author: HICKMAN, Commissioner.

text:
    McCLAIN et al. v. ADAMS. In re DOUGLASS’ ESTATE.
    No. 2340-7579.
    Commission of Appeals of Texas, Section A.
    Jan. 15, 1941.
    Gordon, Sharfstein, Bell & Weinert, of 'Beaumont, for plaintiffs in error.
    David E. O’Fiel, Jack M. Moore, and John H. Benckenstein, all of Beaumont, for •defendant in error.
   HICKMAN, Commissioner.

The subject matter of this litigation is an alleged nuncupative will. Annie Douglass, deceased, was the alleged testator; Willie Adams, defendant in error, was the proponent in the probate court; and Eliza McClain and others, plaintiffs in error, the next of kin of the deceased, were the contestants. The county court of Jefferson county sustained the contest and denied the probate. On appeal the district court of that county entered judgment admitting the alleged will to probate, which judgment was affirmed by the Court of Civil Appeals. 126 S.W.2d 61.

One of the requisites of a nuncupative will, as prescribed by article 3346, R.C.S., is that, “it be made in the time of the last sickness of the deceased.” As we understand the position of plaintiffs in error, they concede that the trial court was warranted in finding that all other statutory requisites of a nuncupative will were met and complied with. Their sole contention here is that, as a matter of law, the words uttered by the deceased which are claimed to constitute her will were not uttered during her "last sickness” within the meaning of those words as used in the article above referred to. The case turns upon our decision of that single question and our statement will therefore be limited to such facts as are thought to be relevant thereto.

Annie Douglass, the alleged testator, died on September 8, 1934, at the age of more than sixty years. During the four years next preceding her death she had “spells". Dr. R. N. Miller, a witness for the proponent, began attending her professionally in June, 1934. In his opinion the original cause of her condition was malaria, but the immediate cause of her death was “aortic insufficiency,” which he explained to be a weakened condition of the heart and aorta. The “spells” about which the other witnesses testified were in the nature of fainting spells brought about, according to the evidence as we understand it, by the general weakened condition of her heart. The words claimed to constitute a nuncupative will were spoken by the deceased at about 4:30 p. m. on Thursday, September 6, 1934. The proponent and four other witnesses were present in her bedroom at that time. One of the witnesses, Berttrue McDaniel, went to the home of the deceased to pay her some rent. He testified that he stayed there about two hours, and that while he was there she said to him:

,,fMr. McDaniels, I am feeling not very well at this time, and I know that I am going to die,’ and says ‘I want Willie Adams to have everything that I possess, and land and money.’ ■ She says ‘She is the only one stood to me in my sick hour at my bedside.’ Says, ‘I haven’t any relatives at all.’ ”
“She called your name and said that?
“Yes, sir, said ‘Mr. McDaniels.’ ”

Thereafter, on September 12, 1934, the witness committed the substance of the testimony to writing, .his written memorandum being as follows:

“‘Beaumont, Texas, Sept. 12, 1934.
“ 'On the 6 day of September, 1934, I was at Annie duglas home and she told me and others beside that at her death she wanted Willie Adams to have all that she had land and money and every thing ¿lse that she new she was going to die that she had no kin and she was the only one that sat at her bed side and waited on her and she wanted her to have all her estate at her death
“ ‘Berttrue McDaniel.’ ”

He testified that when he went, to the home of the deceased he found her in bed; that when he paid her the rent she handed, him a receipt therefor which she had theretofore written. His testimony with regard to what occurred on the occasion is, in the main, corroborated by the other witnesses who were present at that time. There is practically no testimony concerning the condition of the deceased from Thursday afternoon until about noon on Saturday. The proponent testified that “she had taken the bed on a Thursday. Friday she was in and Thursday she taken the bed and stayed in bed from Thursday up to Friday.” That testimony probably means that deceased did not leave her home on Friday but was in bed at least a part of that day. Shortly before noon on Saturday morning the deceased went to the home of a neighbor, Julia Keegans, to get Julia to pay a water bill for her which amounted to $1. Deceased had only a $5 bill with her and Julia was unable to change it. Deceased next went to a grocery store near by and purchased some bacon and a small sack of flour. She then returned to Julia’s home and gave her $1 with which to pay the water bill. At that time she discovered that she had failed to bring the bill with her, whereupon Julia accompanied her home to get it. The deceased carried the bacon and Julia carried the flour. Shortly after reaching home the deceased became sick. Dr. Miller was later' called and he came to see her about 6 o’clock that evening. She died some two hours or more thereafter.

All text-writers and opinions on the subject of what constitutes “last sickness” within the meaning of statutes relating to nuncupative wills seem to agree that the leading authority upon the question is Prince v. Hazleton, 20 Johns., N. Y., 502, 11 Am.Dec. 307. Of that case the author of Redfield On The Law of Wills, 4th Ed., in Vol. 1, ch. VI, Sec. 17a wrote: “* * * This subject came before the Court of Errors in New York, at an early day, * * * and is most exhaustively discussed by Chancellor Kent, and by Mr. Justice Wood-worth. These opinions contain the substance of all the learning upon the subject of nuncupative wills, from the- earliest days to that date and very little has occurred since, which could add much to the very full discussion which the subject there receives.”

Our investigation has lead us to the conclusion that the foregoing is still an accurate statement of the situation. Nothing has been written to date, within our knowledge, which adds materially to the discussion contained in the majority and minority opinions in that case. In fact, there have been relatively few cases before the appellate courts in this generation in which a nuncupative will was offered for probate.

In the majority opinion Chancellor Kent announced this conclusion: “Upon the strength of so much authority, I feci myself warranted in concluding, that a nun-cupative will is not good, unless it be made by a testator when he is in extremis, or overtaken by sudden and violent sickness, and has not time or opportunity, to make a written will.”

That has become known generally as the in extremis rule. The minority opinion in that case announced a somewhat more liberal rule of construction. From that decision two lines of decisions have emerged, one based upon the doctrine that the testator must be in extremis, as announced by Chancellor Kent in the majority opinion, and the other based upon the more liberal rule announced by Justice Woodworth in the dissenting opinion, that the testator need not actually be in extremis. The majority of the courts have adopted the Chancellor Kent doctrine. Schmitz v. Summers, 179 Miss. 260, 174 So. 569; O’Neill v. Smith, 33 Md. 569; Bellamy v. Peeler, 96. Ga. 467, 23 S.E. 387; Page v. Page, 2 Rob., Va., 424; Reese v. Hawthorn, 10 Grat., Va., 548. Annotations: 20 Am.Dec. 45; 9 A.L.R. 464; 13 L.R.A., N.S., 1092; 67 Am.St.Rep. 572.

The Court of Civil Appeals in its opinion in this case recognized the existence of both the rules above referred to, but concluded that Texas had not adopted the majority rule, and upon the theory that the minority rule was the more reasonable, it adopted and applied that rule. We cannot agree with its conclusions.

In the first place, this court has approved the rule of strict construction. While the facts in the cases below cited were not like those before us, still they presented situations calling upon the court to declare the rule of construction which should govern in cases like the instant one, and the court declared it in very clear language.

In Jones v. Norton, 10 Tex. 120, will be found the following: “* * * Nuncupa-tive wills had their origin in the suddenness and urgency of the occasion, where there were present no means of making a formal written will, and no time for delay. And, among all civilized nations, where the necessity has been apparent, nuncupative wills have, under some regulations, been allowed. But the danger of fraud, in setting up such wills, has always exacted full' and satisfactory proof of the existence of the necessity; and, where we have a statute regulating such wills, there is the same reason why we should require its conditions and requisites to be satisfactorily made out. * * *«

In Mitchell v. Vickers, 20 Tex. 377, it is stated: “Nuncupative wills are not favorites of the law. But as they are authorized by the statute, they must, when duly proved, be allowed and established. They are hedged round with numerous restrictions, to guard against the frauds for which oral wills offer so many facilities; and it is a well established rule, that strict proof is required of all the requisites prescribed by the law. ([Parsons v. Parsons] 2 Greenl. [Me.], 298; [In re Yarnall’s Will] 4 Rawle [Pa.], 46 [26 Am.Dec. 115]; 20 Johns. 502; 1 Jarman on Wills, 89; Modern Probate of Wills, 304.) The provision of the statute (Hart.Dig. Art 1113) is essentially a copy from the statute of frauds of the 29 Ch. 2, Sect. 19-21; and in substance the same provision is found in the codes of most of the other States; and everywhere a strict construction has been applied.”

One of the authorities cited above, 20 Johns. 502, is the Prince-Hazleton case.

And in Watts v. Holland, 56 Tex. 54, Chancellor Kent’s opinion in the Prince-Hazleton case, was cited in support of the following conclusion announced in the opinion: "* * * Wills of this kind, by the law, are allowed to exist, on its bare toleration, and under the shadow of its jealousy; and the establishment of them is allowed, subj ect to .exacting restrictions and conditions which correspond in degree with its fears of their dangerous qualities. * *

From the foregoing we conclude that early in the jurisprudence of this state the majority rule that the testator must be in extremis was approved by this court.

In the second place, we do not concur in the conclusion of the Court of Civil Appeals that the so-called liberal rule is the more reasonable. In' Chancellor Kent’s opinion, supra, written in 1822, reference was made to, the fact that, in the ages of Henry- the Eighth, Elizabeth and James reading and writing had become so widely diffused that nuncupative wills were confined to extreme cases. Under the view there expressed, which is the commonly accepted- view, the more widely the ability to read and write becomes’ diffused, the less justification exists for recognizing nuncu-pative wills, except in cases of necessity. With the general diffusion of knowledge at this time, we can perceive of no reason why we should depart from or vary the terms of the rule of construction as heretofore pronounced by this court. The instant case appears to be free of the taint of fraud, but to adopt the rule pressed upon us would be to afford opportunity for fraud in many other cases.

Applying the approved rule to the facts of this case, it is obvious that Annie Douglass was not in extremis when she uttered the words claimed to constitute her will. Thereafter she had the time, ability and opportunity to prepare or have prepared a written will. About that there is no dispute in the record. Certain it is that she could have attended to that matter on Saturday morning when she was able to transact business and go in person to a store to purchase groceries. The probate court did not err in refusing to admit the alleged will to probate.

It is therefore ordered that the judgments of the district court and the Court of Civil Appeals both be reversed, and that judgment be here rendered that the alleged will be not admitted to probate. It is fur1 ther ordered that upon receipt of the mandate of this court the district court certify this court’s judgment to the county court for observance.

Opinion adopted by the Supreme Court.


source: Caselaw Access Project

author: KRUEGER, Judge.

license: Public Domain

text:
    MOYNAHAN v. STATE.
    No. 21348.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1941.

      Cyrus B. Weller and Leonard Brown, both of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

It was charged in the indictment, omit7 ting the formal parts, that on or about the 14th day of September, A.D.1939, T. L. Moynahan did unlawfully drive and operate an automobile upon a public street within the limits of an incorporated city within this state, to-wit, upon Commerce Street, within the city of San Antonio, Texas, and within the corporate limits thereof, while he, the said T. L. Moynahan, was then and there under the influence of intoxicating liquor, and he, the said ,T. L. Moynahan, while so operating and driving said automobile as aforesaid, did then and there, through accident and mistake, kill one, John Disbro, by then and there driving said automobile into and against an automobile driven by the said John Disbro and hurling the body of the said John Dis-bro from said automobile and against the pavement upon said street, thereby jarring, bruising and breaking the body of him the said John Disbro, causing injuries to the body of the said John Disbro, from which injuries the said John Disbro did die, etc.

The indictment is deemed sufficient under the authority of O’Conner v. State, 129 Tex.Cr.R. 509, 88 S.W.2d 1048.

Appellant entered a plea of not guilty and also filed a plea for suspension of sentence in the event 'of his conviction.

The State’s evidence sustains the averments in the indictment. The officer who arrested appellant near the scene of the collision testified that the appellant was drunk; that he smelled the odor of intoxicating liquor on his breath and that he walked wabbly and staggered. The night-watchman at the Santa Rosa Hospital testified that appellant was drunk on the night in question when he arrived at the hospital.

Appellant took the witness stand and testified in his own behalf. He denied that he was drunk at the time of the collision. He admitted, however, that he drank about seven bottles of beer during the evening and night in question. Some of the nurses testified that appellant was not drunk or under the influence of intoxicating liquor when he came to the hospital' immediately after the collision.

It will be noted that the issue of appellant’s intoxicated condition was strenuously contested. Five witnesses for the State testified that he was intoxicated or drunk, and six of appellant’s witnesses testified to the contrary.

Appellant addressed eleven objections to the court’s main charge and requested a number of special instructions which the court declined to give. The first objection is leveled at Paragraph 2 wherein the court instructed the jury that the statute of our state provides that one intending to commit a felony and who, in the act of preparing for or executing the same, shall, through mistake or accident, do another act which, if voluntarily done, would be a felony, shall receive the punishment affixed to the felony actually committed. Vernon’s Ann.P.C. art. 42. Appellant’s objection to said charge is that it has no application to the facts of the case at bar; that Article 1241 of the Penal Code is particularly applicable here. Said article of the Penal Code reads as follows: “When one in the execution of or in attempting to execute an act made a felony by law shall kill another, though without an apparent intention to kill, the offense does not come within the definition of negligent homicide.”

It occurs to us that the article referred to has no application to the facts of the instant case. It merely takes such an offense as here charged out of the act defining negligent homicide.

Appellant’s next objections are all directed to the following phrase used by the court in his charge: “Under the influence of intoxicating liquor.” The court charged the jury that “intoxicated” and “under the influence of intoxicating liquor” are synonymous terms, and substantially charged the same as was approved in the case of Lockhart v. State, 108 Tex.Cr.R. 597, 1 S.W.2d 894, 895, in which we held that it' was not necessary to define the terms. However, in that case a similar definition was given as in this case and the court, speaking through Judge Lattimore, said: “In our opinion it is not necessary to give any definition of the terms used in the statute, but, one having been attempted, we think it not erroneous.” See Williams v. State, 100 Tex.Cr.R. 50, 271 S.W. 628.

We have considered appellant’s special requested instruction No. 1 and reached the conclusion that no error was committed by the court in declining to submit the same to the jury inasmuch as the court, in his main charge, clearly and definitely instructed the jury on that phase of the case.

No error was committed by the court in declining to give appellant’s special requested charge No. 2 to the effect that before the jury could find that the defendant was intoxicated at the time of the alleged accident, they must find beyond a reasonable doubt that he had taken into his system excessive quantities of intoxi-ting liquor and that the effect of such excessive quantities of intoxicating liquor was to deprive him of his normal physical and mental faculties. Just what is meant by the words “taken into his system an excessive quantity of intoxicating liquor” is very uncertain and indefinite. Some persons can carry a greater amount of liquor in their system without becoming unsteady on their feet and lose the equilibrium of their mental faculties than others. If appellant intended to convey the idea to the jury that by the words “excessive use of intoxicating liquor” he meant that the person had thereby lost the use of his normal, physical and mental faculties, then the requested charge was but a repetition of what the court had incorporated in his main charge.

By bill of exception No. IS appellant complains of the following remark made by Mr. Simmons, special prosecutor, in his argument to the jury: “It makes no difference how carefully the defendant was driving his car; he could have been driving it five miles an hour, and if he was drunk at the time of the collision he is guilty of murder.”

Appellant objected to the remark on the ground that it was contrary to the charge of the court and requested the court to instruct the jury not to consider it for any purpose, which the court declined to do. We believe that the appellant’s contention is well founded. We note that the court instructed the jury, among other things, as follows: “You are instructed that even though you believe and find from the evidence that the defendant was ‘under the influence of intoxicating liquor’, as that term is herein-before defined, while he was operating the car at the time of the collision, he would not be guilty of murder if he was operating the same in the manner that it would be operated by one not under the influence of intoxicating liquor.”

This is a correct statement of the settled law of the state.

It is obvious that the argument complained of was in direct conflict with the instruction to the jury above set out. The court’s failure to respond to appellant’s objection and to instruct the jury not to consider it was tantamount to an endorsement by the court of the statement of the law as-made by said special prosecutor. If the court had given such a charge to the jury, there is no question but what it would have been in conflict with the charge here-inabove quoted. Although the defendant may have been intoxicated, if he operated his car in the same manner that it would have been operated by one not under the influence of intoxicating liquor, then his intoxicated condition, if he was intoxicated, did not bring about or contribute to the collision and death of the deceased. It is our opinion that the remark was prejudicial, hurtful and an incorrect statement of the law applicable to cases of this nature. See Norman v. State, 121 Tex.Cr.R. 433, 52 S.W.2d 1051; Jones v. State, 127 Tex.Cr.R. 227, 75 S.W.2d 683; Collins v. State, 130 Tex.Cr.R. 386, 94 S.W.2d 443.

In the case of Burton v. State, 122 Tex. Cr.R. 363, 55 S.W.2d 813, 815, Judge Latti-more, speaking for this court, on motion for rehearing, said, among other -things, as follows: “In other words, the mere fact that a man is under the influence of intoxicating liquor while operating a car on a highway, this being in and of itself the commission of a felony, should not in reason and common sense make him guilty of murder, if he be operating the car correctly, and as a man should who was not under the influence of intoxicating liquor.”

By bill of exception No. 16 appellant complains of the following remark of the assistant district attorney: “You heard Dr. Davis testify, but I know as a matter of common knowledge that shock can sober a man up.”

Dr. Davis was a witness for the defendant and testified that a shock would not sober a man up. The remark complained of was contradictory to the testimony of Dr. Davis, although no witness testified that a shock would sober a man up. We note, however, that the court sustained the appellant’s objection to the argument and instructed the jury that the remark of the assistant district attorney was not any evidence. We seriously doubt that the remark was of such prejudicial nature as would call for a reversal of this case. The prompt action of the trial court, in our opinion, was sufficient to withdraw the evil effect, if any, which it might have had.

By bill of exception No. 17 appellant complains of the following argument of the assistant district attorney: “I. know Mr. Hoag. I have known him for a long time, and know his brother. He is a very good citizen.”

Appellant objected to this remark on the ground that the same was an unsworn statement by the assistant district attorney that he was vouching for the witness in a manner not provided by law and was highly prejudicial. The court responded to the appellant’s objection and instructed the jury that the argument was not evidence in the case. The appellant contends that notwithstanding such instruction the argument was so highly prejudicial that it could not be cured by the court’s instruction. We believe that there is merit in his contention. Mr. Hoag was a witness for the State and testified that he saw the defendant at the scene of the accident; that from his manner and from what he said, lie thought the defendant was under the influence of intoxicating liquor. However, the testimony was contradicted by witnesses for the defendant and the issue as to whether or not appellant was intoxicated at the time of the collision was vigorously contested and combated by the appellant. We think that the remark of the prosecuting attorney was an attempt on the part of the State to bolster its witness by way of argument as to his general good reputation as a citizen. In the case of Thomas v. State, 109 Tex.Cr.R. 578, 6 S.W.2d 118, similar argument was made and this court said:

“The argument was in effect the un-sworn testimony of the district attorney that the witness reputation in the respect mentioned was good. Such argument was obviously prejudicial and constituted reversible error.” See Parker v. State, 124 Tex.Cr.R. 600, 64 S.W.2d 786; Jones v. State, 124 Tex.Cr.R. 615, 64 S.W.2d 961. See also Jones v. State, 129 Tex.Cr.R. 620, 91 S.W.2d 341.

We think that the combined and cumulative effect of the remarks complained of in bills of exception Nos. 15 and 17, being unauthorized, was of such prejudicial nature as calls for a reversal of the judgment of conviction.

The other arguments, while not exactly proper, are not deemed to be of such character as to require a reversal of the case.

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: BEAUCHAMP, Judge.

text:
    HEARREAN v. STATE.
    No. 21357.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1941.

      Foster T. Bean, of Kilgore, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

E. R. Hearrean was convicted in the county court of Rusk County on a charge of swindling, and assessed a fine of $100, from which he appeals.

The allegation is made and the evidence shows that the prosecuting witness was engaged in the stock commission business in the city of Henderson. He had regular sales dates at which he would offer for sale such stock as were brought to him by customers. On January 1, 1940, the appellant purchased at such a sale fourteen hogs for which he gave his check in the amount of $39.20 on the Kilgore National Bank. In turn, the prosecuting witness gave the owner of the hogs, his customer, a check for the sale price of the hogs less his commission.

The evidence shows without dispute that at the time of the purchase, or within a few hours thereafter, one of the hogs was. sick and within a few days died of cholera. Following this and within a very few days all of the hogs died of cholera. Appellant stated that he stopped payment of the check because of this fact.

The allegation upon which the prosecution is based reads, “that the said E. R. Hearrean did not have sufficient funds with said bank to pay said check and all other checks, drafts and orders outstanding at the time said check was given and drawn.” It further alleges the presentment of the check and the bank’s refusal to pay same. These are necessary and proper allegations constituting the charge on which the prosecution was based. At the conclusion of the testimony appellant asked for an instructed verdict, which was refused.

Eight bills of exception are presented,, but it will not be necessary to discuss them. The only evidence offered by the state on the question of the return of the check was by the witnesses Frank Bell and Douglas Patton, who, after testifying that appellant inquired if the check had been returned, instructed the witnesses to place it in the bank a second time and then the witnesses said, “The check was returned and was re-deposited and returned the second time unpaid.”.

There is no evidence in the record showing that the appellant did not have sufficient money to pay the check at the time it was drawn or any time thereafter. The necessary allegations in the complaint and information must be sustained by the proof. Having failed to do so, the jury was not authorized to return a verdict of guilty.

By bill of exception No. 2 complaint is made of the evidence of Frank Bell, over the objection of appellant, that he had been told by a veterinarian that it took only thirty-six hours for a hog to take the disease of cholera after it had been exposed. This evidence was hearsay. It was brought out by the state for the purpose of rebutting appellant’s theory that the hogs which he purchased had the cholera at the time he gave the check and were of no value. The state’s prosecuting witness Frank Bell admitted that if the hogs were diseased at the time of the sale they would have no value. Proof of such fact would-be a proper defense to the charge of swindling as it was laid. The bill is sustained.

Other complaints were raised by bills which will probably not occur at another trial of the case.

For the failure of the state to prove the necessary allegations, and the error complained of by bill of exception No. 2, the judgment of the trial court is reversed and the cause remanded.


author: CHRISTIAN, Judge. HAWKINS, Presiding Judge.

text:
    APODACA v. STATE.
    No. 21105.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1940.
    Rehearing Denied Jan. 22, 1941.
    W. Joe Bryan, of El Paso, for appellant.
    Roy D. Jackson, Dist. Atty., and Harold S. Long, Asst. Dist. Atty., both of El Paso, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

It was charged in the indictment, in substance, that appellant, while intoxicated, and while operating his automobile on a public highway, through accident and mistake, killed Hector Sandoval, by driving his said automobile against the body of the said Hector Sandoval, etc.

The. testimony of the state was to the effect that appellant was intoxicated when he struck deceased with his automobile. The accident occurred late in the evening. Appellant testified that he had not been drinking since early morning, at which time he drank a small quantity of beer. He denied that he was intoxicated, and introduced witnesses who testified to the effect that he was not under the influence of intoxicating liquor at the time- of the accident.

After appellant had been arrested and taken to jail he was required by the officers to submit to certain tests for the purpose of enabling them to determine whether he was intoxicated. According to the testimony of one of the officers, appellant was questioned and his answers reduced to writing. He was also required to walk and make sudden turns. Again, he was-required to hold out his hand and make an effort to place a finger on his nose. This he was unable to do. Again, he was-^j required to furnish a specimen of urine, ini order that it might be analyzed for the | purpose of determining whether alcohol | was present. A chemist testified that an analysis of the urine disclosed the presence of alcohol. The officer reached the conclu-, sion from the “intoxication tests” we have] described that appellant was under the in-| fluence of intoxicating liquor.

Over appellant’s proper objection that he had been required to give evidence' against himself in violation of Article 1,, Sec. 10 of the Constitution of Texas, Vernon’s Ann.St., one of the officers was permitted to describe the tests to which we have referred and to express the opinion, in effect, that appellant was intoxicated. For example, the officer testified that appellant was unable to make a sudden turn after walking as directed by the officers, and,, further, that his answers to the questions-propounded to him by the officers showed that he was intoxicated. Again, the ness testified that appellant was unable to place his finger on his nose. We think appellant’s objection to the testimony should have been sustained. In the Bill of Rights (Article 1, Sec. 10, Constitution of Texas,) it is declared that one accused of crime shall not be compelled to give evidence against himself. • Demonstration by an act “which tends to self-incrimination is as obnoxious to the immunity guaranteed by the Constitution as one by words.” See Ruling Case Law, Vol. 28, page 434, Sec. 20; Wharton’s Crim. Ev., 10th Ed., Vol. 1, Page 617, Sec. 315.

We think the record clearly presents the legal question involved. Stated in another way, we are of opinion that it is reflected that appellant was compelled to evidence against himself. In bill of exception No. 2 it is recited that appellant was “required to answer questions.” We quote from appellant’s testimony as follows : “After I was brought into the sheriff’s office they took me up in jail. When they first brought'me to the sheriff’s •office they' took me to the back end of the sheriff’s office. While I was there they caused me to outstretch my hand and then touch the point of my nose. They made me do that 'two or three times and made me walk fast and slow. After that they made me right-about-face suddenly. Then after they had completed these tests they took me upstairs and took me to the sheriff’s office and gave me a Coca Cola bottle so I could urinate in it. After I urinated in it I broke it. I did it intentionally, yes sir. Then they brought me a milk bottle and had me urinate in that and I gave them a small specimen of-it. I did that because they ordered me to do it.” After describing the tests in question one of the officers said: “Yes. These things were being done under the officers’ orders.”

We quote from 16 Corpus Juris, page 566, as follows: “The constitutions of the, United States and of most of the states provide in somewhat varying language that no person accused of crime shall be compelled to be a witness, or to give evidence, against himself, and these provisions render inadmissible all evidence incriminating accused and obtained from him by compulsion. The prototype of the guaranty is found in the maxim of the common law, Nemo tenetur seipsum accusare, which was brought to America by our ancestors as a part of their birthright; and the privilege self-incrimination has been uniformly construed by the courts as giving the citizen protection as broad as that afforded by the common-law principle from which it is derived, both the federal and state constitutions being liberally construed to prevent compulsory self-incrimination. Compulsion is the keynote of .the prohibition; and to render evidence inadmissible on the ground that defendant was compelled to produce it against himself, it must appear that such compulsion was used as to rob him of volition in the matter.”

The following is taken from 28 Ruling Case Law, supra, page 434: “The rights intended to be protected by the constitutional provision that no man accused of crime shall be compelled to be a witness against himself are so sacred, and the pressure toward their relaxation so great when the suspicion of guilt is strong and the evidence obscure, that it is the duty of courts liberally to construe the prohibition in fav- or of personal rights, and to refuse to permit any steps tending toward their invasion. Hence, there is the well-established doctrine that the constitutional inhibition is directed not merely to the giving of oral testimony, but embraces as well the furnishing of evidence by other means than by word of mouth, the divulging, in short, of any fact which the accused has a right to hold secret.”

We think appellant’s testimony showed in effect that he was compelled to do the things required of him by the officers, and, further, that the testimony of the state was not sufficient to combat appellant’s version.

In view of the fact that the issue as to whether appellant was intoxicated was closely contested, we would not feel warranted in holding that the error in receiving the testimony was harmless.

The judgment is reversed and the cause remanded.

PER CURIAM.

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

On State’s Motion for Rehearing.

HAWKINS, Presiding Judge.

The State has filed an able motion for rehearing challenging the correctness of the conclusions announced in our original opinion.

We have re-examined the record in the light of the State’s motion, and are inclined to adhere to the conclusions heretofore announced.

We think the safer policy to be adherence to the construction and application of Section 10, Article 1 of our Constitution already given effect in our long-established precedents.

We are not inclined to enlarge upon accepted exemptions from the application of said provision of the Constitution.

The motion for rehearing is overruled.


text:
    GUNN v. STATE.
    No. 21341.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1941.
    Ben Greenwood, of Palestine, for appellant.
    Lloyd W.' Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the county court of Anderson County for the violation of the liquor law and his punishment was assessed at a fine of $100.

The complaint and information appear regular. The record is before this court without statement of facts or bills of exception. In the absence of the evidence adduced upon the trial, this court is unable to appraise the matters presented in the motion for new trial.

No error having been found in the record before us, the judgment is affirmed.


author: CHRISTIAN, Judge.

text:
    BENNATT v. STATE.
    No. 21469.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    George H. Cavanagh, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft; the punishment, confinement in the penitentiary for six years.

On the 27th day of December, 1940, the sheriff of Waller County made an affidavit showing that, pending his appeal, appellant has escaped. We quote from the affidavit: “No later than Dec. IS, A.D. 1940, the said Lester Bennatt * * * fled from said jail, and was out of my view and custody, and is now out of my view and custody and wholly at large.” Under the circumstances, this court is without jurisdiction.

The appeal is dismissed.

PER CURIAM.

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


author: BEAUCHAMP, Judge. CHRISTIAN, Judge.

text:
    ALLEN v. STATE.
    No. 21271.
    Court of Criminal Appeals of Texas.
    Dec. 18, 1940.
    Rehearing Denied Jan. 22, 1941.
    E. A. Martin, R. L. Whitehead, and Richard Nicolds, all of Longview, Florence & Florence, of Gilmer, and Thomas B. Ridgell (on appeal only), of Dallas, for appellant.

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

Appellant was convicted upon an indictment for murder and, the jury having assessed a penalty of forty-five years, he brought this appeal.

It is alleged that on the 25th day of February, 1940, D. L.' Allen unlawfully and voluntarily with malice aforethought did kill Addie Stewart Allen by shooting her with a gun. The victim was the wife of appellant.

It will not be necessary in the consideration o.f the questions presented to detail at length the evidence upon which the conviction was had. Such statements as will be necessary are found in connection with a discussion of each question raised; however, it may be said there was no eyewitness to the killing which took place in the quarters operated by appellant and his wife known as the “Blinking Owl” and consisting of a beer joint and two bedrooms.

It is the state’s theory that appellant and his wife had been getting along badly and were in a fuss constantly. She had hidden his two pistols some time previously and they had become rusted. The tragedy occurred after midnight on Saturday and after a disagreement between appellant and his wife, which apparently had some connection with the dismissal of a woman who worked in the place as an employee, Appellant admits the killing, but says that he had found the pistols which his wife had hidden and that he was cleaning the rust off of them, using some gasoline and oil. While doing so one of the cylinders became hung and in trying to loosen it the gun went off and his wife was killed accidentally. The issue is squarely presented. He either murdered his wife with malice, as found by the jury, or the killing was due to an accident.

When the case was called for trial appellant presented his motion for a continuance on account of the absence of a witness whose testimony was alleged to be material, because she “will testify to letters and communications had with the deceased, the wife of defendant herein; that such testimony is material and is vital to this defendant’s proper defense in that said testimony will show that the defendant and the deceased lived together happily, and that there was no motive for the defendant taking the deceased’s life at the time in question.” It is further set out that these communications were made a short time prior to the killing and that there was no other person from whom this testimony could be secured. The witness was alleged to be living in another county. A doctor’s certificate was attached certifying to the fact that she was ill and unable to attend court. The witness was the mother of appellant and he expected to have her present at the next term of court. The motion concludes, “Defendant would further show unto the court that this continuance is not sought for delay only, but that justice might be done.” It is subscribed and sworn to by the appellant before his attorney as notary public.

Bill of exception No. 1 complains of the action of the court in overruling this motion for continuance. It requires no discussion of the law to show that there is no merit in this motion. The conclusions which he expected the witness to make would not be admissible as evidence. He did not seek to have the letters for what they may be worth. The motion does not meet the statutory requirements, in that it does not allege that it was not made for delay. Vernon’s Annotated Code Cr. Procedure; Art. 543, Sec. 5. See, also, Russell v. State, 88 Tex.Cr.R. 582, 228 S.W. 948; Perkins v. State, 120 Tex.Cr.R. 399, 46 S.W.2d 672; White v. State, 131 Tex.Cr.R. 69, 95 S.W.2d 429.

Bill of exception No. 2 complains of the action of the court in refusing to submit the defendant’s special requested instruction No. 11 which is designed to instruct the jury as a general proposition that whoever, in the performance of a lawful act, shall by negligence and carelessness cause the death of another, they shall be guilty of negligent homicide of the first degree. It then defines a lawful act.

There is no evidence raising the issue of negligent homicide. As stated, the appellant was either guilty of murder with malice or he should have been acquitted of murder under his testimony that the killing was an accident.

Appellant’s bill of exception No. 3 complains of the failure of the court to give defendant’s special requested instruction No. 1 defining, “reasonable doubt”. We are unable to find any purpose for the charge requested, and conclude that the court committed no error.

On a motion for rehearing complaint is made of misconduct of the jury-in two particulars. First, that the jury in considering the amount of punishment discussed the law and concluded that if the jury wanted him to serve fifteen to twenty years in the penitentiary it would he necessary to sentence him for as much as forty-five years as the Board of Pardons or the Governor would likely pardon him after he had served that period of time.

Jurors were called and heard by the court and, while some denied that they heard any such discussion, the strongest statement which may be gleaned from the evidence introduced is that some casual remark was made or question asked about the law and practice of the Board of Pardons and Governor, and the person making the same was immediately admonished that this was an improper consideration and that thereafter it was not again mentioned. From all the evidence on the subject, the trial court’s action in overruling the motion for new trial based on this incident cannot be held error.

Second, that after the jury had determined by their vote that appellant was guilty of murder with malice, some juror got hold of the pistol which had been introduced in evidence and about which there had been testimony and being the same pistol which appellant said hung and was accidentally discharged, resulting in the death of his wife. The pistol was examined and operated by some of the jurors —-as stated by one, it was “fanned”. Because of this it is contended that the jury experimented with the pistol and brought into the case new and additional evidence to that heard from the witness box.

The jury had a right to take the pistol into the room where they were deliberating. The evidence does not disclose what, if any, additional fact was discovered by the jury in handling the pistol to that which was shown by the testimony in the trial of the case. Probably it did contradict the evidence of the appellant to the effect that the pistol would hang at a certain place. The jury had a right to examine it to determine the truthfulness of that statement. It is a well-settled rule that the jury would have the privilege of examining a dangerous instrument provided they did not use it in any different manner than that involved in 'the testimony and that no new fact was discovered from their experiment which was hurtful to the appellant. Smith v. State, 90 Tex.Cr.R. 24, 232 S.W. 497; Bell v. State, 32 Tex.Cr.R. 436, 24 S.W. 418; Spencer v. State, 34 Tex.Cr.R. 238, 30 S.W. 46, 32 S.W. 690; Grayson v. State, 40 Tex.Cr.R. 573, 51 S.W. 246; Webb v. State, 69 Tex.Cr.R. 413, 154 S.W. 1013.

Furthermore, examination of the pistol appears to have taken place after the jury had reached its conclusion that the appellant was guilty of murder with malice. We see no relationship between the examination of the pistol and the heavy penalty assessed. It was not an article, such as bloody clothing, that would bear inflammatory evidence which was likely to cause them to assess a heavier penalty than they would otherwise have assessed. We are unable to see that the experiment with the pistol by the jury as described by them resulted in anything harmful to the appellant other than to deny the truthfulness of his statement that the cylinder would hang at a certain place, if it did so deny it. This related to the subject discussed from the witness box. It raised no new issue and the jury was charged with the duty of determining the truthfulness of that statement. He had relied on this mechanical defect of the revolver and it is a reasonable rule which permits the jury to examine the revolver in the performance of their duty of determining the truthfulness of his assertions. Under the jury’s finding of fact the penalty assessed was not excessive.

The judgment of the trial court is affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

The opinion is expressed that proper disposition of the appeal was made upon the original submission of the case. After carefully re-examining the record in the light of the motion for rehearing it is deemed unnecessary to further discuss the questions dealt with in the original opinion.

The motion for rehearing is overruled.

PER CURIAM.

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


author: GRAVES, Judge.

text:
    SMALLWOOD v. STATE.
    No. 21346.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1941.
    Marvin P. McCoy, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of an assault to murder with malice, aforethought, and his punishment assessed at five years in the penitentiary.

The record contains neither statement of facts nor bills of exception. The indictment appears to be in proper form. Nothing is presented for review.

The judgment is affirmed.


text:
    SWAGERTY v. STATE.
    No. 21354.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1941.
    Callaway & Callaway, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged with keeping and exhibiting a pool table for hire, and was fined the sum of $75 by the jury.

It appears from the State’s evidence that two members of the Public Safety Depart-meht went into appellant’s place of business, in the city of Brownwood, and, observing a pool table in the rear of a restaurant, asked to be allowed to play a game of pool on such table. A negro porter uncovered the table and racked the pool balls, and, in company with two local citizens, these officers played some several games on this table. They testified that they paid the negro for some of the games, and also paid the appellant for the hire for the last two games played by them on the table.

There are only two bills of exceptions, the first relating to the court’s failure to quash the complaint and information. It is not clear to us in what particular the complaint and information are alleged to be defective, but the matter can be disposed of by us by saying that, in our opinion, such pleadings correctly charge a violation of the statute denouncing the keeping of a pool table for hire.

It will be noted that Article 653, P.C., prohibits the operation or maintenance of a pool hall, as that term is defined by the laws of this State, and provides a punishment for such operation.

In order to find what is a pool hall under the laws of this State, we are relegated to the Revised Civil Statutes 1925, Art. 4668, which reads in part as follows: “No person acting for himself or others shall maintain or operate a pool hall within this State. The term Tool Hall,’ as used herein, includes any room, hall, building or part thereof, tent or enclosure of any kind similar to those named, or any inclosed open space, in which are exhibited for hire, revenue, fees or gain of any kind, or for advertising purposes of any kind, any pool or billiard table or stand or structure of any kind or character on which may be played pool or billiards, or any game similar, to pool or billiards played with balls, cues or pins or any similar device. Any such table, stand or structure of any kind used or exhibited in connection with any place where goods, wares or merchandise or other things.of value are sold or given away or where or upon which any money or thing of value is paid or exchanged shall be regarded as a place where is exhibited the same for hire, revenue or gain,” and under the charge and the facts, we think the jury was justified in its verdict.

Appellant’s bill of exceptions No. 2 complains of the trial court’s action. in overruling his first application for a continuance, which application was based upon the absence of two-witnesses who were alleged to have played in the games with the two officers from the Public Safety Department. This bill should have contained the motion fot a continuance so that the same could have been reviewed by us in its entirety. It does not thus contain the motion. If we search the record, which we are not required to do, we do find the motion set out therein in its entirety. It is evident from the record that the complaint and information were filed on April 23, 1940; it is further evident that a subpoena was applied for and issued on May 6, 1940, for these witnesses and the trial was had on May 7, 1940; that process for these witnesses was not requested for thirteen days after the filing of this case, and only one day prior to the time such cause was called for trial. We are of the opinion that there was a lack of diligence upon the part of appellant in making his preparation for trial, as shown by the record, outside of his incomplete bill of exceptions No. 2.

We do not think error is presented herein, and the judgment is therefore affirmed.


text:
    POST v. STATE.
    No. 21355.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1941.
    Irwin T. Ward, of Cleburne, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the district court of Johnson County for misappropriation of city funds and his punishment was> assessed at five years in the penitentiary.

The proceedings appear regular. The record is before us without statement-of facts or hills of exception and there is nothing presented for review by this court.

The judgment of the trial court is affirmed.


text:
    NELOMS v. STATE.
    No. 21351.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1941.
    J. G. Minkert, of Bryan, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for the unlawful possession of intoxicating liquor, for the purpose of sale, in a dry area. The punishment assessed is confinement in the county jail for a period of five months.

The transcript in the present instance contains only a “docket entry” of the notice of appeal, which is not sufficient to confer jurisdiction upon this court. Article 827, C.C.P., requires that notice of appeal be given “in open court” and “entered of record.” In the absence of a showing that the docket entry was carried into the minutes of the trial court, this court is without authority to entertain the appeal. See Lucas v. State, 138 Tex.Cr.R. 277, 135 S.W.2d 720; Bertrand v. State, 138 Tex.Cr.R. 393, 136 S.W.2d 849, 850; Bagley v. State, 126 Tex.Cr.R. 1, 70 S.W.2d 177; Rodriguez v. State, 137 Tex.Cr.R. 539, 132 S.W.2d 867; Casey v. State, 116 Tex.Cr.R. 111, 32 S.W.2d 461.

We also note that the statement of facts is not approved by the trial judge.

The appeal is dismissed.

PER CURIAM.

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


author: GRAVES, Judge. CHRISTIAN, Judge.

text:
    DEPWE v. STATE.
    No. 21327.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1940.
    Rehearing Denied Jan. 22, 1941.

      J. T. Adams and Hollis Kinard, both of Orange, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged with embezzling $2,679.88 from the Orange Furniture Company, a private corporation, and upon conviction by the jury he was sentenced to serve two years in the State prison.

Briefly, the facts show that appellant was general manager of this corporation, and he had at times taken out of the cash of the company various sums, leaving in the cash his I. O. U.’s for such sums. In order that the books of the company should show a balance, and when these sums would grow large enough to be reflected in the cash balance, the amount would be passed to “goods purchased” account, and later he would execute a written instrument called a “Texas Mortgage” for such amounts, which would be reflected as goods sold, and passed by the bookkeeper into bills receivable, thus leaving the cash in balance on the books. There was no denial by appellant of these proceedings, and his defense was that as general manager he had the right to thus borrow money from the company; that he intended to repay the same; that other employees of the company had indulged in like practices, and that he had the consent of a director of the company to thus handle these funds.

There was contradictory testimony upon the part of the State to these matters, and testimony that could' have been utilized by the jury showing the falsity of these proffered defenses.

Appellant was not entitled to have granted his request for a peremptory instruction. We think the indictment properly charges in legal form an offense against the law and thus disposes of bill of exceptions No. 1.

We think that the question objected to in bill No. 2 will doubtless not occur on another trial. We think that the evidence complained of in the bill was properly admitted in the present instance because of what appellant had testified to on his examination in chief, but surely no error is shown herein on account of the fact that the court did not allow an answer thereto, and instructed the jury to disregard the same.

Complaint is made relative to the charge of the court in which is presented the appellant’s defense of the possession of a belief that he had the authority of the Board of Directors of this company to use their funds in the manner testified to by him. We think the wording of such paragraph should be so changed as not to convey the idea that there was a misapplication or conversion of such funds. •

We think that the testimony of other like transactions to the one herein charged, upon the part of appellant, has a tendency to throw some' light on the intent with which he acted in the presently charged instance.

Bill of exceptions No. 7 we think evidences matters that will require a reversal of this case. The witness Mrs. E. D. Short was the bookkeeper for the Orange Furniture Company. As such she had full knowledge of the different times these different sums of money were taken by appellant out of the cash belonging to such company. She knew when such sums were passed into the account of goods purchased, and herself passed same into such account. She also knew when such sums as had béen passed into goods purchased were again passed into accounts receivable as evidenced by the “Texas Mortgages”, which were evidences of goods sold, and she again passed same on the books of the company. She also testified that she knew such entries thus made by her were false. She testified in part that:

“Mr. Depwe and I had a conversation in his office one afternoon and I talked to him about it and he told me he knew it wasn’t right. I told him— * * * He said he realized it wasn’t; I told him you couldn’t term it anything but theft. * *
“I did not report that to any member of the Board of Directors back there when I discovered this was all irregular about the way these accounts were handled. I made these monthly statements that were made for the Board of Directors. I put all these things in those monthly statements that were set up with respect to these accounts of Archie Depwe. I did that from month to month and year to year, and I never did go to any member of the Board of Directors, or anybody else, and say this doesn’t show a correct state of facts. * * *
“I knew from the start that all these things were irregular. * * * I did not go to any member of the Board of Directors or any other officer of that concern and reveal to them the true status of facts. I withheld those facts and didn’t go to them with it. I set up a false state of facts in those monthly statements from time to time.”

In an objection to the court’s charge, the same was objected to because of the trial court’s failure to submit therein the fact as to whether or not this witness was an accomplice, to this herein charged offense, and also a requested charge was prepared and the court’s refusal to submit the same to the jury was made the basis of bill of exceptions No. 7.

In our opinion the testimony of the witness shows as a matter of law that she was cognizant of the commission of the offense, and her method of manipulating these matters in the books, as well as preparing false statements, for presentation to the directors, amounted to a concealment of the offense, and in law would be denominated an accomplice witness. See Branch’s Penal Code, p. 360, Sec. 702, and authorities there cited. We think the court should have given a proper charge on accomplice testimony regarding Mrs. Short’s testimony.

We do not think there are any further matters of serious import set forth in the, remaining bills of exceptions.

The matters alleged in the motion for a new trial setting forth the misconduct of the jury should not have been indulged in, and need not be written upon at this time.

For the error shown in bill of exceptions No. 7, this judgment is reversed and the cause remanded.

On State’s Motion for Rehearing.

CHRISTIAN, Judge.

The State insists that we were in error in holding as a matter of law that Mrs. Short was an accomplice witness. The opinion is expressed that the testimony of the witness set out in the original opinion places her in the category of an accomplice. Her testimony was largely relied upon by the State to establish a fraudulent intent on the part of the appellant when he took money belonging to the Orange Furniture Company. It is deemed that proper disposition of the appeal was made upon the original submission of the case.

The motion for rehearing is overruled.

PER CURIAM.

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


author: HAWKINS, Presiding Judge.

text:
    FLEMINS v. STATE.
    No. 21353.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1941.
    Tom Davis, of Haskell, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for driving an automobile upon the public highway while appellant was intoxicated, punishment assessed being confinement in the county jail for 30 days, and a fine of one hundred dollars.

No statement of facts or bills of exception appear in the record. Nothing is presented for review.

The judgment is affirmed.


author: CHRISTIAN, Judge. BEAUCHAMP, Judge.

text:
    MILLER v. STATE.
    No. 21282.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.
    Rehearing Denied Jan. 22, 1941.
    R. C. Wilson and Earl Shelton, both of Austin, and W. C. Wofford, of Taylor, for appellant.
    Lloyd W. Davidson, State’s Átty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is robbery; the punishment, confinement in the penitentiary for ten years.

Ivan Allman, a witness for the state, testified, in substance, as follows: On November 9th, 1939, he was night watchman at Liberty Hill, Texas. At the time mentioned, appellant and two or three companions came to Liberty Hill at night and robbed him at the point of a gun, taking his pistol and flashlight. He identified appellant, but was unable to positively identify appellant’s companions. At this juncture-we quote from the testimony of Mr. All-man, as follows:

“When I came up to the light at the station I saw the defendant, James 'G. Miller, again, and I got a good view of him there. I got a good enough view of him to swear on my oath that the defendant, James G. Miller, was there that night. When I turned around the first thing that was said to me was: Get your hands up !’ He told me to ‘turn around, but don’t look at me.’ The man with the gun said that; said to stick them up and turn around. I put my hands up and turned around. There was a pistol being pointed at me, I knew that. They asked me did I have a gun, and I told them ‘Yes.’ They took that gun off of me; and they took my flash light. While I had my hands up they marched me a little piece from the station north to the corner of station and put some tape over my eyes; they were about the corner of the station then. I do not know which one put the tape on me; I was facing north and they were behind me. I do knqw there was some tape put on my eyes, several strips of tape. I could not see out then when they put that tape on. They did not put any padding under the tape. They first put on just one narrow strip that hung down, and they fooled around and put some more on; they put several strips across my eyes and I couldn’t see; that tape went just across my eyes, not completely around my head; and they put my hands behind me and tried to tape them, but the tape wouldn’t stick; that was when both of them were present, and still at the northwest corner of that building; then they took me to the corner of the little ice house on the north end; there were no lights around there; it was dark. They asked me who slept in the Faust Cafe; the Faust Cafe is down the middle of the street on the west side. At a certain angle, looking through the window of the cafe you could see a bed in there — any one passing there in the daytime could see it; they asked me if any one slept in there and I told them I thought Mr. Faust laid down on the bed •in there in the daytime; they asked me if any one else was in any of those buildings and I told them ‘No.’ Those two men separated there, and one stayed there with me. When they parted there they asked me if anybody else was sleeping in those buildings in town and I. told them ‘No.’ And one of them said to the other ‘If you hear a racket just kill the son-of-a-bitch and come on.’ After that was said one of the men left, and shortly after that I heard some unusual noises; the first noise that I heard was back west of me and at Adams store straight across the street; I heard a crash over there; it made a terrible racket; and after that first noise I heard one other noise. While I was tied up there at the ice house some man came up there and said ‘Bring him on,’ and they took me up the street in front of Hickman’s store. Knowing the town, I knew about where I was; in walking there every night I could pretty well judge the distance. I knew-where the safe was in Hickman’s store; I had seen it prior to that night; when they took me inside in a little while I heard an unusual noise; they set me down behind the counter, and they commenced making a racket in there; they were hammering on something, hammering on some kind of steel or iron. I knew where the safe was in there and I told this boy that they couldn’t get by with it, that there was a man living in behind of the store in a house back there; I told the man that was guarding me that, and he called a fellow up and told him about it. At that time they had not re-taped my hands; then they took me back to the old rock building. I know how the walk is, and I can swear to this jury that they took me back to the old rock building —I know, because the floor is uneven; that’s where they took me and left me. I couldn’t say how many men took me up there; I know there was one or more that went up there with me; when they got me in the rock building they sat me down in a corner, the northwest corner, the front of the far side. I do not know, and it would be hard to say how long it was from the time they first taped me at the ice house until they took me to Mr. Hickman’s store. Then they brought me back over there to that rock building and put me in the northwest corner; one of the men stayed with me then; it was Miller; I know it was Miller from his voice in talking to him. In all. I was taped something like two hours, from the time they first taped me until they left me. I figure it was sometime after one o’clock. That was the only place they took me when they took me to the rock building. I heard some other noises there that night; it was several times I heard th'e crash of a front door it seemed like was taking place. When the man with me finally left me, another man did not come up to me — when they finally parted from me; I just got up and left. When we parted, after so long a time, one of' the men came into the building and the other one stayed on the outside, and they laid me down in the lefthand corner; they made-a pretty good job of taping me at that time; that tape stuck; they put tape on my eyes, and they taped my mouth up; it went around like that — right across my mouth there. They did not put anything in my mouth. They did not tape my feet. The taping of my hands behind my back, I did not get my hands free right then. When they left me, one of them said one of them was going to stay with me — he said 'You stay here with him, while I get the car.’ And, he told me I wouldn’t get hurt if I didn’t try to get up, if I would lay down. I don’t remember what they said they would do to me if I did get up; they left the impression with me that I had better stay down. They finally left me there. I stayed down there a few minutes before I finally got up.”

Again, we quote from the testimony of the witness as follows: “Two men walked up there with me to the Sinclair Filling Station; the two men was all that I saw there; but later on, in Hickman’s store, one man was in the back of the store and one man was with me, and I saw the bulk of a third man; as I turned my head I could see a little light, and I could see the bulk of a man. I believe there were three men up there at that time. The defendant, James G. Miller, was present there at that time; I know he was present because I saw him and recognized him, both. My identification of him now is from what I saw that night, and his voice, too. Both of them together. I'was with him some little while, and we were talking.”

The testimony of the state was to the further effect that on the night of the robbery Logan’s Drug Store in Liberty Hill was burglarized and a quantity of merchandise taken therefrom. Some of this property was circumstantially placed in the possession of appellant in Austin.

Appellant failed to testify. However, he introduced witnesses whose testimony raised the issue of alibi.

Bills of exception 1 to '5, inclusive, relate to appellant’s objections to proof that several business houses in the town of Liberty Hill were burglarized on the night of the robbery. These bills of exception áre qualified by the court to the effect that the burglaries in question constituted part of the res gestae, and, further, that the proof of such burglaries was deemed by the court to be admissible to combat appellant’s defensive theory of alibi. It is shown in bill No. 1 that the manager of Adams Grocery Store in Liberty Hill testified, over appellant’s objection, that on the night of November 9th or in the early morning of November 10th his place of business was burglarized and some money and other property taken therefrom. Bill No. 2 shows that the proprietor of the Purser Grocery Company in Liberty Hill was permitted to testify, over appellant’s objection, that his place of business was burglarized on the night of the robbery and a small amount of money taken from the cash register. C. F. Hickman- of the Hickman Grocery Company of Liberty Hill gave testimony showing that his building had been entered and the knob of his safe knocked off. Mr. Faust, who operated the Faust Cafe in Liberty Hill, gave testimony showing that his building had been burglarized on the night of the robbery and some money and cigarettes taken therefrom. Mrs. Logan,- of the Logan Drug Store in Liberty Hill, gave testimony showing that her husband’s store had been burglarized on the night of the robbery and certain property taken therefrom.

It is manifest that the testimony of Mrs. Logan was admissible in view of the fact that some of the property taken from the Logan Drug Store was circumstantially traced to the possession of appellant. Proof that such store had been burglarized was clearly admissible to combat appellant’s defensive theory of alibi, and to identify him as one of those participating in the robbery of Allman. As to the proof that Mr. Hickman’s store had been entered on the night of the robbery, it is observed that the witness Allman testified without objection that he was taken to the Hickman store with the robbers and while in the store with the robbers heard hammering “on some kind of steel or iron.” Again, the witness testified that appellant was in Hickman’s store with him. In short, his testimony also served to identify appellant as one of the participants in the robbery, and therefore com bated the theory of alibi. He had better opportunity, by virtue of being with the appellant in Hickman’s store, to make positive his identification of him. Under the circumstances, Mr. Hickman’s testimony that his building had been entered and a knob knocked off of the safe was admissible. As to the testimony relative to the Faust Cafe, the witness Allman testified without objection that the robbers carried him to the front of the building and asked him whether anyone slept in a bed that was in the cafe. As to the burglary of Adams store, the witness heard noises in that direction which sounded like the store was being entered. The remaining building which had been entered on the night of the robbery was not shown in the testimony of Allman to have been burglarized. We refer to the Purser store. It is noted that the witness Allman testified that the robbers asked him whether any of the places of business in Liberty Hill were occupied during the night. He replied in the negative. It is also observed, according to the testimony of the witness, that appellant guarded him during the time that he (the witness) heard noises in town which sounded like buildings were being broken into. During the time appellant was guarding the witness it was witness’ version that he recognized the appellant’s voice. He was thus afforded further opportunity for making certain his identification of the appellant. It might be plausibly contended that the testimony touching the burglaries and that relative to the robbery was as to a composite transaction, and that the crimes “were intermixed, or blended with one another, or connected so that they formed an indivisible criminal transaction,” to .the extent that “full proof by testimony, either direct or circumstantial, of any one of them could not be given without showing the others.” If that be true, evidence of such crimes was admissible against appellant for the reason that such evidence constituted a detail of the whole criminal scheme. See Claxton v. State, 109 Tex.Cr.R. 345, 4 S.W.2d 542. However, we leave the question last suggested undecided and content ourselves with holding that, under the entire record, the receipt of testimony of the owners of the buildings that had been entered, if erroneously received, was harmless. We say this in view of the testimony of Allman, which was unobjected to, showing in detail the activities of the robbers in relation to the burglaries in question.

Bill of exception No. 7, as qualified, does not show that the following argument by the district attorney was a reference to the failure of the appellant to testify: “Now, Mr. Stuart also stated there was some kind of a receipt book here, showing the number of the apartment, the date alleged to have been used, and the amount of money paid, and I wish I knew who stayed in Apartment Number Twenty-four that night, but how can you find out if we haven’t got this card here ? How are we ever going to find (it? If I ever found the man that stayed in Apartment Number Twenty-four I would give you the receipt that was issued off of the front of that thing there. I would give you the receipt.”

The court says in the qualification that it was manifest that the district attorney did not take the position that appellant was present in apartment No. 24 in Houston on the night of the robbery. When we advert to the statement of facts we find that it was the position of the state that appellant had not occupied such apartment, but that it had been occupied by some other person. It would seem to follow that the remarks of the district attorney went no further than to advise the jury that if he could find the man who occupied the apartment and obtain the receipt he was given by the proprietor of the Blue Bonnet Court he would give such receipt to the jury. We think it is manifest that the argument did not directly, nor by necessary implication, constitute a reference to the failure of the appellant to testify..

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

BEAUCHAMP, Judge.

The questions presented on the motion for rehearing in this case are not without their difficulties. However, the original opinion discussed all of them thoroughly,- and, regardless of what else might be said, we think that correct conclusions were reached on good reasoning.

The motion for rehearing is overruled.


text:
    BROWER v. STATE.
    No. 21290.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1941.
    Marion Reynolds, of Shamrock, and B. Y. Cummings, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was indicted by a grand jury of Wheeler County for keeping and being interested in keeping a place to bet and wager and gamble with cards, dice, etc., and was by the jury found guilty and sentenced to serve two years in the penitentiary.

There is but one complaint of the trial brought forward in the brief and argument filed herein, and that relates to the trial court’s action in overruling the appellant’s second motion for a continuance. It is noted that the record presented to us fails to show any action of the trial court on said motion; nor do we find any exception to the court’s, ruling thereon. Under the decisions it is necessary that an exception be taken to the court’s action in overruling such motion for a continuance, if the court did thus overrule the same. This matter can not be considered. Mr. Branch says in his Annotated Penal Code, p. 183, Sec. 304: “In the absence of a proper bill of exceptions, the supposed error in overruling an application for a continuance will not- be revised on appeal, and a recital in the judgment that defendant excepted or a complaint in the motion for a new trial is not a bill of exceptions,” citing a long list of cases. Again, it is held in Sowells v. State, 99 Tex.Cr.R. 465, 270 S.W. 558, 560, that: “Generally speaking, the failure to grant a motion to postpone or to continue cannot be reviewed in the absence of a bill of exceptions showing that the motion was made, the action of the court, and the reasons assigned. This has been held in many cases. See Nelson v. State, 1 Tex.App. [41] 44,” etc.

We have examined all bills of exceptions — Nos. 1, 2 and 3- — and find no error reflected therein. Bills of exceptions Nos. 4 and 5 are in question and answer form with no certificate of the trial judge relative to the necessity therefor, and bill No. 6 is concerned with the court’s overruling his motion for a new trial, and we think same does not reflect any error.

The testimony shows that appellant was contemplating opening a gambling game during a certain celebration at the city of Shamrock, in Wheeler County, and endeavored to get some parties to interest themselves in the operation of such game at the Legion Hut; failing in this, it seems from the evidence that he established these statutorily prohibited games at his own residence, and was actually apprehended by the peace officers at the instant that a poker game was in progress on what seems to have been a table provided for such purpose. The officers also seized a box for chips, a rake, dice cups, twelve pairs of dice, a rack on dice table, money, a hinged box with money in it, green cover on dice table, about six decks of cards, money box with a lock on same, and in this box were six $5 bills, one $20 bill, two $10 bills, six $1 bills, two fifty cent pieces, $77 in all; another dice table with a money box thereon, and a poker table. The officers also found and seized around a thousand poker chips; some of this paraphernalia in fhe east room of the house and some in the west room.

We think that the testimony points very strongly to the fact that appellant was keeping and interested in keeping this placé for the purpose of same being used as a place to gamble, bet and wager at both dice and cards, and we would not be justified in disturbing the jury’s verdict.

Perceiving no error in the record, the judgment is affirmed.


author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    SMART v. STATE.
    No. 21301.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1940.
    Rehearing Denied Jan. 22, 1941.
    B. N. Richards and F. H. Richards, both of Dalhart, for appellant.
    Milton Tatum, Dist. Atty., of Dalhart, Underwood, Johnson, Dooley & Wilson, of Amarillo, and Lloyd W. Davidson, State’s Atty., of Austin, for the State. .
   KRUEGER, Judge.

The offense is murder. The punishment assessed is confinement in 'the state penitentiary for life.

The indictment in this case embraced four counts, but the court submitted it to the jury only on the second count, which charged that on or about the 8th day of' May, 1940, in the county of Dallam and State of Texas, Charles Smart did then and there unlawfully, voluntarily and with malice aforethought kill Richard Jones by cutting him with a sharp instrument, a further description thereof being unknown to the grand jurors, etc.

Appellant made a motion to quash the indictment. The court overruled the motion, whereupon appellant then and there excepted to the ruling of the court and by proper bill of exception brought the matter to this court for review. We have examined the bill of indictment' and deem it sufficient to charge the offense.

Appellant then filed a motion for a continuance based on the ground that the knife or sharp instrument alleged to have been used in the commission of the offense had not been found although diligent search therefor had been made; that unless further time ,was granted in which to search for it appellant could not obtain a fair and impartial trial. The court also overruled this motion to which appellant excepted and brings the same to this court for review. We do not find any error in the court’s ruling. It seems that a diligent search was made immediately- for a sharp instrument at the place where the alleged offense occurred and in the immediate vicinity for several days without avail. It occurs to us, as it no doubt did to the trial court, that further time to renew or continue the search for the knife would not have resulted in its discovery but only tended to delay the trial of the case.

Appellant filed a motion for a change of venue which was contested by the State. The court heard the evidence relative to the issue joined, and at the conclusion thereof also overruled it. We think the court was fully justified in his ruling. Most of appellant’s witnesses admitted that while there was some discussion of appellant’s unenviable reputation which he had established for himself, yet, they said that he could get a fair and impartial trial in Dallam County; that the case had not been prejudged and no general feeling of resentment prevailed throughout the county. As a general rule, the granting or refusal of a motion for a change of venue rests within the sound discretion of the trial court, and unless he has abused his discretion to the prejudice of the accused no reversible error is shown.

Appellant, in due time, addressed six exceptions to the court’s charge and requested a number of special instructions to the jury. We do not deem it necessary to discuss them all in view of the disposition we are making of the case.

Appellant objected to the court’s charge because it did not submit to the jury his defensive theory in an affirmative way. The record before us shows that appellant’s theory was- that the deceased was cut in the leg by his own pocket-knife in his own hands. The testimony shows that the appellant and deceased engaged in an altercation in a dimly-lighted hallway leading from the main part of the restaurant to a toilet located in the rear thereof. Appellant seems to have precipitated the fight by striking the first blow. After a few licks had passed between them they clinched, fell to the floor where they struggled a few minutes, when they ceased fighting at the request of Mrs. Starkey, the wife of the proprietor of the .cafe. Appellant went from the hallway into the cafe and sat down on a stool at the counter while the deceased walked out into the street where he fell, leaving a stream of blood along the route he walked. He was taken to the hospital where he died as a result of the loss of blood. Appellant was arrested while still in the cafe and taken to jail. He, too, had a cut under his arm and a doctor was summoned to administer medical treatment to him. However, his wound proved to be only skin deep. Appellant denied that he had a knife or that he cut the deceased. At the time of the difficulty there were in the hallway, besides the combatants, James Spann, Robert Green and J. Whitby. None of the witnesses saw a knife in the hands of either of the combatants. Spann testified that he saw something in the hand of appellant but did not know what it was. After the deceased was undressed there was found a pocket-knife in the pocket of his overalls. This knife had some blood on it, but there was considerable blood on his overalls and in the pocket. Consequently, the blood on the knife is not of much significance, nor is the fact that no knife was seen in the hands of either of the parties because it was nighttime and the only ray of light in the hallway came through a small opening about one foot square in the wall of the kitchen.

The only instruction which the court gave relative to appellant’s defensive theory of accident reads as follows: “I further instruct you that if you believe from the evidence, beyond a reasonable doubt, that the defendant, on the 8th day of May, 1940, did use a sharp instrument and you further believe beyond a reasonable doubt, he cut Richard Jones, with the same, you will acquit the defendant, unless you further believe beyond a reasonable doubt, that the Defendant knew he so cut said Richard Jones, and had the present intention to do so, and if you have a reasonable doubt that Defendant knew he cut Richard Jones; if you believe beyond a reasonable doubt he did so, or if you have a reasonable doubt that Defendant had the present intention to cut Richard Jones; if you believe he did so, you will give the Defendant the benefit of the doubt, and acquit him.”

The court also gave the following charge at the request of appellant: “You are charged that if you find and believe from the evidence that the deceased, Richard Jones, came to his death by accidental means, or if you have a reasonble doubt thereof, you will give him the benefit of the doubt, and say by your verdict, not guilty.”

This court has consistently held that the trial court should, in an affirmative way, instruct the jury upon thé law applicable to every defensive issue. In this case, the evidence supported the theory of an accidental cutting of the deceased by a knife or sharp instrument in his own hand and not in the hands of the appellant. It is true that the court gave the instruction relative to accidental cutting but the jury may have concluded that it had reference to the accidental cutting of the deceased by appellant. Appellant requested the following special charge which the court declined to give: “Gentlemen of the Jury: If you find and believe from the evidence that the deceased, Richard Jones, came to his death, from a wound inflicted by a knife in his own hands or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict, not guilty.”

We think that the trial court fell into error in declining to give the foregoing instruction or one of like import, because it did directly and pertinently present the issue that if the infliction of the wound was caused by a knife in the hands of the deceased the appellant should be acquitted. The court’s instructions did not distinctly and in an affirmative way, present the issue raised by the evidence. See Freeman v. State, 52 Tex.Cr.R. 500, 107 S.W. 1127; Buchanan v. State, 127 Tex.Cr.R. 100, 74 S.W.2d 1022; Beverly v. State, 131 Tex.Cr.R. 433, 99 S.W.2d 925.

We suggest that if upon another trial the evidence is similar to that adduced upon this trial that the court should instruct the jury relative to the law of circumstantial evidence. The .court should also in his charge on self-defense incorporate the words, “as viewed by him from his standpoint”.

The complaint directed at the argument will most likely not arise again upon any subsequent trial; hence we pretermit a discussion thereof.

The court’s charge on the question of intent was predicated upon Art. 1261, P.C. This article has been repealed and should not have been given application.

For the error herein discussed, thé judgment is reversed and the Cause remanded.

PER CURIAM.

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

On State’s Motion for Rehearing.

CHRISTIAN, Judge.

The record has been carefully re-examined in the light of the state’s motion for rehearing. We think the original opinion correctly disposed of all questions discussed therein.

The motion for rehearing is overruled.

PER CURIAM.

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


text:
    HOLLAND v. STATE.
    No. 21340.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1941.
    H. A. Coe, of Kountze, and Cain & Cain, of Liberty, for appellant.
    R. M. Briggs, Dist. Atty., and B. A. Coe, .both of Kountze, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

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

No statement of facts or bills of exception are in the record. Appellant complained of the court’s charge in several particulars, ’and requested a number of special charges which we find were incorporated in the main charge of the court. We are in no position to appraise the objections to the court’s instruction, nor to complaint of refusing any special charges in the absence of the facts. Scott v. State, 135 Tex.Cr.R. 324, 119 S.W.2d 884; Lloyd v. State, Tex.Cr.App., 114 S.W.2d 544; Stephens v. State, 138 Tex.Cr.R. 336, 136 S.W.2d 216.

Appellant set up in his motion for new trial misconduct of the jury. The facts developed on the hearing of the motion are not brought forward either in a bill of exception or by separate statement of facts. The findings of the trial judge as recited in the order overruling the motion are expressly against appellant on the averments in his motion.

The judgment is affirmed.