author: TAYLOR, Commissioner.

text:
    NIXON et al. v. COWAN.
    No. 1791—7323.
    Commission of Appeals of Texas, Section B.
    Jan. 10, 1940.

      C. E. Avery and C. B. Wallace, both of Center, for plaintiffs in error.
    Beauchamp & Richardson, of Tyler, and Tom L. Beauchamp, of Austin, for defendant in error.
   TAYLOR, Commissioner.

On January 1, 1936, R. T. Cowan, as plaintiff, sued C. L. Nixon and H. A. Stebinger, defendants, in the district court of Shelby County, Texas, to recover damages alleged to be due him for failure to pay the value of one-eighth of the gas produced and sold from 1145 acres of land located in that county, owned by Pickering Lumber Company, a Delaware corporation. The lease under which Cowan asserted his cause of action was executed by the company to E. L. Chapman in 1931. The apparently conflicting lease conveying the same property, and by the terms of which Cowan alleges certain of his rights under the Chapman lease were disregarded and attempted to be nullified, was executed by Pickering Lumber Company in October, 1935, to H. A. Stebinger. The company at the time this lease was executed was in process of reorganization under section 77B of chapter 8 of the National Bankruptcy Act, 11 U.S.C.A. § 207, pending in the District Court of the United States for the Western Division of Missouri.

Cowan alleged that C. L. Nixon in 1933 acquired six-eighths of the Chapman lease, with all of its rights, privileges and obligations, and that Nixon had failed to account to him for all of the oil and gas saved and marketed from the premises in question. It was alleged that Stebinger was a trespasser thereon and was attempting to drill an oil well thereon without any authority to do so, and that by so attempting created a cloud upon Cowan’s interest in the land. The defendants filed an exception and plea of non-joinder of the Pickering Lumber Company, which was alleged to be a necessary party. The trial court on March 7, 1936, sustained the plea, giving plaintiff until July 6th in which to bring in by amendment the party held to be essential to an adjudication of the rights asserted by plaintiff.

On July 7th, at the next term of the court, no amendment having been filed, the trial court dismissed that case. No appeal was prosecuted from the judgment.

On August 14, 1936, the present suit was filed. The nature of this suit appears from what has been stated concerning the first suit, in connection with what is stated in the following statement from plaintiff’s brief filed herein:

“Some months prior to the filing of this cause in the District Court of Shelby County, Texas, a petition setting up the same cause of action against defendants Nixon and Stebinger was filed in the same court. The judge of said court ruled that the Pickering Lumber Company was a necessary party and when the said Company was not joined in the suit by the next term of court, the cause was dismissed for want of prosecution. When plaintiff R. T. Cowan learned of the dismissal, this cause was filed in the district court of Shelby County, bearing the style, Richard T. Cow-an, Plaintiff, v. C. L. Nixon, et al., and numbered 10374.
“In the present suit, the same cause of action was set up against C. L. Nixon and H. A. Stebinger, and the Pickering Lumber Company was also made a party defendant, but the second paragraph of plaintiff’s petition set out:
“ ‘At the outset plaintiff states that he has no prayer for relief or any claim of any sort against the Pickering Lumber Company, but said Pickering Lumber Company is here made a party defendant because the Judge of the District Court of Shelby County has indicated that-he'feels the said Pickering Lumber Company is a necessary party because it owns the fee of the land here involved and the royalty interest under same which is not in controversy in this cause. Plaintiff takes the position that since the contract between the Pickering Lumber Company and the defendant H. A. Stebinger amounts to nothing more than a quitclaim of any interest which the Pickering Lumber Company might have in this tract, that it cannot be involved in a decision upon the fraudulent or collusive attempt to defeat plaintiff’s one-eighth overriding royalty. The Pickering Lumber Company is thus made only a nominal defendant in this cause.’
“The remainder of the petition was practically identical to the petition set out in the former suit in which Pickering had not been joined, and no relief was asked against the Pickering Lumber Company, which plaintiff specifically called a ‘nominal defendant.’ ”

Pickering Lumber Company made no appearance in the case, and the record does not disclose that it was served with citation or that plaintiff attempted to procure any form of service upon it, or that it had any notice of the pendency of this suit.

Upon a hearing of the pleas to the jurisdiction of the court filed by the defendants, the trial court (after hearing the evidence) again dismissed plaintiff’s suit.

The Court of Civil Appeals upon original hearing affirmed the judgment of the trial court. The court subsequently, upon its own motion, reconsidered the case with the result that a majority of the court reversed the judgment below and directed that the cause be remanded for another trial. The Justice who wrote the original opinion wrote also .the court’s opinion upon reconsideration, and filed the original opinion as an expression of his dissent. 107 S. W.2d 693, 697. No authority is cited in support of the holding of the majority, but three grounds for the reversal of the trial court’s judgment are stated in the opinion. The first two are (a) that plaintiff prayed for no relief against Pickering Lumber Company, and that for this reason “it has no place in this litigation”; and (b) that on the facts pleaded the .company was not a necessary party to the suit, “though probably a proper party.” The third ground will be later referred to.

Writ of error was granted upon defendants’ assignment complaining of the action of the Court of Civil Appeals in holding that the trial court incorrectly dismissed plaintiff’s suit and in directing that the cause be reversed and remanded.

It is our conclusion that the Pickering Lumber Company is an indispensable party to plaintiff’s suit and that the trial court’s action in dismissing the case upon the record before it, was correct.

The clauses of the lease of Pickering Lumber Company to Stebinger upon which plaintiff bases his contention that the company is not an indispensable party, read:

“25. Lessor makes no warranty as to the title to the lands herein described, but agrees to refund any rentals or royalties from the land to which title may fail.
“26. If said Lessor owns a less interest in any subdivision or part thereof, of the above described lands, than the entire and undivided fee simple estate therein, then royalties and rentals herein provided for as to such subdivisions or'such part thereof to which title may fail shall be paid the lessor in the proportion which Lessor’s interest in such subdivision or part thereof bears to the whole and undivided fee.”

Plaintiff claims an overriding one-eighth royalty under the company’s prior (in point of time) lease to Chapman, and alleges that Stebinger in attempting to drill an oil well on the land is a trespasser “and that thereby he has created a cloud on the title of plaintiff.” Plaintiff’s prayer is for damages and general relief.

Plaintiff contends that the effect of the above excerpt from the Stebinger lease is to make it nothing more than a quitclaim by the company of any interest “it might have in this tract,” and that for this reason it has no place in the litigation.

The language of the excerpt discloses that the company merely declines to warrant title to the interest conveyed by the lease. It shows upon its face that it is in no sense a disclaimer of interest.

The interests of Stebinger and Nixon, if any, acquired and held by them respectively under the Stebinger lease, and the interest, if any, held by Cowan under the Chapman lease, are both deraigned from the Lumber Company as a common lessor, and are conflicting in part at least. If the Chapman lease is upheld and given force and effect in its entirety, then the royalty provision in the Stebinger lease is in effect struck down and cancelled, with the consequence that the royalty therein provided will be lost to the company. The conflict thus presented cannot be determined in the absence of the company as a party litigant to the suit. Sharpe v. Landowners Oil Ass’n, 127 Tex. 147, 92 S.W.2d 435, and cases there cited. While plaintiff in his petition names the company as a party defendant, he designates it as a nominal defendant only. The allegations of the petition disclose that no relief of any character is sought against it and that the sole reason for naming it as a party defendant is to satisfy a mistaken view on the part of the trial court. It is not brought within the court’s active jurisdiction, no form of service having been had, or attempted to be had, upon it.

The third reason assigned by the majority of the Court of Civil Appeals for reversing and remanding the trial court’s judgment of dismissal, referred to above, is that the authorities cited and reviewed by the majority opinion as supporting the trial court’s judgment, are not in point “because * * * Pickering Lumber Company, was not in possession of the property in controversy, por was its trustee in possession.”

The Lumber Company’s interest, if any, does not necessarily depend upon whether it is in possession of the premises. Furthermore plaintiff alleges that Stebinger “has entered upon said premises (under and by virtue of the Stebinger lease), and, attempting to take possession thereof, has drilled an oil * * * well thereon and has attempted to produce therefrom oil * * * contrary to the rights of plaintiff and wholly in disregard of the one-eighth overriding interest belonging to this plaintiff.” There hás been no disclaimer of interest filed by the company, and it has not, so far as the record shows, been called upon to answer concerning its interest.

The trial court’s judgment is purely an order of dismissal reciting as a predicate therefor that all of the parties appeared by their attorneys, “save defendant Pickering Lumber Company, who appeared not,” and that the law and the facts were with defendants upon their pleas to the jurisdiction of the court.

It is obvious that any finding of fact relating to the interest of the company would not be binding upon it under the present record. This fact, together with the alleged intention upon the part of plaintiff to seek no relief against it, compel the conclusion that no order other than one of dismissal could properly have been made by the trial court.

It is unnecessary to discuss the respective contentions of the parties relating to the effect of the order of the federal District Court with respect to placing the company’s property in the hands of its trustee for the purpose of reorganization, or the effect of the provisions of the Court’s stay order granted in that connection. The effect of such orders can properly be determined if and when the necessity therefor arises.

The judgment of the Court of Civil Appeals is reversed and that of the trial court dismissing plaintiff’s suit is affirmed for the reasons stated.

Opinion adopted by the Supreme Court.


source: Caselaw Access Project

author: GRAVES, Judge. BEAUCHAMP, Judge.

license: Public Domain

text:
    ANDERSON v. STATE.
    No. 20639.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    Rehearing Denied Jan. 17, 1940.
    James E. Faulkner, of Henderson, for appellant.

      Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of arson, and sentenced to a term of seven years in the penitentiary.

There are no hills of exceptions in the record, and we are relegated to the statement of facts in order to ascertain their sufficiency.

It appears that sometime before November 8, 1938, Mr. J. H. Fears had had a difficulty with the appellant at a syrup mill and had shot him. It appears from the testimony that after such difficulty the appellant made a threat that he would get even with Mr. Fears if it was the last thing he did in the world. Soon after such difficulty Mr. Fears had had his barn insured as well as his house, and on November 8th, sometime in the early part of the morning, this house was burned to the ground and Mr. Fears saved practically nothing therefrom. The testimony connecting appellant therewith is largely circumstantial, and the court gave a charge on circumstantial evidence.

It seems that there was a good deal of loose dirt piled up against Mr. Fears’ garden fence, and soon after the burning of the house fresh tracks were found therein that fitted the shoe of appellant. It was shown that these tracks had a peculiar heel thereto, and tracks that fitted appellant’s shoe with the peculiar heel were found not only leading'to the burned house but also away therefrom until they terminated at appellant’s home. There were also persons who saw appellant within about one hundred yards of this house, in the nighttime, at approximately the time this house was discovered to be on fire. Mr. Hollis Owens testified' that he had known defendant Wince Anderson ever since he was a boy nine or ten years old, and on the night of this fire he saw appellant “hobbling along and had a syrup bucket in his handsaw him somewhere around 12 o’clock at night on the road that led away from the burned house, about one hundred yards away from it. Ham Fears, a nephew of the person whose house was burned, was with Hollis Owens at the time, and he testified to the same facts. He said that appellant “was over in a ditch bent down and looked up toward the car the last time I saw him.” Mr. Whitehead, an officer, testified that he was following the tracks that led from the burned house towards appellant’s house and found a syrup bucket a few feet over in some briars and bushes close to these tracks and there was a tablespoonful of gasoline in the bucket, maybe a little more. Mr. Robert Webb also 'testified that he passed the home of Mr. Jake Fears on the night of its destruction about twelve or one o’clock; that he passed the Fears boy and another boy (Hollis Owens) and stopped to let them by, and as he came over the hill where the home was afterwards burned he saw" Wince Anderson, appellant, trying to get through the fence at the garden, and the appellant fell and threw up his arm, and he had a bucket.

The appellant offered an alibi, supported by the testimony of his wife and his mother-in-law, who testified he was at his home in bed all the night of November 8, 1938.

Under the rules of circumstantial evidence we are of opinion these facts are sufficient to establish the guilt of appellant in burning this house.

One question that has been presented to us in the brief as well as in the exceptions to the court’s charge, is requested charge No. 1 as follows: “If you believe from the evidence in this case that the prosecuting witness Jake Fears burned or caused to be burned the house in question, or if you have a reasonable doubt thereof, you will acquit the defendant.” The court refused this instruction, and it is insisted by appellant that the same should have been given under the authorities listed by him, the chief of which is the case of Wheeler v. State, 56 Tex.Cr.R. 547, 121 S.W. 166, 167.

In the instant case the only possible testimony that could be said to implicate Mr. Fears in the burning of his own house is the fact that he took out an insurance policy thereon after his trouble with this appellant, and after the destruction of the house collected the amount of approximately a thousand dollars thereon. There is no testimony of any kind showing that he had anything to-do with setting the house on fire, and in the Wheeler case, supra, it is to be noted that the court charged upon ■ reasonable doubt, the defense of alibi and circumstantial evidence, and limited the right of the State to a conviction proving appellant guilty by legal evidence beyond a reasonable doubt, but this court went further in its opinion, and we find therein the following: “The charge upon alibi and that upon circumstantial evidence negatively, perhaps, presents the issues. It has been, as before stated, the universal rule in Texas to hold that wherever a defensive matter is set up, and supported by facts, the accused is entitled to an affirmative charge on that defensive matter. The law is not satisfied with a negative presentation, and it has been held directly that where there is evidence that another, or others, may have committed the crime, and not the accused, the court must submit this issue to the jury. Kirby v. State, 49 Tex.Cr.R. 517, 93 S.W. 1030. For a discussion of the matter generally, see Harrison v. State, 47 Tex.Cr.R. 393, 83 S.W. 699; also Hart v. State, 15 Tex.App. [202] 204, 49 Am.Rep. 188; McInturf v. State, 20 Tex.App. 335; Leonard v. Washington Territory, 2 Wash.T. [381] 396, 7 P. [872], 878; Kunde v. State, 22 Tex.App. [65] 97, 3 S. W. 325; Coffelt v. State, 19 Tex.App. [436] 442; Murphy v. State, 36 Tex.Cr.R. 24, 35 S.W. 174; Sawyers v. State, 15 Lea (Tenn.) 694.”

It is to be noted from the above excerpt from the Wheeler case, supra, that it is the universal rule in Texas to hold that wherever a defensive matter is set up, and supported by facts, the accused is entitled to an affirmative charge on that defensive matter, but we are of opinion in this case that though the defensive matter might have been set up, it is totally unsupported by any facts herein. Evidently the holding in the Wheeler case, supra, and other cases of like nature, demands that there should be some support of any fancied defensive matter set up before it becomes the duty of the court to charge thereon. We might say that there were other persons traveling the road the night appellant was found on same, and therefore it became the duty of the court to charge the jury that if they believed any of these other persons traveling the road had set this house afire and burned it, to acquit the defendant, then it would become practically impossible to ever finish the trial of a case of this kind. As we understand the Wheeler case, and cases following, there must be some affirmative matter supported by facts that some other person than the appellant had actually participated in the burning of this house before it would become necessary to give in charge to the jury such defensive matter as was requested herein by the appellant, that is, that Jake Fears was the person who burned his own house. We find no testimony calling for such charge.

We are unable to find any error in this record, and this judgment is therefore affirmed.

On Motion for Rehearing.

BEAUCHAMP, Judge.

The youthful attorney for the appellant has filed a motion for rehearing, if we may call it such, much out of the ordinary. While the nature of the instrument appears to be inexcusable, it may well be accounted for and clearly indicates the wrong view which one may have as to the purpose of a motion for rehearing. . This court considers seriously and with full appreciation every helpful expression presented in a motion for rehearing, whether by the State or by “the appellant, and we regret that, even though counsel has demonstrated a seriousness of purpose, he has devoted none of the seven pages and more to a helpful discussion of the questions involved in the case. We do understand from it, however, that he means to complain because this court did not sustain his contention that his special requested charge on the affirmative defense should have been given by the trial court. We have, therefore, in the serious consideration of this old negro man’s case, gone fully into the record, re-read all of the testimony and reconsidered the entire record. We find no bills of exception, and no fundamental error is discoverable from the record.

While the rules of this court have not been complied with in presenting the one error complained of, we will, nevertheless, reiterate, as said in the original opinion, that the evidence wholly fails to connect the prosecuting witness with the burning of the house. The fact that he was personally present in bed asleep when the house was discovered on fire; that he was physically able to burn the house as argued; that it had insurance recently taken out in an amount much less than the value of the house; that his mother occupying a part of it had a narrow escape with her life and lost $250 in money, all of which was undenied in the record before us, certainly do not present facts and circumstances which would call for an affirmative charge in behalf of the defendant as requested by him. So far as it is possible to do so, this court has not permitted appellant to suffer because his attorney has not complied with the established rules. We have considered his requested instruction and find nothing in the record to even suggest it to the trial court.

The motion for rehearing is overruled.


author: CHRISTIAN, Judge. KRUEGER, Judge.

text:
    STUBBLEFIELD v. STATE.
    No. 20596.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.
    Rehearing Denied Jan. 17, 1940.
    Penn J. Jackson, of Cleburne, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is. theft of -an automobile; the punishment, confinement in the penitentiary for two years and eight months.

Appellant and Bonnie Stevens went to a dance hall, pushed an automobile belonging to Mrs. Gladys Crabtree down the highway and stripped it of several accessories, including the horns and a radio. According to the testimony of the state, appellant sold the horns which had been taken from the stolen car to Luther Blackstock for two dollars, which he (Blackstock) placed on his “pickup" car. The horns were recovered and identified by Mrs. Crabtree. Bonnie Stevens, the accomplice witness, testified for the state on his direct examination that he and appellant stole the car. On cross-examination he said: “We did not intend to take the car off and keep it. We intended to take these things off of it and leave it there. That is what we said, that we didn’t want anything but the things on it. Marvin (appellant) said he could sell the horns. I never did intend to take the car off and keep the whole car." Appellant did not testify.

There is nothing in the record to show that the car when found could only be used as a vehicle by the assembling of the missing parts, or others similar thereto. On the contrary, it is inferable that the accessories taken from the car did not impair it to the extent that it could not be used in the condition in which it was left. This being true, the holding in the case of Escobedo v. State, 88 Tex.Cr.R. 277, 225 S.W. 377, does not militate against the conclusion that appellant was entitled to a charge that if he took the car with the intent to strip certain accessories therefrom and not to permanently appropriate the car he should be acquitted. See also Hermosia v. State, 110 Tex.Cr.R. 8, 6 S.W.2d 767. Under the testimony of the accomplice witness, we are gravely doubtful as to the sufficiency of the evidence to support a conviction for theft of the automobile. At all events, we think appellant’s exception to the charge for its failure to instruct the jury relative to the issue raised by the testimony of the accomplice witness to the effect that there was no intention to steal the car and appropriate ’ it, but that the parties merely intended to remove the accessories that they did take should have been responded to. It has long been the rule in this court that in a case in which the evidence raises the defensive theory in an affirmative way it is incumbent upon the court to so submit it. Escobedo v. State, supra.

The judgment is reversed and the cause remanded.

PER CURIAM.

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

On Motion for Rehearing.

KRUEGER, Judge.

The State has filed a motion for rehearing in which it is vigorously contended that we erred in our original opinion in holding that the trial court should have instructed the jury to the effect that if appellant took the automobile from the’ possession of the injured party without her consent, with the intent to remove certain parts thereof and not with the intent to permanently appropriate the entire car, and that such parts as were taken from the ■car did not amount in value to $50, then they should find him guilty of misdemeanor theft and assess his punishment, etc. He contends that by the removal of the battery, the car was incapacitated from being operated by its own power, and cites us to the case of Floyd v. State, 128 Tex.Cr.R. 592, 82 S.W.2d 645, as sustaining the state’s contention. We do not agree with him. In that case appellant not only took the battery, headlights, tail lights and door glass, but all the wheels. He seems to have stripped the car as completely as possible. We have carefully reviewed the statement of facts to see if there was evidence presented which showed that this automobile could not have been run without a battery, but have been unable to find any such testimony. The record is also silent as to whether or not the car would run when it was first found after the commission of the alleged theft. We do not think we would be authorized to take judicial knowledge that no car could run without a battery, as it is such mechanism as requires more or less scientific knowledge of mechanical engineering. But it does not require more than a casual observation to realize that a vehicle like a buggy, tractor, or automobile can not be operated without wheels. 'In the Floyd case, the automobile was stripped of all the wheels and most of the accessories, which reduced it to a mere hull, which no longer constituted an automobile as the same is generally understood. In the instant case, all that was taken seems to have been the horns, a radio, the battery, a floor mat and some wires, the nature of which the record does not disclose. In our opinion, the case at bar comes within the rule announced in the case of Galloway v. State, 126 Tex.Cr.R. 294, 71 S.W.2d 871.

The motion for a rehearing is overruled.

PER CURIAM.

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


text:
    STEWART v. STATE.
    No. 20546.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.
    Rehearing Denied Jan. 17, 1940.
    R. H. Templeton and R. H. Cocke, both of Wellington, for appellant.
    William L. Kerr, Dist. Atty., of Pecos, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Clarence Austin by shooting him with a gun.

It was the theory of the state, given support in the testimony, that appellant killed deceased without provocation. It was appellant’s theory, as disclosed by his testimony and that of his witnesses, that deceased had alienated his wife’s affections and had broken up his home. Appellant testified that a few days before the homicide he had been informed that notwithstanding deceased had promised to pay no further attention to his wife, he (deceased) had gone to Midland to see her while she was visiting in the home of her father; that John Gilbert had informed him (appellant) that he had seen deceased riding with appellant’s wife in the Town of Midland; that his wife had .theretofore promised to return to his (appellant’s) home and renew their marital relations; that deceased had also promised to keep away from appellant’s wife; that after Gilbert advised him (appellant) that he saw deceased and appellant’s wife together in Midland he (appellant) sought deceased for the purpose of asking him about his further attentions to his wife; that when he spoke to deceased, deceased made an effort to secure a pistol; that believing his life was in danger he shot deceased.

It appears that John Gilbert did not testify. The court permitted appellant to testify that Gilbert had informed him of deceased’s presence in Midland with the wife of the appellant. As disclosed by bills of exception 4 and 5, the court refused to permit the father of appellant’s wife to testify that he saw deceased and appellant’s wife in a car together in Midland two or three days prior to the homicide, but had not communicated such fact to the appellant. We think in rejecting this testi-timony the court committed reversible error. The immediate cattse of the seeking of the deceased by the appellant, according to the version of appellant, was the information he had received from Gilbert relative to seeing deceased and appellant’s wife together in Midland. The state appears to have taken the position that appellant’s version of the romance of deceased and appellant’s wife was either false or unfounded. Further, it appears to have been the position of the state that deceased had not visited the wife of the appellant in Midland. In the state of the record the fact that the father of appellant’s wife had not informed appellant that deceased had visited his wife in Midland would not have rendered the testimony immaterial. Such testimony would have supported appellant’s version that he had actually received the information from Gilbert to which we have referred. By excluding the testimony the court left the state in the position to contend that Gilbert, who was not present at the trial, had conveyed no such information to appellant and that it was not true, that deceased had gone to Midland to sea appellant’s wife. The .testimony was relevant and material, and of a nature that was calculated to benefit appellant. We quote from Branch’s Annotated Penal Code, Section 97, as follows: “Relevancy is defined to be that which conduces to the proof of-a pertinent hypothesis — a pertinent hypothesis being one which, if sustained, would logically influence the issue. Hence it is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less probable.”

The case of Newchurch v. State, 135 Tex.Cr.R. 619, 121 S.W.2d 998, upon which the state relies, is not in point.'

For the error discussed, the judgment is reversed and the cause remanded.

PER CURIAM.

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

On State’s Motion for Rehearing.

KRUEGER, Judge.

The district attorney has filed a motion for a rehearing herein in which he contends that this court erred in holding the testimony of L. E. Cook admissible to the effect that appellant’s wife visited his home. That during said time, the deceased came to see her, but that the witness did not inform appellant thereof until after the alleged homicide. He then contends that this testimony was not admissible, because the act of the deceased in calling on appellant’s wife could not have had any effect on appellant’s mind. If the testimony had been offered for that purpose, then the state’s contention might be correct, but it was not offered for such purpose. It was offered for the purpose of corroborating the statement of John Gilbert who, according to the bill of exception, had prior to the homicide, informed appellant of the deceased’s visit to his (appellant’s) wife, while she was visiting in the home of her parents at Midland, Texas. The state cites us to the case of Newchurch v. State, cited in the original opinion, in support of its contention. We have again reviewed that case, but remain of the opinion that it is not analogous to the case at bar. In that case, the evidence was offered to show the accused’s state of mind, produced by an alleged act on the part of the deceased of which the accused had no knowledge. Therefore it could not have operated to disturb the equilibrium of his supposed sedate mind. Here the testimony was not offered to show a disturbed mind, but to corroborate and sustain the statement of John Gilbert who had thus informed appellant of the deceased’s visits to appellant’s wife, and after the state had offered testimony to the effect that the deceased had ceased to pay attention to appellant’s wife for some time prior to the homicide, and therefore did not go to Midland to see her. In short the testimony was relevant to support appellant’s defensive theory, and it occurs to us that there is quite a difference between the case at bar and the New-church case, supra.

The state’s motion for a rehearing is overruled.

PER CURIAM.

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


author: BEAUCHAMP, Judge.

text:
    HANNA v. STATE.
    No. 20705.
    Court of Criminal Appeals of, Texas.
    Jan. 3, 1940.
    J. V. Patterson, of Decatur, and Fred Minor, of Denton, for appellant.
    Lloyd W. Davidson, State’s Atty.,. of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was sentenced to serve three years in the penitentiary by the District Court of Wise County on a charge of' misapplication of public funds.

The appellant was county commissioner of Precinct No. 2 in Wise County and was charged by indictment at the May term of court, 1939, with unlawfully and fraudulently paying and delivering to E. N. Sullins $105 in money “then in his custody and possession.” It is further alleged that the said E. N. Sullins was not entitled to receive same; that W. A. Hanna knew that he was not entitled to receive it. ■

The evidence in the case shows that E. N. Sullins and the appellant entered into an agreement whereby the appellant bought an automobile and was to make monthly payments of $57.50 until the balance owing on the car was paid. Each month Sullins would file with the court, presumably in thé prescribed manner, a fictitious account in various sums, always exceeding the monthly payment due. He would then call at the office of the county treasurer, secure' the warrant, get it cashed at the bank and take the money, usually giving to the appellant a portion in excess of the payment due on the car but keeping some of the amount so collected himself. The item in question was for $105, made payable to Glen Hardin, a son-in-law of Sullins. At no time did appeR lant give any money to Sullins. Out of these transactions the grand jury of Wise County returned five indictments, being a separate one for each transaction for five successive months. In each case the appellant pleaded guilty, waived a jury and permitted the judge to fix the penalty. The State introduced evidence in the case, about which there.was no dispute, and detailed the transaction fully, and thereby proved a different offense to that charged in the indictment.

It is the contention on this appeal that there is a variance between the indictment and the proof. The indictment alleges the money to have been in the'possession of the appellant and the prosecution is under Article 95 of the Penal Code. There can be no question from the record that the evidence fails to show that the sum of money involved was in the hands of the .appellant in his official capacity as county commissioner of Wise County, and there could likewise be no contention that he had any legal right to receive it as such from the source which brought it to him under all the circumstances of the transaction described in the record. According to the evidence in this case, he received $67.50 instead of the $105 alleged in the indictment and did not deliver it to Sullins.

This court has held in the case of Scisson v. State, 121 Tex.Cr.R. 71, 51 S.W.2d 703, that the tax collector of an independent school district had no right to receive a check in payment of taxes due the district, and that the accused could not be guilty of embezzlement of a check received by him for that purpose.

In Reynolds v. State, 130 Tex.Cr.R. 78, 92 S.W.2d 458, the court had under consideration an indictment of the county tax collector for the misapplication or conversion of public funds which had “come into his custody or possession by virtue of his office.” The facts showed that the tax collector had deposited money in the county depository as required by law and had drawn a draft on the county depository wrongfully. This, it was held, did not. constitute conversion or misapplication of public funds since the funds had passed from the tax collector’s possession and custody and were in the county depository.

We have given consideration to all the constitutional and statutory provisions fixing the duties of county commissioners and have reached the conclusion that the county commissioners of the county are not, by virtue of their office, the custodians of the county funds. If they should in fact have in their possession funds belonging to the county which they are holding as county commissioners, it is incumbent upon the State to prove such fact, the existence of which is necessary for a conviction in a case like the one before us.

The appellant has pleaded guilty. There are five companion cases before us. The offense is a heinous one, comparable to perjury, treason and other offenses which strike at the very root of our government. It is with no indulgence of the appellant and with great reluctance that we have reached the inevitable conclusion that the State has carved from his crime the wrong offense and that this cause should be reversed.

The case is reversed and remanded.


text:
    W. A. HANNA v. STATE.
    No. 20706.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1940.
    J. V. Patterson, of Decatur, and Fred Minor, of Denton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted for the offense of converting funds belonging to Wise County, alleged to be in his possession, and was given a penalty of three years in the penitentiary.

For the reasons stated in Hanna v. State, Tex.Cr.App., 135 S.W.2d 105, this case is reversed and remanded.


text:
    W. A. HANNA v. STATE.
    No. 20707.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1940.
    J. V. Patterson, of Decatur, and Fred Minor, of Denton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted for the offense of converting funds belonging to Wise County alleged to be in his possession, and was given a penalty of two years in the penitentiary.

For the reasons stated in Hanna v. State, Tex.Cr.App., 135 S.W.2d 105, this case is reversed and remanded.


text:
    W. A. HANNA v. STATE.
    No. 20708.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1940.
    J. V. Patterson, of Decatur, and Fred Minor, of Denton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted for the offense of converting funds belonging to Wise County alleged to be in his possession, and was given a penalty of two years in the penitentiary.

For the reasons stated in Hanna v. State, Tex.Cr.App., 135 S.W.2d 105, this case is reversed and remanded.


text:
    W. A. HANNA v. STATE.
    No. 20709.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1940.
    Fred Minor, of Denton, and J. V. Patterson, of Decatur, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted for the offense of converting funds belonging to Wise County alleged to be in his possession and was given a penalty o'f two years in the penitentiary.

For the reasons stated in Hanna v. State, Tex.Cr.App., 135 S.W.2d 105, this case is reversed and remanded.


text:
    GARCIA v. STATE.
    No. 20702.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1940.

      W. E. Martin, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted in Fisher County of the offense of violating the Local Option Law and assessed a penalty of $100 fine and 90 days in jail.

Appellant lived in the town of Rotan and was engaged in running some kind of business not fully described, but which was situated about seventy-five yards from the place which he occupied as a residence. The sheriff of the county, at the request of the city marshal of Rotan, secured two search warrants, one covering the place of residence and the other the building where the appellant’s business was conducted. The sheriff, accompanied by one of his deputies, went to the business house of the appellant. The county attorney joined the city marshal in the search at the residence, and the two premises of the appellant were searched at practically the same time. As they entered the place of business and informed the appellant of their purpose, he retreated to his kitchen, fastening the door in front of the officers and proceeded to make a noise which witnesses identified as that of breaking of bottles. When the officers effected the entrance to the kitchen, they found necks of broken bottles and the odor of alcoholic liquors was in the room. At the same time of this occurrence, or within a few minutes thereafter, the city marshal and the county attorney appeared at the home of the appellant and met his wife at the door. The marshal told her that he “wanted to look the place over”, to which she replied, “All right; go ahead.-” The wife left the residence' at the same time that the officers entered. The conversation took place on the outside. The wife knew the city marshal and knew the position which he held as such. He went to the place for the purpose of searching the premises and under the belief that the sheriff had a search warrant for that purpose. They found in the residence thirty-three pints of bonded whisky which were introduced in evidence on the trial of the case.

It was admitted by the county attorney on the trial of the case that the search warrant was defective.

Neither the appellant nor his wife testified on the trial of the case and the foregoing statement of the facts will be sufficient for the questions before us.

The penalty assessed in this case is not authorized by law and because of it the case will be reversed. See Robert Ruffin v. State, Tex.Cr.App., 134 S.W.2d 293, not yet reported in state reports.

The appeal presents the additional question as to whether or not the statement of the wife was sufficient to authorize the officers to search the residence without a valid search warrant. There is no question raised in this appeal as to her authority to do so if the language used constitutes a waiver. A determination of this question will depend upon the understanding of the parties. If the language used by the officers should be construed as a request for permission to search the premises and her answer should be construed to be, as it has often been in many jurisdictions, a proper agreement for such a search, then there would be no error in admitting the evidence. We think that her answer might have been, under some circumstances, considered a permission on her part for the officers to enter the premises. In the instant case, however, the officers thought they had a search warrant, and it was by authority of this search warrant that they entered the premises. There is no contention that they intended to ask permission of the wife to do so but only that the officers informed her of what they were doing. She probably supposed they had a search warrant, but there is a greater probability that she did not know that one was necessary. She knew that the city marshal was an officer and he told her what he was going to do. As a citizen she assumed that he was doing a lawful thing, and yielded only to the extent that she made no resistance. No doubt she understood that he was entering the house and was looking for whisky. It might be assumed from the fact that they found whisky in the house that she knew of its presence and was conscious of the fact that it was a violation of the law and that the officers were looking for it. But in the absence of the whisky in evidence, there could be no such presumption, and this court would not be authorized to indulge it. In the absence of a request for permission to enter the ■premises, the answer which she gave cannot be construed to give the officers permission to enter the house and make the ■search which they did. The admission of the evidence under the facts of the case was error. Arnold v. State, 110 Tex.Cr.R. 529, 7 S.W.2d 1083; McCoppy v. State, 110 Tex.Cr.R. 569, 9 S.W.2d 740; McPhail v. State, 114 Tex.Cr.R. 635, 26 S.W.2d 218; Cornelius on Search and Seizure, par. 16, p. 69.

Because of the error committed and the unauthorized penalty, the cause is reversed .and remanded for a new trial.


author: CHRISTIAN, Judge. BEAUCHAMP, Judge.

text:
    BURNS v. STATE.
    No. 20611.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.
    Rehearing Denied Jan. 17, 1940.

    L. G. Mathews, of Floydada, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is violating the statute requiring that when an automobile strikes a person the driver shall stop and render the necessary aid; the punishment, confinement in the penitentiary for two years. See Art. 1150, Vernon’s Ann.P.C.-

While driving his automobile at night appellant struck and killed H. L. Martin, who was walking on the highway, According to the theory of the state, given support in the testimony, appellant failed to stop anil render the aid required by the ¡statute. • It was appellant’s version that he .did-pot know that he had hit anyone until he had driven up the highway some distance; that after his daughter, who was riding with him in the car, told him that the accident had occurred he turned his car around and proceeded along the highway in an effort to find the victim of the accident; that he was unable to locate him; that he (appellant) immediately sought the officers and reported the matter.

It is shown in bill of exception No. 2 that in his' argument the district attorney used language as follows: “If this defendant did turn around and come back like he said, that poor man was lying and dying in the ditch, not in bed with his wife, and I say that this defendant is more guilty than he would be if he had not stopped at all, and if this jury wants anybody from California or any other seaport to come here and kill poor cottonpickers they will have to turn this man loose.”

It is shown in bill of exception No. 3 that in argument to the jury the district attorney employed the following language: “Gentlemen of the Jury, as long as I am district attorney I am going to protect this poor cottonpicker against this big Yellow Cab driver from California. I say he killed this poor cottonpicker and I am going to protect him.”

Counsel for appellant objected to the foregoing remarks on the ground that they were calculated to prejudice the jury ■against the appellant and cause them to convict him “for killing a cottonpicker when he was on trial for failing to stop and render aid.” The objection was overruled in each instance and the argument stood for the consideration of the jury. The opinion is expressed that the bills of exception reflect reversible error. In the case of Stalling v. State, 90 Tex.Cr.R. 310, 234 S. W. 914, 916, the accused was on trial for failing to stop and render aid after striking and killing a person with his automobile. In concluding that an argument similar to that employed in the instant case was obviously prejudicial and required a reversal of the judgment, this court said:

“State’s counsel is quoted in his argument to the jury as saying:
“ ‘This defendant is guilty of one of the most damnable murders, ever committed in Dallas county. His act in murdering Mrs. Byrd Patterson by running' over her with an automobile shows him to be a man regardless of social duty’

—and, pointing his finger at the defendant, said:

“ ‘There sits the man who committed this murder. I know he is the identical man who did it.’
“Counsel for appellant promptly interposed objection to this argument, and verbally requested the court to instruct the jury to disregard it. The court apparently took no notice of this objection, and permitted the argument to proceed without interruption. Whether the language used by counsel in a given case is obviously of a nature to impair the rights of the accused or to improperly prejudice his case before the jury is manifestly a matter that must be determined upon the merits of each particular case. The language used, the issues involved, the attitude of the parties, and the result of the trial are all things which enter into the decision of the question. When the argument is of such a nature, it frequently happens that a reversal' must follow from it, although, as in this case, there was no written request to charge the jury to disregard it. Smith v. State, 44 Tex.Cr.R. [137] 142, 68 S.W. 995, 100 Am.St.Rep. 849; Smith v. State, 55 Tex.Cr.R. [563] 569, 117 S.W. 966; Flores v. State, 82 Tex.Cr.R. 107, 198 S.W. 575, and cases cited therein.
“In the instant case, the prosecution was not for the killing of Mrs. Patterson, but it was for the neglect or failure to do that which the dictates of humanity would have demanded, and which the statute required', to alleviate the suffering of the injured' woman. The statute did not contemplate-punishment for the injury or for the death. These are matters which might have been involved had the prosecution been for murder or for negligent homicide. The purpose of the statute and its scope were well within the knowledge of counsel and of the court. The jury, however, was likely to lose sight of these matters and fasten their minds upon the fact that from the act of the accused the death of the deceased’ resulted, and assume that it was their duty to punish for the death and not for the-failure to comply with the terms of the statute upon which the prosecution was founded. The language selected and used by counsel was calculated to emphasize this, inclination of the jury. In fact, its obvious-tendency was to divert the minds of the jury from the real issue, and to bring them to the belief that it was within their province and duty to punish the appellant for the death of the deceased. We cannot bring ourselves to believe that the language-was other than inflammatory and obviously hurtful, and calculated to impair the rights, of the appellant and prejudice his cause. The failure of the judge to take notice of' it and to disavow its propriety may have-impressed the jury with -the idea that he-approved it; that, by his silence in the-face of the protest against it, he indicated', his sanction.”

Upon another trial we think appellant’s-defensive theory should be submitted in substantially the language appellant sought to have it submitted.

The judgment is reversed and the cause-remanded.

PER CURIAM.

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

On Motion for Rehearing.

BEAUCHAMP, Judge.

The State's motion for rehearing in this case attacks the bills of exception upon,which the original opinion was predicatedj_ as being insufficient. The contention is that the bills of exception do not meet the requirements necessary to present the matter, and that the facts warranted the arguments complained of. In other words, as presented, the bills of exception do not meet the requirements in their form and contents, and that even if they did, the facts of the case warrant. the arguments complained of. We have examined the authorities relied upon by, the State and have reached the conclusion that the bills of exception are sufficient to present the objections to the arguments of counsel under the holdings of this court.

We are further of the opinion, after a careful re-examination of the record, that the original opinion properly deals with the bills and sufficiently shows that the arguments were not justified under the facts. The prosecuting attorney, in the statements complained about, is quoted in the bills as saying: “I say that this Defendant is more guilty than he would be if he had not stppped at all, and if this Jury wants anybody from California or any other sea port to come here and kill poor cotton pickers, they will have to turn this man loose.”

The attorney, in this inflammatory statement, was telling the jury either his conclusions of the law or of the facts, and did it in a manner that was calculated to so impress the jury. Again, by Bill No. 3, we are informed that the attorney said, “I say he killed this poor cotton picker, * * ⅜ ”

It will be observed, as treated in the original opinion, that the appellant was not being tried for murder, and even so, the district attorney did not testify, and his argument amounted to an assertion of a fact which would have been an issue in the case. We are unable to agree that it was harmless, and consequently, both the reasoning and the conclusion reached in the original opinion will be adhered to.

The State’s motion is overruled.


author: KRUEGER,' Judge. BEAUCHAMP, Judge. HAWKINS, Presiding Judge

text:
    DUNCAN v. STATE.
    No. 20466.
    Court of Criminal Appeals of Texas.
    Oct. 11, 1939.
    Rehearing Granted Jan. 3, 1940.
    Bennett & Bennett, of Normangee, C. B. Sherman and J. W. Summers, both of Rusk, Wilson H. Fox, of Taylor, and Wilcox & Wood, of Georgetown, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State, j
   KRUEGER,' Judge.

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

Upon his trial appellant entered a plea of guilty and asked for a suspension of sentence. A review of the evidence, which we deem unnecessary to set forth, has convinced us that the same is sufficient to sustain the jury’s verdict.

In support of his plea for a suspension of sentence, appellant proved that he was 26 years of age and had not theretofore been convicted of a felony in this or any other state; that his reputation as a law-abiding citizen was good in the community where he resided. The question of suspension was properly submitted in the charge of the court. However, the jury declined to heed his plea for a suspended sentence and assessed his punishment as above stated.

Appellant in due time filed a motion for a new trial in which he charged that the verdict of the jury was arrived at in a manner other than by a fair expression of the opinion of the jurors. He states that after the jury had deliberated for approximately forty hours, during which time several ballots had been taken, one of the jurors proposed to the other eleven that they vote by a ballot and be bound by the vote of the majority, whether the result of the ballot showed five years in the penitentiary with a suspension of sentence or two years in the penitentiary without a suspension. The testimony offered in support of his motion showed that the first ballot cast in pursuance to this agreement showed them to be evenly divided, six to six. The next ballot disclosed that seven were in favor of two years' in the penitentiary without a suspension and that five were for five years with a recommendation for suspension. Ten of the jurors testified in support of the allegation that such a proposition was made and agreed to by all the jurors; they stated further, however, that after the second ballot a fw minutes of discussion followed, and then the foreman of the jury requested that everyone who was in favor of assessing appellant’s punishment at two years without a recommendation for suspension to hold up his hand. That every juror then held up. his hand and the verdict was accordingly written, signed by the foreman and returned into court. This would seem to indicate that they did not obey the agreement inasmuch as they took another vote after the majority had voted for two years without a recommendation for suspension of sentence. If they had intended to be bound by the agreement there 'would have been no need in taking this last vote as they could have written the verdict according to the result of the second ballot. Moreover the court inquired of each of the jurors if this was his verdict, to which each of them nodded, indicating that it was.

Subdivision 3 of Art. 753, C.C.P., provides that a new trial shall be granted “where the verdict has been decided by lot, or in any other manner than by a fair expression of opinion by the jurors.”

We think the question here presented is controlled by the decision of this court in the case of Stockton v. State, 109 Tex.Cr.R. 554, 5 S.W.2d 996, wherein almost the identical question here under consideration was fully discussed, both on original hearing and on motion for rehearing. Consequently, we see no need of again discussing it here. For the reasons there assigned, appellant’s contention is overruled.

All other matters complained of by appellant have been examined by us and are deemed to be without merit.

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

BEAUCHAMP, Judge.

Appellant has filed a very able brief on several questions in support of his motion for rehearing. We consider it unnecessary to discuss but one proposition, namely, the conduct of the jury in arriving at the verdict. In this original opinion, Judge Krue-ger announced as authority for his conclusion the case of Stockton v. State, 109 Tex.Cr.R. 554, 5 S.W.2d 996. It appeared to-all the court at that time that this case was in point and decisive. Upon further examination of the record, however, we have-concluded that while the two cases are remarkably similar in all of their aspects, yet there is a difference which puts the present case within the inhibition of the statute. If all of the witnesses who testified on the motion for new trial in the Stockton case had agreed on the facts and by the facts of that case had shown that even some of the jurors had been led into a position, where they felt obligated to vote for a -conviction and penitentiary sentence contrary to their own judgment in the case, it would have presented a cause for reversal, but there was disagreement as to what occurred, and the trial court, acting within his proper discretion, determined that the-jurors ultimately in their votes acted under their own judgments. This court held that the trial court was authorized under the-evidence to so find and upon that theory affirmed the case.

The present case is different. For several days the jury had been unable to agree. Different methods were proposed by which they might get together. One juror suggested that each one write the verdict which he desired on a slip of paper and that all of them be put in a hat and then they would draw a slip which would be the verdict. Other jurors demurred to this procedure because they understood that it would be contrary to law. It was then suggested that a secret ballot be taken and afterwards they would take an open ballot and that the majority in the secret ballot would be followed by each and every one in an open ballot. Prior to this there had been quite a fluctuation in the voting. The appellant had pleaded guilty and asked for a suspended sentence. Two jurors seem to have stood at all times for a five-year suspended sentence and, likewise, two' others had voted each time for a two-year penitentiary term. Eight of the jurors changed their votes one way or another so that on one occasion it was noted that ten jurors voted for a penitentiary term of two years while two on the same ballot voted for the five-year suspended sentence. Again, ten voted for a suspended sentence and two for the straight term. On different ballots the voting varied and no one knew what another hallot would bring. It was part of the agreement, as testified to by all jurors, that the final ballot should be by a show of hands openly and that this should go as the majority voted in the secret ballot. The final vote was the confirmation of the majority vote with the purpose and intention that this would make legal what would otherwise be an illegal verdict on a majority vote. It was taken pursuant to the agreement without any change in the opinion of any juror as to what should be the punishment. Some jurors testified on the motion for new trial that they made this agreement and stuck to it; that they never changed their minds but still believed that appellant should have had a suspended sentence; that the reason they held up their hands in the affirmative vote on the last ballot was because they had agreed to do so; that that appeared the only way they would all get together. There was no disagreement as to what occurred. Those who had tavored a penitentiary term favored it still and so voted because it was their honest conviction, but those who favored a suspended sentence still favored it but voted for the term in the penitentiary because they had agreed to go with the majority. We view this as contrary to Sec. 3, of Art. 753, C.C.P. The statute is mandatory and directs that a new trial shall be granted: “Where the verdict has been decided by lot, or in any other manner than by a fair expression of opinion by the jurors.”

In Leverett v. State, 3 Tex.App. 213, this court said: “[A] verdict * * * should be the result of reason, deliberation, and honest conviction, and not the offspring of chance or accident.”

This court held in the Stockton case, supra, that where the jury devises some means of arriving at a figure denominating the number of years of imprisonment and then following the method which arrives at such a period independently of any previous obligation agree to abide by it, the verdict will not be disturbed. See also Gaines v. State, Tex.Cr.App., 37 S.W. 331.

It has been held where a jury agrees to determine the number of years’ imprisonment by lot or by a “quotient” verdict and that they will abide by the result, the burden is then upon the State to show that such agreement was subsequently abandoned. Driver v. State, 37 Tex.Cr.R. 160, 38 S.W. 1020.

In White v. State, 37 Tex.Cr.R. 651, 40 S.W. 789, it was held that when the State has failed to discharge its burden to show that an abandonment of the agreement had taken place before final verdict that a new trial should have been granted.

We think that such an agreement was entered into in the instant case and that the State did not show, or attempt to show, that there was any abandonment of this agreement. On the motion for new trial several of the jurors testified that they cast their final vote because of their previous agreement to abide by the decision of the majority. Some said that they favored the suspended sentence and still favored it at the time they cast their final ballot and at the time of their examination on the motion for new trial, but that they felt honor bound to carry out their agreement and did so. In fact, the State’s own witness, S. L. Davis, so testified.

It has been held in Harris v. State, 114 Tex.Cr.R. 647, 26 S.W.2d 225, and Grippon v. State, 119 Tex.Cr.R. 243, 44 S.W.2d 735, that where jurors use the “quotient” method of finding by lot the period of years to fix as the penalty without any previous agreement to abide by such a. figure when found and they thereafter agree on such a period, there is no error. However, in Spicer v. State, 120 Tex.Cr.R. 440, 46 S.W.2d 685, where the jurors did agree to abide by the result of the lot, this court held in the opinion by Presiding Judge Morrow that the verdict is bad even though the final verdict was slightly changed from the figure produced by the prior agreement.

{^From Branch’s Ann.Tex.P.C., p. 335, sec. 656, we quote the following with the authorities stated in support of it: “If the jurors agree beforehand to be bound by and do abide by the result of striking an average of their respective opinions as to the amount of the punishment, a new trial should be granted although a slight change was made in such result, such as dropping of a fraction. Hunter v. State, 8 Tex.App. [75], 79; Wood v. State, 13 Tex.App. [135], 138 [44 Atn.Rep. 701]; Driver v. State, 37 Tex.Cr.R. [160], 164, 38 S.W. 1020; White v. State, 37 Tex.Cr.R. 651, 40 S.W. 789; Good v. State [Tex.Cr.App.], 67 S.W. 102; Sanders v. State, 45 Tex.Cr.R. 518, 78 S.W. 518 [108 Am.St.Rep. 973]; Brookman v. State, 50 Tex.Cr.R. 277, 96 S.W. 928 [123 Am.St.Rep. 838]."

While it has been held consistently that where no previous agreement was made or where the previous agreement was not respected after irregular balloting and the verdict finally reached was the expression of the fair will of each juror, there was no error even though irregular methods had been used. In each opinion there seems to be a definite presumption that if there is a previous agreement to be bound by the method, there is error. Dawson v. State, 72 Tex.Cr.R. 68, 161 S.W. 469; Bledsoe v. State, 111 Tex.Cr.R. 159, 12 S.W.2d 227; Pruitt v. State, 30 Tex.App. 156, 16 S.W. 773 ; 42 Tex.Jur. p. 442, sec. 349.

A decision in this case must turn upon a. determination of whether or not there was a previous agreement entered into by the jurors that all would abide the majority vote in the secret ballot and whether or not that finally resulted in the verdict fixing the penalty of two years in the penitentiary. Under the facts of the case as we now see them, and from the testimony of all of the jurors who were called as witnesses on the motion for new trial,.no verdict would have been reached except upon that agreement. Jt was not a fair expression of the judgment of all the jurors at the time the vote was taken and, therefore, a new trial should have been granted.

The motion for rehearing is granted, and .the cause is reversed and remanded for a new trial. „ .I

HAWKINS, Presiding Judge

(concurring).

^Further examination of the testimony of the jurors heard upon consideration of the motion for new trial shows without contradiction that the verdict was arrived at in the following manner. After many ballots the jury had been unable to agree upon the punishment, some holding out for two years without a suspended sentence, others insisting on five years with suspended sentence. They finally agreed to take a secret ballot to ascertain how the majority stood on the question, it being further agreed in advance that all would abide by the majority vote, and signify their agreement thereto by holding up their hands. The secret ballot showed seven for two years straight and five for five years with suspended sentence ; then in accord with the previous agreement each juror held up his hand to signify his agreement to the two years in the penitentiary without suspension of sentence.

If the majority vote had been taken for the purpose of reaching some basis for further discussion by the jury we would have a different question. The vice is the agreement in advance to be bound by the majority vote, and the standing by such agreement. To sustain a verdict thus arrived at would be against the great weight of authority as shown in the notes annotated under the reported case of Casstevens v. Tex. Pac. Ry. Co., as reported in 73 A.L.R. 89, notes being on page 93. The case mentioned is from the Supreme Court of our own state, reported also in 119 Tex. 456, 32 S.W.2d 637, in which a verdict so arrived at was condemned as not reflecting “a fair expression of opinion by the jurors.” The opinion in the case mentioned was followed in Scholz v. Handy Andy Community Stores, Inc., Tex.Civ.App., 70 S.W.2d 309. Even in states having no statute such as our own — Art. 753, subdivision 8, C.C.P. —permitting jurors to testify as to such improper conduct, verdicts arrived at in the manner indicated are severely condemned. State v. Guillory, 163 La. 98, 111 So. 612.

A diligent investigation has failed to reveal any decision from our own court sustaining such a verdict as here dealt with except Grippon v. State, 119 Tex.Cr.R. 243, 44 S.W.2d 735, and perhaps Stockton v. State, 109 Tex.Cr.R. 554, 5 S.W.2d 996 — if the latter case may be susceptible of such construction. The Grippon case was apparently based upon the opinion on rehearing in Stockton’s case. The Grippon case is expressly hereby overruled on the point under consideration and any intention by the Stockton case to uphold a verdict reached as in the present instance is disclaimed, and if subject to such construction it is also overruled on the point here involved.

We make the observations regarding the two cases last above mentioned in order that conflicting opinions may be eliminated.

With the foregoing statements as reasons therefor this is filed as concurring in the opinion on rehearing setting aside the judgment of affirmance and reversing the judgment of conviction and remanding the case for a new trial.’ 'j


text:
    CLIFTON v. STATE.
    No. 20657.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1939.
    Rehearing Denied Jan. 17, 1940.
    Charles H. Mayer, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The conviction is for aggravated assault; the punishment, a fine of'$200.

A jury was waived, and the case tried before the court.

The testimony adduced by the state is sufficient to support the conviction.

The prosecution proceeded under Article 1149, P.C., which reads as follows: “If any driver or operator of a motor vehicle or motorcycle upon the public highways of this State shall wilfully, or with negligence, as is defined in this title in the chapter on negligent homicide; collide with or cause injury less than death to any other person upon such highway, he shall be held guilty of aggravated assault and shall be punished accordingly unless such injuries result in death, in which event he shall be dealt with under the general law of homicide.”

The charging part of the complaint and information .is as follows: That W. C. Clifton “did then and there drive and operate a motor vehicle, to-wit, an automobile, on a public highway located in the City of Houston, Harris County, Texas, there situate, and did then and there commit an aggravated assault in and upon the person of Mrs. W. P. Gatlin by then and there willfully and with negligence causing and permitting said automobile to collide with another automobile ' then and there upon said highway, in which the said Mrs. W. P. Gatlin was then and there a passenger, then and there and thereby causing injury less than death to the person of the said Mrs. W. P. Gatlin.”

Appellant made no attack on the complaint and information in the trial court. He now insists that the state’s pleadings are bad for inconsistency for the reason that it is alleged therein that he willfully caused and permitted the automobile to collide with the car in which Mrs. Gatlin was driving and that he, with negligence, caused the collision. In short, it is appellant’s contention that if the act was willfully committed negligence could not be present. A complaint and information in practically the same language as that found in the present pleadings was sustained by this court in Young v. State, 120 Tex.Cr.R. 39, 47 S.W.2d 320. In that case the court held that it was proper to put both ways of committing the. offense in the same count and that a conviction might be had upon proof of either. See also Tarver v. State, 83 Tex.Cr.R. 275, 202 S.W. 734.

Appellant based his amended motion for new trial on newly discovered evidence, and attached to said motion the affidavits of several witnesses whose testimony he claimed to be newly discovered and material. In overruling the motion the court, among other things, embraced in his order the following: “Be it remembered that on this the first day of April, A. D. 1939, came on to be heard the amended motion of the defendant for a new trial based upon alleged newly discovered evidence. The court, after hearing the motion, controversy of the State, and the evidence in support of the motion, overruled the same for the reason that the court was not satisfied that the defendant could not have discovered such evidence had there been a sufficient amount of diligence shown. On the other hand, the proof shows that the defendant passed the scene of the residences of all of the so-called newly discovered witnesses many many times, and the court believed that by the exercise of proper diligence their attendance could have been secured on the trial of the case, and that such evidence could have been ascertained prior to the trial of such case for the reason that the defendant did discover such so-called witnesses within a few hours after the seriousness of his case had been impressed upon him.”

The evidence which the court heard on the motion for new trial upon the question of diligence is not brought before this court, either by bill of exception or statement of facts. Under the circumstances, we must presume that the court’s action in overruling the motion was correct and based upon evidence which was sufficient to justify such action. Sykes v. State, 109 Tex.Cr.R. 39, 2 S.W.2d 863.

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.

BEAUCHAMP, Judge.

This case was affirmed upon good authority consistently followed by the court. The motion for rehearing, as we interpret it, complains of the failure of this court to hold that the State should have been required to amend its information against the defendant prior to the trial. It is stated in the motion that the allegation, “wilfully committing the assault and at the same time negligently committing the same”, should be held directly in conflict and as being an impossible állegation, asserting that “there is plenty of authority in the books to justify holding that the words of the statutes should be pleaded conjunctively rather than disjunctively, * * Counsel then cites State v. Lockwood, 119 Mo. 463, 24 S.W. 1015. This is a Missouri case which we are not inclined to follow at this time. We think the original opinion is consistent with former holdings of this court.

We have found nothing in conflict with Young v. State, 120 Tex.Cr.R. 39, 47 S.W. 2d 320, relied on in the original opinion, which we think is decisive of the question raised in the motion for rehearing.

The motion is overruled.


text:
    MILLER v. STATE.
    No. 20720.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1940.
    H. G. Woodruff, of Decatur, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for driving an automobile upon the public highway while intoxicated; penalty assessed at confinement in the penitentiary for one year.

Appellant entered a plea of guilty to the •offense charged and waived a jury upon the trial of his case. . The record is before this court without statement of facts or bills of exception.

No error having been presented, the judgment is affirmed.


text:
    GIACONA et al. v. STATE.
    No. 20658.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    Rehearing Denied Jan. 17, 1940.
    Jno. R. Francis and P. V. Myers, both of Houston, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is burglary; the punishment, confinement in the penitentiary for eight years.

One question is presented for review. Appellants based their amended motion for new trial on newly discovered evidence, and attached to said motion the affidavit of a witness whose testimony they claimed to be newly discovered and material. The order of the court overruling the amended motion for new trial recites that evidence was heard thereon. No evidence is brought before this court, either by bill of exception or statement of facts. When the order of the court overruling the motion for new trial recites that evidence was heard it will not be presumed on appeal that the affidavits attached to the motion were considered, or that they were alone considered. Where the record indicates that the court heard evidence on the issue, this court must presume that the court’s action in overruling the motion was correct, and that the trial court acted upon evidence which was sufficient to justify his action. Sykes v. State, 109 Tex.Cr.R. 39, 2 S.W.2d 863. Applying this rule to the instant case, we must presume that the court’s action in overruling the amended motion for new trial was correct.

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.

BEAUCHAMP, Judge.

In the motion filed by appellants in this cause, no questions are raised for consideration by the court. It is stated that in the event a rehearing is granted, an additional brief will be filed setting up grounds for a rehearing, but the motion contains no intimation of what these grounds will be. The proper time for the appellants to have filed their brief was before the submission of the motion for rehearing. Nothing is placed before this court for consideration, and the motion is accordingly overruled.


author: KRUEGER, Judge.

text:
    WINN v. STATE.
    No. 20704.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1940.
    J. H. Baker, of San Saba, and F. H. Hammond, of Burnet, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is theft of sheep. The punishment assessed is confinement in the state penitentiary for a term of 2 years.

Appellant first complains of the court’s action in overruling his motion to quash the indictment. His contention, as we understand it, is that the jury commissioners for Burnet County at the November Term, 1937, selected a grand jury for the May Term, 1938, when in fact the law for that County provided for the 17th Monday after the first Monday in February, which date fell in the early part of June. Consequently there was no May Term, but a June Term. See R. C. S., Art. 199, 33d Judicial District, Vernon’s Ann.Civ.St. art. 199. On the 10th day of May, the Clerk of said Court opened the envelope which contained the list of grand jurors and delivered it to the sheriff who summoned them to appear on June 6th. This was proper under the authority of Art. 2117, R.C.S. They appeared on said day and 12 of the 16 men called were duly selected and returned the indictment against appellant which is the basis of the instant prosecution. Appellant makes no contention that the grand jurors were improperly selected, hut seems to rely entirely on the fact that the list shows that the grand jurors were called for a May Term.

The record fails to show that a challenge to the array of the grand jury was made; nor is it made to appear from the statement of facts, bills of exceptions, etc., that appellant was not under arrest or not out on bond charged with the offense prior to the time the grand jury was impaneled. An attack upon the legality of the grand jury must ordinarily be made by challenge to the array. In this case the record fails to show whether appellant was in jail or on bond when the grand jury was impaneled, and fails to show any excuse why he did not or could not have exercised the right of challenge provided by Art. 409, C.C.P., Vernon’s Ann. C.C.P. art. 358. In the case of Smith v. State, 97 Tex.Cr.R. 6, 260 S.W. 602, this court said: “While it would seem permissible that one who was not under arrest nor charged with the offense at the time of the convening of the grand jury — and who had no notice that such grand jury would investigate a crime involving him— might make a motion to quash the indictment for some error in the formation of the grand jury, still in such case it must appear from the record that there existed such excuse or reason for not having presented a challange to the array made necessary by the statute referred to.”

Appellant not bringing himself within the provisions of any exception which would allow him to raise the question at that late date, he has thereby waived such right. See also Hickox v. State, 95 Tex.Cr.R. 173, 253 S.W. 823 and authorities there cited.

Appellant next complains of the action of the trial court in declining to grant his request for a peremptory instruction to the jury to return a verdict of not guilty on the ground of variance between the allegations in the indictment and the proof. It is his contention that since it is charged in the indictment that Joe C. Trammel was the owner and in possession of the alleged stolen sheep, the proof should conform thereto. This, of course, is sound as a legal proposition. He contends that the testimony shows that Joe C. Trammel was the owner of the alleged stolen sheep, but the father, J. A. Trammel, had the care, custody, control and management thereof. We are of the opinion, after a careful study of the record, that his contention is well founded. The record shows that Joe C. Trammel was engaged in the mercantile business in the town of San Angelo and that he resided there. That he leased a ranch in Burnet County something like 200 miles away upon which he put approximately 600 sheep. That he placed his father, J. A. Trammel, in possession of the ranch and the sheep and entrusted the care, custody, control and management thereof to him. This being true, the father J. A. Trammel, had possession of the sheep at the time they were stolen. Art. 1414, P.C., reads as follows: “To constitute theft it is not necessary that the possession and ownership of the property be in the same person at the time of taking.”

Art. 1415, P.C. reads as follows: “Possession of the person so unlawfully deprived of property is constituted by the exercise of actual control, care and management of the property, whether the same be lawful or not.”

Consequently the ownership of property may be in one person and the possession thereof be in another, and it may be so charged in the indictment, but in such case, the want of consent of both parties must be shown.

It seems to be a well settled rule in this state that where the indictment charged the ownership and possession of the alleged stolen property to be in one person, and the proof shows the care, custody, control and management thereof to be in another, there is such a variance that a conviction cannot be sustained. The facts in this case bring it clearly within the rule announced in the case of Bailey v. State, 18 Tex.App. 426, 432. See also Busby v. State, 106 Tex.Cr.R. 293, 292 S.W. 234; Ratcliff v. State, 88 Tex.Cr.R. 79, 225 S.W. 53 and authorities there cited.

Other matters complained of by appellant need not be discussed as they will most likely not arise upon another trial.

For the error hereinabove pointed out, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

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


author: HAWKINS, Presiding Judge. CHRISTIAN, Judge.

text:
    RILEY v. STATE.
    No. 20653.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    Rehearing Denied Jan. 17, 1940.
    E. O. Northcutt, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for robbery, punishment being five years in the penitentiary.

This case has been before us under No. 20,431 on our court docket and is reported in Tex.Cr.App., 128 S.W.2d 807.

Appellant was convicted at the November term, 1938, of the District Court of Potter County. His motion for new trial was overruled on the last day of the term, and appellant gave notice of appeal to the Court of Criminal Appeals. The trial court adjourned for the term without sentence having been pronounced against appellant. At the January term, 1939, of said court sentence was pronounced against appellant, but at that time the jurisdiction of this court had attached. It became necessary to dismiss the former appeal because of no sentence, ’the one attempted to be pronounced being inoperative.

After the mandate of this court ordering the dismissal reached the trial court the judge thereof on June 17, 1939, again passed sentence upon appellant, directing punishment as assessed in the judgment of conviction at the November term, 1938, of said court.

On July 6, 1939 appellant filed his affidavit stating that he still desired to appeal his case and that he “is unable to pay the cost of appeal or to give security therefor, and is unable to pay for the statement of facts in such case nor the transcript therein, nor to give security therefor.” On July 18th, 1939 the trial court made an order relating to appellant’s affidavit as follows: “And the Court having heard and considered the same, finds that defendant has heretofore-been furnished a statement of facts and a transcript upon a former affidavit, that there has been no additional testimony in the case since former statement of facts-was so furnished to the defendant, and that it would be a vain and useless thing to require the official court reporter to prepare and furnish a second statement of facts that would be an exact duplicate of the one heretofore furnished. The Court further finds that it could serve no useful purpose to require the clerk of the court to prepare and furnish defendant another transcript complete in this case, which would be for the-most part an exact duplicate of the one heretofore furnished. The Court does find that defendant is entitled to have the clerk of this court prepare and furnish to him a supplemental transcript containing all pleadings,, motions, orders, judgments, sentence, and -other proceedings had in this case not included in said original transcript, without his being required to pay for the same or to give security therefor, as provided by law in such cases; and it is hereby ordered by the Court that it be so done.”

With the record in the present case in the condition indicated appellant insists that he is entitled to have the judgment of conviction reversed because he has been deprived of a statement of facts, further insisting that the present case is an entirely different case than the one which was before us in our court docket No. 20,431, and that we have no right to refer to that case for the facts. He relies upon 4 Tex.Jur. p. 402, Sec. 271, and the authorities there cited as supporting his position, and especially upon Searcy v. State, 89 Tex.Cr.R. 478, 232 S.W. 319; Thielepapa v. State, 89 Tex.Cr.R. 493, 231 S.W. 769, and Patterson v. State, 89 Tex.Cr.R. 402, 231 S.W. 763. An examination of these cases reveals that they have reference to different cases in fact. Not so here. While the docket number in this court is different, the trial court number is the same, and the certificate of the trial judge and the entire record show the cases to be the same, and reflect only •different phases of procedure in the sanie prosecution. Of course, appellant is not to blame because the trial term at which he was convicted adjourned without sentence being pronounced, nor is he to blame because the trial court undertook to sentence him at a time when jurisdiction had been lost to the trial court by a pending appeal to this court. On the other hand, appellant is to blame for prosecuting a premature appeal before sentence had been pronounced, thereby aiding in confusion of the record. If we should accede to appellant’s present contention that no reference whatever may be had to the record before us in No. 20,431 he would find himself embarrassed by the absence of any notice of appeal from the sentence which was finally legally pronounced against him.

So far as we know there is no precedent to guide us in the present situation. We have concluded that it would be unfair both to the State and to appellant not to consider a statement of facts which has not ■only the approval of the trial court and district attorney, but the approval also of appellant’s counsel, in view of the trial judge’s recital that no “additional testimony” is in the record not reflected by said statement of facts.

The facts leave no room for doubt that appellant and a companion robbed the injured party of $27 in money and a wrist watch. The jury was warranted under the facts in discarding as fantastic appellant’s claim that his companion won the money and watch from the injured party in a card game.

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: CHRISTIAN, Judge.

text:
    EVANS v. STATE.
    No. 20727.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1940.

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

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

There is a fatal variance between the purport and tenor clauses of the indictment. In the purport clause it is alleged that appellant made a false instrument in writing purporting to be the act of J. E. Masters,' Sr. The alleged forged instrument, as set out in the indictment, is signed “Edd Masters”. The indictment embraces no innuendo averments explaining the connection between J. E. Masters, Sr., and Edd Masters. See Simms v. State, 116 Tex.Cr.R. 97, 32 S.W.2d 852. The State’s Attorney before this court confesses error.

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: KRUEGER, Judge. BEAUCHAMP, Judge.

text:
    HAMPTON v. STATE.
    No. 20612.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.
    Rehearing Denied Jan. 17, 1940.

      Baskett & Parks, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is murder. The punishment assessed is death.

The state’s testimony shows that on Saturday night of August 21, 1938, appellant without cause or provocation stabbed his wife in the chest with an ice pick while she was sitting in an automobile. He then carried her down the street toward their home. On the way he knocked her down two or three times while she begged for mercy. He took her into an enclosed field of about three or four acres, where he left her without summoning medical aid. About 4 A. M. he told his mother that he had found his wife dead in the enclosure near the T. & P. R. R. The matter was reported to the police department, who arrested appellant. The undertaker who prepared the body for burial found a wound in her chest which punctured her heart. This wound was about 2½ inches deep and was made with an instrument somewhat smaller than a pencil. He also found a fractured skull. Appellant denied that he inflicted any of the wounds found on her body. He said that he and some parties were at a truck talking and that he left them and went to a beer tavern; that when he returned he inquired as to the whereabouts of his wife and someone told him that she had gone away with another man. That he then went to look for her and about 3:30 or 4 A. M. found her dead in the weeds in the enclosure.

The indictment contained two counts, the first alleging that appellant killed the deceased by striking her with some blunt instrument and the second charging that he killed her by cutting and stabbing her with an ice pick. It appears from the record that the cause was, on a former trial, submitted to the jury on the second count, which was tantamount to an election. The trial court granted him a new trial from a conviction based on. this second count alleging that he killed the deceased by means of an ice pick. Appellant on this trial filed a plea of former jeopardy as to the first count, which plea was sustained. Consequently, the state was required to prove the allegations in the second count to sustain a conviction. It is appellant’s contention that the state has failed in its proof because there were two distinct wounds on her body, one being a fractured skull and the other a stab wound in the chest, apparently made with an ice pick or some similar instrument; that the evidence fails to show- beyond a reasonable doubt that the deceased died as a result of the wound made by an ice pick rather than as a result of the fractured skull. We cannot agree with his contention. The evidence shows that appellant had an ice pick in his hand at the time the deceased cried out that he had stabbed her. After this appellant would not allow friends to take her to the hospital, but carried her down the street with his left arm around her, striking her and knocking her down several times. During all this time she cried for mercy until they passed Will Bate’s home, at which time she quit screaming. It might have been believed that she died at this time. There is no testimony as to when the skull was fractured, whether before or after her death, nor is there any evidence that death would have resulted so soon from this fracture, or that such a fracture of the skull could have been the cause of her death. We are not in a position to say as a matter of law that the fracture and not the stab wound was the cause of her death. The careful judge who presided at the trial of this case instructed the jury that if they believed from the evidence or had a reasonable doubt thereof that the death of Clara Hampton was the result of a fractured skull, if any, or from any other cause or combination of causes, if' any, other than by cutting and stabbing her with an ice pick, then to acquit him. We think the facts and circumstances were adequate to allow the jury to conclude that appellant killed his wife with an ice pick. It is common knowledge that an ice pick tapers to a fine point; consequently the puncture in the heart was small and this was proved by the testimony of the undertaker. As a result the blood probably leaked out very slowly, and it is not inconceivable that the deceased under such circumstances might have been half pulled, half carried, several blocks or more before expiring. We also believe that there is ample evidence to support the jury’s conclusion that the death resulted from the wound made with an ice pick as charged in the indictment. While it is true, as pointed out,by appellant in his brief, that the witnesses who testified that appéllant had an ice pick in his hand at the time the deceased cried that someone had stabbed her were impeached, the weight to be given their testimony was still a question for the jury. See Dobbs v. State, 94 Tex.Cr.R. 398, 251 S.W. 1057; Branch’s Ann.P.C. pages 106 to 110.

Bills numbers two, three and four complain of testimony showing the approximate weight and size of the deceased. The only objection urged to such testimony was that it was immaterial. Furthermore the undertaker testified to the same effect without objection. When evidence is.admitted without objection which is similar or of like character as that objected to, no reversible error is shown. See Sparkman v. State, 128 Tex.Cr.R. 627, 82 S.W.2d 972; Enix v. State, 112 Tex.Cr.R. 376, 16 S.W.2d 818, and authorities cited. Bill number five is without merit for the same reasons. Appellant objected to one of the state’s witnesses being allowed to state, over his objection, that it was his opinion that appellant was drinking on the night in question. Appellant elicited this same information from one of his own witnesses, Sam Redman. Bill number six is without merit. Appellant’s objection that the question was leading was sustained. The testimony complained of in bill numbers seven and eight is qualified by the trial court and as qualified fail to reveal error.

Appellant, by bill of exception number nine, insists that the trial court erred in allowing the state’s witness, Johns, to testify that he had formerly talked to the officers about the killing and had told them that he saw an ice pick in appellant’s hand. His only objection to this testimony, according to the court’s qualification, was that it was immaterial. The bill, as qualified by the trial court, fails to reveal error.

Bill of exception number eleven recites that the state asked the defendant if he knew any reason why certain state’s witnesses would have testified as they did if it were not true. Appellant replied that practically all these witnesses belonged to a syndicate which had a grudge against him. We fail to see how this matter harmed appellant. Moreover the jury had a right to hear testimony concerning any ill will against the defendant on the part of the witnesses, and such matter would appear to be more beneficial to him than otherwise.

Appellant urged a number of objections to the court’s charge. We have carefully reviewed the charge in the light of the objections and reached the conclusion that it is not subject to the criticisms addressed thereto. The instruction on the law of aggravated assault could not have prej-udicially affected him since the jury found him guilty of murder with malice.

In view of the extreme penalty, we have carefully examined each of appellant’s contentions, but in none of them is any error revealed which would justify us in reversing the case.

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.

BEAUCHAMP, Judge.

Commendable as is able counsel’s earnest motion for rehearing in this case, we are unable to find that error in the original opinion has been shown. We have re-considered all of the errors complained of in said motion and believe that they were thoroughly discussed and properly disposed of in the original opinion. No new matter has been brought to our attention which would call for any additional discussion of the facts of the case or the law involved.

The motion for rehearing is overruled.