text:
    MITCHELL, GARTNER & THOMPSON v. YOUNG et al.
    No. 14000.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 15, 1939.
    Rehearing Denied Jan. 12, 1940.

      Chester B. Collins, of Fort Worth, for appellants.
    A. M. Clyde and W. F. Young, both of Fort Worth, for appellee Yoftng.
    Walker, Smith & Shannon, of Fort Worth, for Employers Liability Assur. Corporation, garnishee.
   BROWN, Justice.

A partnership firm, composed of J. W. Mitchell and others, known as Mitchell, ■Gartner & Walton, secured a judgment, in one of the district courts of Tarrant County, against a partnership firm known as D. H. Purvis & Son, and the former partnership firm was thereafter changed to that of Mitchell, Gartner & Thompson; said last named partnership firm having succeeded to all of the rights of the old firm.

The firm of D. H. Purvis & Son brought suit in one of the district courts of Tar-rant County, in the year 1935, against A. Anderson and A. Anderson, Jr., and Employers’ Liability Assurance Corporation, Ltd., to recover a sum of money alleged to be owing in the amount of $10,429.99, and W. F. Young, an attorney at law of Forth Worth, Texas, filed such suit for the plaintiffs.

■ This suit was contested as to liability and as to the amount recoverable, but on or about July 27, 1938, an agreement was entered into, whereby the defendant, Employers’ Liability Assurance Corporation, Ltd., agreed to settle the suit for $4,500.

On the day such settlement agreement was entered into, the firm of Mitchell, Gartner & Thompson made affidavit for and secured the issuance of a writ of garnishment out of the court in which the judgment was obtained against the firm of D. H. Purvis & Son, and on such date of issuance had such writ served upon Employers’ Liability Assurance Corporation, Ltd., as the garnishee.

The garnishee answered fully, disclosing that it did not owe D. H. Purvis & Son anything 'at the time the writ was served, but fully stating the fact of the agreement to settle the suit filed against it, and the subsequent consummation of such settlement agreed upon and that said garnishee became indebted under the settlement, before the answer was filed, in the sum of $4,500, but specifically answered that one W. F. Young was claiming the funds agreed to be paid by such settlement, by virtue of an assignment of all right thereto and interest therein, executed by D. H. Purvis & Son to said W. F. Young, and said garnishee, answering as such stakeholder, prayed that said W. F. Young be interpleaded in the garnishment suit, to the end that it might be established in court to whom the $4,500 belonged.

Young was so interpleaded and served with process and filed his pleading, showing an assignment by D. H. Purvis & Son to him of all right to and interest in the claim and cause of action brought by D. H. Purvis & Son against said Andersons and Employers’ Liability Assurance Corporation, Ltd., long before any garnishment writ was applied for by Mitchell, Gartner & Thompson.

Before the case was tried, W. F. Young endeavored to get the garnishors to agree to have the garnishee pay the said $4,500 into- the treasury of the court, and leave only the question of the ownership of the funds, as between garnishors and Young, to be' decided. This garnishors declined to do, and D. H. Purvis & Son replevied the funds, and W. F. Young' furnished D. H. Purvis & Son collateral sufficient to enable them to make the required re-plevin bond.

Issue was finally joined, the cause was tried to the court and judgment was rendered that the garnishors, Mitchell, Gart-ner & Thompson, take nothing, that the garnishee, Employers’ Liability Assurance Corporation, Ltd., be discharged on its answer, and awarding title to the $4,500, attempted to be garnished, in the claimant, W. F. Young, and taxing all costs of the trial court against Young, except the jury fee paid by the garnishors, which fee was adjudged to have been paid too late.

Mitchell, Gartner & Thompson excepted and gave notice of appeal to this court, and the interpleaded claimant, Young, excepted to the judgment against him for costs and likewise gave notice of appeal.

Mitchell, Gartner & Thompson have appealed and made all parties, including Maryland Casualty Company, surety on the said replevin bond, parties adversely interested.

The issues sought to be made by the pleading of appellants will be disclosed in discussing the three assignments of error brought forward in the brief.

The first assignment of error, in substance, asserts that the trial court erred in not rendering judgment for appellants, because it was shown that appellee, W. F. Young, furnished his securities and assets to indemnify and induce Maryland Casualty Company to become the surety on the replevin bond, executed by D. H. Purvis & Son, which compelled the delivery of the $4,500 to D. H. Purvis & Son, as principal, when the surety in fact and in law was shown to be W. F. Young.

The second assignment of error asserts, in substance, that the court erred in not rendering judgment for appellants because it was shown that they had no notice of any claim, by Young, of the funds, when the garnishment writ was sued out and served, and because when the suit of D. H. Purvis & Son was filed against Abe Anderson & Son et al, Young’s name was signed to their petition as one of the plaintiffs’ attorneys, and subsequent to the filing of such suit, Young, as attorney for D. H. Purvis & Son, executed an affidavit to a plea on behalf of D. H. Pur-vis & Son, controverting a plea of privilege filed by the said defendants, in which Young “swore under oath” that D. H. Purvis & Son were the owners of such cause of action and claim, and thereby held them out to the world as such owners until the garnishment writ was sued out and served, and having failed to give any character of notice of his right and claim, under such circumstances, appellants “relied on the belief and appearance of all matters of record that D. H. Pur-vis & Son were the owners of said claim and having incurred court costs, legal fees and loss of time and inconvenience to garnishee, such fund would be entitled to recover their claim from said fund.”

The third assignment of error alleges, in substance, practically the same facts as are set forth in the second assignment of error.

Without using the words “estoppel” or “estopped”, it is evident that these three assignments of error are intended to raise an issue of estoppel, on the part of Young, to claim the monies paid in settlement of the suit by D. H. Purvis & Son against Abe Anderson et al, and the propositions urged so disclose.

The assignments of error are so closely related that one discussion is sufficient to cover all.

The assignment from Purvis & Son to* Young, which antedates the issuance of the garnishment writ by almost three years, assigns “all of our right, title and interest in and to that certain claim or demand, right, or action asserted by- us in cause No. 12780-A, in the District Court, Tarrant County, Texas, styled D. H. Purvis & Son v. Abe Anderson & Son et al, and the saidi Young is hereby authorized to sign all receipts or acquittances for any and every character whatsoever necessary in the premises in the collection, compromise, settlement and release of the said claims and/or judgment, if any, recovered. Hereby fully vesting in the said W. F. Young ¿11 of our right, title and interest in and to the said claim, right, action or litigation that we may have or now assert against either of the said defendants by reason of said suit or otherwise.”

It is not disputed that the assignment was made for a valuable consideration.

The only statute, of which we have knowledge, that has to do with assignments-of tbe character of that before us, is Art. • 6636, R.C.S., and it provides that when an. assignment of any cause of action is made-after suit has been filed thereon, it “maybe filed with the papers of such suit” and: that when so filed and the notations required by the statute are made by the clerk of the court in which the cause of action is pending, “the same shall be full notice- and valid and binding upon all persons subsequently dealing with reference to said' cause of action or judgment, whether they have actual knowledge of such transfer or-not.”

The purpose of this statute seems to be-that of protecting the assignee against, some act had and done by the assignor, in,, .conjunction with the debtor or defendant against whom the action is brought, or with some third party.

The cause of action no longer is owned by the assignor and neither he nor the •debtor or defendant in the suit, can dispose of the cause of action, or pay the money due thereon to some third person and thus deprive the assignee of his right thereto.

It does not seem to us necessary to cite any authority to sustain the proposb tion that, where a pending cause of action is assigned, it is not only not improper to continue the prosecution of the suit in the name of the original plaintiff — the assignor —but it is entirely proper to so proceed.

The language used in Smythe v. Western Fire Assurance Co., Tex.Civ.App., 15 S.W.2d 168, 169, writ dismissed, appeals to us as thoroughly sound: “Since 1889 it "has been the law that the sale of any cause ■of action or interest therein shall be evidenced by a written transfer signed and acknowledged by the assignor, and, when filed with the papers of the suit, shall become notice, valid and binding upon every one dealing with the case. Article 6636, Rev.Stats. 1925. Even before that statute was enacted, it had been held that, where such transfer was made pendente lite, it was not necessary that the assignee become a party to the suit. Hair v. Wood, 58 Tex. [77], 78; Wortham v. Boyd, 66 Tex. 401, 1 S.W. 109. Since the law was enacted, it was held in Evans Co. v. Reeves, 6 Tex.Civ.App. 254, 26 S.W. 219, that, the assignees having acquired their rights after .the suit was instituted, they were not necessary parties to the suit. That is the trend of all the decisions on the subject. It follows that appellant was entitled to judgment, while the transfer filed among the papers protected the rights of the attorney” (the assignee).

If this pronouncement is sóund where the assignment is filed as directed by the statute and full notice is thus given of the ownership of the cause of action, how much more convincing is the reasoning where the assignment is properly executed but not filed among the papers in the pending suit!

In speaking of such assignments as the one before us we find the following language in Vol. 5 Tex.Jur., page 29, para. 23: “The purpose of this statute is merely to furnish parties dealing with the cause notice of the assignments, and it is not intended that it should affect the validity of any sale of a cause of action, or any part thereof, or the sale of a judgment.”

This same text and volume, pages 39, 40, para. 31, uses the following language:

“An assignment of a debt or fund made for a valuable consideration secures it against attachment or garnishment for a debt of the assignor. This is so even though the original debtor does not consent to the assignment nor receive notice of the transfer. The equitable title and beneficial interest pass by the assignment and the debtor owes the assignee and not the debtor of the garnishing creditor. However, notice should be given to the debtor in time to enable him to bring it to the attention of the court before judgment is rendered against him as garnishee.
“If the debtor is summoned to appear as garnishee, and before judgment he becomes aware of an assignment of his debt made before the garnishment, it is his duty to bring that fact'to the attention of the court, in order that, if practicable, the assignee may be cited to substantiate his claim, or that the court may withhold judgment.”

The text is supported by a number of cases.

We do not believe that Art. 6636, R.C.S., was enacted to protect either an attaching creditor or a garnishing creditor. When a creditor sues out a writ of attachment, or of garnishment, he does so at his peril. He simply takes his chances of attaching property that may or may not belong to his debtor, or of garnishing funds that may or may not belong to his debtor.

If Young had filed his assignment among the papers in the suit filed by D. H. Purvis & Son against Anderson et al, that would not have added validity to his assignment, and his failure to do so would not detract from its validity.

In Bennett Printing Co. v. Dines Bldg. Co., Tex.Civ.App., 84 S.W.2d 497, writ dismissed, it was held that where, after assignment of judgment debt, assignor replevied the debt or fund, and assignee was a surety on the replevin bond, this did not estop as-signee’s assignee from claiming the debt or fund as against a garnisheeing creditor who served judgment debtor with a writ of garnishment after such assignment.

We have approached this question of estoppel on the part of Young as if the replevin bond were made when appellants had no notice of Young’s claim under and by virtue of his assignment, but we find it established in the record that Young had not only put appellants on notice of his claim, but had gone further and attempted to get appellants to agree that-the fund be deposited in the treasury of the court to await judgment upon the issue of ownership as between him as assignee and appellants as garnisheeing creditors. This appellants declined to do. Under these facts, it could not be reasonably argued that Young has taken an inconsistent position with relation to the ownership of the fund so as to estop him from laying claim thereto.

We quote from Alexander Co. v. First Nat. Bank of Lagrange, 119 S.W.2d 718, 720, writ dismissed: “One of the essential elements of an estoppel is that the one party by his acts, conduct or acquiescence when in duty bound to speak, has misled another and caused him to act to his injury. 17 Tex.Jur., § 15, p. 144.”

We do not find anything in the' record to justify the appellants’ position that Young, by any act, has estopped himself from claiming the fund as an assignee thereof.

The fact that Young, as attorney for D. H. Purvis & Son, made the affidavit to the plaintiffs’ controverting plea, in which the ownership of the claim of plaintiffs was alleged to be in D. H. Purvis & Son, does not raise an issue of estoppel as to Young.

The suit was for more than $10,000, and in the trial of the instant suit it was made clear that D. H. Purvis & Son did not owe Young as much as the amount involved in the claim assigned to Young.

Suppose the settlement had been made for more than the debts owed to Young by D. H. Purvis & Son, or judgment had been obtained for such larger sum, would any person contend that such surplus sum was not owned by D. H. Purvis & Son ? Obviously no ! And it would have been the duty of the garnishee to disclose such fact, and the duty of the assignee to plead his partial ownership.

Appellants were not parties to but were strangers to the suit of D. H. Purvis & Son v. Anderson et al. There was no privity of relationship insofar as appellants are concerned.

In Fowler et al. v. Texas Exploration Co. et al., Tex.Civ.App., 290 S.W. 818, 823, writ refused, this is said: “Appellants’ contention that appellees are estopped by the recitals in the administrator’s deed from claiming any other title than that obtained under the original contract of sale between Darst and Austin is without merit. Appellants are not privies to this deed either in blood or estate. Being strangers to the deed and not bound by its recitals, they cannot take advantage of any estoppel that might have arisen as between the parties thereto. 21 Corpus Juris, p. 1067.”

The text cited uses the following language : “Estoppels of record to the extent that they bind parties will also bind their privies, but to that extent only. So these estoppels operate only on parties and their privies and can be used neither by nor against strangers. Estoppels by record are mutual, and cannot be insisted on by one who is himself not bound thereby.”

This text cites Cecil v. Cecil, 19 Md. 72, 81 Am.Dec. 626, wherein this is said: “He that shall not be concluded by the record or other matter, shall not conclude another by it.”

Appellants’ assignments of error are overruled.

Appellee, by cross-assignment, complains of the action of the trial court in taxing him with the costs, the following language being used by the court: “It is further ordered that all costs in this case, except jury fee paid by plaintiffs too late to entitle them to a jury, be and is hereby taxed against defendant Young because plaintiffs’ garnishment was secured and levied without knowledge of said defendant’s assignment of the fund in garnishee’s possession and referred to in its answer filed herein.”

This action of the court is in strict comr pliance with the provisions of Art. 2066, R.C.S., and, while the members of this court may not have inclined to the view taken by the trial court, in so disposing of the issue of taxing the costs, nevertheless the trial court was using the discretion that is vested in him and we do not see that he has abused such discretion.

The judgment of the trial court is affirmed and the costs incurred on appeal, including the cost of the clerk’s transcript and the stenographer’s fee for preparing the statement of facts, are taxed against appellants.


source: Caselaw Access Project

author: KRUEGER, Judge.

license: Public Domain

text:
    HAMILTON v. STATE.
    No. 20726.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    Robert D. Peterson, of Marlin, 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 40 years.

The record discloses that the homicide occurred in the town of Rosebud on the night of January 16, 1939. The deceased, who was a'small negro woman, owned and conducted a restaurant and beer tavern and had appellant employed to assist her. She and appellant lived in the back end of the tavern. About midnight or a little later on the night in question, a neighbor who lived about 75 yards from the tavern, heard someone cryirig and recognized the voice as that of appellant. The neighbor immediately dressed and went to the tavern, where appellant told him that the deceased was dead; that he had accidently shot her under the heart. The witness entered the room, looked at the deceased, saw that she was dead, and then asked appellant how he could have done it.‘ Appellant replied that he would not have done it for anything. He then reached •under the counter, brought up a pistol and said: “I killed her with this old rusty gun here. I did not know it would shoot. She was coming on me with an ice pick and I threw the gun on her to bluff her and the gun went off and shot her acci-dently.” About this time Jack Shaw came in, looked at the deceased and remarked: “She is dead; you had better protect yourself. You give up and -not hide or anything like that.” The appellant and Shaw then left to make a report of the killing and surrender to the officers. They first went to the home of the constable, but being unable to awaken him, they went to the home of a justice of the peace and reported the occurrence to him. The justice of the peace got in touch with the constable and they all returned to the scene of the homicide. The state also proved that appellant and the deceased had theretofore had some quarrels and he had threatened to kill her if he caught her going with other men. Appellant did not testify or offer any affirmative defense.

By bill of exception No. 1, appellant complains of the action of the trial court in overruling his motion to quash the indictment on the ground of discrimination against the negro race of- which he was a member. He alleged that no negro had ever been appointed by the judge of said court as a jury commissioner; nor had any negro ever been selected as a grand or petit juror in the past 20 or 30 years. The proof in support of these allegations fails to show any intentional discrimination on the part of the jury commissioners or the judge who appointed them. There was some testimony that no negro had ever been appointed as a jury commissioner and there was also some testimony that no negro had served as a member of the grand or petit jury for a number of years. However there was testimony to the contrary. Judge Dodson, a former judge of said court (who was succeeded by the present encumbent), testified that he knew quite a number of ne-groes who had been drawn for jury service. He remembered that in the case of the State v. Walter Freeney, charged with murder, that several negroes served on the panel and assessed the death penalty against the accused. Judge H. C. Carter testified that he remembered seeing ne-groes on the grand and petit juries not much over a year past. Thus it will be seen that an issue of fact was raised which the court decided adversely to appellant. This court would not be justified, under these circumstances, in disturbing his finding unless it was made to appear that he abused his discretion in the matter. See Sec. 586, p. 300, Branch’s Ann.P.C. and authorities cited: Lugo v. State, 136 Tex.Cr.R. 226, 124 S.W.2d 344.

By bills of exceptions Nos. 4 and 5 appellant complains of the action of the trial court in permitting the constable to whom he surrendered, and the city marshal, to testify that he took appellant to the scene of the homicide where appellant made an oral statement to him with reference to how the killing occurred. The bills further show that after appellant had been taken to jail and confined, the constable accompanied by the city marshal, went to the jail, took appellant back to the scene of the homicide, and again had him make an oral statement with reference to the homicide. The constable and city marshal related to the jury what appellant said. Appellant objected to the testimony of each of these officers ¡as to what he told them (or either of them) on the ground that he was under arrest at the time and that such statements were not made in conformity with the requirements of the law; that said statements were not res gestae and did not lead to the discovery of the instrument with which the offense was committed. The court overruled the objections and admitted said statements on the theory that they were a part of the res gestae, and on the further ground that the ice pick was found as a result of the statements. The ice pick was not the instrument used in the commission of the offense. The pistol was, but it had already been shown to Bob Bradley (to whom appellant had made a statement relative to the killing.)

If the statements made by the appellant to the officers were a part of the res gestae, then it was admissible, notwithstanding the fact that appellant had not received the statutory warning. See Powers v. State, 23 Tex.App 42, 5 S.W. 153; Calloway v. State, 92 Tex.Cr.R. 506, 244 S.W. 549. We do not think that the testimony given by the officers comes within the scope of the rule of res gestae. The officers did not themselves know how long the alleged offense had been committed before appellant surrendered. Bradley (who was the first person to arrive on the scene) testified that it was between an hour and an hour and a half before the officers arrived. Appellant made a statement to Bradley within a few minutes after the occurrence.

In 18 Texas Jurisprudence, Sec. 181, we find the rule stated as follows: “To be admissible as part of the res gestae the acts or declarations of the parties must be substantially contemporaneous with and grow out of the main fact, so as to be spontaneous and not in effect a mere narrative of a past occurrence, and they must tend to illustrate, explain or unfold the character or significance of the main fact. The acts or declarations must also stand in immediate causal relation to the principal fact and become part either of the action immediately producing it or the action which it immediately produces.”

One of the requisites of a res ges-tae statement is spontaneity. In other words, the statement must be the natural and spontaneous outgrowth of the main fact, and must exclude the idea of premeditation. The statement must be of such a character as to justify the conclusion that it was the event speaking through the party, and not the party talking about some event. The rule is further stated in Vol. 18 Tex.Jur. Sec. 183 as follows: “While it has been said that acts or declarations to be admissible under this doctrine must be contemporaneous with the main transaction, it is settled that they need not be precisely concurrent in point of time if they were generated by an excited feeling which extended without break or let-down from the moment of the event they illustrate.” See also 18 Tex.Juris., p. 312, Sec. 193; McCormick & Ray, Texas Law of Evidence, Secs. 431 & 440; Deneaner v. State, 58 Tex.Cr.R. 624, 127 S.W. 201; Houseton v. State, 83 Tex.Cr.R. 453, 204 S.W. 1007; Butler v. State, 131 Tex.Cr.R. 543, 100 S.W.2d 707; Lockhart v. State, 53 Tex.Cr.R. 589, 111 S.W. 1024.

The test then seems to be — Were the declarations the facts speaking through the party or the party’s talk about the facts? Instinctiveness is a requisite, and unless this appears the declaration is not admissible. The statements made by the appellant to the city marshal and the constable not being res gestae of the offense, and not having been taken in accordance with the statutory method for confessions were not admissible in evidence agáinst appellant over proper objection. These statements which appellant is alleged to have made to the officers, as related by them, varied in some material respects from those he made to Bradley immediately after the homicide. The state introduced these officers as witnesses, who related to the jury appellant’s statement to them; then they showed by the same officers that said statement could not be true; that it was false. This was harmful since it tended to show that the killing was probably the result of malice instead of accidental as appellant claimed. See Bell v. State, 124 Tex.Cr.R. 676, 65 S.W.2d 303, and the many authorities there cited.

Appellant also complains of the court’s refusal to instruct the jury on the law of circumstantial evidence. We do not believe that such an instruction was required under the facts of this case. Appellant admitted to Bradley that he shot the deceased with the rusty pistol. Hence the State had direct testimony as to who killed the deceased. Whether the killing was deliberately done or was an accident might depend upon circumstances, but this would not require an instruction to the jury relative to the law of circumstantial evidence. See Barnes v. State, 53 Tex.Cr.R. 628, 111 S.W. 943; Russell v. State, 38 Tex.Cr.R. 590, 44 S.W. 159; Puryear v. State, 28 Tex.App. 73, 11 S.W. 929.

The other matters complained of by appellant need not be discussed since they will probably not arise again on another trial.

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

PER CURIAM.

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


author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    ARMENTROUT v. STATE.
    No. 20687.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1939.
    Rehearing Denied Jan. 17, 1940.

      Joe E. Kelly and R. D. Blaydes, both of Fort Stockton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

The uncontradicted testimony shows that on or about the 5th day of January, 1939, appellant killed and sold a jersey heifer calf to a meat market in Fort Stockton. The hide was identified by both Mr. Sullivan, the owner, and Mr. Warnock, a neighbor. Mr. Warnock testified that he saw appellant drive a cow; and the calf in question toward his home. Appellant said he thought the calf was his own; that if it was Mr. Sullivan’s, he merely made a mistake. It will thus be seen that an issue of fact was raised which the jury decided adversely to appellant’s contention.

Appellant contends that the trial court erred in declining to sustain his motion to, quash the indictment because he claimed it was found and returned by an illegally constituted grand jury. It appears from the record "that appellant had already been arrested, charged by complaint with the offense and was out on bond at the time that the indictment was returned against him. This court has many times held that an accused may not, under such circumstances, challenge the formation of the grand jury by a motion to quash. The duty rests upon him, in cases of this nature, to make a challenge to the array under Art. 361, C.C.P. As stated in Gentry v. State, 105 Tex.Cr.R. 617, 290 S.W. 541, 542:

“ * * * If, under such circumstances— that is, he being under arrest or under bond charged by complaint with an offense — his right to challenge the array would be waived unless exercised by him before the grand jury was impaneled. * * * ”

See also Hunter v. State, 108 Tex.Cr.R. 142, 299 S.W. 437 and the authorities there cited.

By a proper bill of exception and on motion for new trial appellant complains because the hide of the stolen animal, which was introduced in evidence upon the trial and inspected by the jury, was upon the request of the jury taken into the juryroom and there again inspected by them. It appears from the motion and the record that appellant’s defense was that he had made a mistake if he had killed and butchered the injured person’s calf. He stated that he had a calf which looked very much like Mr. Sullivan’s. The state introduced this hide in evidence. Upon their retirement the jury in discussing the same came to some differences on the markings of the animal and requested the sheriff to bring the hide to their room for inspection. This the sheriff did. The question for us to determine is whether or not it was error for the jury to again view this hide after their retirement. That the hide was admissible as original evidence is too well settled to admit of argument. See Ledbeer v. State, 35 Tex.Cr.R. 195, 32 S.W. 903, holding a hide admissible as demonstrative evidence under -very similar circumstances. See also Vol. 18, Tex.Juris., Sec. 206, p. 334. The rule seems also well settled that the jury can take with them into the jury-room various articles over which there might he argument. In such cases the authorities hold that unless there is proof in the record that the'jury used such evidence in a manner inconsistent with its original presentation, then no error is committed. An analysis of the evidence adduced upon the motion for a new trial shows that the purpose of the jury was merely to settle the question of the possibility or probability of defendant’s making a mistake. Consequently no error is presented. See the authorities cited in Vol. 42 Tex.Juris., Sec. 328, p. 418.

Appellant also complains because of alleged misconduct of the jury, asserting that they took into consideration the failure of the defendant to ask for a suspension of sentence. It appears that upon the trial, appellant’s own attorney asked him whether or not he had ever been convicted in Pecos County of any offense. He replied in the negative. The district attorney then interrogated him as to whether or not he had ever been convicted in this state or any other state of a felony. Appellant’s attorney objected to the question and the objection was sustained. Upon their retirement the jury at first stood 9 to 3 for conviction. There arose some question as to whether or not appellant could get a suspension of sentence and a request was sent to the trial judge to inform them on this matter. He recalled them into court and instructed them that they were not authorized to suspend appellant’s sentence, inasmuch as no such request had been made by him. The jury then returned to the jury room and shortly thereafter agreed on two years’ imprisonment. It is appellant’s contention that the evidence adduced upon the hearing of the motion relative to this misconduct clearly shows that the question as to whether or not he should be convicted at all was made to depend upon whether he had ever been convicted of a felony, and that the purpose of the jury in asking the trial judge if he were entitled to such'suspension of sentence was to determine whether or not sentence could be suspended. That if it could, then they would hold him not guilty at all, but if .it could not, then they would proceed upon the assumption that he had elsewhere been convicted of a felony and then hold him guilty for the theft of the calf.

The most that can be said for his contention is that the evidence is conflicting. Two of the three jurors introduced clearly stated that their only purpose in asking the trial judge whether or not appellant’s sentence could be suspended was so that they might vote for a suspension if such were the case. Appellant not having applied for a suspension of sentence, he was not entitled to it, and the court was correct in so informing them because that was the law, and the jury is entitled’ to be advised as to the law of the case. However, the evidence heard by the court on the motion was conflicting, and we would not be authorized to set aside the court’s finding on such an issue of fact.

By bill of exception number two, appellant complains of the following occurrence. After the state’s witness Warnock had testified for the state, he was asked-on cross-examination by appellant’s attorneys what his social relations had been with the defendant and his family. He replied that his family and the Armentrout family had been visiting back and forth and had tried to be good neighbors. He stated that he had never gone down and stayed at Armen-trout’s home or eaten dinner, but had tried to be good neighbors. That he thought his wife had visited in Armentrout’s home. Appellant’s counsel then asked the witness if he had not tried to rent the place from under the defendant through Mr. Shaw, the owner. This Warnock denied. Thereafter while the defendant was testifying in his own behalf he’was asked by his counsel if Mr. Warnock or his wife had ever visited in his home and whether or not he knew that Warnock had attempted to rent the place from Mr. Shaw where he (defendant) resided. The state objected to these questions and the obj ections were sustained by the court, the defendant not being allowed to answer. The bill states that if the defendant had been permitted to answer the question, he would have stated that neither Sam Warnock or his wife had ever visited in his home, though they lived within a few hundred yards from him. That within his own knowledge Warnock had on more than one occasion tried to rent from the owner, Shaw, the land which he, defendant, had in his possession by virtue of a rental contract with Shaw. The bill is multifarious and not entitled to consideration. Moreover it appears to us that it was an attempt to impeach the witness on an immaterial matter. But if it should be conceded that there was ill will and animosity on the part of Warnock toward appellant, it appears that it did not cause Warnoclc to color his testimony so that it might appear more favorable toward the state, because Warnock testified that he saw appellant driving Sullivan’s cattle, including the animal in question, toward his, appellant’s, home, and appellant, while testifying in his own behalf, admitted driving the cattle at the time and place mentioned by Warnock, but contended that if he did butcher Sullivan’s yearling, he did so through mistake, believing at the time that it was his own animal. Under these circumstances, we think the bill fails to reflect error.

All other matters complained of by appellant have been duly considered 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 Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

In his motion for rehearing appellant reiterates his contention that he was indicted by an illegal grand jury, and, further, that under the circumstances revealed by the record, he had the right to attack the legality of the grand jury by a motion to quash the indictment.

It appears from bill of exception No. 1 that Judge Montague of the 112th District Court of Pecos County impaneled the grand jury for the January term of the court on the 2nd day of January, 1939, and that later he discharged said grand jury for the term. During the same term of court Judge Montague resigned and a special judge was elected by the bar to preside during the remainder of the term of the court. During the same term of court appellant was charged by complaint in the justice court with the offense of theft of cattle, and, upon waiving an examining trial, entered into bond for his appearance before the district court. This complaint was filed after Judge Montague had discharged the grand jury for the term. On the 23rd of January the special judge elected by the bar to continue the term of court impaneled a grand jury which consisted of ten men who had been members of the grand jury which Judge Montague had discharged. Upon finding that two members of the grand jury failed to appear, the judge impaneled ten men who had served originally upon the grand jury and two other men who had not served upon the original grand jury. It appears that the twelve men, after being duly sworn and impaneled, retired to deliberate and thereafter returned an indictment into open court charging the appellant with theft of cattle, being the same offense with which he was charged by complaint in the justice court with having committed.

It appears from the record that prior to the trial of the case against appellant the sheriff who had presided during the term of court at which appellant was indicted had died. Whether Judge Montague ordered that the grand jury be reassembled is not made to appear by direct testimony. However, a deputy sheriff testified that he had received orders to summon the grand jury to appear on the 23rd of January. He did not recall that Judge Montague gave him the order. He testified, further, that he summoned the twelve grand jurors who had served originally on the grand jury and that only ten appeared. The clerk of the court testified that no minute entry had been made setting aside the order discharging the grand jury and directing that they be reassembled. Under the circumstances, appellant insists that he was indicted by an illegal grand jury

Art. 372, C.C.P., provides: “A grand jury discharged by the court for the term may be reassembled by the court at any time during the term. If one or more of them fail to reassemble, the court may complete the panel by impaneling other men in their stead in accordance with the rules provided in this chapter for completing the'grand jury in the first instance.”

Art. 358, C.C.P., reads as follows: “Before the grand jury has been impaneled, any -person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall upon his request be- brought into court to make such challenge.”

Art. 359, C.C.P., provides: “By the array of grand jurors is meant the whole body of persons summoned to serve as such before they have been impaneled.”

Art. 360, C.C.P., reads as follows: “A grand juror is said to be ‘impaneled’ after his qualifications have been tried and he has been sworn. By ‘panel’ is meant the whole body of grand jurors.”

Art. 361, C.C.P., provides:

“A challenge to the array shall be made in writing for these causes only:
“1. That those summoned as grand jurors are not in fact those selected by the jury commissioners.
“2. In case of grand jurors summoned by order of the court, that the'officer who summoned them had acted corruptly in summoning any one or more of them.”

Art. 506, C.C.P., reads as follows:

“A motion to set aside an indictment or information shall be based on one or more of the following causes, and no other:
“1. That it appears by the records of the court that the indictment was not found by at least nine grand jurors, or that the information was not based upon a valid complaint.
“2. That some person not authorized by law was present when the grand jury were deliberating upon the accusation against the defendant, or were voting upon the same.”

Appellant’s attack goes to the organization of the grand jury after it had been recalled. If it should be conceded that the organization was not in strict compliance with statutory requirements because of the fact that no order was shown to have been made by Judge Montague setting aside the order discharging the grand jury and directing that they be reassembled, the opinion is expressed that appellant’s objection came too late when he undertook at a subsequent term of court to attack the legality of the grand jury by a motion to quash. In this connection it is not clear that there was any irregularity of sufficient gravity in reimpaneling the grand jury to warrant us in holding that it was an illegally constituted body. See Millikin v. State, 107 Tex.Cr.R. 332, 296 S.W. 547. As already pointed out, ten men composing the grand jury which had been originally impaneled appeared in answer to a summons by the deputy sheriff. Two others who had served on said grand jury, although summoned by the deputy sheriff, failed to appear. Under the circumstances, the panel was completed by calling two other men to take the places of those who failed to appear. Thereafter the entire grand jury was sworn and impaneled. At all events, prior to the time that the grand jury was reassembled and impaneled appellant had been arrested and, upon waiving an examining trial, had given an.appearance bond. It was therefore incumbent upon him, if he desired to question the legality of the grand jury, to challenge the array. This he failed to do. He is in no position to excuse himself by saying that he was not aware that the grand jury was to be impaneled. Being under a bond to appear before the district court, it was incumbent upon him to keep himself advised as to the proceedings of the court during that term. Having been arrested, appellant was not within the exception to the operation of Articles 358 and 506, which exception is to the effect that the accused may by motion to quash the indictment take advantage of- the same question which would have been available in the challenge to the array provided he had not been arrested or the offense had not been committed at the time of the impaneling of the grand jury which returned the indictment against him. Powell v. State, 99 Tex.Cr.R. 276, 269 S.W. 443, and authorities cited. Another exception may be found in the decisions holding that the act of purported grand juries composed of more or less than twelve men may be attacked even after conviction upon the ground that such bodies are not in fact grand juries, but attempted to function as such in violation of Art. 5, Sec. 13, of the State Constitution, Vernon’s Ann.St. Powell v. State, supra; Ex parte Reynolds, 35 Tex.Cr.R. 437, 34 S.W. 120. This exception has no application to the present case.’ A third exception to the application of the provisions of Arts. 358 and 506 may be found where the record shows an arbitrary disregard of the statutory provisions relating to the manner of selecting the grand jurors. The instant case fails to fall in this exception. In ■ view of our discussion, we are constrained to adhere to the conclusion expressed in the original opinion.

The motion for rehearing is overruled.

PER CURIAM.

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


author: BEAUCHAMP, Judge.

text:
    GORDON v. STATE.
    No. 20741.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for theft of goats; penalty assessed at confinement in the penitentiary for two years.

Appellant entered a plea of guilty to the offense charged. The record is before us without statement of facts or bills of exception. No error having been presented authorizing a reversal, the judgment is affirmed.


text:
    McCORLEY v. STATE.
    No. 20748.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    Jimmie MacNicoll, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for burglary; penalty assessed at confinement in the penitentiary for three years.

The indictment appears regular. ■ Appellant entered a plea of guilty to the offense charged and waived a jury upon the trial. The record is before us without statement of facts or bills of exception.

The judgment is affirmed.


author: BEAUCHAMP, Judge. KRUEGER, Judge.

text:
    SHERMAN v. STATE.
    No. 20574.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    Rehearing Denied Jan. 24, 1940.

      W. Joe Bryan and Fryer & Milstead, all of El Paso, for appellant.
    Roy D. Jackson, Dist. Atty., and Harold S. Long, Asst. Dist. Atty., both of El Paso, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for theft; penalty assessed at confinement in the penitentiary 'for ten years.

This is a companion case, separately tried, to that of Jack Vaughn v. State, Tex.Cr.App., 134 S.W.2d 290 this day decided by the court. They were companions in the transaction. The questions of fact, as well as the questions of law, are identical. We, therefore, adopt our opinion in the Vaughn case as the opinion in this case.

Accordingly, the judgment is affirmed.

On Appellant’s Motion for Rehearing.

KRUEGER, Judge.

Appellant, in his motion for a rehearing, again insists that he was entitled to an instruction to the effect that if the injured party voluntarily and of his own free will delivered the money in question to the defendant with the intention of passing title as well as possession thereof, or if the jury had a reasonable doubt thereof, to acquit him. He was not entitled to such an instruction, because the money was obtained by means of a false pretext and the evidence did not raise the issue. The testimony, in our opinion, shows only that the injured party allowed the defendant to take the money with a condition subsequent attached- — -that they should later divide the entire proceeds. See Dix v. State, 136 Tex.Cr.R. 296, 124 S.W.2d 998, where the authorities are collected. If this court, in cases like the one at bar, should hold that where property was obtained by false pretext, an accused would be entitled to such a charge as was here requested, it would virtually set at nought the statute relative to theft by false pretext.

Appellant next contends that the injured party, Tallman, was an accomplice to the offense of theft from himself of property over the value of $50. This certainly is not sound as a legal proposition.

All other matters complained of have already been discussed in the original opinion in Vaughn v. State, Tex.Cr.App., 134 S.W.2d 290, and we see no need of again discussing them.

The motion for a rehearing is overruled.

PER CURIAM.

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


text:
    JOHNSON v. STATE.
    No. 20677.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1940.

      Florence & Florence, Russell Surles, and Otis Dunagan, all of Gilmer, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

This is an appeal from the District Court of Upshur County in which appellant was given a sentence of fifty years in the penitentiary for murder, the victim being his wife.

The appellant, a negro, lived in a sawmill community in the rural district of Upshur County. According to the written confession made by the appellant and introduced in evidence, he and his wife had had trouble for several years. Their immediate difficulty was because of the fact that the deceased had become infatuated with another man living across the line in Harrison County some distance away. He found a letter, which it is claimed that the deceased had written to this man, disclosing her affections for him, and revealing their relationship to the appellant. This gave rise to the difficulty which for a time promised to end in an agreement that they would attend a gospel meeting which was in progress in that community the next night and get the Holy Ghost together; that each would forget and forgive and try to be happy together. In pursuance of this agreement, appellant went to his work in the morning as a laborer at a saw-mill, while his wife, according to the defense, made her way to the highway looking for transportation into Harrison County to meet the man whom she loved. Learning of this, appellant, with the permission of the foreman of the mill, left his work and pursued his wife. The killing followed soon thereafter, but the details are immaterial to the questions which we will consider on this appeal.

In mitigation of the offense and for the purpose of reducing the penalty which the jury may assess, evidence was offered affecting the mentality of the appellant. In a proper case this evidence may be admissible, but we are unable from the appellant’s bill of exception with the court’s qualification thereof, to say that there was error in the manner in which the evidence was offered and in the light of the objections made.

The State had shown by the written confession of the appellant that he and his wife had been getting along badly for some time. To match this, appellant offered a number of witnesses to show the contrary relationship. It was presented in the bill “in all cases where the State offers testimony to show quarrels, ill will, and a state of bad feeling existing on the part of the person on trial toward the party killed as evidencing a motive for the homicide, evidence tending to show a different state of feeling — that he was kind in his attentions to his wife; that their relations were pleasant and agreeable, ought to be admitted.” We think this bill presents a correct principle of law.

Appellant took the witness stand in his own behalf, and at the conclusion of his testimony he was asked by his attorney if he had ever been charged in the courts of the country with any violation of the law to which he answered that he had not. On cross-examination inquiry was made into certain criminal acts' which the appellant was forced to admit before the jury but which had never resulted in any charges being filed against him and none were pending. This evidence was timely objected to, but the objections were overruled by the court. It was error to go into these specific acts for the purpose of impeaching the appellant as a witness. Burl Simons v. State, - S.W.2d -, not yet reported [in State Reports]; Branch’s Ann. Tex.P.C., p. 102, sec. 168.

By a bill of exception appellant complains of the refusal .of the court to permit him to ask Garfield Hall, a witness, the following question: "Q. Are you acquainted with this negro boy’s general reputation for peace and quietude down in the country where he has been living through the years ?”

It is shown that the witness would have answered that he did know the appellant’s reputation and that he would further have stated that it was good. The State objected on the ground that the question “was too remote to have any bearing on this case and to be admissible in this case.”

In Morton v. State, 111 Tex.Cr.R. 447, 14 S.W.2d 852, 853, this court said: “Long before we had the Suspended Sentence Law (Acts 1911, c. 44), this court repeatedly said that proof of good reputation for peace and law observance was relevant, and to be considered by the jury as any other testimony in determining the guilt of the accused.”

The proposition that a defendant in the trial of a criminal case may show his good general reputation in the community in which he lives is not one open for discussion. It is a matter properly to be considered by a jury, either in determining the guilt of the defendant or in fixing the penalty appropriate to his case. We are unable to see merit in the State’s objection. The exclusion of the evidence by the trial court was error requiring a reversal of the case.

We believe that the foregoing disposes of all the questions presented on appeal which it will be necessary to consider for a proper disposition of the case in this court, as some of the questions would not likely be raised on another appeal, and a discussion of them would hardly be helpful upon another trial of the case.

For the errors pointed out, the case is reversed and remanded for a new trial.

       Not released by court at date of publication.


author: CHRISTIAN, Judge.

text:
    STEVENS v. STATE.
    No. 20730.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    Owen & Bohannon, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

Officers testified that they searched appellant’s residence and found therein approximately one and two-thirds pints of alcohol. There was no proof that appellant had sold or offered to sell any alcohol.

The court did not charge on the presumption arising from the possession of more than one quart of alcohol, there being no evidence authorizing the submission of such matter. Appellant contends that the evidence is insufficient to support the conviction. We feel constrained to sustain his contention. See Rhodes v. State, 115 Tex.Cr.R. 348, 28 S.W.2d 548; Hinton v. State, 135 Tex.Cr.R. 400, 120 S.W.2d 1053.

We quote the rule touching the sufficiency of circumstantial evidence found in Branch’s Ann.P.C., Sec. 1877, as follows: “To sustain a conviction it should appear not only that an offense as charged has been committed, but there should also be proof to a degree of certainty greater than a mere probability or strong suspicion tending to .establish that the party charged was the person who committed it or was a participant in its commission. There must be legal and competent evidence pertinently identifying the defendant with the transaction constituting the offense charged against him.”

It was incumbent upon the state to introduce proof “to a degree of certainty greater than a mere probability or strong suspicion” tending to establish that appellant possessed the alcohol for the purpose of sale.

Believing the evidence insufficient, 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:
    TURNER v. STATE.
    No. 20716.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    Rogers & Spurlock, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possession of whisky in a dry area for the purpose of sale; the punishment, a fine of $100.

As' shown by bill of exception No. 5, appellant was the only witness who was in a position to deny the testimony of the arresting officers to the effect that the car in which she was riding was being driven at a rate of speed in excess of 45 miles an hour. Appellant did not testify in her own behalf. During the closing argument the county attorney indulged in the following language in the presence and hearing of the jury: “There has been no testimony from any witness denying that the car was being driven in excess of 45 miles per hour." When counsel for appellant objected to the foregoing remarks on the ground that they constituted a comment on appellant’s failure to testify the county attorney, in the presence and hearing of the jury, used the following language: “I was only discussing the evidence in the case. I didn’t mean to comment on the defendant’s failure to testify.” Counsel for appellant promptly objected to the argument last quoted on the ground that it constituted an allusion and comment on the failure of the appellant to take the witness stand and testify in her own behalf. We think the bill of exception presents a violation of the mandatory provisions of Art. 710, C.C. P., which prohibits allusion to or comment on the accused’s failure to testify.

In Smith v. State, 106 Tex.Cr.R. 586, 294 S.W. 221, 222, the following remarks of the district attorney were held by this court to constitute a direct allusion to the failure of the accused to testify: “This defendant not testifying this defendant, I do not mean to refer to this defendant not testifying.”

In Wilcek v. State, 64 Tex.Cr.R. 1, 141 S.W. 88, these remarks of one of the attorneys for the state were held to constitute a comment on the failure of the accused to testify: “The defendant’s defense in this case is — Although he has offered no testimony to that effect, I do not mean to refer to his failure to testify. * * * I have not referred to defendant’s failure to testify. On the contrary, I stated to the jury that I did not so mean to refer to that fact.” See, also, Brumbelow v. State, 122 Tex.Cr.R. 198, 54 S.W.2d 528.

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:
    WELLS v. STATE.
    No. 20723.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    Price & Moss, of Post, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possession of beer in a dry area for the purpose of sale; the punishment, a fine of $100.

The testimony of the arresting officers was to the effect that they secreted themselves near the back part of appellant’s cafe; that they saw some person approach in a truck and stop just back of the cafe; that appellant and Dock Kyle carried from the back of the cafe two cases of beer, Dock Kyle carrying one of said cases; that they placed the beer in a car which was being driven by Dock Kyle; that at this juncture the officers took charge of the beer’and arrested appellant.

Testifying in his own behalf, appellant denied that the beer belonged to him. It was his version that the truck driver purchased it in wet territory and had brought it to the back of appellant’s restaurant for Dock Kyle; that he permitted the beer to remain on his premises merely as an accommodation to Kyle.

The court charged the jury, in part, as follows: “In this connection, you are further instructed that under the law when one stands charged with the offense of possessing liquor for the purpose of sale, the possession by the defendant of more than one quart of such liquor is prima facie evidence of guilt.” This charge was properly and timely excepted to by the appellant. The exception was well taken. The complaint and information charged the possession of beer for the purpose of sale. Subdivision (b), Art. 667-25, Vernon’s Texas P.C., provides: “Possession by any person in any dry area of beer in any quantity exceeding twenty-four (24) bottles having a capacity of twelve (12) ounces each shall be prima facie evidence of possession for the purpose of sale in a dry area.” Manifestly, the charge given by the court was not warranted by the statute.

Upon another trial the court should submit. appellant’s affirmative defense as presented in his requested instruction No. 2.

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:
    SHEPHARD v. STATE.
    No. 20692.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.

      Russell & Edwards, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s A tty., of Austin, for the State.
   CHRISTIAN, Judge.

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

Appellant lived about 350 feet from the store, of H. T. Bowers. A trail led from the back door of the store to appellant’s home. On the 27th of April, 1939, Mr. Bowers’ place of business, was burglarized and a quantity of merchandise taken therefrom. Shortly after the burglary a cap belonging to appellant was found in the trail leading from the store to appellant’s home. Officers testified that, pursuant to a statement made- to them by appellant, while he was under arrest, they went to appellant’s home and recovered a quantity of the stolen merchandise, which they delivered to Mr. Bowers. Mr. Bowers identified the property as belonging to him. It was further the version of the officers that they did not know where the stolen property was until appellant told them it was in his home. Further, they testified that appellant told them that he had entered the store and stolen said property.

Appellant denied that he made any statement to the officers concerning the whereabouts of Mr. Bowers’ property. It was his version that they went to his home and searched it without his consent. Further, he denied that he committed the burglary. However, he stated that he was drunk on the night of the burglary and that if he entered the store of Mr. Bowers and took his property he knew nothing about it.

The court instructed the jury as follows: “If you believe, or have a reasonable doubt thereof, that the alleged stolen property, if any, was not found as a result of statements made by the defendant to the officers, if any, then you will not consider for any purposes any statement made to said officers by the defendant, if any, or anything found as a result of such statement to the officers, if any.”

Further, the court instructed the jury in language as follows: “Or if you believe, or if you have a reasonable doubt thereof, that the officers searched the private residence of defendant, without the free consent of the defendant, then you will not consider for any purpose the statements made to said officers by the defendant, if any, or anything found as a result of such statement to the officers, if any.”

We are unable to agree with appellant that in the foregoing charges the court assumed that appellant made the statements attributed to him by the officers. Such charges appear to leave it to the jury to determine whether the declarations in question were made by the appellant.

We deem the evidence sufficient to support the judgment of conviction.

In sentencing appellant the court failed to give effect to the Indeterminate Sentence Law. See 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 two nor more than four 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.


author: HAWKINS, Presiding Judge.

text:
    ROSS v. STATE.
    No. 20743.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for theft of cattle, punishment being two years in the penitentiary.

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

The judgment is affirmed.


text:
    ROSS v. STATE.
    No. 20744.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted of cattle theft; penalty assessed at confinement in the penitentiary for two years.

Appellant entered a plea of guilty to the offense charged in the indictment. The record is before this court without statement of facts or bills of exception. No error has been presented authorizing a reversal of the conviction.

The judgment is affirmed.


text:
    PARRISH v. STATE.
    No. 20735.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    J. R. Bogard, of San Augustine, and J. R. Anderson, of Center, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

This is the third appeal by Lee Parrish from convictions for the murder of Lonnie Hooper in San Augustine County on October 11, 1934. The penalty assessed by the jury is fifteen years in the penitentiary.

For the opinions on the former appeals, see Parrish v. State, 129 Tex.Cr.R. 626, 91 S.W.2d 366, and 134 Tex.Cr.R. 187, 114 S.W.2d 559.

So far as the facts are given in the former appeals they are practically the same as in this one. It was held in the second appeal that the witness, Boss Brown, was an accessory and an accomplice, and that holding will be adhered to in this case.

The principal question presented is whether or not there is sufficient corroborating evidence of the witness Brown, upon whose testimony the State principally relies, to support a conviction. For the point under consideration it will be necessary to give a rather detailed statement of the evidence as it is found in the present record.

The appellant and his father, Watt Parrish, lived neighbors, their homes being situated on what we would denominate the north-south road and within a few hundred yards of the cross road running east-west. From a point near appellant’s home there was an old winding road running in a southwesterly direction which intersected the east-west road at a point southwest of the appellant’s home and some distance west of the intersection. There was another lateral road leaving the north-south road at a point between the Watt Parrish home and the cross of the roads, going in a southeasterly ' direction which intersected the east-west road at a point east of the cross of the two principal roads. East of this intersection was a school house and beyond that the home of the principal witness Boss Brown. About one o’clock in the afternoon several parties appeared at the home of Watt Parrish and one of them, who lived there, prepared the dinner. Boss Brown, Lonnie Hooper and his cousin, Ewell Hooper, were present. The latter two lived some distance away, and it appears that they were hunting, each carrying a .22 calibre rifle. After lunch the two Hooper boys left the home of Watt Parrish and went in a southwesterly direction across the field or opening and entered the woods where they were later killed about 600 yards away. Their bodies were 130 and 160 yards respectively north of the east-west road and near the foot of a very steep hill on the side of which were trees and shrubbery. Lonnie Hooper, for whose death the appellant was convicted, was a boy sixteen years of age. The age of Ewell Hooper is not given, but he was a young man and spoken of as a boy. Ewell’s body was 160 yards from the road and lay at the foot of the hill, while Lonnie’s body was 130 yards from the road and on the side of the hill. Each body, when found, was pierced with a .22 bullet which produced his death. The bullet which entered Ewell Hooper’s body two or three inches below the navel came out just below the arm pit, ranging upward from the point of entry. The one which penetrated Lonnie Hooper entered just below the top of the breastbone and went practically straight through on a line. The doctor testified that the wound on the body of Ewell Hooper killed him instantly while Lonnie Hooper should have lived from five to fifteen minutes, and.that he would not be deprived of his ability to move until he bled to death, unless he had fainted.

Boss Brown testified that soon after the Plooper boys left the Watt Parrish home, he and the appellant got a bottle of whisky and left the home of appellant, which was a short distance north of the Watt Parrish home, and traveled the road in a southwesterly direction until it intersected the east road; that they then turned east. At a point on the top of a steep hill, appellant stopped, got off his horse, and with the .22 rifle which he carried in his hand, shot down the hill twice. As he did so, the witness heard Lonnie Hooper scream; that he was familiar with his voice and recognized it; that he heard him say, “Oh, Lordy” about twice. The witness did not stop but continued riding in an easterly direction. Appellant soon caught up with him and remarked, “The God damn son-of-a-bitches won’t bother my beer barrels any more.” The witness replied, “You ought not to have done that.” Appellant then said, “You heard what I said; the God damn son-of-a-bitches won’t bother my beer barrels no more”; and also, “You better not tell it.”

No one was present when this conversation took place except appellant and Boss Brown. The witness and appellant continued in an easterly direction to the school house where they waited a short while for the three children of the witness, the largest of whom got on the horse with the appellant and the other two with the witness. They continued east down the road to the home of the witness. This was about 3:30 o’clock in the afternoon. Appellant remained at the home of the witness until about 9 o’clock that night. They drank together and the witness became very drunk, so much so that he was not able to tell just when appellant left and whether or not he took his dog with him, ■except that the dog was not there the next morning. About the time that appellant reached his home he learned of the death •of the two Hooper hoys. He went with ■others to the scene of the tragedy and was there arrested and placed in jail. Quite a number of people had gathered at the place. This was on Thursday. The sheriff visited the scene again the next morning with his deputies and after making further ■investigations arrested the witness, Boss Brown, and took him to jail. It was at this time that he made statements which this •court, on the former appeal, held constituted him an accessory and his testimony that -of an accomplice. See 134 Tex.Cr.R. 187, 114 S.W.2d 559. On the following Sunday the sheriff went again to the scene of the tragedy and discovered the tracks of two horses without shoes along the old road in the southwest direction to the intersection of the east-west road and then east to the top of the hill opposite a point where the bodies were found, at which place there was a break in the tracks. There is no ■attempt to identify these tracks with the tracks of the horses which the appellant and Boss Brown rode on the previous Thursday. There is positive testimony by ■another witness, an officer, that he had ex■amined the roadway for horse tracks prior ■to the Sunday morning and had failed to find them. At the time Brown and the appellant left the appellant’s home together, as above detailed, Brown testified that appellant had a .22 rifle which he carried in his left hand. This fact was denied by ■other witnesses at the house, one of whom was placed on the witness stand by the State. It was also denied by the teacher -at the school and several school children. Brown’s wife and one other, however, testified to seeing the gun at the front .gate of the witness’ home. Their testimony is the only evidence corroborating the witness Brown in his statement that appellant had a gun.

The witness Brown is the only party who testified that the appellant rode in a southwesterly direction from his home or in ■the vicinity of the tragedy, the other witnesses stating that they went south ■and turned east at the cut-off road without .going to the intersection of the two main roads. A state’s witness so testified. The •only evidence corroborating the statement •of the witness Brown in his claim that he -and the appellant rode in the vicinity of ■the tragedy was the fact that the sheriff ■•testified to having seen the tracks of two horses when he examined the roadway the following Sunday. In view of the nature of this testimony and the fact that one officer testified that the tracks were not there at a time previous to Sunday morning and after the killing, we consider this evidence of practically no probative force.

Brown testified that Lonnie Hooper cried out in an audible voice, “Oh, Lordy”, twice, while parties who were in a cotton patch nearby testified that they heard distress cries in the afternoon in the vicinity where the bodies were found, but they do not corroborate the witness as to what was said. It, therefore, appears that the only corroborating testimony to the story as told by Brown is that of his wife and the child at his home, who said that they saw a gun which the appellant had at the front gate.

The physical facts, as embraced in the testimony of the sheriff and the doctor who examined the bodies, together with the positions which they occupied on the hill and at the point at which the appellant was said to have stood when he fired the fatal shots, are significant. The hill was very steep, so steep that one could not climb it walking straight and without the aid of holding on to the trees and bushes. There was considerable shrubbery, and the bodies were from 130 to 160 yards away. One of them (Ewell), who was the greatest distance, was believed by the doctor to have died instantly. The bullets went through one body on a straight line, while it ranged upward from the point of entry in the other. It was claimed that appellant hit each of his victims with a .22 rifle this distance and each bullet struck a vital spot. In view of the fact that appellant was shooting down a steep hill, it can hardly be seen how the bullets would go straight through the bodies, and more remarkable, that one could range upward after entering the body. Another significant fact from the testimony is that the two boys each had a .22 rifle and that each of their guns had in it an empty cartridge at the time the bodies were found, showing that each had fired his gun and had failed to discharge the shell. All of these Jacts were for the consideration of the jury, and also for the consideration of this court on the question as to whether or not the accomplice witness is corroborated in the material facts to which he testified. None of these facts and circumstances in any way aid the State’s case.

In the state of the foregoing facts and because of the failure of the State to corroborate the evidence of the witness Brown on the several material facts to which he testified, this cause will be reversed and remanded for a new trial. It is not amiss for this court to say that unless the State should be able to materially strengthen the corroborating testimony, another trial of the case would appear to be useless.

Appellant also complains of the charge of the court on accomplice testimony. This bill must be sustained. The court did not apply the law to the facts of this case in the manner which has been consistently required. Alsup v. State, 120 Tex.Cr.R. 310, 49 S.W.2d 749; Goldman v. State, 130 Tex.Cr.R. 471, 95 S.W.2d 423; Tullos v. State, 136 Tex.Cr.R. 586, 127 S.W.2d 301; Quinn v. State, 136 Tex.Cr.R. 131, 123 S.W.2d 890. Special attention is called to the case of Quinn v. State, wherein this •court has set out specifically a correct charge on the subject as required under the facts of this case.

The cause is reversed and remanded.


author: KRUEGER, Judge. BEAUCHAMP, Judge.

text:
    SMITH v. STATE.
    No. 20516.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1939.
    Rehearing Denied Jan. 10, 1940.

      Barnes & McElroy, of Terrell, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for theft of property ■over the value of $50; the punishment assessed is confinement in the state penitentiary for a term of two years.

The record before us discloses that on the night </f September 10, 1938, a dance was in progress at Dan Pegues’ Dance Hall in Wood County. Sometime during the night and while the dance was in progress, .someone stolen J. M. Boswell’s automobile. He notified Mr. Pegues, who notified Mr. Taylor, the constable of that precinct, of the theft. Mr. Pegues also informed the officer that appellant and Freeman Sparks were missing from the dance. The constable, accompanied by Mr. Boswell and ■some other parties, immediately began a search for the stolen car. They drove down toward the Sabine River and saw a car coming toward them, which undertook to pass them on the left hand side, but was unable to do so because of the narrow road. The driver fled from the car into the nearby woods, but Sparks remained in the car and was immediately arrested. The car proved to be the one which had been stolen from Boswell. Appellant was arrested a few days later. A complaint was filed against Sparks, appellant and' James Farmer, charging them with the theft of the automobile. Appellant was positively identified by the constable as the driver who had fled from the stolen car. Appellant did not testify but offered an alibi as his defense. This raised an issue of fact which the jury decided adversely to him, and in our opinion the evidence is sufficient to sustain the jury’s conclusion of appellant’s guilt.

By bill of exceptions Nos. 1 and 2, appellant complains because the trial court declined to permit him, on cross-examination of the constable, to prove that James Farmer, one of his co-defendants, had recently been killed by an officer. The state objected on the ground that it was immaterial. Appellant now contends that it was material in that it would apprise the jury of the reason for Farmer’s non-appearance in court to testify in his behalf. We fail to see any merit in his contention. The officer did testify that James Farmer was dead.

By bill No, 3, appellant complains of the court’s action in refusing to permit him to show that his other co-defendant, Freeman Sparks, had been indicted, tried, convicted and given a five year suspended sentence for the theft of the automobile in question. In our opinion this bill fails to show any error. It does not appear that the testimony in question was material, as both appellant and Sparks were found in possession of the stolen car.

Bills of exceptions Nos. 4, 8, 10, and 11 are without merit and we do not deem it necessary to discuss them. By bills of exceptions Nos. 5, 6, and 7, appellant complains of the trial court’s action in declining to permit him to elicit from the constable on cross-examination that nothing had been done with Farmer. There was no error in this ruling; the evidence discloses that Farmer was dead at the time of the trial.

Bill No. 9 complains because the District Attorney asked Mr. Taylor, the constable, whether he began an assault on Pick Smith or whether Smith had begun one on him. Taylor replied that Smith had called him a son of a b- and he had struck him. That this occurrence took place in the office of the justice of the peace. It appears from the court’s qualification to the bill that after the question had been asked and answered, appellant objected thereto on the ground that it was irrelevant, immaterial and prejudicial. No motion was made to withdraw it from the jury. Under these facts, appellant should have made such a motion, and having failed to do so, he cannot thereafter be heard to complain. See Bates v. State, 99 Tex.Cr.R. 647, 271 S.W. 389; Broussard v. State, 99 Tex.Cr.R. 589, 271 S.W. 385.

Bill of exception No. 12 complains of the court’s action in declining to submit to the jury appellant’s special requested instruction to the effect that if the jury believed from the evidence, or had a reasonable doubt thereof, that some person or persons other than defendant took the automobile described in the indictment, then he should be acquitted. We find no evidence which raised such an issue. Consequently there was no necessity for the charge. Bill of exception No. 13 complaining of certain remarks by the district attorney in his closing argument to the jury is qualified by the trial court; as thus qualified it fails to reveal reversible error. Bill of exception No. 14 complains of the ruling of the court in declining to permit appellant to prove by the witness, Abrams, that appellant made certain statements to Abrams about 11 o’clock on the night in question. The bill states that if the witness had been permitted to testify he would have stated that appellant asked him if he were going home soon, and that if he was, he wished to ride with him as he was not feeling well. Abrams had already testified that he met appellant at the cafe about 11 o’clock and took him home. Appellant’s statement about not feeling well seems to us immaterial.

By bills Nos. 15 and 16, appellant complains because the court refused to allow him to prove by the witness Plunket' that on the morning following the theft, the witness while driving through the river bottom was approached by some unknown person dressed only in trousers and shoes, who stated that he had been kidnapped by some persons who had stolen cars in the river bottom. That upon request, Plunket carried him to Grand Saline and let him. out. The stare objected to this testimony on the ground that it was immaterial and the court sustained the objection. We see no error in this ruling. It occurs to us-that what the unknown person said to the witness about being kidnapped by persons who had stolen some cars was merely hearsay.

Bill of exception No. 11a is a bystanders’ bill, controverting the facts set forth in bill No. 11 filed by the trial judge. In the absence of any controverting affidavit by the state, the bystanders’ bill: must be considered as it appears in the record. See 4 Tex. Juris., Sec. 202, p. 288 and authorities cited. Complaint is made therein that at about seven or eight minutes after twelve noon, while the trial was in progress, counsel for appellant sought to have a state’s witness draw a sketch of the relative positions of the stolen car and the car in which this witness was riding at the time the stolen car was first sighted. The court announced that it was lunch time and that court would stand adjourned until 1:30 P. M. Appellant’s counsel objected, announcing that he was particularly anxious to get in this particular testimony, whereupon the court remarked: “Yes, I imagine you: would, Mr. Barnes.”

It is appellant’s contention that this was a remark by the court on the weight of the evidence and tended to convey to the minds of the jury the fact that this testimony was worthless. We are unable to place such a construction upon it. The remark made-by the trial judge was not directed at testimony sought to be elicited by counsel for the appellant. It was directed more to-the attorney himself, and was not a comment on the weight of the evidence. It was time for lunch and the court was to-be recessed until 1:30 P. M.

Furthermore the bill itself does not show the materiality of the testimony sought to-be admitted. Nor is there any showing that there was either a refusal to admit it later or jhat the trial judge subsequently made any comment upon the testimony. The remark of the court, as we construe it, was-merely directed to the attorney’s eagerness to get in the testimony before the midday recess. Considering the bill under the circumstances as they transpired, the time of day and the nature of the remark, we think it falls far short of constituting a comment. by the court on the evidence. See Cole v. State, 51 Tex.Cr.R. 89, 101 S.W. 218; Pilgrim v. State, 59 Tex.Cr.R. 231, 128 S.W. 128; Wofford v. State, 60 Tex.Cr.R. 624, 132 S.W. 929.

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

No error of a reversible nature appearing in the record, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

BEAUCHAMP, Judge.

In the motion for rehearing appellant insists that this court has erred in overruling his Bill of Exception No. 12, and particularly of the fact stated in the opinion that “we find no evidence which raised such an issue.” Appellant has treated at length evidence showing the connection of James Farmer and Freeman Sparks, each of whom was arrested on the charge of the theft of the car with appellant, and cites this as evidence sustaining his contention that an affirmative charge should have been given. We cannot agree with this contention. They were principals, and evidence of their connection is not sufficient as a defensive matter to entitle this appellant to an affirmative charge on his defense that some one else and not himself committed the crime. The evidence in each instance connecting the other parties with the crime also connects the appellant with it. It is not his defense at all. His defense was that of an alibi. Upon the evidence on that subject the court gave a charge properly covering it and which we think submitted the appellant’s defense. Appellant offered no testimony that the car was stolen by some one else but separately relied upon his defense of alibi. The State’s testimony did show the connection of other parties as well as the appellant, but this was properly embraced in the court’s charge and there is not in the record any defensive matter requiring an affirmative charge.

La Fell v. State, 69 Tex.Cr.R. 307, 153 S.W. 884, 885, treats the subject as follows: “It is also a rule of law that, where the court charges a conviction on the theory that the accused was a principal, the converse of the proposition should also be given; that is, that if another did in fact commit the offense, and defendant did not aid and encourage him in the commission and was not present, he would not be a principal.”

In paragraph 4 of the charge the jury is instructed that if they believe from the evidence, beyond a reasonable doubt, that the defendant, Joe Bob Smith, acting either alone or together with others as principals, under the law of principals as previously defined in the charge, committed the offense alleged, that they should find him guilty and assess the punishment therefor in accordance with their finding; that unless they did so find, or if they had a reasonable doubt thereof, they should acquit the defendant.

We have carefully gone into all the evidence in the case again and believe that the foregoing instruction complies with the rule laid down in La Fell v. State, supra, as well as the other authorities cited in the appellant’s motion for rehearing.

Further complaint is made of the action of this court, in overruling Bill of Exception No. 14, in which it is insisted that the testimony of the witness Abrams that the appellant made certain statements to him about 11 o’clock at night showing an intention to go home and that he was not feeling well. This witness testified to facts which, if the jury had believed, would have resulted in their finding in appellant’s favor on his alibi defense. We cannot see that the statements would have added anything to that witness’ testimony or that it would have been in any way helpful to the appellant. We have analyzed this testimony fully and think the original opinion correctly disposed of the bill.

It is true, as insisted, that the evidence against the appellant was circumstantial. His alibi seemed to be a reasonable one, and so far as the record before us is concerned, is forceful. Yet it is all a matter for the jury. There was a proper charge on circumstantial evidence and a proper charge on the defense of alibi. The jury found against him. Appellant thinks that his statement at that time of night that he was not feeling well was a circumstance which the jury was bound to consider in support of his contention and theory that he did not leave home again after arriving there between 11 o’clock and midnight. As we view it, from the distance given and the time at which the automobile was taken, if the jury had found that appellant went to his home at 11 o’clock, he could not possibly have been at the place where the automobile was stolen at the time it was taken. There is nothing to raise a question about his having left home after he once went there. There is no materiality in the evidence under the circumstances of this case, even if it should be held to be admissible. The jury must have found that he did not go home at the time stated.

The motion for rehearing is overruled.


text:
    WALKER v. STATE.
    No. 20698.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    Fred O. Jaye, of DeLeon, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted upon an indictment in the County Court of Comanche County, Texas, for the offense of unlawfully possessing intoxicating liquor for the purpose of sale and was assessed a fine of $200.

There are three bills of exception presented on this appeal, the second one of which complains of the ruling of the court in admitting certain liquor in evidence which had been taken by the officers from the premises of the appellant without a search warrant as required by law. The evidence shows that J. D.-Phel-frey, a representative of the State Liquor Control Board, together with local officers, went to the premises of the appellant and made a search for intoxicating liquor in his absence. They found a tin can buried in the ground covered with dirt underneath the house occupied by appellant as a place of business and which can con-tamed nine pints of intoxicating liquor. Eight pints were produced and offered in evidence. Appellant objected to the introduction of the liquor on the ground that the evidence showed that it had been taken without a search warrant. However, he took the stand in his own behalf and admitted possession of the whisky but said he had it for his grandmother and not for sale. His evidence removes the error in introducing the liquor in evidence.

The information sets out a previous conviction for an offense of like character for the purpose of enhancing the penalty. The court in his charge included the enhanced penalty clause directing that in the event the jury should find that appellant had been guilty of a like offense the minimum penalty would be $200. Inasmuch as the fine fixed was $200, we are unable to say that the jury did not fix this penalty because of such instruction.

The complaint and information are insufficient in that the allegations are only that W. W. Walker was, on the 11th day of October, 1937, in Comanche County, duly and legally convicted “of an offense of like character * * * upon a complaint and information then legally pending in said last named court, and of which the said court had jurisdiction.” While it is not necessary that the former offense should be described with the same particularity as required in charging the present offense, yet it must be described in such a way as to advise the court that it was for an offense of like character and to inform the defendant of the charge against which he must defend. Waltrip v. State, 134 Tex.Cr.R. 202, 114 S.W.2d 555. It must also show that there had been a conviction prior to the commission of the offense for which the defendant was being tried. Neece v. State, 62 Tex.Cr.R. 378, 137 S.W. 919. The time of the conviction, the name of the charge so as to show the nature of the offense, the court in which he was tried, and not the conclusion of the pleader that it was an offense of like nature, must be found in the indictment or the complaint and information. Morman v. State, 127 Tex.Cr.R. 264, 75 S.W.2d 886.

While the jury did not fix the penalty at both a fine and imprisonment, the court’s 'charge authorized them to do so. This was error. Art. 666—41, Vernon’s Ann.Tex.P.C.; Robert Ruffin v. State, Tex.Cr.App., 134 S.W.2d 293, not yet reported [in State reports]; Domingo Garcia v. State, Tex.Cr.App., 135 S.W.2d 107, not yet reported [in State reports].

One other bill complains of the argument of the county attorney. We are unable to see any injury to the appellant by reason of the argument.

The case may be again tried on that part of the complaint remaining after eliminating the reference to a former conviction, unless a new complaint is filed properly charging the former conviction.

The case is reversed and remanded for a new trial.


author: KRUEGER, Judge. GRAVES, Judge.

text:
    MOORE v. STATE.
    No. 20679.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1939.
    Rehearing Denied Jan. 17, 1940.
    Callaway & Callaway, of Brownwood, 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 only question presented is whether the evidence is sufficient to have required the court to charge on implied authority on the part of appellant to sign the name of B. B. Fowler to the alleged forged check. B. B. Fowler, whose name was forged to the check in question, testified that he was a student in John Tarlton College at Stephensville, Texas and had attended said school in the years 1937, 1938, and 1939. That he was acquainted with the defendant, but that there wasn’t any particular friendship existing between them. That he did not authorize the defendant to sign his name to the check. He admitted that he had known the defendant, Moore, at school the year before, and that while at school they ran around together a good deal. He further stated that if he had had any money in the bank and the defendant had asked him, it would have been all-right for the defendant to check on him provided he had come and told him about it. He further testified as follows: “We were pretty good college friends; most boys are. If I had any money in the bank I wouldn’t think the defendant would have been authorized to sign my name to a check without consulting me about it.”

Appellant testified in his own behalf as follows: “I had run around with Fowler and thought it would be alright for me to sign the check on him if I told him about it. I did expect to tell him about it as soon as I could. * * * In two weeks I did not get in touch with the bank or Fowler cither. He, (Fowler), never told'me or authorized me to give a check on him in those words. I ran around with him and thought it would be alright with him for me to sign the check on him if I told him about it.”

The most that can be said of his testimony is that he did not think Fowler would object, and thought he would ratify the act after its commission. We do not think that evidence of friendship and association would be sufficient to raise the issue of implied authority. In support of the opinion here expressed we refer to the following authorities. Art. 993, P. C.; Countee v. State, Tex.Cr.App., 33 S.W. 127; Meredith v. State, 73 Tex.Cr.R. 147, 164 S.W. 1019; Carlton v. State, 60 Tex.Cr.R. 584, 132 S.W. 775.

No other questions being presented by the record, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Motion for Rehearing

GRAVES, Judge.

Appellant again urges that he was entitled, under the facts herein, to have submitted to the jury the issue of implied authority to sign the name of Fowler to the check alleged to have been forged, and that we were in error when we held that the testimony was not sufficient to raise such an issue.

Article 993, P.C. provides that: “When the person making or altering an instrument in writing acts under an authority which he has good reason to believe, and actually does believe, to be sufficient, he is not guilty of forgery, though the authority be in fact insufficient and void.”

It will be observed from, the excerpts of testimony in the original opinion that not only did appellant not have good reason to believe that he had the authority to sign Fowler’s name to the alleged forged check, but he also did not actually believe that he had such authority. The matter seems to have never been discussed between them.

The motion will be overruled.


text:
    HUFFSTUTLER v. STATE.
    No. 20738.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    No attorney 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.

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

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.