text:
    SMITH v. STATE.
    No. 21250.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1940.
    Ivan Irwin, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

On the night of the 21st of November, 1939, the place of business of B. G. Bunk-ley in Fisher County was burglarized and a quantity of merchandise taken therefrom. Mr. Bunkley recovered some of his merchandise in Dallas, Texas. Appellant was placed in possession of the stolen property only by the testimony of accomplice witnesses. According to the testimony of several of the accomplice witnesses, appellant, Mark Polk, Luke Banano, Isaac Tomerlin and E. M. Anderson committed the burglary. Also, according to the testimony of these accomplices, the property of said Bunkley was carried to Dallas and sold. Some of the accomplice witnesses who did not participate in the burglary testified to having seen appellant in Dallas with the accomplices who burglarized the store, in possession of several articles of merchandise. There was testimony of nonaccomplice witnesses to the effect that on the 18th of November, 1939, prior to the burglary, appellant was seen in an automobile in Dallas. The speedometer showed that the car had been driven something over 2,000 miles. On the 22d of November, after the burglary, . the speedometer on the same automobile showed that it had been driven over 3,000 miles. The state undertook to show that appellant was in Fisher County on the night of the burglary with the accomplice witnesses who participated in the commission of the crime. However, appellant was not shown to be in Fisher County at the time, except by the testimony of accomplice witnesses.

Article 718, C.C.P., provides that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed, and further provides that the corroboration is not sufficient if it merely shows the commission of the offense. If it should be conceded that it was shown that appellant and the accomplice witnesses had been seen together prior to the commission of the offense and shortly after its commission it would not follow that the corroboration should be held sufficient. As already pointed out, appellant was not shown to be in Fisher County when the offense was committed save by the testimony of the accomplice witnesses. If the testimony is sufficient to show that he was seen in Dallas with such witnesses prior to the commission of the offense and after its commission, such fact alone is not sufficient corroboration. As already pointed out, only the accomplice witnesses placed appellant in possession of any of the stolen property. It follows from what we have said that we deem the evidence insufficient to support the judgment of conviction. The state’s attorney before this court confesses error.

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


source: Caselaw Access Project

author: GRAVES, Judge.

license: Public Domain

text:
    KOSEL v. STATE.
    No. 21238.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1940.
    Byron Skelton and Henry Taylor, both of Temple, for appellant.
    Jas. K. Evetts, Dist. Atty., of Belton, and Lloyd WV Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted by the jury and sentenced to serve two years in the State prison for knowingly receiving and concealing stolen property.

The store of Will Evans at Prairie Dell, in Bell County, was burglarized and a large quantity of goods such as are usually kept in a general merchandise store was taken therefrom. Soon thereafter the peace officers, in company with Mr. Evans, recovered a large amount of these goods at the store of appellant in Falls County, and appellant told them that he had purchased these goods from Elmer (Preacher) Ellis and a companion, and had paid them therefor about $15 and forty-seven half pints of whisky. This transaction occurred somewhere between 11 o’clock P. M. and 2 o’clock A. M.

Elmer (Preacher) Ellis was an inmate in the penitentiary, serving a term therein for this alleged burglary, and he testified relative to the burglary, as well as to the sale of these stolen goods to appellant, and in his testimony he stated that he told appellant that these goods were “hot”, and that he had previously had an agreement with appellant to obtain goods outside of Falls ■County and bring them to appellant who would buy them.

The witness Ellis was an accomplice, and the trial court so charged the jury, giving an approved charge thereon, generally instructing the jury that the testimony of Ellis should be corroborated as to the offense committed before the same could be utilized to predicate a conviction thereon. This charge was properly and timely objected to because it failed to instruct the jury that it was necessary that- the testimony of Ellis, the accomplice, be corroborated both as to the theft of the goods as well as the receiving thereof by appellant, knowing the same to have been stolen. The trial court failed to respond to this exception and merely charged the usual and customary charge on accomplice testimony that requires, irt substance, corroboration of the accomplice’s testimony of “the offense committed.”

It will be observed that there are here presented the elements of two offenses, that is, a burglarious acquisition of certain goods so that same came within the meaning of the term theft, and the knowingly receiving and concealing of such goods by appellant. The accomplice testified to both of such elements of the offense committed, and the court should have charged the jury that his testimony should of necessity have been corroborated in each constituent element of this offense.

In the case of Johnson v. State, 42 Tex. Cr.R. 40, 60 S.W. 667, 668, we said: “In order to make out the crime of receiving stolen property knowing it to have been stolen, it is necessary to show that a theft has been committed, and subsequently the party who is charged with receiving the property, knowing it to have been stolen, did so receive it. Where the testimony of the principal is used, his testimony must be corroborated both as to the theft and the receiving of the property by the party who is charged with that offense; otherwise, the conviction would not be justified.”

Again it is said in the case of Poon v. State, 120 Tex.Cr.R. 522, 48 S.W.2d 307, 308: “The court charged the jury that Mendez and Stone were accomplice witnesses, and gave the customary instruction touching the necessity of corroboration. The charge failed to advise the jury that the accomplice witnesses should be corroborated both as to the theft and as to the receiving of the stolen property. Appellant timely and properly excepted to the charge for its failure to so instruct the jury. The charge should have been amended. Hanks v. State, 55 Tex.Cr.R. 405, 117 S.W. 149; Brewer v. State, 93 Tex.Cr.R. 213, 246 S.W. 663; Bloch v. State, 81 Tex.Cr.R. 1, 193 S.W. 303; Johnson v. State, 42 Tex.Cr.R. 440, 60 S.W. 667.”

Again we quote from Wright v. State, Tex.Cr.App., 139 S.W.2d 825, 826: “It is obvious'that the State relied for a conviction upon the testimony of the accomplices, or rather the accomplice Rogers. It is a well-established and recognized rule in this state that upon the trial of a person charged with receiving stolen property, where the State relies upon the testimony of an accomplice witness, it is essential to a conviction that there be corroboration of such testimony, both as to the theft of the property and the acquisition thereof by the accused with knowledge of the theft.”

While we think the corroborating testimony was amply sufficient, nevertheless it was the trial court’s duty under these decisions to have charged the jury relative to the necessity of such corroboration as to both phases of this case, which matter was timely and properly called to the court’s attention, and for the failure to do so this judgment is reversed and the cause remanded.


author: CHRISTIAN, Judge.

text:
    PLEASANT v. STATE.
    No. 21221.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1940.
    L. D. Griffin, of Alice, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

Appellant challenges the sufficiency of the evidence. Devore Johnson and her, husband were in a beer tavern in Alice on the 25th of June, 1938. Appellant entered the tavern and an altercation ensued when, according to the testimony of Devore Johnson, appellant attempted to hug her. The proprietor of the tavern required the parties to leave his place of business. According to the testimony of Devore Johnson, after they left the tavern appellant attacked her and cut her several times with a knife. Touching the size of the knife,' she testified as follows: “It was a large knife he had; I don’t know what kind it was. I couldn’t swear that it was one of these East Dallas Specials. It was a large one. I didn’t see but one blade. As to whether it apparently seemed to be as big as my little finger, it was a large blade.” The witness testified further that she was cut pretty badly but went to work the next day. She was attended by a physician who treated her wounds for about ten days.

The attending physician testified that if the injured party had not been treated for the wounds she could have died. On recross-examination he said: “She could have an infection at such time, but ordinarily those wounds wouldn’t cause death.” Again, on redirect examination he testified: “I do not think she would have bled to death if I hadn’t stopped the bleeding. After she had bled enough the bleeding would have stopped.” He described several wounds on the body of the injured party. He said the worst one was approximately threerquar-ters of an inch or an inch in depth.

The state introduced a witness who described the knife appellant used as follows: “I saw Boote (appellant) with a small knife; it had a blade about as long as my little finger. It was a small pocket knife that I see in his hand inside. I couldn’t see the handle of it.” No witness testified that the knife in question was capable of producing death or serious bodily injury.

We think, under the holding of this court in Hunt v. State, 94 Tex.Cr.R. 155, 250 S.W. 168, and Fregia v. State, 79 Tex.Cr.R. 334, 185 S.W. 11, 12, that appellant’s contention that the evidence is insufficient to support a conviction for an assault with intent to murder should be sustained. In Fregia’s case we quoted from Section 517, Branch’s Criminal Law, as follows: “If weapon is not shown to be deadly, or wounds serious, it is not assault to murder, though defendant said he intended to kill; the desire to kill is not proof that weapon was deadly.”

We take the following quotation from Jones v. State, 116 Tex.Cr.R. 30, 28 S.W. 2d 146, 147: “Appellant was charged in proper form with assault to murder Daisy Newman. The facts show that on the night in question there was a fight between the two women, and that appellant used some sharp instrument and inflicted a wound upon Daisy Newman, bringing blood. The record does not contain any, testimony shedding light upon the size, kind, or character of the sharp instrument used by appellant, nor is there any testimony that the wounds inflicted upon Daisy Newman were serious, or that they amounted to serious bodily injury. She was taken to a hospital and given treatment, but came back downtown the same night and was at her work the next day. The learned trial judge declined to charge the law of simple assault. The state’s attorney with this court in his brief admits that the evidence is insufficient to justify a conviction for assault with intent to murder. We are inclined to agree with him. We think the court should have charged on simple assault under the facts.” See also Sofge v. State, 133 Tex.Cr.R. 409, 111 S.W.2d 720.

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.


text:
    HARRIS v. STATE.
    No. 21208.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1940.
    Ramey A. Smith, of Sulphur Springs,_ for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is acquisition of property by threats; the punishment, confinement in the penitentiary for two years.

The prosecution proceeded under Article 1409, P.C., which reads as follows: “If any person, by threatening to do some illegal act injurious to the character, person or property of another, shall fraudulently induce the person so threatened to deliver to him any property, with intent to appropriate the same to his own use, he shall be imprisoned in the penitentiary not less than two nor more than five years.”

It was alleged in the indictment, among other things, that appellant threatened to arrest E. A. Harbor and take him to jail if Harbor did not surrender to him part of a pint of whisky and five dollars in money. It was further alleged that appellant represented himself to be an officer of the United States Revenue Department. We find nothing in the statement of facts showing that appellant’s statement that he was an officer of the United States Revenue Department was false. The threat mentioned in the statute must be to do an illegal act. The threat to do a legal act would not come within the offense defined. Burnsides v. State, Si Tex.Cr.R. 399, 102 S.W. 118, 120. If appellant had the right to arrest Harbor he (appellant) was not threatening to do an illegal act. It being a part of the state’s case, as charged in the indictment, that appellant falsely personated an officer, it was incumbent upon the state to support such allegation. We quote from Burn-sides v. State, supra, as follows: “It was a part of the state’s case, as set out in the indictment, that appellant falsely per-sonated an officer, and that he falsely charged Martin with unlawfully boarding a train. These were allegations made in the indictment, and evidently deemed necessary to make out the state’s case. They should have been proved as alleged. * * * .” It is observed that in Burnside’s case the prosecution proceeded under Ar-tide 857, P.C.1895, which is now Article 1409, P.C., which we have hereinbefore quoted.

Because of the failure of the state to make the proof in question the judgment must be reversed.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


author: HAWKINS, Presiding Judge.

text:
    Ex parte GRISAFFI.
    No. 21374.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1940.
    Taylor, Irwin & Irwin (by Ivan Irwin and T. K. Irwin', Jr.), of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. •
   HAWKINS, Presiding Judge.

Appellant was held in jail by the Sheriff of Dallas County. He made application for writ of habeas corpus to a judge of the District Court of Dallas County, who issued the writ directing the Sheriff to appear and show by what authority he was holding appellant. The answer of the Sheriff discloses that he was holding appellant upon a capias issued by the Clerk of the Corporation Court of the City of Galveston, Texas, which said capias had been endorsed by the District Judge of the 10th Judicial District of Texas, upon a complaint filed in the City Court of Galveston charging the appellant with the offense of robbery by the use of firearms. Attached to the answer in behalf of the Sheriff was the following capias:

“The State of Texas. In the Corporation Court in Galveston, Texas.
“To the Chief of Police or any policeman or Marshall of the City of Galveston, Greeting:
“You are hereby commanded to arrest John Brazil Grassiffi, and him safely keep, so that you have him before the Honorable Corporation Court in Galveston, in Galveston County, on the Instanter, A. D. 1940, at 9:00 A. M. then and there to answer The State of Texas upon a charge by Officer Burns pending in said Court, wherein said defendant is charged with the offense Robbery by Assault with Firearms.
“Herein fail not, but of this Writ make due return on the Instanter A. D. 19— showing how you have executed the same.
“Witness my signature and official seal, at office in said City of Galveston, this 5th day of Sept. A. D. 1940. Gus Opperman (signed) Clerk of the Corporation Court, City of Galveston.
“Let this warrant be served in any county in Texas. (J. G. Canty, Judge 10th District Court of Texas) (signed.) Officer’s Return
“Came to hand the 6th day of September A. D. 1940, and executed the 6th day of September A. D. 1940 by arresting the defendant and placing in Dallas County Jail. R. A. Schmid, Sheriff of Dallas County, Texas, by J. E. Decker, (signed) Deputy.”

Upon a hearing appellant was remanded, hence this appeal.

The point is made that the capias in question is signed by Gus Opperman as Clerk of the Corporation Court of the City of Galveston, a person unauthorized to issue a warrant under Art. 224, C.C.P. Officer Burns from Galveston testified over objection that Opperman was in fact Recorder of the Corporation Court of the City of Galveston.

Art. 33, C.C.P., designates as “magistrates” : “ * * * The judges of the Supreme Court, the judges of the Court of Criminal Appeals, the judges of the district court, the county judge, any county commissioner, the justices of the peace, the mayor or recorder of an incorporated city or town.”

Articles 223 and 224 of the Code of Criminal Procedure as amended in 1905, read as follows:

“ * * * A warrant of arrest, issued by any county of district clerk, or by any magistrate (except county commissioners or commissioners courts, mayors or recorders of an incorporated city or town), shall extend to any part of the State; and any peace officer to whom said warrant is directed, or into whose hands the same has been transferred, shall be authorized to execute the same in any county in this State.”
“ * * * When a warrant of arrest is issued by any county commissioner or commissioners court, mayor or recorder of an incorporated city or town, it can not be executed in another county than the one in which it issues, except:
“1. It be endorsed by a judge of a court of record, in which case it may be executed anywhere in the State, * *

The Clerk of the Corporation Court of the City of Galveston was not a magistrate under the provision of the statute here applicable and had no authority thereunder to issue the capias in question. The capias being invalid in the first instance could not be vitalized by the endorsement of the District Judge of the 10th Judicial District. Such an endorsement under the statute controlling only extends the operation of an authorized capias to outside counties.

If Opperman was the Recorder of the Corporation Court of the City of Galveston he should have issued the capias in that capacity. The capias would then-have met the requirements of Arts. 223 and 224 of the C.C.P. regarding warrants to be executed outside the county where issued.

We are of opinion that appellant was illegally held in custody under the capias described and was entitled to his discharge.

The judgment remanding appellant is re- ■ versed and he is ordered discharged.


author: GRAVES, Judge. BEAUCHAMP, Judge.

text:
    KLINE v. STATE.
    No. 20891.
    Court of Criminal Appeals of Texas.
    March 27, 1940.
    Rehearing Denied May 29, 1940.
    Baskett & Parks, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of an assault to rape, and assessed a penalty of twenty-five years in the State penitentiary. '

There are no bills of exception in the record, and appellant’s complaint herein relates only to the sufficiency of the facts.

From the facts it is shown that the complaining witness, Frances Walker, at the time of the alleged occurrence was a young girl sixteen years past, and worked as a waitress in a drug store in Dallas from the hour of 2 o’clock P. M. until midnight. Twice before she had seen appellant, once when she waited on him in the drug store when he was alone, and once when his wife was with him, although she was not acquainted with him. She wore a badge with her name on it, and on one of these times when she had seen appellant he ’called her name and asked her for a date, and she refused him. When her duties were over at the drug store she was in the habit of taking a taxicab and thus going to her home where she lived with her mother. On the night in question, however, she was going to take a street car in order to go home, and while waiting for the street car she saw defendant come around the block, and he stopped there near her and asked her “Did she want to ride?” and she said “No, thank you.” Appellant then drove around the block again and stopped near her a second time, and threw open the door of the car and pointed an automatic pistol at her, and told her to get in the car. She was afraid of him, and finally got in the car because of the pistol, although she did not desire to do so. Appellant started driving away with this girl, and finally attempted to kiss her, which she refused to do; he finally drove into a dark alley near a public street and attempted to choke her, and finally raised her skirt and waist and got on top of her; her girdle was finally pulled off her in the struggle and appellant was lying down on top of her. She screamed and fought him, and he struck her four times, causing her nose to bleed and her eye to become black from the congestion of blood therein. Appellant had in the meantime unbuckled his belt and started opening his pants. After appellant struck the witness he started his car and came out of the alley, and she continued fighting him, and the car continued down a public street until when nearing the home of a friend of hers the prosecutrix jerked open the car door and leaped out of the car while it was traveling at the rate of approximately thirty-five miles per hour. As a result of thus leaving the car the young lady slid along the street for about thirty-six feet, suffering additional injuries therefrom. Her purse was later picked up by street cleaners at the point where she struck the street and eventually recovered by her. The young lady immediately went to the home of this girl friend, and the mother of such friend testified that prosecutrix’ face at such time was muddy, her arm skinned and her eye black, and her nose bleeding, and her jacket all muddy and torn. The mother of Miss Walker testified that she saw her daughter about 1:15 in the early morning of the time in question; that she was injured, bruised and bleeding, and that her clothing were bloody, and that she had lost the girdle that she was wearing when she left to go to work.

The doctor who treated the young lady testified as to her bruises and her black eye, as well as to her physical condition. He also stated that she seemed to be reasonably quiet, a sensible girl, although very nervous. The appellant offered no testimony.

It seems to us that there is a sufficient amount of facts shown herein upon which the jury could say that the appellant made this assault upon this young lady for the purpose of having sexual intercourse with her, but it seems to us that the facts show that he was unable to do so on account of her intelligent and valiant resistance.

We think the facts herein are sufficient to uphold the jury’s verdict. The judgment is affirmed.

On Rehearing.

BEAUCHAMP, Judge.

In his motion for rehearing, as well as the oral argument presented thereon, it is earnestly insisted that the evidence in this case is insufficient to show that appellant attempted to commit the fiendish crime for which he was convicted. It is urged that the only spoken words by the appellant to the prosecuting witness express a desire that he be permitted to kiss her.

We have carefully reviewed the evidence in the case and, while it is true that the prosecuting witness detailed but few words, spoken by appellant, it is perfectly apparent from the circumstances and conduct which she does describe in minute detail what appellant was attempting to do and no reasonable mind would doubt it. It is also very clear that it was the physical resistance and vocal outcry of the prosecuting witness which deterred him in his purpose and prevented him from successfully carrying it out.

While additional testimony by prosecuting witness might be detailed from the statement of facts, the original opinion sets out sufficient to warrant the verdict which the jury returned.

The motion for rehearing is overruled.


author: MURRAY, Justice.

text:
    GENERAL EXCHANGE INS. CORPORATION v. ANDREWS et al.
    No. 10820.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 4, 1940.
    Kemp, Lewright, Dyer, Wilson & Sor-rell and J. Woodrow Hazelwood, all of Corpus Christi, for appellant.
    Barnhouse & Stanley, of Freer, and Perkins & Floyd, of Alice, for appellees.
   MURRAY, Justice.

The appellee C. A. Andrews instituted this suit in the Justice of the Peace Court of Precinct No. 4, Duval County, Texas, against General Exchange Insurance Corporation and F. M. Bowman, doing business as Bowman Chevrolet Company. Both defendants below filed pleas of privilege to be sued in the counties of their residence, which were overruled by the Justice of the Peace and judgment rendered in favor of the plaintiff.

An appeal was taken to the District Court of Duval County, which court at the time had jurisdiction of such appeals. The pleas of privilege were again heard; the plea of Bowman was granted but the plea .of the Insurance Corporation overruled.

The General Exchange Insurance Corporation has prosecuted this appeal from the order overruling its plea of privilege.

The plaintiff had alleged a joint cause of action against the Insurance Corporation and Bowman, and having granted the plea of privilege of Bowman and ordered the cause as to him transferred to Jim Wells County, the county of his residence, it was error for the court not to also order the cause of action as to the Insurance Corporation transferred to Jim Wells County.

The order overruling the plea of privilege of the General Exchange Insurance Corporation will be reversed and the cause remanded with instructions to the trial court to transfer the entire cause to the proper court of Jim Wells County.


author: PER CURIAM.

text:
    MUNSON v. LYMAN et al.
    No. 3963.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 20, 1940.

      A. T. Folsom, of Wink, amicus curiae.
    Klapproth & Hamilton, Stubbeman, Mc-Rae & Sealy, and Whitaker, Perkins & Turpin, all of Midland, and Hubbard & Kerr, of Pecos, all on the trial only, for ap-pellees.
   PER CURIAM.

In this appeal, upon the suggestion of the amicus curise that the question of receivership involved has become moot, for the reason that the entire controversy has been settled by an agreed judgment in the United States District Court of the Western District of Texas, Pecos Division, it is ordered that the appeal herein be dismissed at the cost of the appellant.


text:
    MITCHELL v. STATE.
    No. 21252.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1940.
    Penn J. Jackson, of Cleburné, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is opposing the arrest of another for a misdemeanor; the punishment, a fine of $25.

The prosecution proceeded under Article 339, P.C., which reads as follows: “If any person shall wilfully oppose or resist an officer in executing or attempting to • execute any lawful warrant for the arrest of another person in a misdemeanor case, or in arresting or attempting -to arrest any person without a warrant, where the law authorizes or requires the arrest’to be made without a warrant;- he shall be fined not less than twenty-five nor more than five hundred dollars,-and if' arms be. used, be fined not less than fifty nor more than one thousand dollars.”

It is averred in the complaint and information, in substance, that appellant opposed the sheriff in his effort to arrest Ed Mitchell. It is. further alleged in the complaint and information that at the time the sheriff attempted to make the arrest Ed Mitchell was drunk in a public place. It is not' averred whether the officer was armed with a warrant or whether he was attempting to make, the arrest without a warrant. ;We quote from Harless v. State, Tex.Cr.App., 109 S.W. 934, as follows: “Wherever an officer undertakes an arrest of a citizen, it must be in compliance with the authority confided by the law; otherwise, he .has no'right to make the arrest. If it is under and by, virtue of a warrant, this matter must be sufficiently pleaded to show his authority and that it is legal, and the fact must be stated, and sufficient facts, also, to show that the offense was one in which he was authorized to arrest by the terms of the law when he was not armed with a warrant.”

It is manifest, under the holding in Harless case, that the complaint and information are insufficient.

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: BEAUCPIAMP, Judge.

text:
    WHITTLE et al. v. STATE.
    No. 21245.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1940.

    Clifford C. Keith, of Midland, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCPIAMP, Judge.

Appellants were tried jointly by a jury in Midland County on a charge of robbery with firearms. A verdict of guilt with a sente.nce of thirty years 'in the penitentiary was assessed against each.

The record is before us without bills of exception. The proceedings seem to be regular and the facts of the case amply justify the jury in returning the verdict which they did in the case. There is nothing before us for consideration. The judgment of the trial court is affirmed.


author: KRUEGER, Judge. BEAUCHAMP, Judge.

text:
    Ex parte STEAVENSON.
    No. 21321.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.
    Rehearing Denied Nov. 20, 1940.

      J. D. Todd, Jr., of Corpus Christi, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

It appears from the record that in the latter part of May, 1940, H. C. Steaven-son was arrested by the Sheriff of Nueces County and restrained of his liberty by virtue of an executive warrant issued by the Governor of this state upon a requisition from the Governor of the State of Kansas. Appellant immediately applied to the Judge of the 117th Judicial District Court of Texas for a writ of habeas corpus and. prayed that upon a hearing thereof he be discharged. The writ was issued as prayed for, and upon a hearing thereof the court remanded him; and from said order he has appealed to this court.

The executive warrant recites that “Whereas, it has been made known to me by the Governor of the State of Kansas that Howard C. Steavenson stands charged by affidavit and complaint before the proper authorities, with the crime of desertion and nonsupport of minor child committed in said State and that the said defendant has taken refuge in the State of Texas, etc.”

Appellant does not seem to attack the regularity of the executive warrant or the requisition warrant by the Governor of Kansas. His main contentions for his release from confinement are the following grounds:

(1) Because such complaint attempts to allege in one count thereof more than one offense against defendant, and does not apprize defendant of the offense upon which he would be required to stand trial.

(2) Because such complaint, and the allegations therein contained in one count, disclose that the offense, alleged to have been committed by defendant, or a portion of such alleged offense, occurred while defendant was absent from the State of Kansas.

(3)Because such complaint and the allegation therein contained in one count does not disclose that defendant was a fugitive -from justice because the offense and a portion thereof occurred while defendant was absent from the State of Kansas.”

We will undertake to dispose of the contentions in their numerical order.

Omitting the formal parts, the complaint reads as follows:

“Edith Elizabeth Steavenson of lawful age, being first duly sworn, on oath says for the one count of this complaint, that Howard C. Steavenson, in Geary County, Kansas, on or about the 11th day of September, 1939, and on each and every day thereafter, continually to this 16th day of February, 1940, being then and there, the natural parent and father of one child-- — born in lawful wedlock to the said defendant and his wife, Edith Elizabeth Steavenson, said child-being under the age of sixteen years, to-wit: Dan Steavenson, 2 years of age, did then and there unlawfully, willfully, knowingly, fe-loniously and without lawful excuse therefor desert, fail, neglect and refuse to provide for the support and maintenance of the said child-, who was then and there in destitute and necessitous circumstances, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Kansas.”

The complaint was made and sworn to on the 16th day of February, 1940.

It will thus be seen that the complaint charges but a continuous offense. We deem the complaint sufficient to put appellant upon notice that upon his trial he will be required to meet proof of his neglect to support his minor child within the time therein specified. Appellant admitted on the hearing that he was in the State of Kansas from the 11th day of September, 1939, until the 4th day of January, 1940, during which time it is alleged that he committed the offense with which he is charged, and then departed from said state. Consequently, if he violated- the letter and spirit of the law as charged in the complaint, he became a fugitive from justice and subject to extradition under 18 U.S.C.A. § 662, and the law of this state on the subject, when he left Kansas and came to Texas. The guilt or innocence of one accused of crime in a demanding state will not be tried in the forum of the asylum state. See Ex parte Mendell, 92 Tex.Cr.R. 321, 244 S.W. 146; Ex parte Hancock, 75 Tex.Cr.R. 71, 170 S.W. 145; Ex parte Wells, 108 Tex.Cr.R. 57, 298 S.W. 904.

From what we have said, it follows that the judgment of the trial court be and the same is in all things 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.

We are unable to agree with the contentions made on the motion for rehearing, and believe that all the material questions in the case have been properly considered in the original opinion. They are reconsidered and adhered to.

The motion for rehearing is overruled.


author: BEAUCHAMP, Judge.

text:
    RAMBO v. STATE.
    No. 21185.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1940.
    Jimmie MacNicoll and Jno. A. Ballowe, both of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. •
   BEAUCHAMP, Judge.

The appellant was convicted of the abominable and detestable offense of sodomy for which the jury assessed a penalty of fifteen years in the penitentiary.

A discussion of the few questions raised will not require a summary of the facts but are purely questions of law, which are not aided by an understanding of the testimony.

The first matter for consideration goes to the merits of appellant’s motion for a continuance. In form it appears to be meritorious.

After the trial, a motion for a new trial was presented alleging substantially the same grounds that were set out in the motion for a continuance. This was contested by the state. The evidence, if any, heard on the motion is not found in the record and it will be presumed that the court found in favor of the contest which controverts every issue of fact raised in the motion.

One ground for continuance which was also urged ,in the motion for new trial was that appellant had employed an attorney who was ill at the time and not able to attend court. The controverting plea says that this attorney has an associate who had long been identified with the case and who appeared in court to represent him; that customarily this associate appeared in court in the trial of cases and took a leading part. The matter was placed before the court and it is not for us to say that he abused his discretion in refusing to continue the case for the absent attorney.

Appellant’s defense was that of alibi. He testified in his own behalf and also placed several witnesses on the stand. His testimony, as well as that of his witnesses, made impossible allegations in the motion for a continuance in that he and one of his witnesses testified that they were together and separate from such witnesses for several hours, whereas he alleged in his application that these witnesses would swear that they were all with him during this period of time. Furthermore, one of the witnesses was shown to be a fugitive from justice, the other was his brother-in-law, and all seem to have been associates who could have been subpoenaed and brought to court in a few minutes time had process been secured and information given the sheriff.

In the light of these facts we do not believe he, was entitled to a continuance.

The appellant, testifying in his own behalf, voluntarily stated that he was an ex-convict; that he served for a period of four years, eleven months and fifteen days, being released in 1924; that he was convicted for theft of over $50 in Ellis County. He also stated he was given two years in the penitentiary from Kaufman County. In his charge the judge instructed the jury that they could consider this only as going to the credibility of the defendant as a witness. No exception was taken to this charge at the time, and the court was asked in the motion for new trial to grant the same because of such charge.

In the first place, the evidence, damaging as it may have been, was voluntarily given by the appellant. No charge was requested on the subject and no objection was made to that which was given. It occurs to us under all the circumstances of the case that the court’s act, though not called for, was intended to aid the defendant and certainly could not have injured him. It placed limitation on the consideration they could give to evidence which, without: such charge, they may consider for all purposes. It was remote matter which may not be brought against the party on trial,, but we know of no circumstances which, would warrant this court in reversing a: case because the party on trial voluntarily gave evidence detrimental to himself and the court limited the purpose for which the jury might consider it.

The facts of this case as the jury must have found them would hardly appeal to the equitable powers of a court. We see no error in the charge as given.

Finding nothing in the record reflecting error, the judgment of the trial court is affirmed.


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

text:
    LOMAX v. STATE.
    No. 20745.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1940.
    Rehearing Denied Nov. 13, 1940.
    Application for Leave to File Second Motion for Rehearing Denied Nov. 27, 1940.

      J. G. Davis and Dewey Walker, both of Huntsville, and Chas. M. Burdeaux, of Galena Park, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

The offense is rape; the punishment assessed at death.

This is the second appeal in this case; the opinion delivered by the court on the former appeal may be found reported in 136 Tex.Cr.R. 108, 124 S.W.2d 126.

It appears from the record that appellant made a motion in the district court of‘ Montgomery County (being the county in which the alleged offense was committed and the indictment returned by the grand jury) to quash the indictment on the grounds of race discrimination. It seems that the court heard evidence in support thereof-and upon its conclusion overruled the motion. This motion, or one of similar import, was again urged after the venue of the case had been changed to Walker County, but no evidence, if any was offered, is brought forward in the record; hence we are not in a position to review the action of the trial court on the subject.

The sufficiency of the evidence is vigorously questioned, and we set forth the whole of the prosecutrix’s testimony relative to the transaction:

“I hadn’t been asleep long when there ■was a negro waked me standing over me ■with a piece of pipe in his hand threatening me and he had the cover pulled off me. He threatened me by having a piece of pipe in his hand drawed on me and he called me .and woke me up and said if I hollered he would kill me. The negro asked me where my husband was and then he told me not to lie to him and I was afraid to lie to him and he asked me where my husband was .and I told him because I was afraid that he was somebody that knew my husband and T told him where he was. He wanted to know where the children was and I told him where they were and then he asked me what my husband done and where he worked and what time he come in and all ■of those questions and just asked me a whole lot of questions. He had the pipe at that time. He told me what he was there for and asked me if I was willing or not. ■Of course, I had to give up. I knew he had ■me trapped. I had to give up and I told 'him ‘yes’ to save my life. He had the pipe in his hand at that time and he was up over me with it and he had an old quilt over ‘his head and he didnt have on any clothes -more than a summer knit undershirt. I • could only see from his waist down and his .arm because he had an old quilt wrapped .about him. He had no trousers on. One .arm was holding the quilt and he had the •quilt over his head and around his body .and one arm through the hole in the quilt. The quilt was just an old rag that I had thrown away and it wasnt any good. He threatened me and told me not to lie to him and I was scared to move or anything because I knew he had the ups on me; there wasnt anything I could do about it. That was the reason I submitted to him. Yes, sir, this negro’s male organ penetrated my female organ. Yes, sir, it was against my will to submit to.him. I had not seen this negro before that ravished me to my knowledge. I didnt know whether I knew him or not. This occurred in Montgomery County, Texas. After he started having sexual intercourse with me he laid the iron pipe on -the bed beside him where he could get a hold of it. When he started to leave he wanted to know if he could come back and I was scared to tell him he couldnt because I was afraid he would murder me so I told him ‘yes’, so he asked me when and I told him at any time except Sunday because I knew in reason he already knew my ■husband and knew where he worked and I was scared to lie to him so he asked me what time it was and how long he could stay and I told him he couldnt stay because it was about time for my husband and I wanted to get rid of him and he said its not more than nine o’clock — after he asked me when my husband would come in and I told him anywhere from twelve o’clock on then he said it isnt more than nine o’clock and I said ‘oh, my Lord yes, it was a lot later than that when I laid down’ and then I told him where the clock was and when he seen what time it was he broke and ran and when he ran out of the tent the first thing I thought of was shooting him and the gun was in the kitchen and I ran to the kitchen to get the gun and it was unloaded and I had to climb up on top of the safe to get shells to load it with and by the time I got the shells he was too far in the woods and I ran to Mrs. Casey’s for help. That is my nearest neighbor. I went to Mrs. Casey’s just as quick as I could get the gun after he assaulted me and seen he was gone. Then I ran right up there. I was there in just a few minutes. There wasn’t anyone I could see then at Mrs. Casey’s but Billy Clark and her two children. Mrs. Casey lived about a 100 or 200 yards from my home. When I ran in Billy Clark was setting in the door where I went in and Mrs. Casey was standing at the cook-stove and I told them what happened and asked if they would go and get Mr. Hudson. Mrs. Casey and Bill Clark were the first persons I saw after the negro had assaulted me and I told-them at that time what had occurred. All during the time I saw the negro he kept the quilt wrapped about him. I never did see his face at all. I saw the negro as I ran to the kitchen after the gun and he ran across the road in front of the house and when I went to get the shells from over the safe I glanced through the crack and saw him go over the fence in front of the house.' He still had this quilt wrapped about him and hadn’t on any clothes that I could see. I dont know where he had pulled off his clothes. I first knew the negro was in .the tent when he threatened me and woke me up. The negro that ravished me weighed about ISO or 160 pounds. That is just an es-, timation; I dont know. The defendant J. C. Lomax compares in heighth with'that negro that, ravished me and he was what I would call a medium black negro, the best I could tell 'in the tent as it was dark. I did not recognize the quilt that the negro had around him at that time.”

On cross-examination she testified to substantially the same facts. We quote from her testimony as follows: “The first thing this person said to me was he told me not to scream or holler; that he would kill me. * * * I didnt have anything to defend myself with. * * * He asked me was I going to be with him or not; was I going to let him have it or not; he said ‘are you going to let me have it or not’ and what could I say but ‘yes.’ * * * I was afraid to lie to him because I was afraid for my life. * * * When he asked me would I be willing I told him I would because I knew I had to give up. * * * His right hand was free at the time of the act, yes, sir. * * * I told him he couldn’t stay and he wanted to know why and I told him my husband would be in before many minutes or I would have let him stayed. I knew that if I would let him stay my husband could probably do something with him but I wanted to get rid of him because I wasnt certain when my husband would get in. * * * He asked me could he come back to see me before he got off of me; that was during the act. I told him he could because I was scared not to tell him he couldn’t. I was afraid I would contrary him and he would murder me. I told him he could come back any day except Sunday. * * * I couldn’t swear that this defendant is the one I saw in my house. I had not seen that negro before that I knew of and as far as I know I have not seen him since. I couldn’t swear that this, defendant is the person that was in my house that day and attacked me.”

' The appellant’s confession was introduced in evidence, in part, as follows:

“I am 20 years old. I was 20 years old the 23rd day of last July. I live at New Caney, Texas with my mother and stepfather. I have been living there about four or five months. I have been working at the saw mill there, for Mrs. Prince. On Wednesday of this week, the 30th day of March, sometimes in the morning I went with Mr. Roy, I 'dont know his other name, out in the woods after a load of logs. I got with Mr. Roy at Mrs. Prince’s saw mill, and we went on down by the depot and on down by the negro school house and from there on across Peach Creek after the load of logs. Before crossing Peach Creek we passed by a tent house. In going, this tent house was to our right, about twenty foor iron? the road we traveled in. As we were passing this tent house I asked Mr. Roy if those fellows was still cutting logs. When I asked him this we had passed and was stoped down there cross Peach Creek bridge. When I asked about those fellows cutting logs I meant the man that was living in this tent house, I didnt know his name. I did know that he had been working for Mrs. Prince cutting logs. I went on over with Mr. Roy, where he waited for his log buncher to come. I sit there with him for awhile until I heard a truck coming. I told Mr. Roy that I was going back to Caney, then I got out there and flagged the truck down. Then Mr. Roy said, ‘no you aint going’. The truck stopped and there were two white men in the truck which was loaded with ties. They let me get on the truck on top of the ties and ride on up to Caney. They let me off right on the railroad track near the depot. I got off the truck and went to my mama’s house and eat. I eat sirrup and bread. There was no one at home. I dont know exactly what time it was around ten or ten thirty when I eat at home. I went on down to the East of the saw mill, and passed between Mr. Chamber’s house and the saw mill, and then on down to the negro hall. There I crossed a bob wire fence between the negro hall and Mr. Rheinhardt and then went on through the field and crossed a bob wire fence again and then on into the woods. I went on down a trail beside of the fence about three hundred yards. I got over the wire fence and crossed over the same road that I had traveled that morning with Mr. Roy first and then with the two white men with the load of ties. I crossed this road right in front of this tent house and went on up to the tent house. I didnt see anyone around there, then I peeped in the tent, and there was a white lady there in the bed asleep. I then walked around to the back of the tent; I seen some children playing up at a neighbor’s house. While I was around there a little dog barked. He was black and looked to be a puppy. I went back around in front of the tent, I meant to say the side of the tent close to the Magnolia tree, and got a quilt that was laying there on the ground. Then I got a piece of iron pipe. I see that piece of pipe there and it is the piece of pipe that I picked up out in the yard. I then took off my hat and put it in my pocket and put the quilt over my head and pulled off my pants and shoes and put them under the corner of the tent. I then went on in the house. I entered the tent at the door next to the road and in going in the house I didnt keep up any noise. When I entered the house I had the quilt over my head and part of my body. I could see through a hole in the quilt. I also hád the pipe in my hand. When I went in I saw a trunk to my right and a 'dresser to my left or that is what I took it to be. I dont know for sure if it was a dresser. The bed that this lady was in was up in the corner of the tent nearest to the kitchen. The kitchen is separate from the tent house. When I got in there she.was still asleep. I walked on up to the bed and was still covered up with this quilt and still had this iron pipe in my hand. I touched the lady on the hip with my other hand. She woke up after I touched her, and I told her not to run nor holler. Then I asked, ‘How about some ?’ and then I said ‘are you going to or not/ and she said ‘yes.’ When I got in the bed with her I put the pipe down beside of me. She was in about the middle of the bed, and was laying straight up and down in the bed. She had her clothes on, but her shoes were off, and she was covered up, that is the cover come up to about her breast. She moved the cover back, and then I got on top of her and then I put my peter in her pussy and stayed on her until I got through. While I was on her I asked her where her husband was at. She told me he was cutting logs for Mrs. Prince. Then I asked her if I could stay any longer. She told me no that her husband would be in at twelve o’clock. I told her that I didnt think that it was more than about nine o’clock. She told me that it was five minutes till twelve then. I then asked her when I could come back to see her. She told me that I could come back any time except Sunday, that her husband would be there then.
“When I was leaving I told her not to tell anyone. I still had the quilt over me when I left. I left the iron pipe on the bed. •When I went in the house I had on an undershirt and this polo shirt, which has no sleeves.
“I went back out at the same door that I entered and after I got on the outside I got my clothes from under the corner of the tent, where I left them, and then I run across the road and then in the woods. After I crossed the fence I slipped in some mud. After I got out in the woods from the house I threw the quilt down and then put my clothes on, and went on to the saw mill. Just before I got to the saw mill I heard the twelve o’clock whistle blow. When I got to the saw mill I saw Van Wiley and Poor Boy Wiley. I stayed there until Mr. Jesse Johnson came there. He said a colored man had raped a white woman and asked me .where I had been. He said that he could give account of all of them that was working there except me for I wasnt there. I said it wasnt me for I had went to the woods with Mr. Roy on the truck.”

Roy Butters testified that on the day of the alleged offense, about 9 o’clock in the morning, the appellant was with him in a truck, and they passed the tent house where Mrs. Stanford, the complaining witness, lived, and appellant asked him who lived in that tent house, and he told him Butters’ log cutter (Stanford), and soon thereafter appellant got off Butters’ truck and went back to town, such road back to town leading by the Stanford home, about a mile from town.

Billy Clark lived at Mrs. Casey’s, about 400 yards from Mrs. Stanford’s home. He testified that she came to his home excited and hysterical, in her stocking feet, and told him that she had been attacked by one whom she thought was a negro; she told him to get the officers. He got the constable and went to the Stanford home about thirty minutes after she came to his house, and they found the bed messed up, and an iron pipe lying on the bed. They later found an old quilt lying about a hundred yards from the house. They also found some footprints, and some shotgun shells, and at the time Mrs. Stanford came to the Casey -house she had a double-barreled shotgun, unloaded and unbreeched. The footprints led out from the house and were plain, and they were followed. for about one hundred yards into the woods, and they also found a handprint on the ground there, it looking like some one had fallen down. We quote a portion of Mrs. O. B. Casey’s- testimony: “I lived near the Stanford home on March 30, 1938, out back of it. On the morning of‘ March 30, 1938 I saw her about 12:05 when she came to my back door and called me and she saw • Billy Clark in the room and she. went to talk to him and told him that a negro had attacked her with a quilt wrapped around his head. She just had on a print dress and was in her sock feet and a shot gun that was unbreeched. She seemed to be scared. Billy Clark went after Mr. Hutche-son, the constable. She stayed at the house until Mr. Hutcheson and Clark got back, with me. She took a douche while she was there and we then went back to her home. We found two shotgun shells between my home and the Stanford home that she had tried to put in the gun.”

Mr. Hutcheson, the constable, testified that a few minutes after 12 o’clock of the day of this alleged assault he went to the negro quarters, and then to Mrs. Stanford’s home, and there found a piece of iron pipe lying on the bed, and that he found some tracks and followed them and found where the tracks had slipped in the muck, and the person making same had fallen on one knee, and about twenty-five yards from where he last saw the tracks he found the old quilt offered in evidence.

Mr. W. H. Brady, foreman at the sawmill where appellant was employed, testified that on the day of the alleged offense about 6:15 the appellant came to the mill, and at such time and prior to such time the officers and neighbors had been using dogs— presumptively blood hounds — in this matter; that when he saw appellant he was up on top of the boiler, about seven feet from the ground. Upon being accosted and asked what he was doing up there, appellant said he didn’t want the dogs messing with him; upon being told to get down off that boiler and fire it up, he did so.

The quilt that was found along the footprints and identified by Mrs. Stanford as the one belonging to her, and that had been used for the dogs to sleep on, was introduced in evidence and showed to have holes in it, and the appellant was shown to have some hair in his head, identified by a witness as dog hair.

Mr. Johnson, whose wife was the owner of the mill where appellant worked, testified that during the night, while the dogs were running, he saw the appellant lying down on the edger table; appellant said he had been listening to the dogs; he didn’t like them; he was scared of them; that he had no confidence in them; they might trail him up, at which time appellant had an open knife in his hand, The witness asked appellant “what he was doing with that knife and he said he was scared of those dogs; he didn’t have any confidence in them and . they might come up and trail him.”

All standards of life are not the same; some people act from one impulse, some from another. Evidently Mrs. Stanford was not expecting appellant’s visit, nor was same prearranged. She did not know appellant, nor did he know her. He had, however, inquired who lived in this tent house, and ascertained the fact that Mrs. Stanford’s husband was a log cutter, and doubtless reasoned therefrom that he was cutting logs in the woods. Soon thereafter he abandoned his intended journey and came back in the general direction of her home. He prepared himself for a rape by force and threats by taking off his clothing, covering his head with this old quilt, and possessing himself of an iron pipe about 36 inches long. Mrs. Stanford was asleep, sick in bed, a victim of pellagra, and as he approached her he awakened her in a threatening attitude, and with an express threat to take her life if she screamed or hollered.

Faced with such a momentous decision, it lies not in this court’s judgment to say that she should have pitted her puny strength against his, armed as he was with such a weapon, and thus given up her life to protect her honor from what her judgment told her was the ravishment of her living body. Instead she took what probably seemed to her to be the only method o£ saving her life.

Upon the accomplishment of her ravisher’s purpose, her conversation only evidenced the carrying out of her purpose of the preservation of her life. Immediately upon being relieved of his threats, she ran in her stocking feet to her neighbor’s home about four hundred yards away and gave the alarm, carrying with her a useless shotgun. That this act was done without her consent is plain to our reasoning. Why, if she had consented thereto, did she run to the neighbor’s and give the alarm? Why take a shotgun with her? Why say anything at all if she had consented thereto? Why not hide her indiscretion rather than immediately inform on her ravisher?

Again, if appellant thought his act was consented to by Mrs. Stanford, why the disguise ? Why the running away from the tent house? Why the presence of the iron pipe in his hand, and left on the bed?

Rape can be committed on a woman by either force, threats or fraud. See Art. 1183, P.C. “The threat must be such as might reasonably create a just fear of death or great bodily harm, in view of the relative condition of the parties as to health, strength and other circumstances of the case.” Art. 1185, P.C. Under the rule as laid down by the above quoted article we think that the threat, accompanied as it was by the exhibition of such a lethal weapon, would be- sufficient to measure up to the above statutory requirement. We think the testimony is sufficient to sustain this verdict.

Bills of exception Nos. 1, 2, 3, 4 and 5 have been examined by us and without further discussion are overruled, there being no error evidenced therein.

Bill of exceptions No. 6 is based on the testimony of Mr. Holliday, a Texas Ranger, who testified, in substance, that he saw the quilt that was introduced in evidence ; that it had dog hair on it, and there was some dog hair also on the appellant’s head; that he had seen and owned dogs all his lifetime, and there were two dogs around the (Stanford) place, and these hairs on the quilt and in appellant’s head were dog hairs. The main objection thereto was that the witness had not qualified as an expert. We think the objection went more to the weight rather than to the admissibility of the testimony.

Appellant’s bill of exceptions No. 7 claims a misconduct on the part of the jury in that it is alleged that they were allowed to separate during the' trial of the case. It appears from the testimony that during th'e trial of the case, and while the court was in recess, the jury was taken to a barbershop where some of them were shaved by a barber. It also seems that all the jury were kept together; however some of them were standing inside the shop and some around the open door just outside but all in a rather compact group, and in sight of each other, and in sight and hearing of the officer in charge of the jury. . It also appears that at one time an outsider, Mr. Randolph,' passing the barbershop, spoke to one of the jurors and asked him if that was the jury, and if they still had the case. This outsider said that the juror merely said “yes”; however it is denied by the juror that he said anything at all. The officer says that the jurors were together, and not more than ten or twelve feet from each other and the ones in the barber chairs at any time, nor did the officer see anyone of the jurors reading a paper, nor hear them nor see them talking to any outsider. When the juror was spoken to by Mr. Randolph he merely answered by shaking his head. The barber testified that there was no conversation between a juror and any outsider. Others testified that they saw the attempted conversation between Mr. Randolph and the juror, and the officer stopped Mr. Randolph before any answer was given. Another barber present part of the time the juror was being shaved said there was no conversation with any of the jurors while he was in there by anyone.

The trial court heard the evidence and evidently found that there was no basis for the allegation of such misconduct on the part of the jury, and we think his judgment thereon should not be disturbed.

Appellant complains, in his objections to the court’s charge, because of the fact that the indictment charged the rape herein to have been committed by force, threats and fraud, that it was incumbent upon the part of the trial court that all three methods of thus committing this crime should have been charged conjunc-tively and thus proven. We do not thus interpret the law. There are three methods of committing a rape on a female, either by force, or by threats, or by fraud, and in this instance the trial court gave a separate charge on force, and a separate one on threats, using the statutory definition thereof. We think such a charge correctly presented the law thereon. A rape can be committed by both force and threats combined. See Sharp v. State, 15 Tex.App. 171.

Appellant further objects to said charge of the court because of the fact that in such charge the trial court uses the term “violently ravish” and have carnal knowledge of Mrs. Gertrude Stanford, etc. Such a term was doubtless used by the court in an excess of -caution, and was probably giving the appellant more rights than he was entitled to, and we can see no injury to his rights because of such charge. Violent means with force and strength, and since, as held in the- Sharp case, supra, a rape can be committed by both force and threats, such a phrase, though possibly unusual, would place a greater burden upon the State than was" necessary, especially under the facts of this case, and such would not operate as an injury to this appellant.

The court’s charge we think was fair and full relative to the voluntary character of the confession of the appellant, and we overrule all objections to such portion of said charge.

While Mrs. Stanford did not resist this attack to thé death, yet taking into consideration the fact that she was a victim of pellagra, and was of a strata in life that called a tent house in the piney woods her home, it lies not in this court to say that she' consented' to this act of intercourse with a strange negro, who at least prepared himself to commit a rape upon a defenseless woman. Taking under consideration all the surrounding circumstances of this case, we are impressed with the idea that this unfortunate lady was the victim of the unbridled lust of this man, and probably pursued the only- course left open to her to preserve her life.

This case was carefully tried, and appointed counsel seem to have zealously preserved all the rights of appellant in this trial. We have carefully considered all the bills of exception presented, and we find no error therein.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

In his motion for rehearing appellant stresses only two points. As one ground for said motion he urges that the district attorney in his argument made indirect reference to his failure to testify in contravention of Art. 710, C.C.P. It appears from the record that no objection was interposed to such argument at the time it was made and the question is not brought forward by bill of exception. The first time the matter was ever complained of was in the verified motion for a new trial in which the language claimed to have been used by the district attorney is set out. Appellant cites us to Anderson v. State, 85 Tex.Cr.R. 422, 214 S.W. 353, 357, as authority supporting the proposition that the question can be preserved in the manner here shown. . We doubt if the case mentioned goes as far as appellant claims. It appears from the opinion that some things objected to in the argument were complained of in bills; others were set up in the motion for new trial. The opinion points out a number of other errors which occurred on the trial. The court said the judgment ought not to be affirmed “in view of this record.” It is doubtful if the court would have predicated a reversal alone upon the complaint of argument. We say that in view of the fact that the same court four years earlier had the exact question before it in Johnson v. State, 75 Tex.Cr.R. 562, 171 S.W. 1128, and in a majority opinion held directly that a complaint of argument such as here claimed would not be available unless objection was interposed at the time the argument was made and the court’s ruling thereon be brought forward by bill of exception. Since the cases mentioned were decided this court on numerous occasions has had occasion to pass upon the same subject. The general rule is stated in 4 Tex.Jur. § 41 as follows:

“Orderly procedure demands that a complaint that counsel in his argument to the jury has transcended legitimate bounds should be addressed to the trial judge, so that he may determine its propriety and counteract any injustice that may portend, and that the offending counsel himself may be accorded opportunity to withdraw any objectionable remarks. It follows that unless a timely and proper objection is made a defendant on appeal will not ordinarily be heard to complain. He is tardy if he does not object until the conclusion of the argument, until he makes a motion for a new trial, or until he prepares a bill of exception after the trial.”

Application of the rule will be found in the following cases, some of which are cited in support of the text quoted: Harris v. State, 93 Tex.Cr.R. 544, 249 S.W. 485; Simmons v. State, 93 Tex.Cr.R. 421, 248 S.W. 392; Salinas v. State, 113 Tex.Cr.R. 142, 18 S.W.2d 663; Thompson v. State, 116 Tex.Cr.R. 437, 34 S.W.2d 250; Crowley v. State, 117 Tex.Cr.R. 372 35 S.W.2d 437; Ross v. State, 102 Tex.Cr.R. 364, 277 S.W. 667; Scott v. State, 132 Tex.Cr.R. 517, 105 S.W.2d 242. An examination of the authorities referred to will reveal that some of them deal with the exact question here presented, and are adverse to appellant’s contention.

As the other ground upon which the motion for rehearing is predicated appellant urges that his bill of exception number two presents error. The bill in question reserved exception to the admission in evidence of appellant’s confession for the reason as stated in the bill that “same was not free and voluntary, and was made under duress, and not in compliance with the statute.” We are referred in the bill to certain pages of the statement of facts. Upon examination it is found that they relate entirely to the testimony given by the district attorney who took appellant’s confession. There is nothing in his evidence which would even suggest that the confession was other than voluntary, and made in compliance with t'he statute. Art. 727, C.C.P. 1925. After laying the proper predicate by the district attorney’s evidence the State offered in evidence the confession. No request was made that the court defer his ruling until appellant might develop the matter further, and there is no question but ¡that the trial court ruled correctly at the Itime the confession was offered in evidence. 'Later during the trial the State called as a witness C. B. Wagers, a deputy sheriff of Montgomery County, Texas, who testified that Ranger Holliday, Ranger Williamson, Captain Purvis and other officers worked with witness on the case. The witness detailed the various investigations made by the officers in regard to the alibi claim of appellant. Upon cross-examination and further re-direct examination Mr.. Wagers testified as follows:

“ * * * We arrested the defendant the night of the first of April and we locked him up and I didn’t see him any more until sometime the next morning around ten o’clock. Mr. Hurse was with me when we took him tq jail. We carried him from New Caney to Conroe and put him in jail. Mr. Holliday was in New Caney when the defendant was arrested but he went to Livingston and we went to Conroe and we didn’t talk to the negro any more until the next morning. Mr. Holli-day and Mr. Williamson and Mr. Purvis came to Conroe. The next morning when I saw him there was Mr. Holliday, Purvis, Williamson, Hurse and myself present. We took turns questioning him. We weren’t trying to high-pressure him but were just trying to find out what he was and where he had been and checking up on his alibi. We checked up on his alibi in New Caney. I did not curse this defendant. I am sure of that. I don’t know of anybody else that did. I did not threaten or strike this defendant in order to • get him to make the confession. I didn’t burn him with any cigarettes. If anybody had a blackjack at the time we were questioning him I didn’t see it. I might have had one. I generally carry one. We questioned the defendant in the grand jury room. We brought him down from the jail to the grand jury room. The grand jury room -is on the third floor of the courthouse. We took the defendant’s clothes off him. He was not handcuffed. He was standing up. We brought him down from the jail and looked at his clothes and missed the undershirt that he had on when he was arrested and we stripped him off and made him stand up for a few minutes until I went back up in the jail. He stood up probably five or ten minutes; just long enough for me to go and catch the elevator and go up to the fifth floor and we looked back in the bedding in the cell and found the undershirt. We kept him standing ten minutes at the longest without his clothes on. He was. still standing when I got back. We did not have nor put an electric light bulb in front of the defendant’s eyes. All of the lights were ceiling lights. We did not promise the defendant that if he would make a confession he could cop off a few years in the penitentiary. I never heard anyone promise the defendant anything in order to get him to make a confession. We kept the defendant in the grand jury room that morning between fifteen and thirty minutes. I wouldn’t be positive whether the defendant was standing all of that time or not. I was standing during the time I was in there. After we finished with the defendant we took him back to jail and I went back to New Caney with the rest of them. The defendant did not confess to the crime during the time we questioned him about ten o’clock. I next saw the defendant that night about eight o’clock. I don’t know whether he was kept awake or not. We did not take his clothes off of him when we next saw him at eight o’clock in the grand jury room. Holliday, Williamson, Hurse and myself were present at the time. After we talked to the defendant thirty or forty m'inutes I left and went and got some coffee and we came back to the office and put in a phone call and sat there in the office and talked awhile and then' we went back up to the grand jury room. Williamson and Hurse were still in the grand jury room. The defendant was not handcuffed at that time. The defendant had his. clothes on and was standing up. When I came back in Holliday and myself went in the washroom and when I came back I sat down right at the door and Mr. Holli-day was standing up talking to the negro and the negro was standing up talking to him and he talked to him five or ten minutes and thats when the negro admitted to him that he committed this crime. None of us threatened this boy and did not curse him nor did we make any promises. No proposition was made to him in any way. I was not with the defendant all of the time. We had the defendant in the grand jury room then from about eight o'clock until between 11 and 12. Around, I would say, a quarter of twelve. Mr. Davenport was not 'there with us. We did not burn an electric light bulb directly in the defendant’s eyes and make him look at it. * * * I saw the defendant on March 30, 1938 and arrested him and put him in jail and didn’t see him any more until April 1st at about ten o’clock and myself and four other officers talked to him then about thirty minutes and that night we brought him again to the grand jury room and grilled him from 8 o’clock until 12. I wouldn’t know whether the defendant was required to stand because for about two hours I wasn’t there. He was standing when I left about 8 or 9 o’clock. The defendant was examined by all of us officers at different times. To a certain extent we were continuously firing questions at him. During the time of all the questioning there was nothing done to this negro except just talk to him. That is my testimony. No pressure whatever was brought to bear on him. * * * When I went back up in the jail the first time and the defendant’s clothes were off I went up to look for his undershirt which he had taken off. That (indicating) which you hand me are the pieces of the old undershirt which I found when I went back into the jail in the cell in which he was placed. He had on an undershirt at the time he was arrested and the time he was placed in jail. At the time he was. questioned in the grand jury room by myself and the other officers he had on no undershirt.”

The State then called as a witness R. D. Holliday, a State Ranger. Upon the issue of the confession he testified as follows: “ * * * I was present when he was questioned and more or less took the lead in questioning him. I wasn’t present one timé when he was questioned. I went and got some coffee and was gone about thirty minutes. I was present when the defendant first admitted he committed the offense. I was questioning him when he admitted he committed the offense. I was present at the time the statement was given in your office and signed. I was the one that called you to come down to your office and take the statement. * * * At the time the defendant was questioned in the grand jury room there were no guns or any blackjacks displayed by any of us that were present. There was no light held up in the defendant’s face. Nobody in my presence burned the defendant with a cigarette. None of us cursed the defendant. None of us promised the defendant anything to induce him to sign the statement. I witnessed the confession that has been introduced in evidence. I will say this, that this negro was treated as good as any prisoner could be treated and talked to in a manner which nobody could take exception to and we didn’t threaten him in no way and he made the statement just as voluntarily as I am sitting in the stand. * * * None of the officers which questioned the defendant, including myself, abused the defendant in any way. None of us struck him or attempted to strike him or threaten to strike him. We did not threaten the defendant in any way during the time we were questioning him. He was not threatened at the time he made the statement in your office and it was reduced to writing and signed by the defendant. You did not promise nor did anyone else promise the defendant anything to induce him to sign this statement.”

The other officers present when appellant was being questioned were not called by appellant. He did not testify himself, and made no claim that the confession was untrue, or that he was forced to give same under duress, fear or promises.

In the motion for rehearing some stress is laid on the point that appellant was caused at one time to remove his clothing. Prosecutrix testified that 'the negro who attacked her had an old quilt over his head and had on no other clothes save “a summer knit undershirt”. At the time appellant was arrested and placed in jail he was wearing an undershirt suiting that description, but when the officers were questioning him it was discovered he did not have on said undershirt. It was at this time he was caused to remove his clothes until search was made for the undershirt with the result stated by witness Wagers in his evidence.

Appellant cites the case of Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, as supporting his contention that we should hold as a matter of law that the confession of appellant was not voluntary. We are conversant with the opinion mentioned, also with that of the Supreme Court of the United States in White v. State of Texas, 310 U.S. 530, 60 S.Ct. 1032, 84 L.Ed. 1342, decided May 27, 1940. The principle announced in those cases has been given effect in Blackshear v. State, 130 Tex.Cr.R. 557, 95 S.W.2d 960; Abston v. State, 132 Tex.Cr.R. 130, 93 S.W.2d 734; Id., Tex.Cr.App., 102 S.W.2d 428; Abston v. State, 136 Tex.Cr.R. 152, 123 S.W.2d 902; Sigler v. State, Tex.Cr.App., 139 S.W.2d 277, not yet reported in State reports. Some of the Texas cases mentioned were decided long before the opinions in the Chambers or White cases, supra, were delivered. Under the facts here present we think appellant’s contention that we should say as a matter of law that the confession should not be considered is untenable.

The motion for rehearing is overruled.

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

CHRISTIAN, Judge.

The motion but reiterates a contention made in appellant’s motion for rehearing. Such contention was squarely met in the opinion on motion for rehearing, and we are of opinion that the conclusion there stated is correct.

The application for leave to file second motion for rehearing is denied.

PER CURIAM.

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


text:
    MULLINS v. STATE.
    No. 21234.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1940.
    Miller & Dawson, of Sinton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged with burglary of a store in Taft, Texas, and under certain allegations relative to prior convictions of a felony less than capital, he was sentenced to the penitentiary for life.

The indictment alleges in the first count thereof the burglary of the Taft store; in three further counts it alleges in similar language three other and distinct felonies. Only one of such allegations do we set forth, but they are alike save for dates and numbers: “And the grand jurors do further present that prior to the commission of the aforesaid offense by the said Fred Mullins, Jr., to-wit: on the 3rd day of November, 1930, in the District Court of Bell County, Texas, in Cause No. 10,608 on the docket of said court, the said Fred Mullins, Jr., under the name of Fred Mullins, was duly and Jegally convicted in said last named court of a felony offense less than capital, to-wit, Burglary, upon an indictment then legally pending in said last named court and of which the said court had jurisdiction and said conviction was a final conviction;”

, Appellant moved to quash the three last counts of the indictment because “Such allegations are insufficient in that there, is omission of the averment that each, succeeding offense was committed after conviction of the preceding offense,” and the court refused to strike said counts from the indictment, and overruled the motion.

Under the decisions of this court the motion was well taken and should have been by the court sustained. We held in Gammill v. State, 135 Tex.Cr.R. 52, 117 S.W.2d 790, 791, that: “Appellant attacks that part of the indictment alleging the prior convictions on the ground that/ there is omission of the averment that each succeeding offense was committed after conviction of the preceding offense. This complaint is well founded.”

Also see Ellis v. State, 134 Tex.Cr.R. 346, 115 S.W.2d 660; Kinney v. State, 45 Tex.Cr.R. 500, 78 S.W. 225, 79 S.W. 570; Neece v. State, 62 Tex.Cr.R. 378, 137 S.W. 919; Muckenfuss v. State, 55 Tex.Cr.R. 216, 117 S.W. 853; Long v. State, 36 Tex. 6; Nunn v. State, 133 Tex.Cr.R. 266, 110 S.W.2d 71; Arbuckle v. State, 132 Tex.Cr.R. 371, 105 S.W.2d 219.

A safe guide for the drawing of such indictments can he found in 12 Tex.Jur. p. 796, as follows:

“The indictment must allege directly that the former conviction was for an offense committed prior to the' offense for which the accused is to be tried, or, in other words, that the second offense was repeated after conviction for the first. Thus, where it is desired to charge several previous convictions, the indictment should aver that the accused was convicted in the first case for an offense committed prior to commission of the offense declared on in the second case, that he was convicted in the second case for an offense committed prior to commission of the offense denounced in the third case, that he was thereafter convicted in the third case, and that all these convictions were for offenses committed prior to commission of the offense for which he is about to be tried.”

The motion to strike out the three counts charging prior convictions for felony offenses should have been sustained. However we do find the present offense properly charged, and in the event the cause is again tried upon the present indictment, the court should only submit the first count in the indictment.

The judgment is reversed and the cause remanded.


text:
    CUMMINGS v. STATE.
    No. 21240.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1940.
    Earl Shelton, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of burglary of the Moss Rose Cafe in Temple, Texas, and by the jury awarded a penalty of three-years in the penitentiary.

There is but one bill of exceptions in the record and that relates to the objections- and exceptions to the court’s charge. In paragraph 2 thereof we find the following: “Defendant objects and excepts to said charge because the court fails to instruct the jury herein that State’s witness, H.. Rowlett, is an accomplice witness as a-matter of law.”

The testimony shows that this cafe was burglariously entered on March 1, 1940, and a quantity of goods such as cigars,, cigarettes and money taken therefrom, as-well as silverware ordinarily used in the restaurant business such as knives, forks, and spoons. A portion of this silverware had the name of the cafe thereon. It appears that this property was probably-placed by the thief in a pasteboard box kept under the counter in the cafe, and. was carried away in such box.

On the night of this burglary, in another cafe in Temple, Miss Turner testified she saw Tommy Cummings, this appellant, between the hours of 11 and 12 o’clock, and served him and his companions with some-soft drinks.

The witness H. Rowlett, a package liquor store man living in Austin, testified that appellant came to his store on-March the 2d, 1940, and brought with him. some cigarettes and money and asked witness to sell some silverware for him, which appellant had with him. The money was-in nickels, and the silverware was in a cardboard box. The witness testified in part as follows: “This boy brought in* some cigarettes. I offered to pay seventy-five cents for these cigarettes. The wholesale price is $1.42. I offered about half price. As to whether I thought they were stolen, I bought them cheap, awful cheap, I didn’t ask him. I paid him for those cigarettes. I believe I bought approximately twenty cartons and I paid him for them. I bought some of those nickels from him. As to whether I thought the nickels were phoney or something wrong with them, I gave him money for the nickels. I didn’t ask him whether they were stolen. He asked me to dispose of those nickels for him. I kept the nickels to cash in for him. I guess I did think those nickels were hot.”

The witness further said “he did offer to sell me some silverware,” and it appears from the evidence that, this silverware was identified as coming from the Moss Rose Cafe, and was part of the property stolen in the burglary. The witness also testified that he bought twenty dollars in nickels from appellant at such time. It was also shown by the testimony that when appellant was arrested for this burglary he was in front of the liquor store of the witness Rowlett.

The court’s charge contained, among other things, the following: “As to the witness H. Rowlett, the court submits the matter to you to determine from the evidence adduced whether or not he is an accomplice. If you believe from the evidence that the said witness, H. Rowlett, bought cigars, cigarettes and nickels from the defendant, and knew or believed at the time that they were stolen, he would be an accomplice.”

It is evident from the above excerpt that the court submitted to the jury the question of whether or not the witness Rowlett was an accomplice, and appellant objected and excepted to such a submission. In our judgment the witness was an accomplice as a matter of law, and the uncontradicted testimony so shows. The court should have peremptorily thus instructed the jury that Rowlett was an accomplice, and under the testimony here presented we do not think there is any testimony tending to connect the appellant with the burglary outside the testimony of Rowlett, the accomplice. The only facts tending to corroborate this accomplice Rowlett are that appellant was seen in Temple the night of the burglary, and was on the next day arrested in front of Rowlett’s place of business. These facts would show that he could have committed the offense, but we are unwilling to say that they have sufficient cogency to tend to show that he did commit the offense. So believing, we think the trial court should have sustained appellant’s request for a peremptory instruction to the jury to find appellant'not guilty. Upon another trial hereof further circumstances may be presented.

This judgment is reversed and the cause remanded.


text:
    TOMERLIN v. STATE.
    No. 21251.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1940.

      Ivan Irwin, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from a sentence of three years in the penitentiary on a charge of burglary.

According to the state’s testimony, appellant and several other parties engaged in the burglary of a place of business at McCaulley, Fisher County, on November 21, 1939. The loot which was taken was transported to the City of Dallas by truck and there disposed of to different individuals under circumstances which caused some of such purchasers to be indicted for participation in the crime. All of the witnesses who connected appellant with the offense were either participants in the burglary and admittedly accomplices, or they had been indicted as such, except A. B. McDaniel, who purchased from appellant and others seventy-four gallons of Pittsburgh paint of the market value of $2.50 per gallon for a total consideration of $55. The evidence of McDaniel, if an accomplice, would not corroborate the evidence of others who testified against appellant. However, he denied any knowledge of the fact that the property was stolen and excused his act in purchasing it at the price which he did because, as he said, the paint was of various colors, some of which are not used frequently and that he would have no use for the paint in his business for quite a while. The court took the view that it was a question for the jury to determine as to whether or not McDaniel was an accomplice and submitted it as an issue of fact for the jury to pass upon. Appellant contends that as a matter of law McDaniel was an accomplice and that appellant should have had an instructed verdict in- his favor.

In Benavides v. State, 123 Tex.Cr. R. 583, 60 S.W.2d 436, 439, this court said: “It is the general rule that, where one who has taken part in the commission of an offense endeavors by his own testimony to show his innocent intent, his relation to the crime becomes a qüestion of fact, and the jury must be called upon to determine whether or not he is an accomplice witness. * * * ”

We think this is the rule and that, though the testimony of the witness may be criticized, it, nevertheless, raises an issue for the jury to pass upon and not the court.

The indictment against appellant was returned on February 23, 1940. On February 28, following, capias was served on him while in jail in Rusk County, more than 300 miles away. He was tried on March 4 and at the time thereof no return had been made on a subpoena which he had caused to be issued for his wife and others in Dallas County, When his case was called, proper motion was filed . asking for a continuance of the case- to obtain the attendance of these witnesses. The application states .that the witnesses, if present, would testify that defendant was in Dallas County at the time of the burglary in Fisher County and could not have been in Fisher County, Texas. The motion was overruled, and on the 7th day of March one of the witnesses, Mrs. Maedell Tomerlin, made affidavit to an instrument giving as her reason for not being able to attend that she was sick and expecting the birth of a child. She also states that her husband, the appellant, was arrested in Dallas County on the next day after the date of the burglary and placed in the city jail, but released during that day. From this she fixes the date and states that she knows her husband was in Dallas during the previous days, both day and night, and stayed with her when she had no one else to take care of her and the children.

The action of the court in overruling the motion for continuance is properly brought to this court and we think the court abused his discretion in overruling the motion. The appellant was entitled to this evidence, if his wife would so testify.

Because of the action of the court in overruling the motion for continuance, the judgment of the trial court is reversed and the case remanded.


author: KRUEGER, Judge.

text:
    PITTMAN v. STATE.
    No. 21212.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1940.
    C. O. McMillan, of Stephenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is assault with intent to murder with malice. The punishment assessed is confinement in the state penitentiary for a term of three years.

Appellant’s main contention is "that the court erred in declining to instruct the jury to acquit him on the ground that the un-controverted evidence shows that in shooting Cecil Stephens, he acted in self-defense. We are of the opinion that his position is well taken. The State’s testimony shows that two days prior to the unfortunate occurrence, Mr. Stephens, the injured party, accompanied by his eleven year old son, went up into North Texas for the purpose of selling potatoes. He left his wife and two daughters at home. Upon his return on Saturday night, of May 27th, he found his family absent. He put his son on a bed for the night and then awaited the return of his wife and daughters. In a very short time, an automobile drove up in front of his 'home and stopped. He noticed that his wife and one of the daughters were riding on the front seat with the appellant, while his mother-in-law, father-in-law, and the other daughter occupied the rear seat. Mr. Stephens walked up to the car and said to appellant: “I want to know what you’re going to do; marry this woman, or, run around with her and me keep her up. I will just kill you and get it over with.”

Appellant replied that he wasn’t going with her. Mr. Stephens retorted, “I ought to kill you, and I- might as well do it.” He then walked towards the house, picked up an iron pipe about four feet long and started towards the car in which appellant was sitting. When Stephens reached a point variously estimated by the State’s witnesses to be' from two to' three steps, appellant fired two shots. One bullet took effect in the upper part of the chest and lodged under the shoulder blade.

Appellant did not testify but rested his case upon the State’s evidence.

There is nothing in the record to show any undue familiarity on the part of appellant with the wife of the injured party which might have given him cause for his conduct at the time.

It is true the jury convicted the appellant, and their verdict is always respected and upheld by this court when there is evidence upon which it might have been based; but when the verdict is against the uncontroverted testimony, it is our solemn duty to set it aside. The conduct of the injured party at the time was of such a character as was reasonably calculated to create in the mind of appellant an apprehension or fear of death or serious bodily injury. Could any other reasonable inference be drawn from the serious threat made by the injured party, coupled with an immediate demonstration to carry the threat into execution? We think not. This being true, what were appellant’s legal rights under the circumstances? To take such action as would protect him from imminent danger which confronted him at the time. Since the law accords to a person the right to defend himself against real or apparent danger such as would reasonably create in the mind of a person who is being attacked an apprehension or fear of death or serious bodily injury, it is our opinion that this doctrine should be given application here. In support of what we have said, we refer to the following authorities: Smith v. State, 15 Tex.App. 338; Chambless v. State, Tex.Cr.App., 77 S.W. 2; Clarkston v. State, Tex.Cr.App., 79 S.W. 304.

In the case of Smith v. State, supra, the facts proven upon the trial were in substance as follows: Appellant had gone a short distance from his home, procured two buckets of water and was returning to his home when he was overtaken by the deceased, driving a buggy. The deceased, in his buggy, followed appellant to his home, cursing him en route and declaring that he would kill him (appellant) before evening. When deceased arrived at appellant’s home, he proposed to hire a party present to hold his horses so that he could get out and shoot the d- son of a b-. Appellant went 'into his house, secured a double-barrel shotgun and, accompanied by his wife, returned to the yard. The wife took a position in front of her husband and between him and deceased, who lowered his buggy top and told her to get out of the way; that appellant would not dirt any more cotton for her. The defendant’s wife refused to comply with the request, whereupon the deceased repeated the command, at the same time throwing his hand behind him and under his buggy cushion. The 'appellant asked his wife to get out of the way and immediately fired upon the deceased. No weapon of any kind seems to have been found on the person or in the buggy. Judge Hurt, in discussing the appellant’s right of self-defense, said:

“Was the conduct of the deceased in this case of such character as was reasonably calculated to create in the mind of the defendant this apprehension of death or serious bodily harm? Could any other inference be drawn from his conduct than that he intended to murder the defendant? Was not this the only reasonable conclusion which could be made from the facts? If so, is it not reasonable and just to presume that the defendant believed his life to be in danger, and shot his adversary to save his life? If there be any force in facts, if there be truth in witnesses, if there be reason in man, the defendant certainly believed his life to be in extreme danger. Not thus to believe under the circumstances of this homicide would argue him insane.

“Do not the facts in this case bring the defendant clearly and fully within the rule stated above? If not, is it possible for a party accused of murder to make the rule a protection, notwithstanding the verdict of the jury? Or is this rule completely' within the control of the jury, to be extended to or withheld from the defendant at their pleasure, be the evidence what it may? We are of the opinion that the evidence in this case fails to show the defendant guilty of murder, but to the contrary, if such be possible, makes a case of self-defense beyond any sort of question, and that the verdict of the jury is not supported by the evidence.”

' From what has been said, it follows that the judgment must be reversed and the cause remanded, and it is so ordered.

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.