author: KRUEGER, Judge.

text:
    SIMMS v. STATE.
    No. 20914.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    Hubert Bookout and J. A. Carlisle, both of Sherman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

The state’s testimony, briefly stated, shows that prosecutrix was about eleven years old at the time of the commission of the alleged offense. Her father and mother ran a dairy. They milked fifty or more cows and would usually arise about 12:30 A. M. to begin milking and finish about 3:30 A. M. About three weeks prior to the time of the alleged offense, the appellant, who was an uncle of the prosecutrix, came to live with them for a while. During his sojourn, he would assist in the milking. On the night in question he had gone to some place not disclosed by the record and had not returned when the father and mother of prosecutrix started milking. Prosecu-trix was called by her mother to occupy her bed with the baby while she went with her husband to assist him in his work. Soon after they had gone, appellant came in, entered the bedroom and had sexual intercourse with prosecutrix. The mother heard appellant when he came home and' after he. failed within a reasonable time to come and assist them, she called to him to come and help. He promptly responded to the call. After the mother returned to the house, she noticed blood stains on the floor near the bed and on the bed sheet and on prosecutrix’s gown. Upon being questioned about the stains, prosecutrix told her what had happened. Some hours later the mother took prosecutrix to a physician, who found the hymen ruptured and an inflammation of the lesser lips of the vagina, indicating that there had been some penetration of her female parts. One of the policemen who arrested appellant early next morning observed some blood spots near the bed which had been occupied by prosecu-trix. Another doctor testified that in the latter part of October, he made an examination of appellant’s privates and found that he had an ulcer or sore thereon which might have bled if pressure were applied. That he made a Wasserman test and found that appellant had syphilis. There was some conflict in the testimony of the prose-cutrix, her mother and that of her father as to the time when appellant ■ came home on the night in question,, but such conflicts are not uncommon when people rely upon memory. Appellant denied the act and proved a good reputation as a law-abiding citizen. It is obvious that if the jury believed the evidence offered by the state and rejected that of appellant, as they had a right to do, the evidence fully justified their conclusion of appellant’s guilt.

By bill of exception number three appellant complains of the admission of'the doctor’s testimony as to what he found upon an examination of appellant. His objection to the admission of this evidence was that it was too remote to be of any probative value, prejudicial and highly inflammatory. We think the objection went more to its weight than to its admissibility. Bills of exceptions numbers one and two complain of the court’s action in overruling appellant’s motion for a new trial. In said motion appellant insists that Dr. Riddle had advised him since the trial that if prose-cutrix had sexual intercourse, it was not the first act. That when he made an examination of prosecutrix, she told him that appellant did not have sexual intercourse with her — that appellant did not have anything to do with her. It is quite obvious that this evidence could have been elicited from the doctor when he was upon the witness stand. Had appellant made any inquiry as to what prosecutrix told the doctor during his examination of her he should have divulged it. However, the court upon the motion for a new trial heard evidence to the effect that prosecutrix made no such statement to the doctor. Consequently, we would not be authorized to say that the trial court abused his discretion in overruling the motion.

No error appearing, the judgment is affirmed.

PER CURIAM.

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


source: Caselaw Access Project

author: GRAVES, Judge. BEAUCHAMP, Judge.

license: Public Domain

text:
    KELLEY v. STATE.
    No. 20640.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.

    .Rehearing Denied March 27, 1940./
    . William H. Scott and King C. .Hayme, both of. Houston, for appellant.

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

Appellant was convicted of an attempt to suborn a witness to commit perjury, and was sentenced to a term of four years in the penitentiary.

The witness thus attempted to be suborned was one Jean Randall, a keeper of the Dixie hotel in Galveston where it is evident some women prostitutes resided. _One Pablo Porter and his wife appeared at such hotel just prior to the commission of this alleged offense, and Mrs. Porter attacked Jean Randall, who was also struck by Mr. Porter, according to her testimony, and while the women were fighting one John Gates, who roomed at such hotel, came out of his room, evidently having been asleep, and asked: “What’s the trouble here?” whereupon Mr. Porter began cursing Gates, and eventually struck him a blow upon the head with a pistol, which blow knocked Gates down and caused blood to flow therefrom. Gates was taken away at such time and received attention. Mr. Gates filed a complaint against Mr. Porter, charging an aggravated assault, and an examining trial thereon was set before Justice of the Peace Piperi in Galveston at a date subsequent to the happening of the alleged criminal act herein.

It is alleged in the indictment and proven by two witnesses that J. R. Kelley, the appellant, came to Jean Randall’s hotel and had a conversation with her in which he wanted her to swear that Mr. Porter struck Gates with a pair of dark gloves rather than with a pistol, and iff the ensuing struggle Mr. Gates fell against a door knob and cut his head.' In such conversation there arose the problem as to what to do with two girls and a negro maid who had also seen the transaction' between Mr. Porter and Mr. Gates.. After some talk, the State’s evidence showed that Mr. Kelley took a blank envelope and made thereon some figures showing how much it would cost to.get the two girls out of town, and also the negro, maid, and the amount to be given Jean Randall to thus swear falsely. Kelley ■ .then ■ went • away, and afterward .returned with $50 in money, and gave two $20 bills .to Jean Randall, and kept $10 for himself, this money being given in order that the two girls should leave town and Jean Randall was to ■ get $50 after she had. thus sworn • falsely at ’the trial. .Relative to this matter we quote Jean Randall’s testimony: “Mr. Kelley and I sat down under the light on the floor, and we sat there and talked about getting these girls out of town. As a result of our conversation I got the $50 for the" purpose of getting the girls out of town, but I never have gotten or never did receive the $50 to testify falsely in the case against Pablo Porter. I didn’t get that $50, and the $50 I got was not for that purpose.”

In the beginning of these negotiations Floyd Hall, a policeman, had been requested to remain at this hotel temporarily by Jean Randall because of her fear that Porter would return there, and the officer was in a concealed position near where the negotiations were taking place, and could hear all the conversation. When the two $20 bills were given to Jean Randall he appeared upon the scene and took possession of such bills, as well as the $10 kept by appellant, and he also possessed himself of the envelope on which appellant had done this figuring immediately placing appellant under arrest.

Appellant1 in his brief first complains because the indictment herein fails to charge that appellant attempted to induce the witness Randall to deliberately and willfully give false testimony. His contention, if followed out to its logical conclusion, would be that it was necessary to embody in an indictment such as this a further indictment for perjury. This is1 not necessary. The indictment does Say that: “* * * J. R. .Kelley did then, and there unlawfully, willfully and,- corruptly attempt :to induce and procure -.Jean Randall to. commit,the offense, o.f ;p.erjury in the said judicial proceeding, * * /

•Perjury is a matter that is defined' by statute, Art. 302, -Penal Codei and its com stituent elements should be 'set- forth' ⅛ a'n. indictment therefor, but not so in am. indictment for an attempt to -suborn to perjury.- Its meaning is well known; and' as statutorily defined, and under ■ its generic-term, it is sufficient,, so we think,- to 'follow the statute in this alleging' that the ‘appellant corruptly attempted - to induce Jean Randall to commit' the offense' of perjury; thus leaving the. definition of the elements of. perjury to ..the -statute,: as set forth in' the court’s, charge. .

Again appellant' complains, because' of' the court’s 'failure .to charge that before’ a conviction-'‘coúld' bé had herein it was1 .necessary to charge that appellant attempted to induce the witness Randall to deliberately and willfully give false testimony. It is noted above that the word “perjury” contains those above elements, and a charge that such appellant attempted to induce the witness to commit perjury in the giving of a- certain false statement,, in our opinion, would carry with it the necessary implication that the false statement would have to be made deliberately and willfully, as well as falsely. We do not think the court’s instruction thereon was erroneous, and we note that no objection thereto appears in the record. The case of King v. State, 135 Tex.Cr.R. 71, 117 S.W.2d 800, is not in point. This complaint is overruled.

Appellant’s third complaint is that the trial court erred in that he charged the jury that in order to convict herein they must find from the evidence beyond a reasonable doubt that appellant offered to give or pay the witness Jean Randall $50 in order to get her to swear falsely. He gives as his reasons for so saying: (1) That the witness Jean Randall testified that she was to get $100 — not $50, and (2) that Porter and not appellant was the person who actually made the offer. It is true that a portion of the witness Ran-all’s testimony does read as follows: “I, said, ‘Well, how much is for myself ?’ so they agreed to give me $50.00 if I would do that. Porter was supposed to send me $50.-00, send me $100.00 up there by Mr. Kelley.”

It will be noted, however, that appellant’s attorney failed to quote the testimony of the witness Randall just preceding the above quotation, as follows: “I have two rooms, a bedroom and a living room. We went through the bedroom into the living room, where we sat and talked, so I said— he said, ‘Well, let’s figure this out,’ so we got a piece of paper and we figured on it, or rather Mr. Kelley figured on it. It was an envelope, almost a square envelope. And so he figured on it, and I said: ‘Well, there is three' witnesses that would have to be gotten away. -They have to testify. They have already been subpoenaed,’ and he said, ‘Well, how much would it take?’ •and I said: ‘Well] I don’t know. I imágine at- least $25 to get them' out, and there is the maid. She saw it all, and she would have — I would have to pay her a salary, because maybe she wouldn’t get a job right away.’ He said, ‘Well, would you say $25 for the girls to get them away?’ ‘Well,’ I said, T imagine that would be bus fare and $25 for the maid.’ ”

It is also true that there were two propositions spoken of in the preliminary discussion of this matter between the appellant and witness Randall, as shown by her testimony and corroborated by the envelope introduced in evidence, and shown to have been figured on by appellant. The envelope identified by the witness Randall, and also by the watching policeman Hall, reads as follows:

“This envelope shows: ‘3 girls, $25.00; maid, 2 weeks, $25.00; you, $50.00,’ and then there is ‘$100.00’ underneath it. Then over here is: ‘Expenses, $25.00; Maid, $25.00, 2 weeks; you, $100.00.’ At the top is ‘2,’ and that is ‘1st.’
“When he wrote that stuff he was figuring how much it would take for the fare for the people to leave, for the witnesses to leave.
“With reference to that ‘1st’ and ‘2’ he said ‘1st’ was one way, if it was $100, and ‘2’ was if he could get $150. He did some figuring on that piece of paper, and then he went off; then he was gone.
“He called me back, and there was a conversation of how much money he could get, and he asked me — he told me that he could only get $50, that they would give me another $50 and put it in a lawyer’s hand to hold. I said: ‘I don’t know of any lawyer that would hold $50. In fact, I don’t-know any lawyers.’ So he said, ‘Well, would you trust me?’ Well, he argued back and forth. He said, ‘Can’t you trust me? You know me.’ I said, ‘Well, I guess I could,’ so he eventually brought the $50 up, and he came in the room, and he handed me two 20’s, and he said, ‘Now, this is for myself,’ and he kept $10, and at that Mr. Hall came in and took the money from me and searched Mr. Kelley and took the money from him.”

As to appellant’s second contention herein, it is sufficient to say that this was not a subornation to perjury; it was only, an attempt to suborn, and the facts show that Jean Randall was not to get any money until she had thus testified falsely. She was dealing with Kelley alone, and it is not shown that he actually suborned her to-per jury, but that he and not Porter attempted to thus suborn her,

The fourth complaint rests in the failure of the court to charge the jury that in order to convict the appellant, it was necessary to show that appellant gave the witness Randall $50, and that if there had beén shown that witness received any sum less than that, they should acquit the defendant. We do not so understand the testimony. It is shown therefrom that the final negotiations ended with the statement that the $50 displayed in Jean Randall’s presence and eventually taken in charge by the officer, was supposed to be used, as set forth on the envelope, in getting rid of the two women, and the remaining $50 was to be kept by appellant until the witness had given her testimony at the examining trial. We find that the careful trial court embodied such theory in his charge to the jury, and in such comprehensive paragraph he required the jury to find every constituent element of this offense beyond a reasonable doubt before they could convict-the appellant herein. In all his charge he followed the facts proven relative -to the payment of the $50, and excluded from the consideration of the jury the payment of any money for the purpose of getting these two women out of town, but based the State’s right to a conviction alone upon the promise to pay the witness $50 after she had given her testimony at the examining trial. We think the charge was justified by the proof and also the allegations.

Appellant complains, however, because the indictment, in substance, alleges that appellant promised to pay, and did pay, to the witness Jean Randall the sum of $50 if she would swear, state and testify thus falsely in such examining trial. The contention being that the State alleged this matter with particularity relative to the offer to pay and the payment, and that it was therefore incumbent on the State to thus make such proof not only of the offer to pay but also of the payment. In support of this proposition appellant offers the case of Miller v. State, 43 Tex.Cr.R. 367, 65 S.W. 908, which to some extent substantiates the doctrine contended for. We do note, however, in that case that the court refused to write on the proposition as to whether or not it was necessary to allege such matters of inducement; but it did hold that having alleged such matters, that it was necessary to prove the same. We do note, however, that in the later case of Hilty v. State, 120 Tex.Cr.R. 304, 49 S.W.2d 786, 787, this court held that unnecessary matters thus alleged in the indict-ment, not descriptive of the offense, could be treated as surplusage, provided of course that an offense was charged by the remaining portion thereof. In that case appellant, a chiropractor, was charged with having treated Fred Tholen, and with having received money in payment for such treatment from Fred Tholen. The testimony showed, however, that Fred Tholen’s mother paid the money for such treatment, and this court held in that case as follows: “It is conceded in appellant’s brief that the statute does not designate from what sources the money must be received or charged, and that it was unnecessary to make such allegations in the complaint, but, having done so, it is descriptive of an essential element of the offense, and consequently was necessary to be proven as alleged. The boy treated was a boy of 12 years of age and could not make a valid contract, and his mother, having made such agreement, was legally liable therefor. It is a well-established principle of law that all of the material facts which constitute the offense charged must be stated in the indictment and they must be proven in evidence, but allegations not essential to such a purpose which might be entirely omitted without affecting the charge against the defendant and without detriment to the indictment are considered as a mere sur-plusage and may be disregarded in evidence, but no allegation, whether it be necessary or unnecessary, whether it be more or less particular, which is descriptive of the identity of that which is legally essential to the charge in. the indictment, can ever be rejected as a surplusage. Warrington v. State, 1 Tex.App. [168], 173.”

»■ It is to be noted that it was not necessary to establish, nor descriptive of, the offense of an attempt to suborn to perjury to state in the indictment that, the attempted suborner paid anything to ■ the person who was to give the false testimony, and if the phrase “did pay” can be treated as surplusage, then we would have no matter for contention upon the part of appellant.

If the Miller case, supra, is authority for a contrary holding, then we are not in accord therewith, but instead we think the Hilty case, supra, reflects the better reason. We do not think that in an attempt to suborn perjury, it is descriptive of the offense that the payment of anything be actually made, and we do think that the allegation of any payment could therefore be treated as surplusage, and it not be necessary to make proof thereof, provided the elements ■ of an attempt still be present. That proof of an attempt to suborn can be substantiated by lesser proof than the actual-, subornation is patent, and that a failure to prove the actual carrying out of a preconceived scheme of the suborner might still carry the elements of an attempt sufficiently to support a conviction for such attempt.

We have carefully considered the remaining complaints and bills of exception, and do not think any error is shown therein.

The judgment is affirmed.

On Motion for Rehearing

BEAUCHAMP, Judge.

All of the matters raised by appellant in his motion for rehearing were thoroughly considered by this court before announcing the original opinion. We have again reviewed the authorities in the light of the appellant’s motion and conclude that the proper disposition was made of the case in the original opinion.

The' motion for rehearing is overruled.


author: KRUEGER, Judge. GRAVES, Judge.

text:
    PETERS v. STATE.
    No. 20760.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    Rehearing Denied March 20, 1940.
    . M. E. .Lawrence, of Eastland, 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 five years.

The record before us shows that on the night .of September. 10, 1938, the home of Joe Baccus was. destroyed by fire. Baccus Was a brother o'-f the deceased, Mrs.'.Marcus Pierce. The house, .which was burned was located - aho.ut .a .half mile irorri the home of die deceased 'and about an equal distance from appellant’s home. When ' the deceased and her husband saw the fire, they drove over. From there they went to the home of appellant where they made some inquiry as to whether anyone had observed an automobile coming up the road. Appellant (Mrs. Peters) called to her husband, who had gone out to the car in which the deceased and her husband were, to come into the house; that she did not want these people on her place. Some rather uncomplimentary language was then used by the appellant, who had taken a pistol from under the pillow of her bed. The deceased got out of the car, picked up a stick and walked around the car towards appellant ■-and it was then that appellant shot her, inflicting a mortal wound from the effects of which she died in a very short time. We think this brief summary of the testimony sufficient for a proper disposition of the questions presented for review.

Bills of exceptions numbers one through thirteen inclusive and number fifteen, complain of the introduction of certain evidence, but all of these bills are in question and answer form without a certificate by the trial judge that it was necessary that they be in such form for a better understanding of what actually transpired. Sec. 3 of Art. 760, C.C.P., among other things provides that: “Such stenographer’s report, when carried into * * * the bills of exceptions, shall be condensed so as to not 'Contain the questions and answers except where, in the opinion of the judge, such questions and answers may be necessary in 'order to elucidate the fact or question involved.”

This court has consistently followed and adhered to these provisions of this statute. See Monday v. State, 124 Tex.Cr.R. 44, 60 S.W.2d 435; Palmer v. State, 134 Tex. Cr.R. 474, 116 S.W.2d 386 and authorities. Most of these bills are also deficient in and of themselves in that they do not. set out enough of' the surrounding facts and circumstances to disclose any error. In others the bills fail to state what the answers of the witnesses would have been. See 4 Tex.Juris. Sec. 205, 207, and 211 and authorities cited. '

By bill number 14, appellant com-, plains of the admission in evidence of a photograph of the deceased. The objection thereto' wa's' based on the grounds that such photograph' was irrelevant, immaterial and prejudicial'; that there was no question-as to her identity or the place where the bullet entered her body, etc. The bill fails to show that there was any reproduction of any matter which might have inflamed the minds of the jurors and prejudicially affected her legal rights. Moreover the bill is deficient within itself in that it does not state sufficient facts to show that error was committed in the matter complained of. See 4 Tex.Juris. Sec. 207, pp. 295-297. Furthermore if it were to be conceded that the testimony was irrelevant and immaterial, this of itself would not justify a reversal of the case. . Appellant received the lowest penalty for murder with malice.

Appellant in due time addressed a number of objections to the court’s charge. We have examined the same in the light of the objections and reached the conclusion that the charge is not subject to the objections urged thereto. Moreover the objections do not specifically point out any error therein as required by Art. 658, C.C. P., Vernon’s Ann.C.C.P. art. 658. See Taylor v. State, 89 Tex.Cr.R. 174, 230 S.W. 176; McCauley v. State, 97 Tex.Cr.R. 1, 259 S.W. 938; Mitchell v. State, 136 Tex. Cr.R. 603, 127 S.W.2d 455.

The argument complained of in bills numbers 20 and 21 were based upon testimony adduced upon the trial and therefore were proper subjects for discussion. The argument complained of in bill number 22 was not improper. All other matters complained of have been carefully examined by us and are deemed to be without merit.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

Appellant urges that this court was -in errpr in its original opinion herein wherein we failed to sustain his bills of exceptions Nos. 21 and 22.

Both of these bills refer to the closing argument of the State’s attorney, and, according' to our previous holding herein, were based upon certain testimony in the record not properly objected to in the trial of this cause.

Bill No. 22 complains of the statement of the State’s attorney in his closing speech, as follows: “Did you ever hear of people getting killed for knowing too much?” The State had shown that the house of the deceased’s brother was burning at the time of this killing, and at the scene of the fatal difficulty there had been some conversation and charges relative-to appellant’s connection with this burning house. We think the remarks were proper deductions from the testimony in view of such proof by the State.

We think this case was properly disposed of in our original opinion.

The motion will be overruled.


author: CHRISTIAN, Judge.

text:
    STURDIVANT v. STATE.
    No. 20911.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    Ben J. Hagman, of Weatherford, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. •
   CHRISTIAN, Judge.

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

The record is before us without a statement of facts or bills of exception. No question is presented for review.

In sentencing appellant the court failed to make application of the Indeterminate Sentence Law, Vernon’s Ann.C.C. P. art. 775. The sentence is reformed in order that it may be shown that appellant is condemned to confinement in the penitentiary for not less than five nor more than twenty-five years.

As reformed, the judgment is affirmed.

PER CURIAM.

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


text:
    HALBERT v. STATE.
    No. 20614.
    Court of Criminal Appeals of Texas.
    Dec. 20, 1939.
    Rehearing Denied March 20, 1940.

      Vickers & Campbell, of Lubbock, G. C. Jackson and John T. Spann, both of Crystal City, and S. Engelking, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

The offense is murder, and the punishment assessed at confinement in the State penitentiary for a term of five years.

The facts produced by the State show that appellant, a man sixty-four years of age, had a wife, Mrs. Lena Halbert, who lived with him in the town of Crystal City, in Zavala County, for two years prior to the_ killing herein complained about. Appellant was the recipient of a pension from the Federal government. We gather from the record that both he and his wife had been previously married, and had children from such former marriage, none of whom lived with them. That sometime prior to the killing appellant and his wife had enT deavored to divide their properties, the first home going to appellant, and one being purchased next door to where the deceased, B. G. Holloway, lived, — he being pastor of the Baptist church at Crystal City, — going to Mrs. Halbert. The title to this last home being taken in the name of appellant’s wife and he taking title to the first home. There was no friction between appellant and deceased on July 10, 1938, at which time appellant, who owned an automobile and a trailer thereto attached, sold some of the furniture to Mrs. Hooks, and attempted to sell a rug, a portion of such furniture, and, upon her refusal to purchase such rug, she testified he made the remark that he was leaving his wife, that she would not sit on his knee any more, that he was going where he could find plenty of pretty girls. It is also shown that he made remarks of like import to other witnesses to the effect that his wife was going through the change (of life) and would not have anything to do 'with him; that she had been a good little heifer, but that they could not get along; that she would not let him play with her any more, and he was going to' some other part of the country where he could have a little fun; that he was going away and not coming back; that he was going to where they had more women.

Appellant left in his car and trailer on July 10th, and left his wife at the new home next to the deceased, saying he was going on a fishing trip. He returned on August 10th and found that his wife had rented the home, or a portion thereof, to an evangelist singer by the name of Smith, who was living there with his daughter, Barbara Smith, and that his wife was working for Rev. Holloway, Mrs. Holloway being an invalid, and who needed some one to attend to the household work. Appellant had previously recommended his wife for such work, stating that he had found her doing such work, and that she could do it again. Three days after his return, to-wit: on August 13th, appellant consulted a lawyer, and had filed a petition for divorce, took his wife to the lawyer’s office; and the wife signed a waiver of citation therein, the petition alleging cruel treatment on the part of his wife. Appellant testified that he then began to hear rumors of misconduct between the deceased and his wife, and that certain suspicious circumstances were observed by him that caused him to think that there were improper relations being maintained between the deceased and his wife. The division of property was made on August 12th, and the divorce filed on August 13th, and on the same day appellant rented the pistol with which the deceased was shot. After that appellant claims to have had many conversations with his wife, attempting to get her to come back and live with him, and it was his theory that the deceased would not allow the wife to do so; that the deceased’s influence over appellant’s wife was so great that appellant could not control her, and although the wife would promise to return to him, the deceased would talk to her and she would have some excuse for not coming back, the usual one being that the deceased would not agree for her to do soi The deceased was in the hospital sick from June 27th to July 28th; about the 6th. or 7th of August he was under treatment at San Antonio for about ten days. Sometime in August the deceased took his wife, an invalid, to Reagan Wells, and Mrs. Halbert went along with them, a nephew of the deceased driving the Car. When the parties were getting ready to leave, appellant appeared on the scene and requested his wife to go with him, appellant, in his car. The deceased stated that they might need her with deceased’s wife. Appellant followed them in town and out of town, and finally ran his car at a high rate of speed and got in front of the deceased’s car out on the road, and again tried to get his wife to get out of the deceased’s car, where she was riding with deceased’s sick wife and the deceased’s nephew on the front seat; — this Mrs. Halbert refused to do. He followed them again for quite a distance, and again ran his car up to and in front of them, ostensibly for the purpose of telling them that one of their tires needed some air. Finally the deceased reached his destination, and after having spent about an hour locating his wife in convenient surroundings, the deceased and the nephew returned to Crystal City, leaving the two women at Reagan Wells. In the meantime Mrs. Holloway, the deceased’s wife, had told appellant that she intended to discharge Mrs. Halbert on September the first, Mrs. Hal-bert having worked there for a month or so before any objection thereto had been made by appellant.

After the two women had stayed awhile at Reagan Wells, the appellant testified that he approached Rev. Holloway and asked him if his wife had returned from the Wells, and the deceased said that she had not. In the meantime appellant had moved his trailer from a distant part of town and had parked the same across the street and in front of the house where his wife lived. There was some undisclosed trouble relative thereto, and a deputy sheriff soon came up and took appellant into custody and conveyed him to the court house, keeping him there only a short time, and then releasing him. He then returned to his trailer. Soon thereafter, according to his testimony, he saw some children trying to get in the Holloway house and no one answered their calls; the front door seemed to be locked. He then saw his wife at her home next-door and went over to her and gave her a letter from her daughter. Appellant then went back across the street' to'the trailer. He could see his wife reading the letter, standing in the screened front door. He then saw the deceased coming from his home and going through a low salt cedar hedge that separated the two back yards, towards appellant’s wife’s home. He heard the deceased call Mrs. Halbert, and she came towards the back of the house. Appellant approached his wife’s home, and as the deceased passed the house corner “he throwed up his hand (this way) like he was going to shoot, and he had something in his hand, and I took it to be a gun, but the gentleman was so quick I could not say it was a gun, but I most knowed it was a gun he had in his right hand, holding that kind of stub over it, going in a hurry. As to what I did from the time I saw him coming thru the hedge, well, when I saw him coming thru the hedge in a hurry and saw he had something in his hand, and I took it to be a pistol, he went on to my back door and called my wife, and she dropped her hands holding the letter and ran to the back door to see him, there are three doors in a row, and I could see she ran all the way back; * * * When he went around the house, he was standing right agin the step, and my wife was on the top step; they were just as close as could be, and when he throwed his hand up, he looked like he was going to shoot, and I flinched, and I shot, I do not know how many shots, I shot until he fell, and I went around thru’ the house, and met a woman there, and she fell down on the floor, and I told her I was not after her, and I went to the court house and gave up. I do not know what was the occasion of my going thru’ the house, I just do not know, except I guess, I thdught never could think why I went thru’ the house. I did not say a word to Holloway, and he did not say anything to me, not a word spoken. * * * As to whether he had anything in his hand,I did not have time to look, I did not see anything in his hand, I was looking out for myself; as to how soon after he did that that I commenced to shoot, as quick as I could raise my hand, I .commenced. I commenced to shoot to try to protect myself.”

In contradiction of the above, however, the State introduced a statement made to' the sheriff soon after .the killing by the appellant, which is as follows: “In connection with -the statement that was made by the defendant to me in reference to that gun and where' it could be found,-, in that-same conversation he told me that he was' standing in his trailer house looking out the window to where his wife lived, that he saw Holloway cross the hedge and go to his back door, that he saw a woman go from the front of the house to the rear that he thought was his wife until after he killed Holloway and came back thru’ the house and found out he was mistaken, that it was another woman; he said when he turned the corner Holloway was stooped down over a barrel of feed, that when he raised up he had a cup or can in his hand, he looked around and saw him and threw up his hand and went to shooting. Holloway threw up his hand, and Halbert went to shooting ; his first shot was low and he leveled his gun, then he walked thru’ the house, went to the court house and waited for an officer.”

It is worthy of note that the deceased was a one-handed person, the left hand being gone at the wrist, and that persons at the scene of the killing soon after it happened testified that the deceased was right near a barrel filled with chicken feed, and lying near his hand there were two buckets of chicken feed, a small bucket telescoped within a larger one, and no weapons of any kind near the body. It is also shown that appellant immediately went through this house, and came upon the witness Barbara. Smith therein, who fled and .fell down, at which time appellant told her: “I am not after you.” The appellant then secreted his pistol and immediately repaired to the sheriff’s office and surrendered, and made the above set forth statement to' Mr. Anglin, the sheriff.

The only serious question presented to us herein, so we think, is reflected in bill of exceptions No. 14, which reflects the following occurrences:

After the defendant had testified to the marked attention by deceased to- his wife, and his conduct during such- time, and after the State and defendant had offered testi-1 mony relative to the deceased’s reputation-for chastity, the State offered Dr. Poindex-ter, and elicited from him, over appellant’s objections, the fact that he was deceased’s physician and had been since about April, 1938; that-during said period the deceased had been continuously ill, having muscular weakness, low blood' pressure, etc., including impotency. That such'physical condition of the deceased continued until the time of his death. One of appellant’s main contentions was that if he was guilty, at all, the offense was no greater than murder without malice. To support this contention, he offered evidence of the conduct of the deceased and his attention to appellant’s wife, which would tend to create in his mind a well-founded belief that the deceased not only entertained improper motives but had improper relations with his wife. To strengthen this theory, he offered proof of the deceased’s general reputation as an immoral man.

We here quote the main portion of such bill No. 14: “Doctor C. A. Poin-dexter was called as a witness by the State in rebuttal and over the objections and protest of the defendant was permitted to testify that he was physician for the deceased during his lifetime, and had been seeing him since about April, 1938; that during such period of time deceased was continuously ill, having a muscular weakness and low blood pressure and quite a bunch of symptoms, including impotence as well as a very bad gastro intestinal dis-function ; that deceased was also in the hospital at Crystal City from June 17 to July 28, and'witness saw him almost daily until he (deceased) went to San Antonio, in early August, where he remained possibly ten days, and that the physical condition of the deceased as above related continued until the time of his death. When such testimony was offered the defendant objected to the same because it is immaterial and irrelevant to any issue in the case and not a proper inquiry.”

In the condition that this bill is presented to us we find it to be an improper one in that there was a portion of said objected to testimony that was clearly admissible; in fact all ‘of such seems to be admissible except possibly the words “including impotence.” The objection thereto going to all of the proffered testimony, and the objection itself being-only that same was immaterial and irrelevant. This objection is not tenable. Undoubtedly a large portion of such' testimony would have been material under the facts in this case, appellant testifying that he had not observed what he thought to be any misconduct between the deceased and his wife prior to August 10, 1938; that after such date and before September 1, 1938, he had observed them together many times, and under such circumstances as to cause him to believe that they were not conducting themselves properly. It seems to us that if the deceased was in the hospital sick for such a length of time, and suffering from the diseases outlined in his doctor’s testimony, such would have gone far to destroy the effectiveness of the appellant’s testimony of the many times he had seen the deceased and appellant’s wife together, and would not have been immaterial. If the two words “including impotency” were eliminated, it occurs to us that the remaining portion of this testimony was clearly admissible. Then let us see what the effect of the admission of such two words could have had on the case at bar. Appellant does not claim that an act of intercourse was had by the deceased with Mrs. Halbert. We quote his testimony: “* * * I love my wife more than any woman living; I still think a lot of- her, and I still know she is a good woman. As to whether I never in my life knew her for anything but a good woman, I knew she ran around with Holloway, that I thought it was better to get her back and away from Holloway, and have her out of that town. I know she is a good woman; it wa-s being persuaded by some other man; I sure do think she had gone wrong.”

It is also to be observed that the sickness of Rev. Holloway and his stay in the hospital was testified to by other witnesses without any objection being made thereto.'

Appellant contends that this association of his wife and the deceased operated upon his mind to such an extent that same was rendered incapable of cool reflection, and while in.such condition he committed this offense, and that the fact of the deceased’s impotent condition was unknown to him. It is worthy of note that appellant had been tried once before for this identical offense,- and we quote an excerpt from his testimony on that former trial reproduced on this trial in order to show what was operating on his mind at the time of the killing:

“Q. You were calm enough on that occasion to judge where the bullets took effect? A. To some extent.
“Q. You aimed your gun? A. Yes, I never get excited, I keep my excitement in a pinch.
“Q. You were not then laboring under any excitement ? A. Not a bit in the world.
“Q. You testified, I believe, in your early cross examination that you -were not afraid? A. No, sir, I was not afraid, I never saw a man I was afraid of, no time and no where.
“Q. After you had shot him down on the ground and- he had- fallen, did you stop to see if there was anything you could do for him? A. No, sir, I did not, because I did not think that anybody could do anything • for him.
“Q. You figured you had killed him ? A. I figured I had.
“Q. You figured that because you wanted to kill him? A. Yes, certainly, I went around there to kill him.
“Q. That is what you left the trailer for, for the purpose of killing him ? A. I wanted to see what was up, and if neccessary then I would.
“Q. You went around with that purpose in mind to kill him? A. Yes, if necessary, I wanted to protect myself and if necessary, if I found him in any compromising position with my wife.
“Q. You shot him until he was dead? A. Until he fell.
“Q. You did not look around to see if there was any arm there? A. No, sir, I did not.
“Q. You did not look around to see if the man was unarmed or armed? A. It did not make any difference, it was .too late.”

As to his testimony on this instant trial, we have already set forth that portion of his direct examination that deals with the actual scene of the killing. It seems to us that this testimony does not show any degree of rage, resentment or terror such as to render the mind incapable of cool reflection on account of misconduct of the deceased and appellant’s wife, hut to the contrary he seemed to be cool, calm and collected, and not laboring under any undue excitement of any kind, and claimed to have shot in self-defense. It is elementary that the trial court should charge the law as same applies to the facts produced upon the trial of the case; it is not his duty to lay down the law that could be made to apply to any criminal cause, else trials and charges would be interminable; and it is worthy of note herein that nowhere do the facts show any other theory save that of •self-defense. It is our opinion that bill No. 14 is faulty in that it contains an objection to matters that are clearly admissible, and that the objection made to the matters about which there might be some question is an improper one, and such testimony does not come within the grounds of the proffered objection. We therefore overrule this bill.

The testimony given by the sheriff relative to what appellant told him while confined in- jail was admissible under the provisions of Art. 727, C.C.P., and the decision of this court in the case of McClure v. State, 100 Tex.Cr.R. 545, 272 S.W. 157. Through his admissions in this conversation the sheriff found the pistol with which the crime was committed, and under the holding in the above case the rest of the same conversation became admissible as well as that portion dealing with the finding of the pistol.

Appellant complains of the court’s charge because the court failed to instruct the jury relative to the previous relationship existing between the deceased and appellant’s wife. It occurs to us that if the court had done so, he would have singled out testimony and such an instruction would have been one on the weight thereof. The court did charge that in cases in which the defendant is charged with murder it is the-duty of the jury to'consider all facts and circumstances in evidence surrounding the killing, as well as the previous relations of the parties, if any, together with all relevant facts and circumstances . tending to show the condition of the mind of the accused at the time of the homicide, in order to determine whether the homicide was committed with malice aforethought or not. Under the evidence as stated this was the only matter which might have caused appellant’s mind to become inflamed or agitated. Nor did the court err in declining to give appellant’s requested instruction relative to the effect that homicide is justifiable when committed by the husband upon one taken in the act of adultery with the wife, because the évidence was not sufficient to justify such an instruction.

All other matters complained of which showed contradictory testimony given by appellant on his former trial, as well as any contradictory statements made by him, were admissible for the purpose of affecting the appellant’s credibility as a witness.

Finding no error herein, the judgment is affirmed.

On Motion for Rehearing. .

BEAUCHAMP, Judge.

A vigorous motion for rehearing has been filed in this cause, and while no authorities have been cited for the position taken, we recognize the force in the arguments made and have reconsidered the questions raised in said motion, though each of them was treated in the original opinion with a satisfactory conclusion.

It may be understood that two judges writing on a subject may reach the same conclusion and yet employ quite different language in doing so. Indeed, they may indulge quite different reasoning and yet be able to concur in the final conclusion. The manner of reaching it is the work of him who writes the opinion. The conclusion in the case is the judgment of the members of the 'court. It occurs to us that the motion filed herein discusses more forcefully the manner by which the conclusion was reached than it does the conclusion itself.

The chief complaint concerns a discussion of appellant’s Bill of Exception No. 14. A proper analysis of that bill conclusively shows that the court has followed a long line of authorities holding that where a bill of exception complains of the admission in evidence of matter which should be excluded and also of matter that was proper evidence, the court would be unable to differentiate and the bill will be held to be defective. This is.not a technical rule but the proper rule long applied to the preparation of bills of exception. It may be that in some cases the rule would be an unnecessary one but in a wide range of experience of those who have preceded us, finding it necessary, have so laid down the rule. Branch’s Ann.Tex.P.C., Sec. 211, p. 135, and authorities there collated; also Aven v. State, 77 Tex.Cr.R. 37, 177 S.W. 82; McKinney v. State, 80 Tex.Cr.R. 31, 187 S.W. 960; Davis v. State, 83 Tex.Cr. R. 539, 545, 204 S.W. 652.

While it may be that the foregoing is sufficient to properly dispose of the motion, we are constrained to reaffirm the assertion in the opinion that the appellant’s casé is one of self-defense. Should it be considered that all of the testimony complained of in Bill of Exception No. 14 is “irrelevant and immaterial”, it is not shown to be harmful to the appellant’s cause. There is no indication that it was in any sense inflammatory or prejudicial, and in fact, the bill makes no such complaint. That being correct, it certainly is harmless.

The appellant’s motion for rehearing is built largely on the theory that his defense was that he killed the deceased because of misconduct with appellant’s wife. Viewed as a whole, the testimony on this subject is nothing more than a long series of details as to the discord existing between appellant and his wife, with a strained effort to involve the deceased in their domestic affairs, which we view as insufficient to raise such an issue before the jury. A climax had been reached in their trouble before Mrs. Halbert went to work in the home of the deceased. Her presence there is thoroughly justified by the evidence. If there had ever been an occasion for an outburst on the part of the appellant, his dealing with the deceased and the intervening circumstances could be no cause for the action which he took as a finality. The circumstances of that particular day and hour were insufficient, within, themselves, to justify the slightest suspicion of misconduct between them. Appellant went over to the house armed for the purpose of killing the deceased if he found him in a compromising relationship with his wife. They were standing on the steps on the outside of the house. Another woman was present in the house. Appellant failed to find what he was expecting. He says he then shot the deceased under the deliberate belief that the deceased was about to take his life. The two defenses are incompatible, yet both were properly submitted to the jury—this by reason of a highly technical rule favorable to the defense. The fact that appellant had long been angry at the deceased because of their differences could not be sufficient to warrant taking his life under the circumstances of this case as reflected by appellant’s own testimony as to the things that transpired, ending the final chapter of the sad drama. At most, he had only suspicious circumstances, too weak to warrant a conclusion of unfaithfulness by a wife theretofore true as he said and, with certainty insufficient to toll a human life. The matter of self-defense was properly submitted to the jury. They have passed on it and we consider that in doing so they have decided the case.

The motion for rehearing is overruled.


author: CHRISTIAN, Judge. HAWKINS, Presiding Judge.

text:
    BRADLEY v. STATE.
    No. 20798.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    Rehearing Denied March 20, 1940.
    John C. Henderson, of Angleton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

Appellant challenges the sufficiency of the evidence on the ground that the testimony fails to show the falsity of his alleged exculpatory statement. Adverting to the testimony, it is observed that J. H. Dingle, the injured party, owned some cattle which were ranging in the Bryan pasture, near the Hample pasture. On the 9th day of May, 1939, he lost a “bluish dun heifer yearling with a white face”. When he last saw this animal she was in the Bryan pasture. She had not been branded. When he recovered her she bore appellant’s brand. After having learned that appellant had branded the heifer Mr. Dingle talked to appellant about her loss, it appearing that appellant went to him voluntarily relative to the matter about three or four days after the recovery of the heifer. In his conversation with Mr. Dingle appellant stated to him that he had bought the heifer from Gus Ward. He further stated that he had been advised by Mr. Tigner to talk with the injured party about the matter. Again, he stated that he thought all along that the animal belonged to Mr. Dingle. At this juncture we quote the testimony of J: S. Caldwell, a witness for the state, as follows:

“My name is J. S. Caldwell and my home is in Freeport, Texas. I have a pasture down in the direction of Dr. Hample’s pasture. I would say my pasture is in the neighborhood of Dr. Hample’s pasture, but I do not believe the two pastures join. I believe Steve Perry has a tract of land in between them. There are ninety acres in my pasture. I had occasion to go into my pasture on the 9th day of May of this year. At that time I saw this defendant out there. I was going through the pasture and rail into these two men in a thicket.. The two men I ran into were Gus Ward and Arthur Bradley. They were to the westward of the pasture, about half way down and in a thicket. I was about one hundred feet away from them when I first saw them. I saw some calves there and a fire. I did not care about walking up on a couple of men with calves and went back to my car and got my. shot gun. This defendant saw me and overtook me, and I went back with him. They had a kind of light color dun-looking heifer. I saw that same heifer a few days after that and identified her. At the time I saw this heifer there in the thicket, she had not been branded. •. I told this defendant that he could not brand her there in my pasture and then he asked if he could not keep them there in my pasture and I told him that he could not. No, sir, at that time Gus Ward and this defendant did not have the animals. They were tied to a tree.
“This was on a Wednesday in May. I think it was the 9th or the 10th; whatever date Wednesday falls on. At the time I first talked to Arthur Bradley, we were ISO or maybe 200 yards away from the cattle. I was afoot and Arthur Bradley caught up with me. First he asked me if I would, let him leave them in my pasture a day or so. I told him that I would not and then I told him to get out. We were going back toward the animals at that time. I wanted to get a better look at the calves. He wanted me to go back and he attemped to sell them to me. There were two animals. He hold me that he and Gus Ward had them, but he did not tell me that he had bought them. I think he was figuring on buying them. You ask me if I did not tell him at that time that I would give him a dollar per head profit on them. We talked about it, but I don’t think we got together on how much profit he would get. He said that he had another one in the bunch and I understand that he gave fifty dollars for the three head. No, sir, I don’t think it was forty dollars; I think it was fifty dollars. I don’t think I offered him a dollar a head profit on them; that is the way they were usually handled, though, and it is considered pretty good profit.
“I have lived in that section of the country since 1915. I have around fifteen head of cattle; was raised on a ranch and am familiar with that business. You ask me if I am familiar with the ranches out there and with the amount of cattle they have, in a general way. I know where a mhn has ten head or a big bunch, is all. It is my testimony that this heifer I saw that day was the same heifer Mr. Dingle just described on the witness stand. Arthur Bradley did not tell me where he got this particular heifer, but he did say she came out of the Bryan pasture down there. I think what he was trying to do was to leave them in my pasture, but when he saw that I would not let him leave them, he thought he would sell them to me. I don’t think Arthur Bradley has a pasture of his own. He works for Mrs. Huntington. She has a pasture. I know a negro down there by the name of Lon Hawkins. He has a’little shack on the place and pays me two dollars a month to stay there. Once in a while he helps me to build fences, but he does not farm for me.”

Appellant did not testify but introduced several witnesses who expressed the opinion that his general reputation as a peaceable and law-abiding citizen was good.

We are unable to reach the conclusion that the testimony, in its entirety, fails to show the falsity of appellant’s explanation of his possession of the stolen heifer. It is observed that appellant was in possession of the animal in a thicket in the Caldwell pasture, which was not far removed from the Bryan pasture, when he and Gus Ward were discovered. The animals they had were tied to a tree. At the time appellant was preparing to brand the animal belonging to Mr. Dingle, and apparently Gus Ward was preparing to place a different brand on another animal. Again, appellant stated to Mr. Caldwell, as already observed, that the heifer came out of the Bryan pasture. Appellant worked for Mrs. Huntington. Notwithstanding,she owned a pasture, appellant was preparing to leave the stolen animal in the pasture of Mr. Caldwell. When finally recovered, the stolen animal was in a pen in the Hample pasture. She had been branded “TEC”, this being appellant’s brand. There was also a calf at Hample’s, which Gus Ward claimed. She was branded “NA”. In view of the proximity to the Bryan pasture, where she had been ranging, of the place where appellant was first discovered to have possession of the stolen heifer, and in view of the further fact that appellant and Gus Ward were at the time together under the circumstances heretofore detailed, we are of opinion that the jury were warranted in concluding that appellant and Ward acted together in the theft of Mr. Dingle’s calf. It might be added that the fact that appellant knew the animal came from the Bryan pasture would, with the testimony in its entirety, warrant the conclusion that appellant was in the Bryan pasture and participated in the theft.

The court failed to submit an instruction covering appellant’s affirmative defensive theory. If appellant desired to have the court instruct the jury to acquit him if they believed he purchased the heifer from Gus Ward he should have excepted to the charge or should have presented a requested instruction covering the subject. This he failed to do. Art. 658, C. C. P., in part, provides: “Before said charge is read to the Jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection.”

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.

HAWKINS, Presiding Judge.

Appellant renews his contention that the trial court should have responded to the exception to his charge and given the requested instruction to the effect that appellant could not be convicted unless he was a principal in the original taking of the stolen animal.

We observe that the indictment •charged appellant and Gus Ward jointly with the theft of the animal, but appellant was alone being tried upon an order of severance. The court properly defined principals and told the jury if appellant “acting by himself or with Gus Ward” fraudulently took the animal, etc., to convict him. Appellant did not testify. There was no evidence that he was not present when the animal was taken. It was elicited from the owner on cross-examination that appellant told him he had bought the animal from Gus Ward; whether the claimed purchase occurred before or after the theft appellant did not say. If there was any defensive issue it was the claimed purchase. As pointed out in our former opinion, there was no requested charge pertinently presenting such issue, nor any exception to the charge for omission of such instruction.

Believing our original opinion properly disposed of the case, the motion for rehearing is overruled.


author: CHRISTIAN, Judge. GRAVES, Judge.

text:
    FANN v. STATE.
    No. 20805.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    Rehearing Denied March 20, 1940.
    H. R. Rolston, of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is selling whisky in a dry area; the punishment, a fine of $100.

It was alleged in the complaint and information that appellant sold whisky to W. R. Sterling. W. R. Sterling, who was an inspector for the Texas Liquor Control Board, testified that he bought a pint of whisky from appellant on the 19th of July, 1939. It was also his version that L. W. Davis accompanied him to appellant’s place of business. Testifying in his own behalf, appellant denied that he sold Sterling any whisky on the occasion in question, but admitted that he sold Davis a pint of whisky, for which he received one dollar and twenty-five cents. Appellant’s wife gave testimony corroborating his version of the transaction.

In his brief appellant insists that he had theretofore been placed in jeopardy and that hence the trial court committed reversible error in overruling his plea to the effect that he had been placed in .jeopardy for the same offense for which he was convicted herein. It is observed that appellant’s plea of former jeopardy was sworn to before appellant’s attorney. An attorney for the accused is not authorized to take affidavits to be used in the case in which he represents the accused. Botts v. State, 111 Tex.Cr.R. 652, 13 S.W.2d 846. We are therefore constrained to hold that the trial court’s action in overruling the plea was warranted.

After carefully examining all questions presented for review, we are of opinion that reversible error is not presented.

The judgment is affirmed.

PER CURIAM.

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

On Motion'for Rehearing.

GRAVES, Judge.

In his motion for rehearing appellant calls our attention to the holding in Foster v. State, 25 Tex.App. 543, 8 S.W. 664, to the effect that a formal plea of jeopardy is not necessary where the former proceedings were in the same case and in the same court. If it should be conceded that this rule has application in the present case, we find that appellant’s bill of exceptions No. 6 shows that in the previous trial the complaint and information were never read to the jury and that appellant at no time pleaded thereto. We. quote from 12 Texas Jurisprudence, 537, as follows: “The plea of the defendant is an essential part of the preliminary proceedings, and until he has pleaded he is not in jeopardy, though the jury had been sworn to try him.”

We quote from Yerger v. State, Tex.Cr. App., 41 S.W. 621, as follows: “The trial was before a court of competent jurisdiction, the jury was impaneled and sworn, the indictment read to the jury, but the accused did not plead to the indictment. The question is, did jeopardy attach? We answer in the negative. We know of no authority holding, under this state of case, that jeopardy would attach. The plea of defendant must be entered, and issue formed. The cases cited by appellant are mostly against him, and the others do not support his propositions. At what time does jeopardy attach? Upon this subject Mr. Bishop says: ‘On the completing and swearing of the panel, the indictment being good, and the preliminary things of record, to be explained further on, being perfect, jeopardy in the case begins.’ Bish. New Cr.Law, art. 1014. As to the preliminary things of record referred to in above article, Mr. Bishop further says r ‘Though the jury has been impaneled and sworn, there is still no jeopardy, therefore no bar to second proceeding, unless the court is clothed with authority, and the prior proceedings are such that a judgment upon the verdict duly returned will be valid.’ Article 1020. Article 1029a, Id., is-as follows: ‘The plea commonly put in at the arraignment is an essential part of the proceeding, so that, until an indicted person has pleaded, he is not in jeopardy, though a jury has been sworn to try him,’— citing Link v. State, 3 Heisk.[Tenn.] 252; United States v. Riley, 5 Blatchf. 204, Fed.Cas.No.16,164; White v. State, 7 Tex. App. 374. We deem it unnecessary to-cite other authorities upon this question.”

We also quote from Steen v. State, 92 Tex.Cr.R. 99, 242 S.W. 1047, 1048, as follows: “Under the authorities we are of opinion that it should be stated as part of the definition of ‘jeopardy’ that one is not ‘put upon trial’ until the indictment or information is read to the jury and the plea of the accused is heard. Yerger v. State (Tex.Cr.App.) 41 S.W. 621; Mays v. State, 51 Tex.Cr.R. 32, 101 S.W. 233; Sedgwick v. State, 57 Tex.Cr.R. 420, 123 S.W. 702.”

In 12 Texas Jurisprudence, 629 it is said: “Where no plea is entered the trial is a nullity since there is no issue for the jury to try or for the court to determine.”

In support of the text many authorities are cited, among them being Huff v. State, Tex.Cr.App., 25 S.W. 772.

Giving application to the announcement of the decisions, we think we are justified in holding that the record reveals that appellant had not been in legal jeopardy.

The, motion for rehearing is overruled.


author: BEAUCHAMP, Judge. GRAVES, Judge.

text:
    SHELBY v. STATE.
    No. 20691.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    Rehearing Denied March 20, 1940.
    John L. Poulter, of Fort Worth, and Williamson & Nordyke, of Stephenville for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted in the District Court of Erath County on a charge of receiving and concealing twenty-five goats that had been stolen from N. M. Colwick. The offense is alleged to have been committed on January 26, 1939, and the facts of the case disclose that three parties acting together, stole the goats at night and drove to Fort Worth, where they delivered them to the appellant at his home about two o’clock in the morning. There is some evidence that this was done by a prior arrangement, but a finding on that issue was not essential to a conviction.

Each and all of the several issues in the case are overruled without discussion inasmuch as they do not present questions of such importance as to require it, save and except that which is- raised by Bill of Exception No. 1. This bill presents an error which would require a reversal of the case were it not for the fact that appellant had given evidence without objection covering the same identical facts as those complained of. By it complaint is made that the owner of the goats was permitted to testify that he had lost eighteen goats on a prior date and during the month of December, and that he found these identical goats in the barn with the twenty-five for which appellant was being tried in this case. It is also stated in the record that appellant is under indictment at the present time for receiving and concealing the eighteen goats referred to. The evidence relates to and brings before the jury a separate and distinct offense from that for; which the appellant is being tried, and is, under most circumstances, inadmissible. However, we are confronted with the court’s qualification of the bill referring to the statement of the appellant in the statement of facts to the following effect: “I bought, I think, eighteen. I paid him for them three dollars and a quarter. Then, I bought some more goats after that a little later along in January. • After I bought the goats, Mr. Grebein took them out to his place; he had a little farm out there. I paid three dollars and a quarter for the second bunch. I have finished paying for them.”

This testimony was given without objection on direct examination by the appellant as a witness, and in a discussion of the same transaction about which Mr. Col-wick testified over his objection. Having testified voluntarily as to the transactions himself and having covered fully by such testimony all of the things complained of as developed by the witness Colwick, we think the appellant is in no position to complain of the error pointed out in his bill, and the same is accordingly overruled.

The other bills in the record assign no error which we consider grounds for a reversal and they are consequently overruled.

The judgment of the trial court and its sentence being regular, the case is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant complains in his motion because of what he contends would be an unfair rule in that if there be admitted by a ruling of the trial court improper testimony against the defendant, that in the event of the appellant undertaking to combat such improper testimony by testimony relative to the same transaction, such an effort would result in a waiver of the objection to the introduction of the matter first offered. This is a salutary rule and one to which we adhere.

However, upon mature reflection, we are constrained to the belief that we were incorrect in the statement in our original opinion that it was error to admit the testimony of Mr. Colwick that he found not only the 25 goats, alleged to have been stolen from him in January, in appellant’s possession, but that he also found in appellant’s possession 18 other goats belonging to him, stolen in the month of December previous to the theft of these 25 goats.

We think that evidence of other . transactions similar in character and surroundings, occurring about or near the time of the instant transaction, would serve a useful purpose in showing the attitude of appellant towards the transaction under investigation. On questions of intent, system, motive or knowledge such proof usually becomes admissible of similar, although disconnected, transactions. See Mehlman v. State, 92 Tex.Cr.R. 455, 244 S.W. 523; Hennessy v. State, 23 Tex.App. 340, 5 S. W. 215; also see Lytton v. State, 131 Tex. Cr.R. 654, 101 S.W.2d 564. We held in Kluting v. State, 90 Tex.Cr.R. 44, 49, 232 S.W. 305, 308: “It seems that possession of other stolen property by the accused at the time he is found in possession of that alleged to have been stolen in the case on trial may be shown for the purpose of being considered as evidence of certain material elements in making out a case of theft or receiving stolen property.”

In Padillo v. State, 129 Tex.Cr.R. 265, 86 S.W.2d 772, 773, we find the following: “The holding in Mehlman v. State [92 Tex. Cr.R. 557, 244 S.W. 602], supra, militates against the conclusion that proof of the reception of other stolen property by appellant from Tibbetts and Devilla was inadmissible.”

We find the following in Wharton on Criminal Evidence, (10th Ed.) Vol. 1, p. 135, Sec. 35: “Evidence of collateral offenses often becomes relevant where it is. necessary to prove scienter or guilty knowledge, even though the reception of such evidence might establish a different and independent offense. In prosecutions for receiving stolen goods, guilty knowledge is the gist or substance of the offense to be established by the prosecution; and evidence of collateral offenses is admissible to establish such knowledge.”

Also see note on this subject in 105 A. L.R. 1291; also Jim Hodges v. State, Tex. Cr.App., 132 S.W.2d 863, not yet reported [in state report].

We think this case was properly disposed of in our original opinion, and have thus written herein in order that our holdings on the proposition relative to the introduction of other similar transactions for the purpose of showing motive, knowledge, system and intent might not become confusing to those interested therein.

The motion will be overruled.


author: KRUEGER, Judge. BEAUCHAMP, Judge.

text:
    GORDON v. STATE.
    No. 20960.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    Rebearing Denied March 27, 1940.
    Price & Moss, of Post, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is knowingly passing a forged instrument; the punishment assessed is confinement in the state penitentiary for a term of two years.

The testimony adduced by the state, briefly stated, shows that on October 21, 1939, appellant passed to Ashley Lawson a' forged check in the amount of $10.50, purporting to have been drawn by L. W. Kitchen upon the First National Bank of Post, Texas and payable to R. E. Webb. L. W. Kitchen testified that the signature to the check was not in his handwriting, and that he had not authorized any person to sign his name thereto. It was further shown that on the same day and only a few hours prior to the time appellant passed the check in question to Lawson, he passed a check in every respect similar (except in amount) to Bud Speck. Appellant did not testify or offer any affirmative defense.

Appellant’s first contention is that the evidence is wholly insufficient to sustain his conviction in this: That the State failed to show appellant had knowledge that the instrument in question was forged at the time he passed it. Knowledge of that fact may be shown by circumstances or may he inferred from facts and circumstances proven. The proof in the instant case shows that appellant was in possession of two forged checks on the 21st. day of October, 1939. This, in our opinion, is sufficient to authorize the jury to reasonably conclude that appellant knew the check in question was a forgery at the time he passed it. See 26 C.J. 961 and 962; Hagar v. State, 71 Ga. 164.

Appellant also contends that there is a fatal variance between the allegations in, the indictment and the proof, in that it was averred in the indictment that the figures “10-21-1939” appearing on the face of the indictment, meant and was intended to mean October 21, 1939, while there is no proof of what was meant by said figures. The testimony of Lawson' shows that appellant passed the check in question on October 21, 1939, and the check bearing said figures was introduced in evidence. This met the innuendo averments. A somewhat similar question to the one here presented has been recently passed on by this Court in the case of Daily v. State, 135 Tex.Cr.R. 655, 122 S.W.2d 628. See also Boles v. State, 13 Tex.App. 650, 657; Dixon v. State, Tex.Cr.App., 26 S.W. 500, 501 ; Duncan v. State, 90 Tex.Cr.R. 479, 236 S.W. 468; Rouse v. State, 98 Tex.Cr.R. 586, 267 S.W. 275.

By bill of exception number one, appellant complains of the introduction in evidence of the second check passed by appellant to Bud Speck on the same day and which was in every respect identical with the check which was the basis of this prosecution, except the amount therein specified. It was shown that this second check was also forged. This check was admissible upon the issue of intent and knowledge. See Stratford v. State, 108 Tex.Cr.R. 255, 299 S.W. 418; Escue v. State, 106 Tex.Cr.R. 506, 294 S.W. 202 and authorities cited; 18 Tex.Juris., p. 70-74; Hanson v. State,-S.W.2d-, recently decided by this Court but not yet reported [in State Reports].

Appellant urged a number of objections to the court’s charge. The main objection here urged thereto is that the court instructed the jury that if they believed from the evidence beyond a reasonable doubt that the instrument set out in the indictment was forged, and they further believed that the defendant, knowing the same to be a forged instrument did knowingly pass as true, etc. His objection to'said charge is (1) That by said instruction the court, in effect, told the jury' that the defendant knew the check was a forgery. (2) Because there is no positive instruction to the jury that they must believe beyond a reasonable doubt that at the time he passed the alleged forged check, if he did, that he knew it was a forgery, etc. It is quite obvious that the first contention is without merit. Insofar as his second contention is concerned, the court cured any error, if error there was in said charge, by giving appellant’s special requested instruction relative to the subject. He now for the first time in this court complains that the charge and his specially requested instruction, which the court gave, are in conflict. Art. 658, C.C.P., Vernon’s Ann.C.C. P. art. 658, requires an appellant to distinctly specify each ground of his objection to the charge. See Guse v. State, 97 Tex. Cr.R. 212, 260 S.W. 852; Roberts v. State, 99 Tex.Cr.R. 492, 269 S.W. 103.

We have carefully reviewed all other complaints made by appellant and reached the conclusion that none present any reversible error.

The judgment is accordingly 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 motion for rehearing in this case presents nothing requiring further consideration than that given in the original opinion. We think, after a careful review of all the facts and the record, that it was properly disposed of in the original opinion.

Accordingly, the motion for rehearing is overruled.

       Not released by court at date of publication.


text:
    HAMMOND v. STATE.
    No. 20770.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1940.
    Rehearing Denied March 27, 1940.
    Penn J. Jackson, of Cleburne, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The first count of the complaint and information charged, in substance, that on the 29th of November, 1938, appellant possessed whisky and beer in a dry area for ■the purpose of sale; the second count charged that on the 27th of May, 1939, appellant possessed' whisky and beer in a dry area for the purpose of sale. Both counts were submitted to the jury, who returned a verdict finding appellant guilty as charged in the first count and also a verdict finding him guilty as charged in the second-count. As to the' first count, the jury assessed the punishment at a fine of $100, while as to the second count the punishment was assessed at 90' days’ confinement in jail.

. The evidence is deemed sufficient to support the judgment of conviction.

It appears from bill of exception No. 1 that during the progress of the search of the home of appellant’s father appellant entered the room where the officers had discovered the liquor and stated to them that, they were “getting into his supplies.” Appellant objected to the testir mony of the officers concerning the statement he made to them on the ground that he was under arrest and that' the provisions of Art. 727, C.C.P., had not , been complied .with. As qualified, the bill of exception shows .that appellant had not been arrested and that he had not been sent for, but entered the room voluntarily and made the declaration in question. Moreover, it appears that appellant’s statement was res gestae. The bill of exception fails to reflect error.

It is shown in bill of exception No. 2 that in his argument to the jury the county attorney referred to appellant as “a wise bootlegger.” It is shown in the bill that the court instructed, the jury to disregard such argument. Further, it is shown that the county attorney was referring to the evidence adduced upon the trial when he charged appellant with being a bootlegger. When we look to the evidence it is observed that it was shown that appellant did not drink intoxicating liquor. Nevertheless, a large quantity of whisky and beer was shown circumstantially to be in his possession. We are unable to reach the conclusion that under the circumstances shown in the bill of exception the argument should work a- reversal of the judgment.

It appears from bill of exception No. 3 that Joe Taff, a witness for the state, testified that a few days after the officers had recovered a quantity of liquor from the home ■■of' appellant’s father appellant stated to the witness “that it was all his stuff and that none of it was his dad’s.” In his argument to the jury the county attorney' used language as follows: “In his statement to Mr. Taff, the defendant said that was all his stuff. If that statement did not include the liquor, it was up to him to make the explanation.” Appellant objected to the remarks of the counsel for the state on the ground that they constituted a reference and an allusion to his failure to testify. The bill certifies that' appellant did not testify, but fails to show, as required by the rules, that no other person could have denied that appellant possessed the. liquor. The bill is insufficient. In any event, we are of opinion that the argument had reference to the failure o'f appellant to explain to Mr. Taff that -the liquor found in the home of his father' did not belong to him (appellant). In short, the argument is not regarded by us as one whose necessary effect was a reference to appellant’s failure to testify. See Weatherred v. State, 129 Tex.Cr.R. 514, 89 S.W.2d 212. ' ' ,

Failing to find reversible error, the judgment is affirmed.

PER CURIAM. .

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

On Motion for Rehearing.

HAWKINS, Presiding Judge.

In his motion for rehearing appellant insists that when the County Attorney said to the jury in his argument, “The de-. fendant is a bootlegger and á wise one, the evidence- showed that the defendant is a bootlegger and that is what we are trying him for,”- it was an improper and prejudicial argument for which the judgment should be reversed, notwithstanding the trial court instructed the jury to disregard said argument. Appellant urges that by the. complained of statement the County Attorney gave the jury unsworn information that appellant, was adroit in the business of selling or peddling intoxicating liquor. He bases such contention on what was said in McMullen v. State, 98 Tex.Cr.R. 229, 265 S.W. 582, 583, to the effect that in “other jurisdictions it has been said that he (a bootlegger) is one who commonly sells or peddles intoxicating liquor, and such we think to be the generally accepted understanding of the term.” The definition of a bootlegger as indicated above is one of the statutory definitions of such person by the Legislature of- Iowa, but even their statute is broader -than indicated. See State v. Vanderpool, 195 Iowa 43, 191 N.W. 357. We think to the person of ordinary understanding the term “bootlegger” in this day' and time denotes one who engages in the: illegal sale or handling of intoxicating-liquor in territory where its sale is pro-' hibited, and is not restricted to one who peddles it. In Commonwealth v. Cicere, 282 Pa. 492, 128 A. 446, 448, the court said that the term “bootlegging” implies a “popular designation for the use, possession, or transportation of intoxicating liquor in violation of the law.” In Kammerer v. Sachs, 131 Mise. 640, 227 N.Y.S. 641, 643, it is said: “The term ‘bootlegger’ definitely denotes, in the public mind, a person who violates the laws against the sale of liquor.” In Stevens v. Wilber, 136 Or. 599, 300 P. 329, 331, after referring to Mr. Webster’s definition of a bootlegger, the court said: “It denotes to the ordinary person one engaged in the unlawful disposition of intoxicating liquor as a business.”

Referring to the statement of facts in the present case we observe that the liquor found in the attic consisted of 48 pints of whisky and six cases of beer. Appellant asked one of the officers “who tipped me off”, and the officer replied, “I wouldn’t want to tell.” Appellant then said to the officer, “Let me get that little crippled boy and let him take the fall,” thereby indicating that if the officer would permit it appellant would shift the guilt to some “crippled” boy.

Under the circumstances in evidence we fail to perceive error in the argument complained of.

The motion for rehearing is overruled.


author: HAWKINS, Presiding Judge.

text:
    GOMEZ v. STATE.
    No. 20924.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    W. B. Barbour and Edward Hargrove, both of Cotulla, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for murder; punishment assessed at twenty-five years in the penitentiary.

There are no bills of exception in the record. The sole question is whether the evidence supports the verdict.

Deceased, Eujenio Rodriguez, and appellant met at a restaurant and beer place operated by Victor Aldaco in Encinal. For some reason Aldaco put appellant and deceased out of his place of business. It is difficult to tell from his evidence whether it was because of boisterous conduct on their part, or because he was apprehensive that a fight might occur between them. In a few-minutes after they were put out of the place appellant returned and said to his brother George Gomez: “Let’s go, I fixed him.” Several witnesses testified to this same statement by appellant when he came back into the restaurant. A physician who examined Rodriguez testified that he had a stab wound in his side between the navel and right hip , bone which penetrated the intestines. An officer talked to Rodriguez at the hospital. He told the officer that he had been informed by the doctor that he could only live three or four hours, and told witness that George Gomez had thrown a bottle at him, and that appellant then stabbed him. Rodriguez only lived about an hour and a half after the statement was made. George Gomez testified that he had had previous trouble with deceased; that on the night of the killing deceased struck at him with a beer bottle, and then struck appellant “on the shirt” with his hand, and then appellant said to him (George Gomez), “Let’s go, I fixed him.” Appellant testified that two weeks before the night of the killing deceased had cursed him, threatened him with a knife, and that he, appellant, had run from deceased on that occasion; that he was afraid of deceased because of his conduct and because he knew he had cut his brother George; that on the night of the killing he heard deceased cursing, saw him go out of the beer place; that he followed deceased outside, and that deceased came “charging” at appellant, and that appellant “held the knife out like that. He ran into me. After that I went inside and told my brother ‘Come on,- let’s go, I fixed him.’ ” On cross-examination appellant testified as follows: “Rodriguez wasn’t cursing -me on the outside ;he just charged on me. He didn’t curse me,at all. He made a run at me and I had my knife open and he ran into it. I stopped and he rah into my knife. I opened my knife when I went outside if he would come after me. I don’t remember how far he had to run before he ran into the knife. I can’t tell you how far he had to run; I can’t tell you more, or less. I can’t tell this jury how far he had to run before he ran into my knife that night because I was drunk. I was afraid of Eugenio Rodriguez. When I went outside Rodriguez was already out there. Yes, I followed him, and I knew he was out there. This fight didn’t happen inside of the saloon, he cursed me on the inside of the saloon, he didn’t run into the knife on the inside building. I don’t know who was outside when I got there, I was drunk. I don’t know if Rodriguez had a gun, I never saw any, and I didn’t see a knife in his hands.”

Ed Carr testified that appellant told witness a few hours after the killing that the reason he killed Rodriguez was “because it got to where he couldn’t have a good time in Encinal.” This statement, however, was denied by appellant.

The record is somewhat confusing, brought about apparently by the fact that the witnesses who were present seemed to have been more or less intoxicated.

The foregoing brief recital of the salient points in the testimony demonstrates that the verdict and judgment find support in the evidence.

The judgment is affirmed.


author: BEAUCHAMP, Judge.

text:
    WILLIAMSON v. STATE.
    No. 20925.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    Shead & Smith, of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the District Court of Gregg County for the offense of burglary, and his punishment was assessed at confinement in the penitentiary for six years.

The indictment appears regular. The record is before this court without statement of facts or bills of exception. No error having been presented, the judgment of the trial court is affirmed.


text:
    BLOUNT v. STATE.
    No. 20916.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    No attorney for appellant.
    Lloyd • W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Appellant was charged with passing as true to J. K. Crane a forged instrument, same being a check for $12.50, dated April 4, 1939, drawn on the State National Bank of Big Spring, and signed by C. L. Kelsey. On conviction, punishment was assessed at three years in the penitentiary.

No bills of exception are brought forward, and the only question is the sufficiency of the evidence.

Mr. Kelsey was in the photograph business, and gave appellant employment. Kelsey was shown the check described in the indictment, and testified that he did not execute the same nor did he give appellant authority to" execute it. Mr. Crane testified that he cashed the check for appellant and saw him endorse it. Appellant did not testify, and the only witnesses introduced by him testified that he was afflicted with syphilis, but none expressed the opinion that it cause insanity. Their opinions were to the contrary.

The evidence amply supports the verdict, and the judgment is affirmed.


text:
    BUTLER v. STATE.
    No. 20875.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    Conrad E. Smith and Allan K. Pattillo, both of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is assault with intent to rape; the punishment, confinement in the penitentiary for 100 years.

Prosecutrix is a white woman and appellant, a negro. It is shown in bill of exception No. 1 that in argument to the jury one of counsel for the state used language as follows: “I want you to write a unique verdict, a verdict that can be blazon across the head lines of every newspaper in the nation, that will make his kind (referring to appellant) think before they commit such •an offense. In this case you can not give him a death penalty, but I want you to write a verdict of 999 years. This kind of verdict will prevent his kind fro.m Texas justice, that of dangling on the end of a ten-foot rope.”

Appellant’s objection to the argument was sustained and the court instructed the jury not to consider the remarks of counsel for the state. We find in the bill of exception a certificate by the trial judge as follows: “The above statement of Mr. Winborn in connection with his continuous reference to ‘Texas Justice’ together with the statement ‘dangling upon the end of a ten-foot rope’, were highly, inflammatory, highly prejudicial .and so inflamed the minds of the jury, causing them to bring in a verdict of 100 years in the penitentiary.” The bill of exception was approved without qualification, and is similar to the bill dealt with in Roberts v. State, 115 Tex.Cr. R. 431, 27 S.W.2d 159, wherein the trial court certified that certain argument by counsel for the state was highly prejudicial and calculated to inflame the minds of the jury against the accused. In that case it was held that in view of the certificate of the trial judge the bill of exception reflected reversible error. In McKee v. State, 116 Tex.Cr.R. 232, 34 S.W.2d 592, 593, Judge Hawkins used language as follows: “We are quite sure the learned trial judge did not intend to certify that the argument was prejudicial and uncalled for, and that if he had thought so he would have granted a new trial. He doubtless understood the bill to be as contended for by the state, but the bill is before us and must be appraised on its face. The portion of the bill referred to does not appear as ground of objection to the argument, nor as reasons for excepting to the ruling of the court, but appears as the statement of a fact. The bill is almost exactly like the one dealt with in Roberts v. State [115 Tex.Cr.R. 431], 27 S.W.2d 159.” See also Douglas v. State, 132 Tex.Cr.R. 441, 104 S.W.2d 874, and authorities cited.

In view of the certificate of the trial judge to the effect that the argument was “highly inflammatory, highly prejudicial and so inflamed the minds of the jury” as to cause them to bring in a verdict of 100 years, we are constrained to hold that the bill of exception presents reversible error.

The judgment is reversed and the cause remánded.

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:
    PATTERSON v. STATE.
    No. 20869.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    Heidingsfelder & Wander, Frank Campbell, and David R. Rosenthal, all 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 two years.

The injured party, L. D. Robinson, testified that he lost a Maytag washing machine from his premises on the 3rd day of April, 1939. He said he bought the machine July 22, 1936, it being new at the time. He paid $156.16 for it. The machine was used about once a week to do the home laundry. At the time it was stolen it was in the open near a well. Recently after the theft appellant was found in possession of the machine. A witness for appellant testified that the reasonable market value of the washing machine was $15.

It is shown in bill of exception No. 2 that the injured party testified that the reasonable market value of the machine was $65. He based his opinion on conversations he had with Mr. Schwartz and Mr. Bartay. In bill of exception No. 3 it is shown that on cross-examination the injured party testified that in talking to Mr. Schwartz and Mr. Bartay he told them that his Maytag washing machine was about two years old. He did not inform them that the machine was approximately two years and nine months old. Counsel for appellant requested the court to withdraw from the consideration of the jury the testimony of the witness to the effect that the reasonable market value of the machine was $65, such request being based upon the fact that the witness testified that it was only pursuant to his conversations with Mr. Bartay and Mr. Schwartz that he was acquainted with the market value of the machine. This request should have been granted. We quote from 41 Texas Jurisprudence 27, as follows: “Value as it relates to stolen property is the market value at the time and place of the taking, or, in case of property without a market value, the cost of replacing it.” In view of the fact that there was a sharp issue as to the market value of the machine, we are constrained to hold that the refusal of the court to withdraw the testimony constitutes reversible 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.


text:
    RAY v. STATE.
    No. 20917.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    Jimmie Cunningham, of Graham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from the County Court of Young County, where appellant was convicted for a violation of the Local Option Law, Vernon’s Ann.P.C. art. 666 — 1 et seq., and assessed a fine of $100.

It appears from bill of exception No. 7 that during the trial of the case the State relied on the ex parte affidavit of George T. Spears, publisher of the Graham Leader, a weekly newspaper published at Graham, Young County, Texas, to prove the publication of the order of the commissioners’ court declaring the result of the local option election in Young County on the 7th day of March, 1896. Apparently the certificate of the judge was not at that time placed in the minutes of the court showing the publication as required by law. The ex parte affidavit of Mr. Spears, the present publisher of the paper containing information gained by him from the files of the paper, was incorporated in the minutes of the court as of date June 7, 1939. Mr. Spears did not personally appear in court to testify but the clerk introduced the minutes of the court containing Spears’ ex parte statement, and upon that, the State relied to prove the publication required to put the Local Option Law into effect in Young County. The affidavit, as presented, was the hearsay statement of Mr. Spears and was inadmissible.

We find n.o merit in the other bills of exception in this case and they are accordingly overruled.

For the error in admitting the ex parte affidavit, the cause is reversed and remanded.