle v. State, 123 Tex.Cr.R. 440, 59 S.W.2d 417, which cases we utilize in overruling his contention.

Again appellant contends that the complaint and information are fatally defective in that they did not describe the number that was on the automobile tire alleged to have been stolen, his further contention being that such number was known to the sheriff, and therefore under Art. 403, C.C.P., it was necessary to state the number, if known, in the pleadings. We held in Baker v. State, 113 Tex.Cr.R. 589, 22 S.W.2d 936, as follows: “The indictment describes the alleged stolen property as ‘one 34-7 Goodyear Diamond tread casing of the value of $60.15; one inner tube of the value of $7.60; and one rim of the value of $3.25.’ It is claimed that this description of the property was too vague and indefinite to put the defendant upon notice of what he was charged with stealing. It is only required under article 403, C.C.P., that property be described by name, kind, quality, number, and ownership. Taking these allegations as a whole, we do not think the appellant could have possibly understood that he was charged with stealing an oil-well casing, as contended. In our opinion, the description of the property was sufficiently definite. Grissom v. State, 40 Tex.Cr.R. [146] 147, 49 S.W. 93; Campbell v. State, 61 Tex.Cr.R. 504, 135 S.W. 548.”

Appellant contends that this matter relative to the auto tire was a civil dispute, and that the testimony shows no criminality upon the part of Young; that all Young’s dealings were out in the open, and evidenced no fraud nor intent to steal. Unfortunately for Young, when his connection with this tire was first challenged he admittedly told that which was not true, and evidently tried to deceive as to where he had obtained the tire, stating on the witness stand that his explanation of where he had obtained this tire was untrue, which false statement evidently had great weight with the jury relative to his honest possession of this allegedly stolen article. As we have heretofore held in the original opinion, we think his statement as to where he had obtained the tire, as testified to by the officers, was admissible, and had weight with the jury in destroying his later claim of a possession in good faith.

The motion is overruled.


source: Caselaw Access Project

author: GRAVES, Judge. CHRISTIAN, Judge.

license: Public Domain

text:
    WOODS v. STATE.
    No. 20969.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    Rehearing Denied June 26, 1940.
    Callaway & Callaway, of Brownwood, for appellant.
    D. P. Parker, Co. Atty., of Comanche, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was fined by a jury the sum of $200 for the illegal transportation of whis-ky in a dry area, hence this appeal.

There is but one proposition urged in the brief of appellant upon which a- reversal is sought.

It appears from the record that on June 5, 1909, an election was held in and for Comanche County, Texas, at which election this county voted itself into what is now termed a dry area, and an agreement is found in the statement of facts that such county is now a dry area by virtue of such election. The complaint and information allege that appellant thereafterwards on, to-wit: June 5, 1939, did unlawfully transport intoxicating liquor, to-wit: whisky, in such area. It will be observed that the date of the alleged commission of this offense was exactly thirty years after the alleged date of the election that resulted in Comanche County being declared a dry area.

Our attention is called to an error in the court’s charge in that when applying the law to the facts, it is said, among other things: “ * * * and if you further believe from the evidence beyond a reasonable doubt that the defendant R. D. Woods, in Comanche County, Texas, on or about the Sth day of June, 1909, did unlawfully transport whiskey, as charged in the information,” etc. It is contended that this evidently clerical error renders this conviction void because it is shown that the offense mentioned in this clause of the court’s charge was thirty years old and therefore long since barred by the statute of limitations. This mistaken date is so palpably a typographical error we feel sure it could have had no influence upon this jury, who certainly knew from the evidence that this man was being tried for an offense said to have been committed on June 5, 1939. The complaint and information both set forth the date of this alleged offense as June 5, 1939, and the date of the election as June S, 1909, and the court’s charge in its beginning reads as follows : “The defendant stands charged by information with the offense of transporting liquor in a dry area in violation of law, the offense is alleged to have been committed in Comanche County, Texas, on or about the Sth day of June, 1939, by the transportation of the following type of liquor: to-wit, whiskey, after an election had been held on the 5th day of June, 1909, by the qualified voters of said Comanche County, Texas, in accordance with law,” etc.

We do not find any written objections nor exceptions to the court’s charge as is required by law, but merely find a bill of exceptions to that portion of the court’s charge in which the mistaken date of 1909 is inserted, which bill was filed on December IS, 1939. It is also shown that this cause was tried on July 12, 1939, and it therefore seems that no written objections were filed to the court’s charge at the time same was presented to the jury, and none filed thereafter for 125 days, and this objection therefore comes too late.

We long ago held in the case of McShan v. State, 97 Tex.Cr.R. 164, 261 S.W. 142, 143: “Bill of exceptions No. 4 sets out that the court failed to charge all the law applicable to the facts in evidence in that the evidence raised the issue of alibi, and further recites that — ‘At the time of said trial defendant excepted to said charge because of the above-mentioned defect therein, and now tenders this his bill of exception and asks that the same be approved,’ etc. There nowhere appears in the record any written exception to the court’s charge such as is clearly required by the terms of article 735, C.C.P. [Vernon’s Ann.C.C.P. art. 658]. It is there stated that one desiring to except to the charge of the court must do so in writing pointing out specifically the error objected to. In addition to the fact that the record in this case fails to show that any exception in writing to the charge was presented, the bill under consideration nowhere states that an exception in writing was taken. A bill of exceptions merely setting forth the fact that defendant excepted to the charge will not be sufficient to justify this court in concluding that the exception was in writing as the law requires, but on the contrary this court will be compelled to believe that the exception was not in accordance with the statute.” For many other authorities, see Vernon’s Annotated Criminal Statutes, C.C.P., Vol. 2, p. 323 et seq.

The record itself evidences the fact that no written objections no,r exceptions were filed with the trial court at the time of the trial. Had such been done, doubtless the court would have corrected this palpably clerical error, and under the circumstances we do not think the jury could have possibly been misled as to the date of the commission of the alleged offense.

This is the only matter offered us in appellant’s brief.

The judgment is affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

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


author: GRAVES, Judge. HAWKINS, Presiding Judge.

text:
    Ex parte PATTERSON.
    No. 20996.
    Court of Criminal Appeals of Texas.
    May 1, 1940.
    Rehearing Denied June 19, 1940.

      G. C. Harris, of Greenville, for appellant.
    Gerald Mann, Atty. Gen. of Texas, Cecil C. Rotsch, Asst. Atty. Gen., Reginald Bracewell, Dist. Atty., of Huntsville, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Relator was convicted in 1934 in causes Nos. 9430, 9431 and 9432 in the District Court of Walkert County of the offenses of aiding prisoner to escape, and, waiving a jury, was tried before the court on a plea of' guilty in each instance and sentenced in each case to serve five years in the penitentiary. There is shown by un-contradicted testimony that the relator’s sentences in causes Nos. 9431 and 9432 were made cumulative by the court in orally sentencing relator, and that he was informed by the trial court that he was to be sentenced to a total term of fifteen years in the penitentiary. The district .clerk was thus directed to prepare the minutes in these causes. At the same time the district attorney prepared and had the clerk sign the commitment or mittimus to the prison authorities, setting forth the confinement of relator in causes Nos. 9431 and 9432 as cumulative of cause 9430. The district clerk, — who was serving her first term, and also in attendance upon her first term of court, although directed by the court to enter in the minutes these last two sentences as cumulative of the first, — failed to so record the same in the minutes of the court. Sometime thereafter, and about the time that relator had served the time set forth in his sentence in cause No. 9430, the first cause, it was discovered that the minutes of the court in the two last causes had failed to show the cumulation of these sentences, and upon the hearing of a writ of habeas corpus before Judge H. F. Kirby, in another and different district from the one which included Walker County, the relator was ordered discharged from prison custody. In the meantime the State had filed and there was pending in the Walker County District Court a motion nunc pro tunc seeking to correct the court’s minutes in causes Nos. 9431 and 9432 in order that they might speak the truth and reflect the actual sentence pronounced upon relator at the time of his conviction. A notice of the filing of this motion was served upon relator, but for some reason same was not heard immediately, but at its eventual hearing relator was not present, but was represented by counsel; testimony was heard, and the record was there corrected so as to make it speak the truth relative to such sentences. This the court had a right to do under the doctrine laid down in the late case of Ex parte Mattox, 137 Tex.Cr.R. 380, 129 S.W.2d 641, 644. In that case the judgment 'and sentence evidenced the fact that the relator Mattox had entered a plea of guilty before the court in a capital case, which could not be done under the statute. The true facts, however, showed that the count charging the' capital offense in the indictment had been dismissed, and the conviction was had upon the felony less than capital. Upon proper application, the minutes of the court reflecting the sentence were corrected now for then, and made to speak the truth. They were made to show that the conviction and sentence were for the felony less than capital. As to the power of the court tó correct its judgment and sentence we therein said: “As to the power of the District Court of Orange County in the premises we entertain no doubt. The holding of this court in Bennett v. State, 80 Tex.Cr.R. 652, 194 S.W. 145, 148, 150, seems decisive on the point at issue. We quote from the opinion as follows: ‘According to the entry in the court’s minutes of December 30, 1916, the judgment rendered on the 22d of April, 1916, was not entered of record. It is true that at that time the deputy clerk wrote upon the minutes what purported to be the judgment of the court, but the court on December 30, 1916, judicially determined that the judgment so entered did not speak the truth, and, to the end that the proper judgment might be entered of recbrd, he directed the entry of the true judgment of the court at that time. It was the court’s duty to enter in the minutes of the court a true record of the judgment rendered. 2 Vernon’s Crim.Statutes,.art. 853 (Vernon’s Ann.C.C.P. art. 766). Failing to make such record at that time, article 2015, Vernon’s Civil Statutes (Vernon’s Ann. Civ. St. art. 2228), gave the court authority to amend the record according to the truth. This authority existed by the inherent power to so correct its minutes at a subsequent term. Burnett v. State, 14 Tex. 455, 65 Am.Dec. 131; Rhodes v. State, 29 Tex. 188; Ximenes v. Ximenes, 43 Tex. 458; Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040; Michie’s Civil Digest, vol. 11, p. 106, and cases cited in Cyc., vol. 11, p. 764; authorities cited in note, Wardell v. Williams, 62 Mich. 50, 28 N.W. 796, 4 Am. St.Rep. [814], 820; Chester v. Graves, 159 Ky. 244, 166 S.W. 998, Ann.Cas.1915D, 678, and note, page 681, citing numerous cases from various jurisdictions.’ ”

Also see Rios v. State, 79 Tex.Cr.R. 89, 183 S.W. 151; Cleveland v. State, 128 Tex.Cr.R. 552, 82 S.W.2d 974; Rehm v. State, 131 Tex.Cr.R. 268, 97 S.W.2d 956; Art. 772, C.C.P.; 12 Tex.Jur., p. 713, from which we quote: “The act applies and permits the entry of a nunc pro tunc judgment in cases where the judgment as originally entered does not in fact express the judgment rendered, and where the clerk has made a mistake in entering a sentence in the minutes.”

It seems that the basis of all such powers is that the orders or minutes thereof may be made to speak the truth relative to the occurrences about which the minutes purport to speak; there can not be a correction of what should have been done, but can only be a correction to make the minutes show what was actually done at the time.

'Again, however, it is said by relator that he was not present at the hearing of the motion to correct such minutes, and therefore such proceeding was a nullity under the doctrine that in all felony cases the accused must be personally present at each and every proceeding in the case. It is shown by the record that relator had been properly served with notice of the State’s attorney to have these allegedly incorrect minutes corrected so that they speak the truth, and it is further shown that relator was at large at such time, neither under bond nor in custody, and so remained for a term of about seven months. We think he was entitled to a notice of the filing of such proceedings, and that he had a right to be present, if he so desired, at the hearing and contest the same, but we do not think his presence at the hearing was necessary to any greater degree than was his presence at the entering of the original minutes desired to be corrected. It can not be contended that it was necessary that relator should have been actually present at the time such minutes were entered by the clerk, nor signed by the trial court. If such should be held necessary, then an accused by voluntarily absenting himself could preclude the entry of such minutes for any length of time. It is shown that the relator was absent from Huntsville, the county seat of Walker County, on his own volition, — although he had notice of the pending of the motion to correct such minutes, — for about seven months, and that for a period of such time his whereabouts were unknown even to his wife; that she received an additional notice of the setting of the matter relative to the correction of these minutes, and communicated with the attorney representing the relator herein, and instructed him to appear on behalf of relator, and he did appear at such hearing. We think that under the circumstances the notice of the pendency of such motion having been properly served upon relator, that it was his duty to keep himself informed of the proCeedings and setting thereof. It is also worthy of note that the relator’s attorney appeared at such hearing, and appealed to this court after an unfavorable judgment on the part of the trial court on such motion, .which appeal was by this court dismissed. See Patterson v. State, 136 Tex.Cr.R. 581, 127 S.W.2d 300.

“The absence of the accused at some stage of the proceedings does not in every instance require a reversal.” Boatright v. State, 118 Tex.Cr.R. 547, 42 S.W.2d 422, 424, and many cases there cited.

It is also contended that because of the fact that during the pendency of the motion to correct the minutes, and while same failed to show a- cumulative sentence, the relator had a hearing under a writ of habeas corpus granted by Judge Fountain Kirby, a judge of an adjoining district, at which hearing he was ordered discharged from the custody of the State.prison officials, and he was by them at such time discharged from further confinement. We are , of the opinion that the hearing of this writ should have been had in the county where the indictment was had and tried, Walker County,-under the statute, Art. 118, C.C.P., which declares : “Before indictment found, the writ [of habeas corpus] may be made returnable to any county in the State.”

However Art. 119, C.C.P., declares that: “After indictment found, the-writ [of ha-beas corpus] must be made returnable in the county where the offense has been committed, on account of which the applicant stands indicted.” ■ -

While Judge Kirby had the right under the statute to grant the writ, he should have made the same returnable to the district court of Walker County. See Ex parte Trader, 24 Tex.Cr.App. 393, 6 S.W. 533; Ex parte Ainsworth, 27 Tex. 731; Ex parte Springfield, 28 Tex.Cr.App. 27, 11 S.W. 677; Ex parte Overcash, 65 Tex.Cr.R. 67, 134 S.W. 700; Ex parte Andrus, 69 Tex.Cr.R. 183, 153 S.W. 621. Undefi these decisions we are impressed with the fact that Judge Kirby had no right to try the matters presented by the relator’s application for the writ of habeas'corpus; but should have made the said writ returnable' to Walker County. However the facts at the time of this hearing probably justified the court in discharging the relator under the record as presented to him, but be that as it may, when the minutes were made to speak the truth, a different situation presents itself.

We have granted the correctness of the proposition that the court has 'the power to correct its sentence so that same be made to speak the truth, and we also observe that ¡relator is not here now being held by reason of or on account of the orders, sentences or judgments that were presented to and passed upon by Judge Kirby; rather he is being now held by the true and correct orders, sentences and judgments as same were originally declared by the proper court, and passed upon him at the actual time of his trial, which were incorrectly passed into the minuLes.

It is insisted by relator that the order of Judge Kirby directing his release from the penitentiary was a valid order, forever settling his status relative to "these three cases, and is res adjudicata of the matter relative to. his further confinement on the two latter cases 'Nos. 9431 and 9432.- We do not agree with his conclusion.

This doctrine was again enunciated in Bennett v. State, 80 Tex.Cr.R. 652, 194 S.W. 145, 148, 151, as follows: “It is urged by the state that an appeal from a judgment ■entered' nunc pro tunc is not maintainable except in cases where it is entered in lieu of a void judgment, or in cases where no judgment is entered at all. Article 859, C. C.P., provides, that, where there is a failure to enter judgment or pronounce sentence upon conviction during the term, judgment and sentence may be pronounced at any succeeding term. We think there is no doubt of the court’s power to enter a judgment nunc pro tunc independent of this statute. However, it is difficult to understand why the facts of this case should not bring it under the terms of. the statute last mentioned. In the case of Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, the Supreme Court sustained the entry of a judgment nunc pro tunc after six years in a case where there had been an omission in .the original judgment of an item of $1,800; and, as we understand the case of Rios v. State [79 Tex.Cr.R. 89], 183 S.W. 151, it construes article 859 to apply to a case where there is a judgment written on the minutes which does not in fact express the judgment rendered. In the Rios Case the judgment originally rendered inserted the name of Clarence Lenier instead of Jeorge Rios, the defendant on trial. After a dismissal of the appeal the judgment was amended by rewriting in the minutes of the court a correct entry. This court held that, under article 859, this was' proper procedure.”

• In the case of Ex parte Beeler, 41 Tex.Cr.R. 240, 241, 53 S.W. 857, an error was made relative to the name of Charles A. Beeler, and the name of J. T. Evans was inadvertently inserted in one place in the sentence. That this was a mere irregularity and could be corrected by means of a nunc pro tunc proceeding the court held, and further that the matter was not a subject for the granting of the writ of habeas corpus. We quote therefrom: “Appellant insists that the judgment or final sentence, on account of the misnomer therein, rendered the same absolutely void, and therefore the writ of habeas corpus is the proper remedy. We cannot agree to this contention. The insertion of the name 'J. T. Evans’ instead of ‘Charles A. Beeler’ where it occurs in said sentence is merely an irregularity, and the order itself, taking the whole of it together, is sufficient to authorize a correction. (This is not a case where the wrong party was sentenced, for it is conceded that Beeler was the party brought before the court and sentenced.) If an ap-pieal had been prosecuted from the judgment of the lower court, and this error in the entry of the name in the record had been pointed out, this court would have either dismissed-the case for want of a proper sentence, or the entry would have been amended here. Code Cr.Proc. art. 904; Small v. State (Tex.Cr.App.) 38 S.W. [798], 799; Bullard v. State [40 Tex.Cr.R. 270], 50 S.W. 348. If tíre case had been dismissed for want of a proper sentence, it would have been competent for the lower court to have amended the sentence by an entry nunc pro tunc, or, if no sentence had been passed on defendant, it would have been competent for the court to pass sentence on him at a subsequent term. Code Cr.Proc. art. 837. All this indicates unmistakably that the complaint here, upon which the habeas corpus was sued out, was a clerical error and a there irregularity, and the writ of habeas corpus cannot be used to revise irregularities. It can only be resorted to where the judgment is absolutely void. On this subject we 'quote from Hurd on Habeas Corpus as follows:' ‘A proceeding -defective for irregularity and one void for illegality may be revised upon error’ or 'certiorari, but it is the latter defect only which gives authority to discharge ori habeas corpus. 'An irregularity 'is defined to be a want of adherence to ’some prescribed rule or mode of proceeding, arid it 'consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unreasonable time or improper manner. Illegality is properly predicable of radical, defects only, and signifies that which is contrary to the principles of law as distinguished from mere rules of procedure. It denotes a complete defect in the proceedings.’ Hurd, Hab.Corp. 333; Church, Hab.Corp. §§ 370, 373; Perry v. State, 41 Tex. [488], 490; Ex parte Scwartz, 2 Tex.App. 74; Ex parte Boland, 11 Tex.App. 159; Ex parte Reynolds, 35 Tex.Cr.R. 437,.34 S.W. 120 [60 Am.St.Rep. 54], We accordingly hold that appellant was not entitled to the writ of habeas corpus.”

In our final conclusion of this matter we hold that this, trial court had the power to correct the mistake made in its minutes, and to make the same speak the truth; that the relator had notice of the filing and pendency of such a motion; he being enlarged from custody, it was his duty to take notice of the hearing'of such motion, and his voluntary, absence at the' time of the final hearing did not render such hearing void; that the hearing had by Judge Kirby was not an adjudication of the matter now before this court, and' that the trial court was correct in its judgment in refusing relator his discharge in cause's Nos. 9431 and 9432, as prayed for herein.

The -judgment is therefore affirmed.

BEAUCHAMP, J., not sitting in this cause.

On Motion for Rehearing'.

HAWKINS, Presiding Judge.

Because of the somewhat novel legal questions presented this case had our most careful consideration on original submission.

It is contended by relator that we were in error in holding that Art. 119, C.C.P., applied in the present instance, and that the writ of habeas corpus should have been made returnable to the court where the conviction occurred. We still incline to the view that our holding was correct, but do not deem it necessary to consider the question further because if such contention be correct, nevertheless, under the record relator was properly remanded under the corrected minutes of the trial court.

The motion for rehearing is overruled.


author: HAWKINS, Presiding Judge..

text:
    PRUITT v. STATE.
    No. 21142.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge..

Conviction is for burglary, punishment assessed being two years in the penitentiary.

We observe no defect in the indictment. The record is before this court without statement of facts or bills of exception. In such condition nothing is presented for review.

.The judgment is affirmed.


author: HAWKINS, Presiding Judge.

text:
    WINTERS v. STATE.
    No. 21132.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    Earl Shelton, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for aggravated assault, punishment assessed being sixty days in jail.

The indictment properly charges the offense. No statement of facts or bills of exception are brought forward. The only complaint is at the refusal of two requested charges, and some exceptions to the instructions of the court to the jury. In the absence of the facts we are not able to appraise^ any of the matters brought forward in the manner indicated.

The judgment is affirmed.


text:
    SEELY v. STATE.
    No. 21009.
    Court of Criminal Appeals of Texas.
    May 1, 1940.
    Rehearing Denied June 19, 1940.
    V. M. Toomey and King C. Haynie, both of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

Appellant’s first complaint is that the court erred in overruling his motion to quash the indictment. He contends first: that the instrument charged to have been forged is denominated a check and also a warrant which renders the indictment repugnant. Second, that it charges appellant made a false instrument in writing and also charges that he merely indorsed an otherwise valid instrument. Third, that it fails to charge in what way the indorsement created a pecuniary obligation, nor does it charge whose pecuniary obligation was created.

It occurs to us that it does not make any difference whether the instrument was denominated in the indictment as a check or warrant or both, since the instrument is set out in haec verba in the indictment and shows upon its face to be a negotiable instrument transferable by in-dorsement. However, the only place in which we find the word “warrant” in the indictment is in the copy of the alleged forged instrument where the words “Benefit Account Treasury Warrant of Public Accounts” appear. In our opinion, this question has been, at least by analogy, disposed of in the case of Dailey v. State, 135 Tex.Cr.R. 655, 122 S.W.2d 628, and we see no need of discussing any of the other contentions further than to say that the indictment, in our opinion, is sufficient.

Appellant’s next contention is that the evidence is insufficient to warrant and sustain his conviction. The record before us shows that in the month of March, 1939, Alvin P. Trevino was entitled to unemployment compensation out of the social security fund of this state. The Comptroller of Public Accounts drew a treasury warrant against said fund in the sum of $15, which was duly countersigned by the State Treasurer and forwarded by mail to Alvin P. Trevino at Houston, Texas. Trevino was at that time, and for some time subsequent thereto, confined in a hospital as a result of a serious injury. Appellant, who had lived in the same house with Trevino prior to the time Trevino was taken to the hospital, visited him several times prior to the 6th day of April, 1939. Trevino gave his social security card, bearing a certain number, to appellant and requested him to bring his, Trevino’s, mail to him as he expected some checks. Appellant failed to bring any mail. On the first occasion after the request, appellant told Trevino that there was not any mail or any checks. On another occasion he said that the law had been changed and the checks would be sent out every two weeks. From then on appellant ceased to visit Trevino. It was shown that the check in' question was duly issued in the. sum of $15, payable to Trevino, and bore the name of Alvin P. Trevino as indorser on the back, thereof. Trevino testified that he did not indorse the same, nor did he authorize the appellant or anyone else to indorse it.

Mr. Rex W. Wheeler, a teller in the Second National Bank of Houston, testified that the check was presented to him for payment. That while he had no independent recollection of the transaction or who cashed it, he noticed that it bore his stamp. He further testified that. the check in question indicated that it was not cashed on personal identification but by the number of the social security card, the number of which was written beneath the word "Claim No.” on the check and which corresponded with the number of the social security card issued to Trevino. Consequently, the person who presented the warrant to the teller of the bank for payment was at the time in possession of Trevino’s social security card. While no one actually saw the appellant write the name “Alvin P. Trevino” on the back of said warrant or check, the State had obtained a specimen of the appellant’s handwriting: An expert on handwriting testified that the indorsement on the back of the check was written by the same person who wrote the specimen proven to be in the appellant’s handwriting which was tendered for comparison. Appellant denied the entire charge. He takes the position that the forgery is established merely by comparison of handwriting and therefore is not sufficient to justify a conviction under Art. 731, C.C.P. If such were the case, his contention would be correct. However, in the instant case, we not only have the testimony of the expert on handwriting who compared the indorsement with’ the written instrument proved to have been written by appellant, but in addition thereto, the fact that Trevino gave his social security card, which bore the number 454032594, to appellant with the request that he, appellant, get Trevino’s mail and bring it to him. The teller of the Second National Bank testified that whoever presented the check to him for payment identified himself by the number of the social security card, which corresponded with the numbers written on the check which was the same as the above set forth number. From this record, it appears that appellant was the only man who at that time was in possession of Trevino’s card. Consequently, these additional facts and circumstances take the case out of the category of proof only by comparison of handwriting. See Jackson v. State, 81 Tex.Cr.R. 51, 193 S.W. 301, and authorities there cited. We deem the evidence sufficient.

Appellant in due time objected to the court’s charge relative to evidence of other offenses and the purpose for which it was admitted. , His objection thereto was that the court assumed and charged on a theory not raised by the evidence. The charge reads as follows: “If evidence has been admitted before you of other offenses alleged to have been committed by the defendant, then you are charged that such evidence was admitted solely for the purpose of affecting, if you believe it does affect, the credibility of the defendant as a witness and you will consider the same for no other purpose”, etc.

We do not construe the words, “If evidence has been admitted before you of other offenses alleged to have been committed” as an assumption on the part of the court that other offenses had actually been committed but merely that other offenses were alleged to have been committed. It occurs to us that the appellant’s contention is hypercritical.

Finding no reversible error in the record, the judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

Appellant insists that we were in error in" our original opinion in affirming this cause because he says' that a State warrant is not a negotiable instrument but merely an assignable one, and. therefore by inference it would not be the subject of forgery.

That the false endorsement of a payee’s name on the back of a State warrant is forgery, was heretofore held by this court in the case of Dreeben v. State, 71 Tex.Cr.R. 341, 162 S.W. 501, wherein it was held that the fraudulent endorsing of the name of the payee on a State Confederate Pension warrant was forgery under the statute. This case has not been overruled, and we think it is still the law. We think that the endorsement of Trevino’s name on the back of this instrument was the moving cause of the procuring of the' transfer of $15 in money to the person thus endorsing that name thereon, and did transfer to such person property of the value of $15, and such is denounced as a forgery by Art. 979, P.C.

As to the quantum of proof, this was a case depending upon circumstantial evidence, and while a comparison of handwriting alone ⅛ not sufficient upon which to base a verdict of guilt, we are of the opinion that it seems clear that the circumstances shown, together with the comparison of handwriting, is sufficient upon which to predicate this verdict.

The motion will be overruled.


author: CHRISTIAN, Judge. HAWKINS, Presiding Judge.

text:
    STILES v. STATE.
    No. 20674.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    Rehearing Denied June 12, 1940.

      Baker & Baker, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

Appellant was an employee of the Farmers Gin Company of Santa Anna, Texas, a corporation. On the 22nd of September, 1937, by virtue of his employment, appellant received $92.73 belonging to said incorporated company. According to the testimony of the state, appellant embezzled said money and appropriated it to his own use and benefit. Testifying in his own behalf, appellant admitted that he had taken the amount of money alleged in the indictment, but declared that W. E. Wallace,' the manager of the gin company, had authorized him to check on the account of said company. Appellant testified, in part, as follows: “Mr. Wallace said if I needed some money — it was along in August and almost time to start working at the gin, and he said that I could use some of the gin money, and to check on him — that is, against my wages to pay this insurance and for what I needed, and I told him that I would wait until I started to work at the gin and I did that. I told him I would do that. When I was writing this check I had that in view about his telling me that I could check on him. I believed that it was all right for me to do that. He told me that it was all right. I was relying on what he had formerly told me about it at the time.” In his testimony Mr. Wallace denied that he had given appellant authority to use the gin company’s money.

It appears from the testimony that the Farmers Gin Company was incorporated. The company operated two gins which were designated, apparently for convenience, Farmers Gin No. 1 and Farmers Gin No. 2. It is appellant’s contention that in view of the fact that the proof showed that he checked on the account of Farmers Gin No. 2 there is a variance between the proof and the averment in the jndictment that he embezzled money belonging to the Farmers Gin Company. We are unable to agree with appellant’s contention. The name of the corporation, as disclosed by the testimony, was the Farmers Gin Company of Santa Anna, Texas. As already stated, the corporation operated two gins under a single charter. It is manifest from the record that the money appellant is alleged to have embezzled was the property of the Farmers Gin Company of Santa Anna, Texas.

Appellant brings forward a bill of exception in which he complains of the introduction in evidence of a photostatic copy of the charter of the Farmers Gin Company of Santa Anna, Texas. Such photostatic copy bears the proper certificate of the Secretary of State. We deem it unnecessary to pass on appellant’s contention that a photostatic copy is not admissible in the absence of proof that it was accurate. We say this in view of the fact that the testimony discloses that an officer of the Farmers Gin Company testified, in part, as follows: “The Farmers Gin Company is a corporation. It was a corporation on the 22nd day of September, 1937." In his Annotated Texas Penal Code, Section 2610, Mr. Branch uses language as follows: “In a criminal case when the injured party is alleged to be a corporation, proof that it was a corporation may be made by oral testimony." In support of the text many authorities are cited, among them being Fleener v. State, 58 Ark. 98, 23 S.W. 1; Com. v. Whitman, 121 Mass. 361; Lowe v. State, 46 Ind. 305; State v. Jaynes, 78 N.C. 504.

Appellant made a motion to quash the indictment based upon the ground, among others, that it failed to designate which officer or agent of the corporation failed to give consent to the taking of the money in question. In Miller v. State, 92 Tex.Cr.R. 259, 242 S.W. 1040, whiph presented a conviction for embezzlement, this court held adversely to appellant’s contention. The indictment herein embraced a proper averment that appellant embezzled the money and converted it to his own use without the consent of the Farmers Gin Company, — an incorporated company — of Santa Anna, Texas.

Appellant filed a second application for continuance based upon the absence of several witnesses, one of whom was his wife. We advert alone to the testimony appellant expected to elicit from his wife. Bearing in mind that this is his second application for continuance, it is observed that, in qualifying the bill of exception relating to the overruling of the application, the court states, in effect, that appellant’s mother was present and gave testimony which was cumulative of the testimony which appellant alleged his wife would have given. Under the circumstances, the court was warranted in overruling the application. Furthermore, it is observed that appellant failed to attach to his motion for new trial the affidavit of his wife showing she would give' the testimony set forth in the application for continuance. In the absence of the affidavit the judicial discretion rested with the trial judge to determine whether the absent testimony was probably true in view of all the evidence heard during the trial. Tubb v. State, 109 Tex.Cr.R. 458, 5 S.W.2d 150. We think that under the testimony adduced upon the trial there was no abuse of discretion upon the part of the trial court in overruling ' the motion for new trial in so far as it was based upon the refusal of the court in the first instance to grant the application for continuance.

It is shown in bill of exception No. 14 that after eleven witnesses had testified that appellant’s general reputation for honesty and integrity was good, the court refused to permit appellant to introduce six other witnesses who would have given testimony to the same effect. The state does not appear to have cross-examined any of the character witnesses, and, further, it appears that no testimony was offered by the state to the effect that appellant’s general reputation in the respect mentioned was bad. It might be added that the bill of exception fails to show that the district attorney did not admit that appellant’s reputation was good. Under the holding of this court in Patella v. State, 106 Tex.Cr.R. 652, 294 S.W. 571, 572, we are constrained to overrule appellant’s contention that the bill of exception presents error. In that case the court said: “Bill No. 5 complains of the action of the court in limiting appellant’s 'character witnesses to the number of 5. The court qualifies this bill by stating that there was no attack made upon the reputation of the appellant, and this issue was not contested! This bill, as qualified, shows no error.”

In bill of exception .No. 7 complaint is made of the action of the court in refusing to permit appellant to prove by the state’s witness Brown that Elmo Wallace, a son of the manager of the gin, had given checks on the account of the gin company “for his (Elmo’s) own personal ■ use and benefit.” It is stated in the bill of exception that this testimony was offered by the appellant for the purpose of showing, that the alleged shortage in the gin account, which was estimated to be about $1,400', was due to’ the action of Elmo Wallace in checking bn the account for his own personal use. The court qualifies the bill of exception with the statement that he does not certify that the witness would have testified that Elmo Wallace had given the checks for his own personal use. Again, the qualification states -that said Elmo Wallace'had the authority and that it was his duty to give checks on the gin account in payment for cotton. Further, the qualification reads: “The $1,400 shortage was not brought but by the state but by the defendant.” In view of the fact that appellant proved in the first instance that there was a shortage of $1,400 in the gin account, and of the further fact that appellant admitted that he had gotten the $92.73 alleged in the indictment, we think the profferred testimony would not have aided the jury in solving any issue in the case. We must appraise the bill as qualified, as appellant failed to except to the qualification.

We have not undertaken to discuss all questions presented by the record. However, after examining all bills of exception, we are constrained to hold’ that reversible error is not presented.

The judgment is affirmed.

PER CÜRIAM.

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

On Motion for Rehearing.

HAWKINS, Presiding Judge.

Appellant insists that even if the testimony of his wife was cumulative of that of his mother, still it was error under the circumstances here present for the trial court to deny a second continuance sought because of the absence of'his wife on account of her illness. Appellant cites a number of cases to support his position. We find it unnecessary to review the said authorities because under the record we .think no-' reversible error may be predicated on the refusal of the continuance. Unless we entirely misapprehend the record, it reveals the following facts as it relates to the matter of the continuance.

It is stated in the application for continuance that appellant’s wife would testify that: “* * * she was present and heard a conversation between defendant and Ed Bartlett ‘at the gin, and that the said defendant did not tell Ed Bartlett that he had stolen the money of the gin company or the gin or anyone else, but that defendant told said Bartlett that if the books of the gin or gin company showed that he was short that he would pay for said shortage, whatever it was, but denied that he had stolen any money from the said gin or said gin company.”

The statement of facts shows that Ed Bartlett had more -than one conversation with appellant at the gin about the shortage. On one occasion Bartlett sent for appellant to come .to the 'gin, and there were present at the ensuing conversation Mr. Brown and Leon Bartlett, Ed Bartlett and appellant. Ed Bartlett testified that in said conversation appellant said: “* * * * As to what Bill Stiles said about it: He just said that he had been stealing from us, and I showed him the checks, and he said, ‘Yes, this was the money he got,’ and Mr. Brown asked him if he had used the money and spent it on somebody else and he said that he had used it all. N.ot all of the checks were there. I asked him about the missing checks and he said that he would look at the other gin, and when he started for the other gin he said, ‘Mr. Bartlett, I have been stealing from you and I have been wanting to tell you about it for a long time but I just have not had the guts to do. it. There is not any use to go hunting the checks, I got that money.’ ”

On cross-examination at the instance of appellant’s counsel Ed Bartlett further testified: “* * * I remember having a conversation with him on an occasion when his wife and mother or some of them were there. It was after that. I do not know just how long, but a week or two. At that time it was with reference to a shortage in the gin account. Fie said,- ‘If I am short in that gin account I will fix it up and pay it.’ He said that he would try to do it.”

It is apparent from what has been stated that Bartlett himself admitted that in the conversatiqn with appellant when his wife and mother were present at the gin that appellant said exactly what appellant’s wife would have testified he’ did say, — if she had been a witness on the trial. Because of this, we fail to see how the refusal of the -continuance could in any way have been a basis for a reversal.

Appellant also states in his application for continuance that his wife, if present, would have testified that ,W. E. Wallace came to her house on one occasion and told her that appellant “was in trouble with him (Wallace) and that if she, defendant’s wife, would be good to him (Wallace) and treat him just right, that all would be forgotten.” This was purely an ' impeaching statement, if a predicate for the impeachment of Wallace could properly be laid on the matter indicated. A continuance will not ordinarily be granted to secure evidencé which would onlybé available to impeach a witness who is expected to testify. Branch’s Ann.Tex.P.C., Sec. 324, and authorities there cited.

It appears from bill of exception number five that appellant sought to lay a predicate for the impeachment of the witness W. E. (Ed) Wallace by asking him in the absence .of the jury, “* * if he did not go to defendant’s house before any indictment was returned and had a conversation with defendant’s wife in which conversation he told the defendant’s wife that he, witness, was having some trouble with Bill, her husband,, and that if she would be good to him, or 'do what he wanted, that he, Ed Wallace, would quash it.” Witness Wallace denied having any such conversation with appellant’s wife. The bill brings forward the complaint that the court declined to permit the question to be asked the witness in the presence of the jury. Mr. Branch in his Ann.Tex.P.C., in Sec. 165, with many supporting authorities, announces thé following principle.

“It is not proper to allow a witness to be cross examined as to.»any matter which is collateral and immaterial to the issue merely ' for the purpose of contradicting him by other evidence.”

' “When a witness is cross examined on a - matter collateral to the issue, his answer cannot be subsequently contradicted by the party putting the question.”

It will be observed that the statement attributed to the witness by the question does not admit or intimate that no basis existed for the trouble he was having with appellant, but only that the investigation thereof would be discontinued or “quashed” under certain- contingencies arrived at by inference from the question propounded. If the purported statement had been established it -would have, been uncomplimentary to the witness and subjected him to criticism, but it, seems to be immaterial to the issue of whether appellant had embezzled funds belonging to the gin company. The rules quoted above seem to be applicable. The bill under consideration- presents no error. •

All other bills of exception adverted torn appellant’s motion for rehearing have been again examined. When considered in connection with the appended explanation of the trial court none of them is thought to present reversible error, or to require extended discussion.

The motion for rehearing is overruled.


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

text:
    MOSLEY v. STATE.
    No. 20930.
    Court of Criminal Appeals of Texas.
    March 27, 1940.
    On Rehearing April 24, 1940.
    On Motion to Reinstate Appeal May 29, 1940.

      Jack Ellingson, of Huntsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft of hogs; the punishment, confinement in the penitentiary for two years.

After the adjournme'nt of court, appellant filed an appeal bond, which was approved by the sheriff. The record does not disclose that the appeal bond was approved by the court trying the case. Article 818, C.C.P., requires that the appeal bond be approved by the sheriff and the court trying the case, or his successor in office. In the absence of a recognizance or appeal bond approved as the law requires, this court is without jurisdiction to pass on the merits of the case. Gonzales v. State, Tex.Cr.App., 298 S.W. 8931

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.

GRAVES, Judge.

Appellant’s appeal has heretofore been dismissed because of a defective appeal bond, in that it does not appear therefrom that such bond was approved by the court trying the case.

There is nothing offered in his motion that changes the record as above outlined, but the appellant requests the granting of sufficient time to file a new appeal bond properly authenticated by the signature of the sheriff and trial court. This we have the power to do under the cases of Willoughby v. State, 87 Tex.Cr.R. 40, 219 S.W. 468, and Grafft v. State, 134 Tex.Cr.R. 30, 113 S.W.2d 546.

The motion for rehearing will be overruled, and appellant’s motion' to be allowed to file a proper obligation for appeal in case his motion herein for a hearing is overruled is granted, and appellant is allowed 20 days after the- entry of this order in which to make and file with the clerk of the district court of San Jacinto County, Texas, an appeal bond substantially as required by law, and to have a copy of said bond, certified by the clerk of said court, filed with the record in this cause in this court, in which event the said appeal will be held to have been perfected, failing which, the order of dismissal herein will stand, and the clerk of this court will at once notify the attorneys of record of appellant of this order.

On Motion to Reinstate Appeal*

CHRISTIAN, Judge.

The record having been perfected, the appeal is reinstated and.. the case considered on its merits.

About the 10th of December, 1937, Abe Jenkins lost 10 hogs. He later recovered two of these - hogs in Houston. According to the testimony of the state, these hogs had been stolen by Willie James McBride, Bit Allen, and appellant. They were later carried to Houston and sold. It was appellant’s version that one Josh Davis sold the hogs to Bit Allen; that he (appellant) helped pen the hogs without knowledge that they had been stolen.

The evidence is deemed sufficient to support the conviction.

Appellant filed an application for a continuance based upon the absence of Bit Allen. In qualifying the bill of exception relating to the continuance the trial court uses language as follows: “Because the said Bit Allen, who was defendant’s co-principal, was tried at a former term of this court and was convicted of the same offense, and was serving his sentence at the time of this trial, and by reason of such conviction, he was prohibited, under Article 711 of the Code of Criminal Procedure, from testifying in the behalf of this defendant. Since the said Bit Allen had been convicted as a co-principal, the court could not and would not have permitted the said Bit Allen to have testified in the behalf of this defendant had he been present.”

As qualified, the bill fails to reflect error.

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:
    MILLS v. STATE.
    No. 20995.
    Court of Criminal Appeals of Texas.
    April 24, 1940.
    Rehearing Denied June 12, 1940.
    Ivan Irwin, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for murder without malice, punishment being confinement for five years in the penitentiary.

The indictment properly charges the offense. The record is before this court without bills of exception or statement of facts, in which condition nothing is presented for review.

The judgment is affirmed.


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

text:
    Ex parte PRUITT.
    No. 20901.
    Court of Criminal Appeals of Texas.
    April 24, 1940.
    Rehearing Denied June 12, 1940.

      . W. W. Ballard, of Wichita Falls, for appellant.
    Lloyd W. - Davidson, State’s Atty., of Austin, for the State.
   ■ HAWKINS, Presiding Judge.

' Relator presented to this court his application for an original writ of habeas corpus seeking relief against a judgment of conviction with an assessed punishment of- life in the penitentiary. The writ was not issued; but the application therefor was set down for hearing:

Attached to relator’s application aré the indictment, judgment and sentence in a case from Swisher County. The indictment charged relator with the offense of burglary alleged to have been committed on January" 3, 1937. The State, seeking to invoke the p'unishmeht provided under the habitual criminal statute (Art. 63, P.C. 1925), further 'alleged that relator had theretofore been convicted seven times of the offense of burglary; the indictment disclosing that- said seven convictions occurred on the same day, to-wit, March 18, 1929. The judgment, reveals that the jury found relator guilty of the burglary charged to 'have been committed on January 3, 1937, and also that relator had therefore been convicted of the' other offenses as alleged, and that the judgments in said prior convictions became final prior to January 3, 1937, whereupon the trial judge fixed the punishment at confinement in the penitentiary for life, under said Art. 63, P.C., and entered judgment so reflecting, and on March- 24, 1-937,• pronounced, sentence in accordance with the judgment. No appeal was prosecuted from said conviction, therefore, if hny error -was committed by the trial court relator did not avail himself of his statutory remedy to have his case reviewed by this ■ court and the error corrected. He seeks now by a habeas corpus proceeding to have this done, taking the position that the judgment entered by the trial court was void, because a punishment was assessed tiof authorized-by the-averments in' the indictment; in other words, that under said averments an excessive punishment was assessed against him by the court.

If relator is seeking to challenge the sufficiency of the indictment in a habeas corpus proceeding, he is met by many authorities of our own court holding that an indictment may not ordinarily be thus assailed. See Ex parte Seymour, 137 Tex.Cr.R. 103, 128 S.W.2d 46; Ex parte Long, 135 Tex.Cr.R. 520, 120 S.W.2d 1066; Ex parte Johnson, 131 Tex.Cr.R. 438, 99 S.W.2d 598; Ex parte Helton, 128 Tex.Cr.R. 112, 79 S.W.2d 139. However, we do not understand that relator is contending that the indictment fails to charge an offense, but only that the averments as to prior convictions do not charge successive commissions and successive convictions as required by law before-:the habitual criminal statute (Art. 63, P.C.) applies. In this contention we think relator is correct. In Nunn v. State, 133 Tex.Cr.R. 266, 110 S.W.2d 71, it was specifically held that previous convictions occurring on the same day did not authorize the enhanced penalty of life imprisonment as for a third offense. The only difference between that case and the present one. is that in Nunn’s case two previous convictions on the same day were alleged, and in the instant case seven previous convictions on the same •day were alleged. See also Ellis v. State, 134 Tex.Cr.R. 346, 115 S.W.2d 660, 661; Arbuckle v. State, 132 Tex.Cr.R. 371, 105 S.W.2d 219; Moss v. State, 134 Tex.Cr.R. 240, 115 S.W.2d 409; Childress v. State, 134 Tex.Cr.R. 504, 116 S.W.2d 396. It will be found that in the opinions in the Moss and Childress cases indictments are set out which were deemed to adequately aver successive commissions and convictions of prior offenses.

. Conceding that the trial judge committed an error in assessing the punis'hment of life imprisonment, this court has no power in a habeas corpus proceeding to correct the judgment or to reverse for said error as it would if the case were before us for review on appeal. - The general rule is stated in 76 A.L.R. at page 469, as follows: “The majority of decisions, and especially those more in consonance with reason and justice, are averse to the discharge of criminals who have been duly convicted, when the application for their release is by petition for habeas corpus based on some error, omission, or mistake in the judgment or sentence which might have been cured or corrected .by writ of error or appeal. 12 R.C.L. 1207. Accordingly, it seems well settled that, when the court has jurisdiction of the person and the subject-matter, and the punishment is of the character prescribed by law, habeas corpus will not lie for the release of a. prisoner because of mere errors, irregularities, and defects in the sentence which do mot render it void.” Many authorities are cited supporting the text, from the Supreme Court of the United States, and from various state courts. .

Th& court seems withotit power to correct the error■in habeas corpus proceeding, and the trial court is equally without authority to correct the judgment at a subsequent term of said court, because the error was,not a mistake in entering on the minutes of the court a judgment not in fact rendered. The judgment speaks the truth as to the punishment actually assessed against relator by the court. The mistake was one of law — a judicial error— and not one of fact. This being true the trial court is without power to correct the error after the term of court adjourned at which the judgment was entered. See Tex.Jur., Vol. 25, p. 521, Sec. 128; Reeves v. State, 109 Tex.Cr.R. 289, 4 S.W.2d 49; Silver v. State, 110 Tex.Cr.R. 512, 8 S.W.2d 144, 9 S.W.2d 358, 60 A.L.R. 290.

As we understand it, relator’s position is that the averments in the indictment were sufficient to bring his case under the provision of Art. 62, P.C., which provides as follows: “If it be shown on the trial of a felony dess than-capita! that the defendant has been before convicted of the same offense, of one óf the, same nature, the punishment • on such second or other subsequent conviction shall be the highest which is- affixed to the commission of such offenses -in ordinary cases.”

In other words, rélator admits that the trial court could properly have fixed his punishment at 12 years in the penitentiary, but all punishment in excess of that was beyond the court’s power under the allegations in the indictment.

Relator may bring himself within the rule announced in 76 A.L.R. at page 476, as follows: “In thé case of a sentence which is merely excessive it seems to be well settled, with the exception of a few early- cases, that if the .court had jurisdiction of the person and subject-matter of the offense, such sentence' is not void ab initio because of the excess, but that it is good so far as the power of the court extends, and is invalid only as to the excess, and therefore a person in custody under, such sentence cannot be discharged on habeas corpus until he has suffered or performed so much of it as it was within the power of the court to impose. In addition to a few other cases set out in the annotation which apparently support this rule, the following show that the rule is well settled.”

Here follows citation of many cases from the Federal courts, and also from thirty-seven state appellate courts, among them being Ex parte Ellerd, 71 Tex.Cr.R. 285, 158 S.W. 1145, Ann.Cas.1916D, 361.

Relator having failed to pursue his statutory remedy by appeal, and this court being without authority to revise the judgment in this habeas corpus proceeding, and the trial court being without authority to change the judgment after the adjournment of the trial term, it would appear that relator is without any remedy unless he may invoke the rule last announced.

It will be remembered that the case now before us presents one of the few instances, if not the only one, where the punishment is absolutely fixed by the law and may, therefore, be assessed by the trial judge. Therefore, we disclaim any intention of intimating in this opinion that the rule in question might be' invoked if the punishment was. the result of a discretionary act of a jury; that question is not in the present case.

If relator may bring himself within the principle announced in the rule last above quoted, still it would appear that he has invoked the rule prematurely, for thereunder one held under an excessive sentence “cannot be discharged on habeas corpus until he has suffered or performed so much of it as it was within the power of the trial judge to impose,” which, in this instance was 12 years’ imprisonment. When relator has served a sufficient length of time, with the credits allowed him under the law, to entitle him to. discharge, as under a 12-year penalty, then and not until then he might — if the rule in question is applicable here — invoke the’ action of the court in a habeas corpus proceeding.

Believing the application for the writ of habeas corpus is under any circumstances premature, same, will be denied; however, without prejudice to relator’s right to present one for further, consideration when he may be able to bring himself within the rule in question.

On Motion for Rehearing.

GRAVES, Judge.

Relator insists we were in error herein in that, as he asserts: “The vice of this sentence is not merely that it is of an excessive duration, but that it is absolutely unauthorized, or of an entirely different character from that authorized by law.”

Relator practically admits that if the trial court had sentenced him to serve a number of years in the State penitentiary, even though they were more than provided by law, then the sentence would only be excessive; but because of the fact that relator was sentenced for life, such constitutes a different kind of sentence and one not authorized by law.

We again quote from In re Fanton, 55 Neb. 703, 76 N.W. 447, 70 Am.St.Rep. 418, which is also found in the annotation to Lee Lim v. Davis, 76 A.L.R. p. 497.: “In distinguishing between a void judgment, from which a defendant would be released on habeas corpus, and a merely excessive judgment, from which he would not be released, the court in Re Fanton (1898) 55 Neb. 703, 76 N.W. 447, 70 Am. St.Rep. 418, said: ‘If, upon a conviction for burglary, the court should sentence the accused to be Ranged, the judgment would be void for want of jurisdiction of the court to impose a sentence of that kind in that case. But it would be otherwise if the court should adjudge 'an imprisonment in the penitentiary for a longer period than fixed by statute fqr the crime of burglary. In the latter case, the sentence would be erroneous merely, but not void. In the one case, the court had no jurisdiction to impose that' particular kind of a sentence upon conviction of burglary, while in the other the statutory kind of punishment was meted out, although the time of imprisonment exceeded the statutory bounds. A sentence of a different character than that authorized by law to be imposed for the crime of which the accused has been found guilty is void, while a sentence which imposes the statutory kind of punishment is not absolutely void, although excessive. In the former case, the entire punishment is invalid, while as to the latter the excessive portion is alone erroneous, and not void in such a sense- as to be available on habeas corpus, at least until after the valid portion of the judgment has been executed.’ ”

We think that punishment by confinement in the State penitentiary for a number of years and confinement therein for life are punishments of a kindred nature, the life term feature thereof being but in excess of a term of twelve years. The conclusion therefore necessarily follows that such sentence is merely excessive, and can only be reached in the manner set forth in the original opinion.

The motion is overruled.


author: BEAUCHAMP, Judge. HAWKINS, Presiding Judge.

text:
    ABSTON v. STATE.
    No. 20929.
    Court of Criminal Appeals of Texas.
    April 24, 1940.
    Rehearing Denied June 12, 1940.
    T. R. Odell, of Haskell, and J. Balch, of Seymour, for appellant.
    Tom Davis and B. C. Chapman, Dist. Atty., both of Haskell, H. F. Grindstaif, of Rotan, Stinson, Brooks & Hair, of Abilene, L. M. Williams, Dist. Atty., of Benjamin, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Clarence (Puny) Abston was convicted in Baylor County for murder and given ninety-nine years.

This is the third appeal. The opinions in the former appeals are found in Tex.Cr.App., 102 S.W.2d 428, and 136 Tex.Cr.R. 152, 123 S.W.2d 902. Reference is here made to the former opinions for a statement of the nature and result of the case and the issues involved, particularly that relating to the admissibility of the confession of the appellant and which holding is herein re-stated and adhered to.

Although the case was reversed on the form.er trial because of the admission of the written confession of the appellant, we find the same confession in the record in the present appeal over the objection of the appellant. The State contends that because of the fact that it has strengthened this record, it has now become admissible. We are here called upon to decide whether or not the .additional testimony in the case will sustain the court in admitting: the written confession of the appellant.

In the first place, the State offered in evidence an old steel buggy hame which was found near the home of the appellant in a pile of trash that had been burned which, it is said, matches the hame with which the appellant’s partner in crime took the life of Miss Rebecca Coursey. It appears to he the theory that this strengthens the statement of appellant and proves the truthfulness of the things therein related. We doubt the probative force of this evidence, but however strong' the circumstance, it is ce'rtain that the forced confession of the defendant in the case cannot become admissible because of the act of the State in proving the truthfulness of the things asserted. In other words, the constitutional inhibition against forcing a defendant in a criminal prosecution to testify-against himself is not limited to false testimony. It includes every fact, true or false, which he may be forced to give. This testimony cannot be helpful.

Again, the State introduced a number of witnesses who gave their opinions as to the calm, cool and deliberate appearance of the appellant on various occasions and particularly immediately prior to the making of the confession in the presence of the grand jury. We have concluded that the nature of this testimony is insufficient to overcome the burden cast on the State and discussed in the previous opinion; and that for the reasons heretofore given, the court committed error in admitting the written confession of the appellant, requiring that this cause be reversed and remanded for a new trial.

Further objection is raised in this appeal to the testimony of C. Matura who, it is claimed, took the life of Miss Rebecca Coursey by beating her with a buggy hame at the instance and under the direction of the appellant in this case and who has been electrocuted for the crime. Prior to his electrocution Matura made a statement and ga-ve his evidence which was introduced against the appellant in the trial from which this appeal comes. The objection to this testimony is made on two grounds: First, that Matura had been convicted in the District Court of Fayette County in June, 1897, for the offense of manslaughter. A pardon was issued by the acting Governor of Texas on the 18th day of May, 1936, which recited that the conviction was in 1894. The testimony of Matura, which was introduced in the trial of this case, stated that he was convicted only the one time in Fayette County for manslaughter. The • error in the pardon is descriptive, and by reason of the testimony showing without dispute that Matura was convicted but the one time, it is apparent that it was the intention of the Governor to pardon Matura of that offense. The discrepancy in the dates is harmless. Watson v. State, 90 Tex.Cr.R. 576, 237 S.W. 298; Hunnicutt v. State, 20 Tex.App. 632; 44 Tex.Jur. p. 1049.

It is further contended that this evidence is inadmissible as evidence of a deceased person because the witness had been electrocuted by order of the State of Texas who now offers his testimony as that of a deceased witness. The authorities have made no such exception, and we do not believe such should be made. It will not be presumed that the State of Texas wrongfully executed Matura. He forfeited his life under the law, and it was his own act that brought it about, not that of the State of Texas. The conviction, judgment and subsequent electrocution, according to law, were not set in motion by the State but simply carried out under previously enacted statutes. Each step, it will be presumed, was in due order, and there is no reason why the State should be deprived of the testimony of Matura on the trial of this case simply because the law had taken its course. ,

We find no further error in the case, but for the reasons hereinabove set out,' the judgment of the trial court is reversed and remanded for a new trial.

On State’s Motion for Rehearing.

HAWKINS, Presiding Judge.

The State in its motion for rehearing presents nothing which has not .heretofore been considered by the court.

Nothing useful can be added to what .was said in our original opinion on the present appeal, and what appears in our opinions upon the former appeals, reported in 132 Tex.Cr.R. 130, 93 S.W.2d 734; Id. Tex.Cr.App., 102 S.W.2d 428, and in 136 Tex.Cr.R. 152, 123 S.W.2d 902.

The undisputed facts testified to by the officers themselves, leading up to securing of the first confession from appellant bring this case squarely under the opinion of the Supreme Court of the United States in Chambers et al. v. State of Florida, 60 S.Ct. 472, 84 L.Ed. —, decided at the October Term, 1939, of said court, and also the opinion of said court in White v. State of Texas, 60 S.Ct. 1032, 84 L.Ed. — , decided on May 27, 1940. We think the presumption against the State from the manner of securing prior confessions not overcome by the evidence in the present record.

It is apparent that no conviction can legally he obtained without resort to the confession because only by such means can the evidence of Matura, the accomplice witness, be corroborated as required by Art. 718, C. C. P. The confession not being usable, the State’s case falls. The result may be regrettable, but perchance this case may to some extent point out the limit beyond which it is not permissible to go in securing confessions.

The motion for rehearing is overruled.


author: CHRISTIAN, Judge.

text:
    STEVENSON v. STATE.
    No. 21113.
    Court of Criminal Appeals of Texas.
    June 5, 1940.
    No attorney 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 $100.

The transcript fails to embrace a judgment of conviction. In the absence of.such judgment this court is without jurisdiction.

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.


text:
    WHITE v. STATE.
    No. 21130.
    Court of Criminal Appeals of Texas.
    June 5, 1940.
    J.- C. Jacobs, of Corsicana, for appellant.
    Lloyd W. Davidson, State’s Atty., of' Austin, for the State.
   HAWKINS, Presiding Judge.

■ Conviction is for an aggravated assault, punishment fixed at one month in jail and a fine of $25.

We find in the record the verdict of the jury ’assessing the punishment indicated, but no judgment appears to have been -entered thereon. If so, it is not shown in the transcript which has been forwarded to this court.

Without a judgment the jurisdiction of this court does not attach. , :

The appeal is dismissed.


text:
    SHAFFER v. STATE.
    No. 21129.
    Court of Criminal Appeals of Texas.
    June 5, 1940.
    W. H. Crunk, of Cooper, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing whisky in a dry area for the purpose of sale; the punishment, a fine of $400.

The record is before us without a statement of facts or bills of exception. In the absence of a statement of facts, we are unable to appraise appellant’s objections to the charge of the court.

The judgment is affirmed.

PER CURIAM.

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


author: GRAVES, Judge.

text:
    HOGG v. STATE.
    No. 21120.
    Court of Criminal Appeals of Texas.
    June 5, 1940.
    W. A. Johnson and Robert P. Brown, both of San Angelo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of car theft, and by the jury sentenced to serve two years in the State penitentiary.

The statement of facts herein was filed ninety-seven days after the overruling of the appellant’s motion for a new trial. Appellant’s attorneys furnish us with their affidavits, the burden of which seems to be that because the trial court ordered the court reporter to prepare and furnish the appellant a statement of facts upon his filing of an affidavit of inability to pay for same or provide security therefor, that it was incumbent upon the part of such reporter to see that same was actually placed in the hands of appellant’s attorneys. It is evident that such attorneys were wholly without diligence in this matter. It appears that the statement of facts was ordered by the court in the following order filed December 16, 1939: “The above and foregoing affidavit having been presented to me and heard and considered, it is hereby ordered that the court reporter for the Slst District Court prepare and furnish defendant a statement of facts on appeal in said cause.”

It is shown' that such reporter had this statement prepared and ready for appellant within thirty days from the date of this order, but appellant’s attorneys made no effort to obtain the same and present it to the district attorney for agreement, nor to the district judge for approval, until the same was called to their attention by the district attorney. We are impressed with the fact that no diligence was shown in this matter. We do not think it to be the duty of the court reporter to actually see that all interested parties sign and agree and approve the statement of facts, but it is his duty to prepare and furnish such a statement only; and this statement being filed ninety-seven days after the notice of appeal was entered, that the same is filed too late for consideration.

There are no bills of exception in the record. The indictment appears to be regular, and we note that the court gave the only special charge submitted by the appellant.

No error being shown, the judgment is affirmed.


author: BEAUCHAMP, Judge. GRAVES, Judge.

text:
    ASH v. STATE.
    No. 20922.
    Court of Criminal Appeals of Texas.
    May 1, 1940.
    Rehearing Denied June 12, 1940.
    Geo. S. McCarthy and Clem Calhoun, both of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted in the District Court of Potter County on a charge of receiving and concealing stolen property, and upon an enhanced penalty allegation was given ten years’ confinement in the state penitentiary.

The evidence shows that Mrs. Mecaskey, who resided in a hotel in the town of Panhandle, inadvertently left two diamond rings of the approximate valué of $800 .in a bathroom in the hotel on the 13th day of February, 1939. Later she remembered leaving the rings, and about eleven o’clock in the morning instituted a search for them. She reported the matter to ‘ the officers who went to Amarillo and visited the pawn shops and, upon doing so, gained information that the appellant and another party' were trying to dispose of two diamond rings. The prospective purchaser of the rings testified that he had appellant and the party go with him to a- jewelry-store for the purpose of having the rings appraised. The officers seemed to have secured information- that they were going to-the jewelry store and were in-waiting for them upon their arrival. Finding that the matter was being investigated, appellant took the rings - and placed them in his mouth. Officers searched the parties for the rings and demanded that the appellant open his mouth for the purpose of seeing if the rings were -there. This he refused to do, but instead swallowed them. The officers, seeing this and believing that he. had swallowed the rings, took appellant in charge and carried him to Panhandle in an. adjoining county to that in which Amarillo is situated: They were unable to find-any evidence that' appellant had stolen the rings and returned him to Potter County, where a charge was filed alleging that -he> had received find concealed stolen property.

The indictment charges that appellant received and concealed the stolen property from a party unknown. The foreman of the jury testified that it had investigated the matter ánd weré unable to determine who stole the rings. Appellant proved an alibi showing that he himself was at another place and not in Panhandle at the time the rings were taken. The evidence warrants the "conclusion that the grand jury did investigate the matter and that they' were unable to ascertain who stole the rings and that the appellant did-hot do so.

The proof is conclusive that appellant did receive and conceal the stolen rings. Of this there is no dispute. However, complaint is made that the evidence' was illegally Obtained, and the facts upon which such complaint is lodged are substantially that the- officers to'ok charge of the appellant and by force obtained possession of the rings against his will. It is detailed that by physical force they carried him to a hospital and by the use of a fluoroscope located the rings in the lower part of the appellant’s bowels. They had kept him under watch for hours and continued to do so, while he steadfastly refused to permit his bowels to move and pass the rings. Finally, they took him to another hospital and by the use of an effective enema, caused him, contrary to his wishes, to eliminate the rings. They were recovered -from his bowels, and identified and produced in court. Under this state of facts, it is contended that the' court' committed error in permitting the evidence of the recovery of the rings to go to the jury. It is doubtful, that there is sufficient evidence to convict if this evidence is not admissible.

A decision in this case is not without its difficulties^ Appellant’s counsel, though presenting an able oral argument in the case, has filed no brief and furnished no authorities upon -which he relies for his contention. Upon a proper analysis of the questions presented, however, the correct conclusion to reach seems clear.

The act of the appellant in attempting to- hide the evidence of his crime when made at the time of its commission-, or in connection with it is admissible as a part of the res gestae. Funston v. State, 117 Tex.Cr.R. 185, 38 S.W.2d 335; Kelly v. State, 102 Tex.Cr.R. 395, 278 S.W. 449. Likewise, the act of the appellant in resisting the officers in their efforts to recover the rings is proper evidence indicating guilt. Klein v. State, 102 Tex.Cr.R. 256, 277 S.W. 1074.

A well-settled line of authorities has sustained the trial courts in admitting evidence that the arresting officers may place the foot of the party accused of crime in tracks found on the premises showing that they were made with a foot of his size; that peculiar marks of the shoe were indicated by the tracks, etc. If it is proper to thus handle one charged with crime for the purpose of securing proof of his guilt, there appears, at least, authority for the acts of the officers in taking possession of the appellant ■ in this case and searching him for evidence of his guilt. This, however, it must be understood, has its definite limitations.

It will be noted from the facts of this,case that the officers had information pointing to the appellant’s guilt; that after he came under their observation they saw him place a metallic object in his mouth which they took to be the rings in question, or one of them. This proved to be correct. His possession of the rings and secreting them in the presence of the officers is the gist of the offense. He was, therefore, committing a felony in their presence. This gave them a legal right to arrest him and search his person. Hayes v. State, 115 Tex.Cr.R. 644, 28 S.W.2d 556; Bevins v. State, 110 Tex.Cr.R. 52, 7 S.W.2d 532. Where then should they end this search? If the rings remained in the appellant’s mouth, they would have had as much right to search his mouth and secure the rings as if they were in his pocket. He swallowed them. They determined this by seeing him -make three or four efforts to swallow something, which took place in their presence and which warranted them in continuing their search. There is no contention that the officers resorted to any cruel or inhuman method of determining the presence of the rings, nor in extracting them. They applied the most approved method of doing so. Under the directions of a skilled operator they located the rings in the appellant’s bowels. Could it be said that if a thief has stolen property, sewed it up in his pocket, or in the lining of his coat, that the officers would have no right'to cut the stitches or even to injure his clothing for the purpose of securing the valuables belonging to another and that when they did so there would be a question about the admissibility of the evidence thus obtained? The. evidence is replete with the conduct of the appellant in fighting the officers physically resisting every effort made by them to procure the rings, but there is no evidence to indicate any cruelty or unusual treatment on their part in doing so. They gave him an enema, a very normal and natural thing to do, thereby extracting the rings which the appellant had chosen to secrete in this most unusual manner. If the act of the officers should be considered unusual, it was brought about by reason of the act of the accused party. We think that the officers had a legal right to arrest appellant and to search him and to continue that search to such a reasonable degree as to permit them to ascertain wheth■er or -not the appellant possessed the stolen property, which they had a right to believe -he had. See, also, Art. 325, C.C.P.

The-evidence was admissible and we find no irregularity in the procedure by which he was convicted.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant urges in his motion for a rehearing that the trial court was in error in 'failing to sustain his motion to quash the portion of the indictment herein wherein it was alleged that appellant had been theretofore convicted of the crime of felony theft in a certain cause in Nueces County, Texas, said allegation being contained in the third -count in the indictment, being the one upon which a conviction was had herein. The grounds urged for the .quashing of such an allegation being that the crime of felony theft is not the same offense nor one of the same nature as the receiving and concealing of stolen property, as contemplated by Art. 62, P.C. We are not impressed with the strength of this contention. Both, offenses must necessarily be concerned with stolen property, and both are offenses involving moral turpitude; both are concerned with property rights, and in our opinion are offenses of the same nature, and can be used upon a trial' .of either offense for the purpose of an enhancement of punishment.

Appellant again insists that the treatment of the officers in obtaining possession of the rings violated his constitutional and statutory rights in that the discovery of the presence of such rings in his person and their recovery was obtained in violation of law, and was therefore inadmissible against him upon the trial of the case under Art. 727a, C.C.P., Vernon’s Ann.C. ;C.P. art. 727a. Not only was he committing a felony in the officers’ presence, as shown in our original opinion, and thus making it incumbent upon such officers to place him under arrest, but also under Art. 325, C.C.P., all persons have the right to prevent the consequences of theft by seizing any personal property which had been stolen and bringing such property, with the supposed offender, before a magistrate for examination, or delivering the same to a peace officer for that purpose. True it is that it took some time to seize said property, but we think the exigencies of the situation were met in a timely and humane manner, and in a logical way. Had appellant merely held these rings in his hand and refused to open it so that they might be recovered, we think the officers would have been justified in either waiting in patience until’appellant saw fit to open his hand, or in forcibly opening the hand and recovering the property. So in this instance, after ascertaining the presence of these rings in appellant’s body, they could either patiently wait until these rings passed through appellant’s body in a natural way, or they could assist nature by means of an enema in recovering this stolen property.

We think this rather novel case has been properly disposed of ■ in the original opinion, and the motion is overruled.


text:
    CAMPOS v. STATE.
    No. 21124.
    Court of Criminal Appeals of Texas.
    June 5, 1940.
    Joe E. Briscoe, of Hondo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft; the punishment, confinement in jail for thirty days.

The prosecution proceeded in the county court upon an information. No complaint is embraced in the transcript. In the absence of a complaint the court below was without jurisdiction.

The judgment is reversed and the prosecution ordered 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.


author: BEAUCHAMP, Judge.

text:
    WOFFORD v. STATE (six cases).
    Nos. 21098-21103.
    Court of Criminal Appeals of Texas.
    May 29, 1940.
    Rehearing Denied June 26, 1940.
    M. H. Barton, of Overton, for appellant,
    . Lloyd W. Davidson, State’s Atty., 0⅜ Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was given two years sentence-in the District Court of Smith County on his plea of guilty upon an indictment charging theft of over $50. From that judgment he appeals.

The record is before us without statement of facts or bills of exception. All of the proceedings in the case appear to be regular and there is nothing presented for review by this court.

The judgment of the trial court is affirmed.