author: CHRISTIAN, Judge.

text:
    PIERSON et al. v. STATE.
    No. 21148.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    G. C. Olsen, of Kermit, for appellant.
    ■Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

The proof was uncontroverted that the appellants robbed B. B. Wright at the point of a pistol. Appellants did not testify and introduced no witnesses.

No bills of exception are brought forward.

The judgment is affirmed.

PER CURIAM.

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


source: Caselaw Access Project

author: GRAVES, Judge.

license: Public Domain

text:
    MOSLEY v. STATE.
    No. 21126.
    Court of Criminal Appeals of Texas.
    June 12, 1940.

      McWhorter, Howard & Cobb, of Lubbock, for appellant.
    Lloyd W. Davidson, State's Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted for a violation of the Motor Truck Laws, and appeals.

Appellant insists that the information herein is fatally defective in that it fails to set forth in plain and intelligible words a violation of the statute. The information alleges, in substance, that appellant did operate a combination of vehicles without the same being registered with the State Highway Department of the State of Texas as required by law in this, to-wit: said combination then and there being registered at 18,000 pounds, and the gross weight of said combination of vehicles was then and there 30,800, etc.

It seems that such pleading alleges with fair clarity that this vehicle was registered at a weight, of 18,000 pounds, when in fact the, same weighed 30,800 pounds, or that it was under registered a matter of 20,000 pounds.

It is provided by law, art. 827a, § 5(a), Vernon’s Ann.Cr.St, Penal Code, Vol. 2, that such commercial motor vehicles as the one here under investigation shall be licensed, and shall carry such license receipt on said vehicle, and that the affidavit made relative thereto shall be prima facie evidence of the weight of such vehicle. It was shown by the license found upon this vehicle of Mosley’s that same was licensed at the weight of 18,000 pounds, the load being set by law-at 7,000 pounds, and there remained 11,000 pounds as the registered and licensed weight of such vehicle. The uncontradicted testimony, however, showed that the total weight of load and vehicle was 30,800, an excess of 20,000 pounds. Under the statute this appellant is being prosecuted for operating such a vehicle under a license for a class other than that to which such vehicle properly belongs.

Appellant complains of all the testimony of Jack Reaves, a license and weight inspector of the State of Texas, because that such inspector had no power to inspect appellant’s truck inside the city limits of the city of Lubbock, Texas; and any testimony that was thus found by him was therefore illegally obtained and fell under the ban of Art. 727a, C.C.P., Vernon’s Ann. C.C.P. art. 727a, prohibiting the use of any testimony obtained in violation of any law, etc. We quote the pertinent portion of the inspector’s testimony:

“Jack Reaves, a witness for the State of Texas, on direct examination testified: I am a license and weight inspector and work under the supervision of the Department of Public Safety of the State of Texas, and am employed by the State of Texas.
“In the course of my duty on the 18th day of October, 1939, I saw Ed Mosley operating a truck tractor and semi-trailer on the highway just West of Lubbock outside the City limits. Believing his truck tractor and semi-trailer to be overloaded, I turned and followed him back to Lubbock and when he stopped on Seventh Street in the City .of Lubbock, Lubbock County, Texas, I weighed his truck tractor and semi-trailer with scales furnished me for that purpose by the Department. I found on'inspecting the papers carried by Ed Mosley on this truck tractor and semitrailer that the combination of vehicles was registered for a gross weight of 18,000 pounds, and that the actual gross weight of the truck-tractor and semi-trailer as shown by the scales at the time I weighed them was 30,800 pounds. I noticed that the trailer was loaded with hales of compressed cotton at the time I weighed Ed Mosley. * * *
“I found that Ed Mosley had registered his truck and trailer for an actual weight of 11,000 lbs.; that he had registered to carry 7,000 lbs. on said truck and trailer— making a total gross registered weight of 18,000 lbs.; that the truck itself was not equipped to carry a load, but that the load was carried on the trailer;
“I am not sufficiently acquainted with the makes and models of trailers to know whether a manufacturer would rate Ed Mosley’s trailer as having a ton and one-half carrying capacity; * * *
“I am not in a position to know whether the actual weights of Ed Mosley’s truck and trailer as given on his registration certificate are correct.”

It appears from the above testimony that when first observed by the inspector appellant was outside the city limits of Lubbock, Texas, and that he drove into the city limits while in sight of the inspector. If it be conceded that a State inspector cannot exercise any jurisdiction over improperly loaded or registered vehicles while same are operating exclusively within an incorporated city or town, nevertheless that does not mean that when he has seen a vehicle which he has probable cause to believe is violating the State statute, and that the same was at such time being operated on a State highway, that the inspector’s powers to search and arrest for such violation ends when the unlawfully operated vehicle has reached the fancied sanctuary of an incorporated city or town. The arrest and detention was based on an offense committed on the highway and not for one committed within the precincts of Lubbock.

Again we think it clear that not only was no law violated by the stopping and weighing of such motor vehicle, but that same was in consonance with Art. 827a, supra. See Cook v. State, 137 Tex.Cr.R. 54, 128 S.W.2d 48; New Way Lumber Co. v. Smith, 128 Tex. 173, 96 S.W.2d 282.

This appellant was convicted for the offense of an improper registration of a motor vehicle, and the proof does not ' show what the proper registration of this motor vehicle should have been. It may have contained a load of 19,800 pounds of freight, thus carrying an overload above the legal 7,000 pounds of 12,800 pounds. However, appellant was not charged with carrying such overload. He was charged with an improper registration of his motor vehicle, and according to our judgment such was not proven. If the truck and tráiler weighed more than 11,000 pounds, which taken with the allowed 7,000 pounds would make 18,000 pounds, then such is not shown by the proof.

Therefore the judgment is reversed and the cause is remanded.


author: BEAUCHAMP, Judge.

text:
    ORR et al. v. STATE.
    No. 21083.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    R. S. Ragsdale, of Burkburnett, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

This is a bond forfeiture case.

The statement of facts does not show that the State offered in evidence, upon the trial of the case, the bond upon which the forfeiture was predicated; nor does same appear in the transcript.

The appellants answered by general demurrer and general denial. The State was, therefore, under the burden of introducing in evidence the bail bond, in order to be entitled to judgment. White v. State, 101 Tex.Cr.R. 505, 276 S.W. 274; Baker v. State, 21 Tex.App. 359, 17 S.W. 256.

It follows that the judgment is not supported by the evidence.

The judgment is reversed, and the cause is remanded.


author: KRUEGER, Judge.

text:
    HERGESHEIMER v. STATE.
    No. 21149.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    Nat Gentry, Jr., and J. Y. Gray, both of Tyler, for appellant.
    Milton Greer Mell, Dist. Atty.,of Gilmer, Warren McDonald, Co. Atty., Smith County, of Tyler, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

The testimony adduced by the State, briefly stated, shows that LeRoy Higgins, the appellant’s step-son, died on the 14th day of May, 1939, from the effects of strychnine poison. The appellant and his wife had gone on a visit to the home of the appellant’s brother-in-law and were not at home at the time the boy became violently ill and died. The doctor who was called to administer to the boy found him in a violent convulsion and immediately diagnosed the case as poisoning.' He found a jar of jam and bread on the kitchen table which indicated that the boy had eaten some of it. The doctor took charge of the same and sent for the officers. When appellant, his wife and mother-in-law returned, the doctor inquired of appellant if there was any strychnine about the place. Appellant replied in the affirmative and showed him where it was. The officers took charge of it, as well as the jam and other articles on the kitchen table. The body of the deceased was taken to a hospital where the stomach was removed and then taken to the office of the State Chemist at Austin, Texas, who made an analysis of its contents and found that it contained strychnine in a sufficient quantity to have caused the death of any human being. Appellant, his wife and mother-in-law were arrested on Tuesday afternoon immediately after the body had been interred. Appellant was taken from the Smith County jail to the jail at Canton and from there to the jail at Athens, during all of which time he was questioned by the officers with a view and purpose of getting a confession. He was taken back to the court house at Tyler in Smith County about midnight on Wednesday, May 17th, where he made a confession.

The State, for the purpose of showing a motive for the commission of the alleged offense, proved that the mother of the deceased carried a policy of insurance upon the life of the boy in the sum of $1,000, payable to her upon his death, which she collected after he died.

Appellant took the witness-stand in his own behalf. He denied that he mixed and mingled strychnine with the jam or any other food with the intention of poisoning the deceased.

The grandmother of the deceased, who was called by the State as a witness, testified that appellant at all times treated the deceased kindly and the deceased thought a great deal more of the appellant than he did of his own father.

Appellant denied that the purported confession was voluntary or that it was true. He testified that he was mistreated by the officers who had him in charge until he decided to make the kind of a confession that they desired. The officers denied that they mistreated him. They gave as their reason for taking him from jail to jail that they did not want any interference by writ of habeas corpus until they got through with him.

By Bills of Exception Nos. 1 and 2 appellant complains of the action of the trial court in admitting in evidence the purported voluntary confession made by the appellant to Warren McDonald, County Attorney in and for Smith County, Texas. The formal part thereof reads as-follows: “I, W. A. Hergesheimer, Jr., having been duly warned by Warren McDonald, County Attorney of Smith County, Texas, that I do not have to make any statement at all, and that any statement I make may be used in evidence against me in my trial or trials concerning which this statement is made, do nevertheless, freely and voluntarily make the following voluntary statement:”

The bill shows that appellant was under arrest and in custody of the officers at the time of the making of the alleged confession. Appellant objected to its introduction in evidence because the confession upon its face failed to show that it was made to the, person' by whom the warning was given as required by the statute, Art. 727, C.C.P. The objection was overruled, the confession was admitted in evidence and the appellant in due time excepted to the ruling of the court.

A similar question as the one presented here has been before the court in a num: ber of cases and they sustain the appellant’s contention. In the case of Jenkins v. State, 60 Tex.Cr.R. 236, 131 S.W. 542, Judge Ramsey, who was then a member of this court, dissented from the rule theretofore announced by this court in the case of Young v. State, 54 Tex.Cr.R. 417, 113 S.W. 276, but the majority of the court adhered to the former rule and since then this court has consistently adhered to the rule of the majority. See Henzen v. State, 62 Tex.Cr.R. 336, 137 S.W. 1141; Boxley v. State, 100 Tex.Cr.R. 334, 273 S.W. 589; Justice v. State, 112 Tex.Cr.R. 586, 18 S.W.2d 657; Miller v. State, 113 Tex.Cr.R. 417, 21 S.W.2d 304; Grice v. State, 115 Tex.Cr.R. 64, 29 S.W.2d 793.

The bills further show that before the confession was admitted in eyidence and in the absence of the jury the appellant' testified that he was arrested by the officers on Tuesday afternoon; that he was taken to the Smith County jail and that night was taken from there to the Canton jail, and from there to the Athens jail; that while he was thus confined the officers, by force and threats, caused him to make the kind of statement which they desired. He testified that they whipped him and constantly questioned him from the time he-was arrested until approximately 11 or 12 o’clock on Wednesday night. The officers denied having whipped him but admitted that they constantly questioned him and moved him from jail to jail with the view and for the purpose of avoiding any interference by a writ of habeas corpus with their object and purpose in securing the confession; that they wanted to get through with him before they could be served with a writ of habeas corpus. It seems that the object of the officers , in moving him from place to place and from jail to jail was to suspend the writ of habeas corpus until they got through with him. What did they mean by “getting through with him ? ” It can mean nothing more than that they wanted to obtain a confession by subjecting him to physical force or to such mental strain as would break his will-power; to get his mind in such a state that it would be subject to and readily yield to the entreaties of the officers. The action of the officers in moving appellant from place to place with the purpose in view of preventing him from obtaining a writ of habeas corpus was in violation of the Constitution of this state, which provides that the writ of habeas corpus shall never be suspended. The uncontradicted testimony of the officers as to the length of time and the manner of their questioning the appellant, we think, brings this case squarely within the rule announced by the Supreme Court of the United States in the case of Bob White v. State, 60 S.Ct. 1032, 84 L.Ed. -, to which reference is here made. Consequently, we are constrained to reverse the judgment of the trial court and remand the cause for another trial.

PER CURIAM.

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


author: ' GRAVES, Judge.

text:
    COTHREN v. STATE.
    No. 21135.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    J. Mitch Johnson, of San Saba, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   ' GRAVES, Judge.

Appellant was convicted in the county Court of a violation' of the liquor laws of this State, and fined $250.

A former conviction was alleged and offered as an enhancement of the penalty. The number of this former conviction was 1744 in such county court. It appears from the record that such cause No. 1744 was successfully used in the trial of a former case against this same appellant, the county court number being 1786, our number 21134, Jack Cothren v. State, - S.W.2d -, this day decided, and in consonance with the doctrine that a former conviction for a like offense can be successfully used but once for the purpose of enhancing the punishment, this judgment is reversed and the cause remanded.

       Not released by court at date of publication.


text:
    COTHREN v. STATE.
    No. 21133.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    J. Mitch Johnson, of San Saba, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted by a jury fora violation of the local option liquor laws, of such county, and upon a pleading alleging a former conviction for a similar-offense he was fined $200.

There are three cases against the same defendant appealed to this court, and hearing our numbers 21133, 21134 and 21135. This No. 21133 being an appeal in the county court No, 1784, No. 21134 - S.W.2d-, being an appeal in the county court No. 1786, and No. 21135, 141 S.W.2d 600, being an appeal in the county court No. 1788.

It appears that appellant had been convicted in county court cause No. 1744 on November 4, 1938 as shown in Book 3, page 538, of the minutes of the San Saba County Court, and that such prior conviction was the one relied upon for an enhancement of punishment in this case. It also appears that such county court cause No. 1744 had been previously introduced and relied upon in county court cause No. 1786 for the purpose of an enhancement of punishment, such county court cause No. 1786 appearing before us at the present time as our cause No. 21134. This prior conviction can not be used but once, for the purpose of an enhancement of the punishment. See Eddie Miller v. State, Tex.Cr.App., 140 S.W.2d 859, decided May 29, 1940, and not yet published in state reports. It is evident, however, that the jury herein did use such county court cause No. 1744 for the enhancement of punishment in this cause in that they gave appellant a fine of $200, or double the lowest penalty.

On account of the error in allowing such cause No. 1744 to be used the second time for the enhancement of the penalty, this judgment is reversed and the cause remanded.

       Not released by court at date of publication.


author: BEAUCHAMP, Judge. GRAVES, Judge.

text:
    WOLFENBERGER v. STATE.
    No. 20830.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    On Motion to Reinstate Appeal June 12, 1940.
    M. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson* State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted in the District Court of Stephens County for the offense of driving an automobile upon a public highway while intoxicated, and his punishment was assessed at confinement in the penitentiary for two years.

The transcript in the case fails to show any notice of appeal. This is essential to confer jurisdiction on the reviewing court. See Art. 827, Vernon’s Ann.C.C.P., 1925, and authorities collated under said article.

The appeal is dismissed.,

On Motion to Reinstate Appeal.

GRAVES, Judge.

This appeal has been heretofore dismissed because of- the lack of a notice of appeal appearing in the record. It now appears that such notice was properly and timely given, but through an oversight same was not included in the transcript. Such a defect has now been remedied, and we reinstate the appeal and consider the case upon its merits.

It appears from the facts that appellant while drunk and under the influence of intoxicating liquor drove and operated his motor vehicle upon a public highway. This is shown by many witnesses, and there was no testimony to the contrary. In fact the only witness introduced by appellant served to strengthen the case against him. It was also shown without contradiction that appellant had theretofore been convicted of an offense of a similar nature, and such previous conviction was set forth in the indictment for the purpose of an enhancement of the penalty.

The main question raised herein appears in appellant’s objections to the court’s charge relative to the paragraph therein where the trial court submitted in a conjunctive way both the instant offense and the former offense, coupled together, and in effect instructed the jury that unless they believed beyond a reasonable doubt that appellant drove and operated his motor vehicle while in a drunken condition, in the instant case, and also unless they believed beyond a reasonable doubt that he had theretofore, in a named case, been convicted of the offense of driving a motor vehicle while in a drunken condition, then they should acquit the defendant.

This was a more liberal charge than appellant was entitled to under the facts. There was no question of any kind made relative to the prior conviction; it was amply proven by the record, and appellant was identified as the same person convicted therein. There was also no issue raised in the instant trial; no denial is made in either instance.

We think the better procedure would have been for the court to have first presented to the jury the proposition of, ascertaining appellant’s guilt in the instant case in a separate paragraph. In a succeeding paragraph he should have further submitted to the jury that in the event they should find the defendant guilty of the offense therein charged, then they should further consider whether this same defendant had theretofore been convicted of a similar offense as alleged in the indictment.

In the present instance the trial court told the jury that before they could convict the appellant of any offense, even the instant one, they must believe him guilty of both offenses.

There was no denial of either offense by anybody, and no proof offered relative to the prior offense save that of the State, and no cross-examination of the State’s witnesses relative to the prior offense.

Art. 666, C.C.P., reads as follows:

“Whenever it appears by the record in any criminal action upon appeal that any requirement of the eight preceding articles, has been disregarded, the judgment shall' not be reversed unless the error appearing' from the record was calculated to injure-the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal or modification of special charges-shall be made at the time of the trial.”

Applying the doctrine laid down in Art.. 666, C.C.P., we are of the opinion that it appears from the record that the objected to charge of the court was not under the circumstances here present calculated to-injure the rights of the defendant, and' that it does appear therefrom that he had had a fair and impartial trial.

The above ruling practically disposes of all matters raised by bills of exception, and they are all overruled.

The judgment is affirmed.


author: CHRISTIAN, Judge. HAWKINS, Presiding Judge.

text:
    BARNES v. STATE.
    No. 21065.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    Rehearing Denied June 28, 1940.

      Kennedy & Granberry, of Crockett, 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.

Mobley Curvey lost a cow which had been ranging in his pasture. The animal apparently had gone through bad fences to appellant’s pasture. About six days after Curvey lost his cow she was recovered by an officer and delivered to Curvey. He positively identified her as his animal. The proof showed that the cow had been in appellant’s possession and that he had sold her to Ned Coleman.

The state introduced appellant’s confession, which, omitting the formal parts, reads as follows: “Last Monday night a week ago I went into my pasture and got two yearling calves. One of them belonged to Myrtle Jackson and I didn’t know at that time who the other one belonged to. Myrtle had let me keep some cows for her in my -pasture and this was one of her calves. I went over to Percilla to see Mr. Ned Coleman about buying these calves. I went over there it must have been about 10 o’clock that night. I told him that the woman hadn’t treated me right and I was going to sell them to get some pay for my trouble. He said he couldn’t get over there that night. I told him I wanted them out of there that night. Then he asked me what kind of yearlings there was and I told him to the best I could and we agreed that he would pay me $15.00 and I agreed to take $15 for both of them. Then he told me that he guessed he come on tonight. I left and went home from his house and when I got home I went out to the barn and let the horses out. I went from the barn to get the yearlings out of the pasture I carries two rope lines and put the ropes about their necks and led them to Gayney ford. When I got there Mr. Ned was there waiting for me. I had told him to come down the road like he was going to the Gayner ford. He was in a Chevrolet 2-door sedan. I would be for sure about the model but I think it was a 1934. I think it is black but I am not for sure about that either. We loaded the two calves in the back seat of the car. I don’t think the seat was in there I think it had been taken out. After we loaded them he paid me. He just handed me two bills, a ten and a five. Today I learned that the other calf belonged to Mobley Curvey. I knew at the time that I sold it to Mr. Coleman that it didn’t belonged to me and I knew neither one of them didn’t belong to me. I really knowed that night I was doing wrong. I knew that I was violating the law.”

Taking the stand in his own behalf, appellant denied that he had fraudulently taken Curvey’s cow. It was appellant’s version that Myrtle Jackson’s cattle were in his pasture and that she had given him authority to sell the increase of such cattle, and that when he took up Curvey’s animal and sold it he believed that it was the increase of Myrtle Jackson’s cattle. Myrtle Jackson testified that appellant had the authority to sell her cattle. However,' she said: “I did not mean that he could take the cattle and sell them and stick the money in his pocket without asking me anything about it. He never did pay me any money for the calves he sold on the night of April 17th. And he has not paid me until yet.” The witness stated further that she had made no demand on appellant for the money.

It is appellant’s contention that the evidence is insufficient to sustain the conviction. We are unable to agree with this contention. In the confession, which we have heretofore set out, appellant stated that one of the animals he sold to Ned Goleman belonged to Myrtle Jackson. However, he also stated that he did not know at the time he made the sale who the other animal belonged to. In short, the jury were warranted in concluding, from the statements embraced in the confession, that appellant did not think at the time he sold Curvey’s cow that she belonged to Myrtle Jackson. Appellant stated in the confession that the animal did not belong to him.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

HAWKINS, Presiding Judge.

Appellant renews his contention that the evidence does not support the conviction. In the light of this insistence we have again examined the facts and the opinion expressed originally has not been changed. It is not deemed necessary to further discuss in detail the evidence.

The motion for rehearing is overruled.


author: GRAVES, Judge. CHRISTIAN, Judge. GRAVES, Judge.

text:
    BURNS, Jr. v. STATE.
    No. 20941.
    Court of Criminal Appeals of Texas.
    March 27, 1940.
    On Appellant’s Motion to Reinstate Appeal May 1-5, 1940.
    Rehearing Denied June 26, 1940.
    M. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

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

The recognizance in this cause is an exact counterpart in the undertaking portion thereof as the one set forth in I. B. Burns, Sr., v. State, Tex.Cr.App., 140 S.W.2d 175, this day decided, and is defective in the same particulars as set forth in that cause.

• For the reasons therein stated, this appeal is dismissed.

On Appellant’s Motion to Reinstate the Appeal

CHRISTIAN, Judge.

The record having been perfected, the appeal is reinstated and the case considered on its merits.

Appellant and Roscoe McChristy were driving around the town of Brownwood, and at about 3 o’clock in the morning they drove into a blind alley, and, turning off the lights of the car, appellant drove into a yard at the end of the alley and up to a vacant barn. The barn door was locked with a Yale lock, and certain peace officers were secreted near the barn. Upon appellant’s companion getting out of the car, appellant and McChristy were taken in charge by the officers, and McChristy was told to unlock the door. On his failure to do so he was struck over the head with a pistol, at which point appellant said, “I have- a key to the door,” and he came and unlocked the door. The officers found three cases of beer in the barn. Each case contained 24 cans; and éach can was of 12-ounce capacity. McChristy testified that appellant had said something to him about going down there and getting some beer. However, the witness said he did not know whose beer it was.

The court charged on circumstantial evidence. We deem the circumstances sufficient to exclude every other reasonable hypothesis than appellant’s guilt. He knew where the beer was located, and had the key to the door. Appellant’s action in going to the barn in the alley, together with all the facts and circumstances in evidence, warrant the conclusion that he was either sole or joint possessor of the beer.

Bill of exception No. 2 complains as follows: “Because the court erred in overruling the defendant’s motion for a continuance on being forced to trial with a jury panel consisting of pick-up jurors, and being forced to trial with only three jurors selected by a jury commission.” The bill is qualified as follows: “With the qualification that a regular jury was selected by a jury commission and was in attendance at the trial, but some of them were on another jury and it was necessary to send the sheriff out to pick up some additional talesmen to fill in with the regular jurors on the panel; there were more than three regular jurors on the panel but that many selected to try case.” As qualified, the bill fails to reflect error.

There were many bills of exception to the court’s failure to give in charge to the .jury certain requested instructions; but we do not find such charges presented to us in the record, and therefore cannot appraise such bills.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

In his motion for a rehearing appellant brings no new matters to our attention. We are still impressed with the correctness of our original opinion, and this motion is overruled.


author: GRAVES, Judge. CHRISTIAN, Judge. KRUEGER, Judge.

text:
    McCHRISTY v. STATE.
    No. 20945.
    Court of Criminal Appeals of Texas.
    March 27, 1940.
    On Appellant’s Motion to Reinstate Appeal May 15, 1940.
    Rehearing Denied June 26, 1940.

      M.. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

The offense charged is possession of beer for the purpose of sale in a dry area, and punishment fixed at a fine of $150.

The recognizance in this cause is an exact counterpart in the undertaking portion thereof as the one set forth in I. B. Burns, Sr., v. State, Tex.Cr.App., 140 S.W.2d 175, this day decided, and is defective in the same particulars as set forth in that cause.

For the reasons therein stated, this appeal is dismissed.

On Appellant’s Motion to Reinstate the Appeal.

CHRISTIAN, Judge.

The record having been perfected, the appeal is reinstated and the case considered on its merits.

Peace officers located three cases of beer in a vacant barn and were watching the barn. About 3 o’clock in the morning on the date of the alleged offense appellant and I. B. Burns, Jr., came into the yard in a car, turned out their lights and drove up to the barn, and the officers told them to put up their hands. Appellant was told to open the door to the barn. Appellant tried some of the keys he had and finally said he had lost the key. Appellant then threw something away and an officer struck him over the head with a pistol. Burns came up and said, “I have a key.” Burns unlocked the door and the officers took possession of three cases of beer which were in the barn, —72 cans of 12 ounces each.

Appellant testified that he and Burns were driving around visiting different inns on the night in question, and finally, after having gone in swimming, they started home and went by the place where the beer was located. Both of them went over to get a case of beer. Appellant testified, further, that it was not his beer and that he did not have a key to the barn. It was his further version that he did not know the beer was there.

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

Bill of exception No. 1 complains because of the fact that appellant was forced to trial with only three jurors selected by the jury commission. The bill further recites that appellant had been tried twice before' with the same jury panel, for an offense of like character. The court’s qualification to the bill is as follows : “That there were on hand a jury picked up by a jury, commission, but it was necessary to send the sheriff out to pick up some additional talesmen to fill out the panel, and the jury acquitted the defendant in the other cases, and there was no connection between those cases and this one; they were at different times and different places, and most of the witnesses were different.” As qualified, the bill of exception fails to reflect error.

The remaining bills of exception relate to the court’s charge and objections thereto. We do not understand the bills to show that appellant filed written exceptions to the charge of the court. It might be added that it appears that no requested charges covering the subjects appellant claimed were omitted from the charge were presented to the trial court. This being a misdemeanor, the requested instructions should have been presented to the court. See Steele v. State, 134 Tex.Cr.R. 620, 117 S.W.2d 74.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

KRUEGER, Judge.

In his motion for a rehearing, appellant insists that we should have reversed the judgment of the trial court on the ground of the insufficiency of the evidence to support his conviction. We have again very carefully reviewed the record and see no reason for receding from the original opinion herein delivered by this court.

Appellant also complains because we overruled his bills of exception. These bills were considered by the court and were deemed to be without merit.

Nothing new or novel having been presented by the appellant in his motion for rehearing, the same is in all things 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:
    RUSHING v. STATE.
    No. 21146.
    Court of Criminal Appeals of Texas.
    June 19, 1940.
    H. F. Grindstaff, of Rotan, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is the sale of whisky in a dry area. The punishment assessed is confinement in the county jail for a period of thirty days.

The record reflects that upon the trial of the case appellant admitted that Fisher County was a dry area.

The State introduced J. M. Rich, an agent of the Texas Liquor Control Board, who testified that on the 11th day of June, 1939, he went to the appellant’s place of business located at Rotan, in Fisher County, and purchased from him one pint of “Spot” liquor; that he paid appellant $1.50 for said liquor; that when he left the appellant’s place of business,he went'immediately to the office of the sheriff of Fisher County and delivered to him the whisky in question, which was identified by the witness when offered in evidence.

Appellant took the witness stand in his own behalf and testified that J. M. Rich employed him to gather horses for him; that he offered to pay appellant $20 if he could gather him a- herd of horses. He denied that he sold any whisky to Rich either on June 10th or 11th or at any other time; that sometime prior to June 10th or 11th, the witness Rich came to the appellant’s place of business and left some beer; that on the morning of June 11th he came back and called for the beer which he had left there.

A. C. Dyson, who was a son-in-law of the appellant, testified that he was at the appellant’s place of business on Sunday, June 11th, when J. M. Rich was there; that he heard Rich ask for some beer which he had theretofore left at the appellant’s place of business; that appellant and Rich drank some of the beer; that no money was passed ; and that appellant did not sell or offer to sell any whisky to Rich.

Luther Milwee testified that he was at the appellant’s place of business on the morning of June 11th; that J. M. Rich came there and drank some beer with the appellant; that appellant did not sell any whisky to Rich; that he (witness) was not related to the appellant in any way.

This was all of the testimony adduced upon the trial of the case.

Appellant urges five legal propositions upon which he asks for a reversal of this case. We do not deem it necessary to discuss all of them in view of the disposition we are making of the case as some may not arise again upon another trial.

By Bill of Exception No. 4 appellant complains of the action of the court in permitting the County Attorney, over the appellant’s objection, to ask Luther Milwee on cross-examination if he had not on a former occasion testified in behalf of Jim Gallagher, who was being tried for having violated the liquor lrw, to which question appellant objected because it was irrelevant, immaterial and highly prejudicial. The objection was overruled and the witness was compelled to testify relative to being a witness in the case of the State oj Texas v. Jim Gallagher. The bill shows. and the court so certifies, that Jim Gab lagher had been convicted in Fisher Count}' several times for violations of the liquoi laws; that he was twice-under injunction of the District Court with reference to liquor law violations and his cases had been before the court many times, all of which was well known to the jurors of Fisher County; that the county attorney, by being permitted to go into the matter held the witness up to the jurors as a supporter of bootleggers and thereby discredited his testimony.

We think this action on the part of the trial court reflects reversible error. It left the impression with the jury that the witness Milwee was standing in with the bootleggers; that he was a witness for the bootleggers; that he was attempting to assist them in escaping punishment for such violations of the law. Such question on the part of the County Attorney tended to discredit the witness, who had testified that he was present on the'day in question and that .appellant did not sell any liquor or whisky to J. M. Rich. He being the only disinterested person who testified on behalf of the appellant, the fact that the witness Milwee did testify in the cases against Jim Gallagher did not tend to shed any light upon the question at issue in this case, and the only purpose that it could serve was to discredit the witness in the eyes of the jury.

In Tex.Jur. Vol. 44, p. 1156, sec. 153, it is stated that, generally speaking, the court should refuse to permit a witness to be cross-examined as to matters that are irrelevant and immaterial to any issue in the -case. See Coker v. State, 103 Tex.Cr.R. 588, 281 S.W. 572; Ross v. State, 53 Tex.Cr.R. 295, 109 S.W. 152.

By Bill of Exception No. 5 appellant complains of the following remark made by the County Attorney in his closing argument to the jury: “I and the other officers of the county had brought J. M. Rich, Inspector of the Liquor Control Board, into the county for the specific purpose of catching Joe Rushing and Jim Gallagher.”

Appellant then and there in due time objected to the remark upon the ground that the same was the unsworn testimony of the County Attorney; that it was inflammatory and prejudicial. The court sustained the objection insofar as it related to Jim Gallagher but overruled the objection insofar as it related to the appellant, Joe Rushing, to which action of the court the appellant excepted. It occurs to us that the remark was entirely uncalled for. There is no evidence in the record that the County Attorney and the other officers imported J. M. Rich, Inspector for the Texas Liquor Control Board, into the county for the specific purpose of catching the appellant and Jim Gallagher for violations of the liquor law. The remark, if not directly, then indirectly, conveyed the idea to the jury that the County Attorney and the other officers knew that the appellant, as well as Jim Gallagher, was violating the local option law in Fisher County. That this remark was prejudicial and harmful is obvious. It should not have been indulged ⅛. See Beckham v. State, 123 Tex.Cr.R. 108, 58 S.W.2d 102; Boyd v. State, 108 Tex.Cr.R. 221, 299 S.W. 645; Benavides v. State, 111 Tex.Cr.R. 361, 12 S.W.2d 1031; Lynch v. State, 81 Tex.Cr.R. 64, 193 S.W. 667.

The other matters complained of most likely will not arise again upon( another trial and therefore we pretermit a discussion thereof.

For the errors herein discussed, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

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


text:
    GALDI v. STATE.
    No. 21153.
    Court of Criminal Appeals of Texas.
    June 19, 1940.

      Geo. W. Harwood, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of an assault to murder with malice upon one Mildred Turner, and was by the jury given a penalty of ten years in the penitentiary.

There are no bills of exception presented to us, and the statement of facts reflects but a revolting record of an alleged sexual pervert in an underworld of distorted and wasted lives. It would add nothing to the State’s jurisprudence to recount the nauseating facts of the night-life of both of these unfortunate people, and we will only say that we think they are sufficient to evidence the appellant’s guilt of the offense charged and as found by the jury. The trial court, in an admirable charge, seems to have given the appellant every conceivable right raised by the evidence, and perceiving no error reflected by the record, the judgment is affirmed.


author: GRAVES, Judge. KRUEGER, Judge.

text:
    Ex parte SLAWSON.
    No. 21162.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    Rehearing Denied June 26, 1940.
    Clarence L. Waters, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Relator comes before us upon refusal to grant a discharge upon a writ of habeas corpus before District Judge McCrory, the basis of his request being that he was tried in one of the justice courts in San Antonio for a disturbance of the peace, and there fined $1 and costs; that he appealed such case to the county court at Law No. 2 of Bexar County, and was there again tried and fined $5 and costs. That a capias pro fine was thereafterwards issued by the clerk of said court No. 2 for the total sum of $32.75; that upon such capias he was held by th’e sheriff of Bexar County.

We are not favored with any briefs in this matter, but we gather from the application for a writ of habeas corpus that relator attacked the validity of Art. 474, Penal Code, and says that the same was void because same was vague, indefinite and uncertain, and does not set forth in intelligible language that which is necessary to constitute the conduct that is calculated to disturb the inhabitants of a public place, etc.

It is evident that relator is attempting to make the writ of habeas corpus serve as an appeal to this court by means of- attacking Art. 474, Penal Code, and claiming that the same is void for uncertainty, etc.

It is observed that relator has had his right of appeal from the justice court to the county court, and his case was finally disposed of in the county court, and under Art. 53, C.C.P., we have no jurisdiction of a further appeal in this matter. However, if the statute itself is void and infringes upon his constitutional rights, then relator would have his right of habeas corpus to relieve himself from custody under the capias pro fine issued under the judgment of conviction in the county court at law.

As to the statute, Art. 474, P.C., same evidently had its conception in Art. 2012, Pascal’s Digest. Such article was amended on October 20, 1866, so as to read as follows:

“If any one or more persons shall in any public place by loud and vociferous talking, swearing, or rudely displaying any pistol or, any other deadly weapon, so as to disturb the inhabitants of the place, in the prosecution of their lawful business, any person engaged in such disturbance shall be fined in any sum not exceeding fifty dollars.” Gammers Laws, Vol. 5, p. 978.

In 1883 this statute was again amended and thus appears in its present form in Vernon’s Criminal Statutes, Vol. 1, Art. 474, P.C.

In the case of Sisk v. State, 35 Tex. 495, 496, relative to the act of October 20, 1866, supra, that court held:

“A somewhat novel question is presented in this record. The appellant, with one other, was indicted at the February term, 1871, charged with ‘rudely displaying pistols,’ and was tried, found guilty, and fined. The indictment was founded on the act of October 20, 1866, which was intended to repeal and supercede article 2012, Paschal’s Digest. It is insisted that the law is void for uncertainty and for want of completeness.
“Upon an examination of the law we do not so consider it. The law is unmistakably plain in its meaning, and in nowise subject to the hypercriticism passed upon it by the appellant’s counsel. The judgment of the district court is' affirmed.”

It will be noted that the act of 1866 is in its major aspects similar to the present Article 474, and that case is an authority, if such be needed, for our holding herein, that this time-honored statute is sufficiently certain to inform relator of the offense with which he stood charged.

We do not think the statute subject to the criticism leveled against it.

The judgment is affirmed.

On Motion for Rehearing

KRUEGER, Judge.

Appellant, in his motion for a rehearing, reasserts that Article 474 of Vernon’s Annotated Penal Code is so indefinite and uncertain that it cannot be understood, either from the language in which it is expressed or from some other written law of the state, and therefore should be held to be ineffective and inoperative. This statute has been in existence for over half of a century and many prosecutions and convictions thereunder have been sustained, and we’ see no good reason to strike it down, even if some feature thereof might be held to be uncertain. There are many acts denounced in said article as a violation of law and good order which are sufficiently certain and definite to make it a good and wholesome statute. We think this - case was properly disposed of on the original submission and therefore overrule the motion.

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.

text:
    EDWARDS v. STATE.
    No. 21001.
    Court of Criminal Appeals of Texas.
    April 24, 1940.
    Rehearing Denied June 28, 1940.
    Callaway & Callaway, of Brownwood, and Oxford & McMillan, of Stephenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER,'Judge.

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

It was 'charged in the indictment that on or about the 24th day of June, A. D., 1939, in the County of Somervell and State of Texas, John L. Edwards, Jr., alias John L. Evans, did unlawfully marry Vada Rogers, he, the said John L. Edwards, Jr., alias John L. Evans, then and there having a former wife, to-wit, Drucilla Lee Edwards, then' living.

Upon the trial it was conclusively shown by the State’s testimony that on the 24th day of December, 1929, the appellant obtained a marriage license from the County Clerk of Mills County to marry Drucilla Lee. That on said day, by virtue of said license, S. F. Roberts, a Minister of the Gospel, united in marriage the said John L. Edwards, Jr., and Drucilla Lee. After their marriage they lived on a farm between Stephenville and Dublin for about two years. That later he purchased a small tract of land from L. L. Hancock, to which place he moved with his family and became a near neighbor and intimate friend of L. L. Hancock and Jim Perry, who knew him as John L. Edwards. On the 24th day of June, 1939, he appeared at the office of Dr. C. L. Edgar, in Cleburne, introduced himself to the doctor as John L. Evans, and obtained from the doctor a health certificate, which he took to the County Clerk of Johnson County, where he obtained a license under the assumed name of John L. Evans to marry Vada Rogers. Late in the afternoon of the same day he, accompanied by Miss Rogers, appeared at the home of Re-w, Suddath, who, by virtue of the license, united them in marriage. The next day they returned to the home of Vada’s parents where appellant spent a day or two with his- newly-wedded wife. He left Vada with her parents while he, appellant, was ostensibly endeavoring to provide a home for them. In the meantime he returned to the home of Mr. Rogers on several occasions to visit his wife, Vada. The last visit was on the morning of August 17th, at which time Mr. Rogers and his son wrote the number of appellant’s automobile license upon a piece of paper and when he left, they followed him to Stephenville, went to the Tax Collector’s Office, where they examined the records and discovered that he had his automobile registered under the name of John L. Edwards.

Appellant did not testify. His defense was alibi and mistaken identity, and in support of the same he offered three witnesses who testified that on the 24th day of June, 1939, appellant was employed by the Texas Sash & Door Company, located in the City of Fort Worth. That on said date he worked until 3:00 P. M. He also proved by several witnesses that on the morning of August 17th, he was in Ste-phenville, Texas.

When the case was called for trial appellant made an application for a continuance based on the absence of his mother, who was ill and by whom he expected to prove, and would have proved, that on the morning of August 17, 1939, he was at her home. To this application he attached a certificate of a physician who certified that Mrs. Edwards, appellant’s mother, was too ill to attend the trial. The court overruled the motion to which appellant excepted. After his conviction he filed a motion for a new trial based on the court’s action in overruling his application for a continuance. To this motion he attached an affidavit of his mother from which it appears that she would testify to the facts stated in the application for a continuance. The court overruled his motion for a new trial, to which he excepted, and by a bill of exception brings the matter to this court for review. His contention is that the court’s action in overruling his application for a continuance and his motion for a new trial based thereon constitutes reversible error. The main issue in the case, as we understand the record, was whether appellant married Vada Rogers on the 24th day of June, 1939, and not whether he was at the home of Mr. Rogers on the morning of August 17, 1939. Consequently, the testimony of the absent witness, if true, would not have been material except on the issue of identity. However, the testimony of his identity and his marriage to Vada Rogers is overwhelming. Moreover, the automobile which appellant registered was, according to the undisputed testimony, at the home of Mr. Rogers on the morning of August 17, 1939. Who drove it there? We find no evidence from any source that anyone else used his car on said morning. The testimony of the absent witness would have been but cumulative of the testimony of the two witnesses who testified that appellant was in Stephenville on the morning of August 17, 1939. Viewing the matter complained of in the light of the entire record, we do not believe that the trial court committed any error in regard thereto.

In the case of Escobar v. State, 121 Tex.Cr.R. 303, 51 S.W.2d 346, 348, this court said: “[If it be conceded] that the trial court had no discretion to determine the probable truth of the testimony [of the absent witness, this] did not necessitate a new trial unless the materiality of the absent testimony was such that, if true, it would likely produce a different result upon another trial.”

The court in that case further said:

“Conceding the truth of the absent testimony, the question is whether, viewed in the light of the facts adduced upon the trial, it is of such materiality as that ⅛ would likely produce a different result up on another trial.’'

Having reached the conclusion that no reversible error is reflected 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.


author: HAWKINS, Presiding Judge. KRUEGER, Judge.

text:
    SMITH v. STATE.
    No. 21144.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    Rehearing Denied June 28, 1940.
    Charles Nunn, of Sweetwater, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Appellant was convicted of driving an automobile upon the public road in Nolan County while he was under the influence of intoxicating liquor, punishment assessed being a fine of $50 and five days in jail.

The indictment appears to properly charge the offense. No statement of facts or bills of exception are brought forward. In this condition of the record nothing is presented for review.

The judgment is affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

We have re-examined the record in the light of the appellant’s motion for rehearing but nothing has been presented therein which would warrant a reversal of the conviction or require further discussion.

The motion 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. GRAVES, Judge. HAWKINS, Presiding Judge.

text:
    McCAIN v. STATE.
    No. 20906.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    On Rehearing May 15, 1940.
    Second Rehearing Denied June 26, 1940.

      A. L. Bevil, of Kountze, for appellant.
    R. M. Briggs, Dist. Atty., of Kountze, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

This is an appeal from the judgment of the District Court of Plardin County convicting appellant of the offense of burglary and assessing his punishment at two years in the penitentiary.

For the conviction in this case the State relies principally on the written confession of the appellant while under arrest. From this confession we quote the following: “I, J. C. McCain, being in the custody of M. D. Jordan, Sheriff, and being duly warned by R. M. Briggs, Dist. Atty., (the person to whom this statement is made), first, that I do' not have to make any statement at all, and, second, that any statement I do make must be freely and voluntarily made and may he used in the trial or trials of the offense or offenses concerning which this statement is made, do hereby make the following free and voluntary statement”, etc.

It will be noted that this statement does not comply with the statute in that it does not say, as required; that the statement could be used “against him”. Vernon’s Ann.C.C.P. art. 727. It merely says that it can be used “in the trial or trials of the offense or offenses concerning which this statement is made”; and so far as the warning is concerned, the appellant might have concluded that it could be used either for or against him. It has been frequently held that the warning must be given in accordance with the statute. Branch’s Ann.Tex.P.C., Title I, Sec. 61, p. 33. It has been particularly held that where the warning stated that the confession could be used “for or against” the defendant, it is not a sufficient compliance with the statute. McVeigh v. State, 43 Tex.Cr.R. 17, 62 S.W. 757; Adams v. State, 48 Tex.Cr.R. 90, 86 S.W. 334, 122 Am.St.Rep. 733.

The written confession in this case contains the statement that it may be used in the trial of any case to which the statement pertains but does not limit the use, and it may as well be reasoned in the instant case that the party making it understood that it could be used for him as if he 'had said “for or against”. The statute is specific that one must be warned that the statement could be used against him. In construing this statute, this court has frequently held that such confession, when properly made, may be used against the party making it and not for him. A warning which states that the confession may be used for him having been held to be reversible error, we view the language in the confession before us to be of sufficiently similar effect to justify the application of the same rule.

For the error of the court in admitting the statement, the case is reversed.

On Motion for Rehearing.

GRAVES, Judge.

This case was heretofore reversed and remanded because of the admission of a written statement purportedly made by the appellant while under arrest, which statement failed to state in the warning portion thereof that same could be used “against him” at the trial, etc. In our original opinion the cases there cited support by analogy the doctrine that such warning should have contained the omitted phrase. The State in its motion, however, advances the proposition that such an omission is not fundamental, but in the event such a statement is not objected to on the grounds of such an omission, then that objection thereto is waived. The objection to the introduction of this confession offered by appellant’s attorney is as follows: “Which testimony was objected to by the defendant, at the time it was offered, for the reason that said statement was not voluntary rendition of the facts speaking through the agency of defendant but was in answer to questions propounded to the defendant by the district attorney, the answers to which questions were recorded in pencil by said district attorney, and then dictated to the stenographer in the verbiage of the district attorney.”

It will be observed that nowhere in such objection is there stated that the warning given by the person to whom the statement was made was inadequate, and nowhere therein was it stated that the warning failed to state that same could be used against appellant on his trial.

We think .that the correct doctrine is laid down in 4 Tex.Jur., p. 59, wherein it is said: “Indeed, in the absence of an objection in the trial court, the appellate court will ordinarily uphold a judgment supported by the evidence even though all the supporting; evidence might have been held to be inadmissible on proper objection.”

In the case of Williams v. State, 120 Tex.Cr.R. 484, 48 S.W.2d 304, 306, on motion for a rehearing we said: “Appellant also urges that his confession ought not to have been received in evidence because it was signed by him with his mark, and that the state failed to show it had been witnessed by parties other than peace officers, as required by article 727, C.C.P. No such objection seems to have been interposed when the confession was offered in evidence. In Walker v. State, 53 Tex.Cr.R. [336], 337, 110 S.W. 59, 60, this court was construing the very statute which is now article 727, C.C.P. We quote from said opinion as follows:, ‘In order to have taken advantage of the act of the Thirtieth Legislature (Laws 1907, p. 219, c. 128) in regard to confessions, objection should have been interposed at the time the confessions were offered. It is not sufficient for objection to be raised for the first time on motion for a new trial.’ ”

In the case of Walker v. State, 53 Tex.Cr.R. 336, 110 S.W. 59, 60, we find that Judge Davidson said: “Nor can the suggestion of appellant in his motion for a new trial be considered, to the effect that the confessions were erroneously admitted. No exception was taken at the time, nor was the matter called to the attention of the court, so far as the record is concerned, until the motion for a new trial was made. In order to have taken advantage of the act of the Thirtieth Legislature (Laws 1907, p. 219, c. 128) in regard to confessions, objection should have been interposed at the time the confessions were offered. . It is not sufficient for objection to be raised for the first time on motion for a new trial.”

In the case of Davis v. State, 99 Tex.Cr.R. 477, 270 S.W. 165, 166, Judge Morrow held: “A reversal is sought upon the claimed error of the court in admitting in evidence the confession of the appellant. It appears that appellant while' under arrest and in jail was brought in custody of an officer to the grand jury, which-was in session,’ and there admitted the commission of the offense. His testimony was not reduced to writing,' but was verbal and proved by the foreman of the grand jury upon the trial of the casé. Objection to the - testimony was made and a bill of exceptions reserved to its receipt. Qualifying the bill, however, the trial court said in substance that, at the time the testimony was offered in evidence, he was not informed that the confession had been obtained while the appellant was under arrest, and no objection had been urged against it upon that ground, that he did not know that the testimony was of that character. On the motion for new trial, appellant sought to prove and offered witnesses who would have testified that he was under arrest, was taken from the jail to the grand jury, and there made the statement showing his guilt. Under the bill of exceptions taken at the time, as qualified, there was no fact within the knowledge of the court or objection addressed to the bill which would render his action in receiving it erroneous.” And again on motion for a rehearing it was..said by 'Judge Lattimore: “It is so well settled by the decisions of the courts, and with such apparent reason and justice, that one who is on trial may not sit by and permit procedure to take place, and thus-take chances upon an acquittal under the facts before the court and in that manner of trial, and then come later, after he has been convicted, and assert that he should have taken other legal steps, or should have, made certain exceptions, or should have presented an objection. To hold otherwise than as we have universally held in regard to procedure of this kind would necessarily be an exceedingly dangerous innovation, and would open the door for interminable contention along these lines. It appears without dispute that this' appellant had his day in court; that he and his attorney sat there in the presence of the court and heard the grand jurors testify to the fact that he came before the grand jury apparently voluntarily and said he wanted to make a statement; and that he then admitted his guilt and said that he burglarized the house, and burglarized it by himself. The attention of the trial judge was not called in any way to the fact that at the time such statements were made he was under arrest. How could the court sustain an objection that was not made? How can the trial judge or this court consistently hold that one may indulge in such procedure and then for the first time in the motion for new trial set up the fact that he was under arrest at the time the alleged confession was made?”

We therefore reason that if it is not reversible error to admit a confession palpably subject to objection, but at which no objection is leveled, it necessarily follows that it would not be error to admit a confession at which no proper objection is leveled.

Art. 11, C.C.P., under the amendment of the 42nd Legislature, 1931, Vernon’s Ann.C.C.P. art. 11, reads as follows : “The defendant in a Criminal prosecution for any offense, may waive any right secured him by Law except the right of a trial by a Jury in a felony case when he enters a plea of not guilty.” Under this statute we think that an accused can waive any objection that he might have had to the admission of his confession, to either its form or substance, and that a failure to point out such objection to the trial court would constitute such a waiver.

But it is contended that because of the statutory requirements relative to the proper admission of a confession, that' such requirements became fundamental, and it is not necessary to offer any objection to a confession that is preceded by an improper warning. An analogous question is found and treated in 4 Tex.Jur., p. 62: “ * * * and although the Code of Criminal Procedure provides that a husband or wife ‘shall in no case testify against- each other except in a criminal prosecution for an offense committed by one against the other,’ the defendant may not introduce his wife as a witness in his behalf and remain silent during her cross-examination. and then secure a reversal ⅛ event that any part of the cross-examination impinges on the statutory prohibition.” See Willingham v. State, 94 Tex.Cr.R. 596, 252 S.W. 530.

Again we note that Art. 710, C.C.P. prohibits statutorily any reference by counsel in the cause to the failure of a defendant to testify, nevertheless it has been-often held that in order to render such a prohibited allusion to serve as a means of reversal, it was necessary that objection be properly made at the time, and if such is not then made, such objection is waived.

In Art. 727a, C.C.P., Vernon’s Ann.C. C.P. art. 727a, wherein any evidence obtained in violation of the laws of this State or of the United States is prohibited from being used, it has been often held that where testimony thus unlawfully obtained, it was necessary for the defendant to offer a proper and timely objection to its introduction before error could be predicated upon the introduction of such testimony. For instance the introduction of the fruits of, a search made without a proper search warrant can be waived, and is waived when not objected to by an accused when offered. We held in the late case of Carrizal v. State, 134 S.W.2d 287, 288, that: “Upon the trial, the court upon objection of appellant’s attorney, held the search warrant insufficient, but admitted all of the evidence discovered as a result of the search on the theory that the officers had permission to make the search. No objection to the admission of such evidence seems to have been interposed, as there is no exception in the record complaining of its admission. If a proper and timely objection had been made to the admission of such testimony and the same had been brought here for review by a proper bill of exception, a most serious question would have been presented. See Balch v. State, 134 Tex.Cr.R. 327, 115 S.W.2d 676, and authorities there cited. But in the absence of any objection, the matter is not properly before this court for review. See Fisher v. State, 108 Tex.Cr.R. 332, 1 S.W.2d 301.”

In the above quoted case of Fisher v. State, 108 Tex.Cr.R. 332, 1 S.W.2d 301, 303, we held: “It is the function of this court to determine whether, in receiving the evidence over the objection made, the trial court was in error, and unless the evidence is obviously inadmissible for .any purpose, the bill complaining' of its receipt must state the ground of objection. In -all cases to invoke a review of the action of the trial court upon the receipt or rejection ,of evidence, a bill of exceptions is imperative. This is statutory. See article 667, C.C.P.1925; Hays v. State, 94 Tex.Cr.R. 498, 252 S.W. 521; Davis v. State, 96 Tex.Cr.R. 447, 258 S.W. 188; Belcher v. State, 96 Tex.Cr.R. 561, 258 S.W. 815; Welk v. State, 96 Tex.Cr.R. 653, 260 S.W. 1118. The bill should show the ruling complained of, the objection made, and that error was committed. See Wear v. State (Tex.Cr.App.) 283 S.W. 811; Murff v. State, 103 Tex.Cr.R. 617, 281 S.W. 1076; and other cases collated in Vernon’s Tex.C.C.P.1925, vol. 2, art. 667, note 3. When the error complained of is that the search was made without a valid warrant, the bill of. exceptions is incomplete when it fails to set out the warrant in substance or in detail. See Cornelius on Search and Seizure, § 247, p. 465; Henderson v. State (No.11178) [108 Tex.Cr.R. 167] 1 S.W.2d 300. The objection to the evidence may be waived, and is waived, unless proper objection is made or timely motion to exclude is presented, and proper bill of exceptions preserved exhibiting the ruling and the complaint thereof.”

We also held in the case of Murray v. State, 136 Tex.Cr.R. 38, 122 S.W.2d 1119, 1120, that: “The admission of appellant’s confession, made while he was under ' arrest, though not reduced to writing as required by Art. 727, C.C.P., is not a ground for reversal where no objection was made thereto at the time of its introduction and no affirmative defensive theory was interposed. See Davis v. State, 99 Tex.Cr.R. 477, 270 S.W. 165. This court has consistently held that evidence which is admitted without objection is riot a predicate for reversal ori the part of an accused, where no motion was made to exclude it. See Wilson v. State, 120 Tex.Cr.R. 293, 48 S.W.(2d) 282.”

It will be seen from the quotation in the last above quoted case that the confession introduced was not in writing, and was made while the accused was under arrest. Nevertheless, no objection having been made, its improper introduction was held not to be' fundamental, and in effect that any defect in its introduction was waived. To hold otherwise we think would create an endless confusion, and cause the trial court to be constituted not only court but advocate for the accused to see that all proper objections were made in behalf of the defendant and thus usurp the prov-’ ince of the defense attorney.

It is but fair to say, however, that the matters upon which this motion is based were not presented to us at the time of the original hearing herein, but were presented on motion for a rehearing by the State in a comprehensive brief filed and argued, which views ahd citations have been of assistance to us.

It is also contended that want of consent of the owner of the alleged burglarized building was not shown. We think want of consent is shown by the following statement in appellant’s confession : “No one gave either of us permission to enter either of these buildings or to take any property from either of them. This all happened in Hardin County, Texas.”

It has been held in McGinty v. State, 134 Tex.Cr.R. 539, 116 S.W.2d 713, that the confession alone, when a burglary is proven, is sufficient • to show defendant’s connection with the offense and support the conviction.

In our opinion we were in error when we reversed this cause on account of the defect in the warning as set forth in the statement of the defendant, arid the State’s motion for rehearing is granted, the judgment of reversal is set aside, and the judgment is now affirmed.

On Second Motion for Rehearing.

HAWKINS, Presiding Judge.

Appellant’s contention is that there is no evidence in the record outside of the confession to show that any burglary was committed, and therefore, that the conviction should be set aside because there is no evidence to corroborate the confession; and that the jury should have, been instructed as to the necessity for such corroboration.

We are not able to agree with appellant that the record is bare of evidence of a burglary save as found in the confession. The house alleged to have been burglarized belonged to E. C. Pope. He waS dead at the time of the trial. His want of consent and the burglary could be proven by circumstantial evidence. -A son of Mr. Pope • testified that the store, building in which his father conducted a mercantile business "* * * was broken into by some one. Entrance was gained into the store by putting some instrument between the lock and pricing the door open. It was the front dopr. It was a double door. There was evidence to show the manner in which they forced the door. You could see where the iron had been put in there, or something, to prize the door open — the wood was bent- — mashed the wood.. I .locked up and closed up every night and opened' up every morning. I closed the store the night before. On the next morning, when I went to the store the lock was closed, but the door was opened. That is, the bolt was run out where you couldn’t shut the door. The door was open. It had been prised back to release the latch on it.”

In our opinion the evidence quoted is sufficient to. show a burglarious entry into the building, independent of the confession.

The motion for rehearing is overruled.


author: BEAUCHAMP, Judge. KRUEGER, Judge.

text:
    WALKER v. STATE.
    No. 20991.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Rehearing Denied June 26, 1940.
    W. C. Wofford, of Taylor, for appellant.
    ■ Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

From - a conviction in the District Court of Williamson County on a charge of theft by false- pretext, with a punishment of seven years in the penitentiary, this appeal is taken.

The appellant, under the name of Wallace, acting in conjunction with L. B. Grant, who was going by . the name of Wilson, came into Williamson County and contacted Paul Andres, who was in the meat market business and who lived in the town of Wal-burg. The pretended purpose, for which the appellant wished'to engage the prosecuting witness was to assist him in getting Up a block of leases for a millionaire client of his, who was then in a hotel at Bartlett. The client was temperamental and a great sport and could not be pushed in a deal, but would turn loose his money easily and a plenty of it if properly approached. His weakness was playing poker. After a considerable discussion of the matter appellant revealed these facts to the witness Andres. Andres was to engage in a social game of poker.with Wilson and himself. Andres knew nothing of the game, but the appellant furnished him the money to buy a deck of cards and taught him how to play. When the game was arranged, the appellant furnished the witness with -$50 in money and .planned that he, Wallace (also known as N. F. Walker), should lose the fifty dollars’ worth of chips which he purchased and then should take his place behind Mr. Wilson (known at home as L. B. Grant), and was to give signals to the witness which he had taught him, so that the witness would know when to bet his money. This was done truthfully for a time and the witness came into possession of several hun- • dred dollars’ worth of chips.

Finally the tragic moment — a gambler’s confidence. Wilson drew only one pair. Wallace so signaled the witness. All the money went on the table. Andres wanted to call his hand because he had two pair. Wilson put up $600 more .and nonchalantly waited for the call of Andres. Wallace insisted on the correctness'of his signals. Time out was taken to raise more money. The witness understood he. was using Wallace’s money. To this Wallace agreed, but found himself in.a helpless condition. He was away from home and could not get the money. It was a cinch. Andres went to his home town, about twelve miles away, and borrowed $1,200. Upon returning, the chips were re-valued. The white ones were worth $100 each. They had $50 chips and $5 chips. The whole $1,200 went into the purchase of the chips. The gist of the scheme was that Wallace was the banker. And what value do the chips have if the banker does not pay off? Wallace had called the correct signals so far. The $600 were put up to call the bet and Andres won. More than $2,600 were involved, and Andres took out seventeen white chips and put them in his pocket. Wallace signaled to Andres not to do this but Andres refused to obey. Wilson evidently did not notice ,it. The game proceeded. The rest of the story need not be told. Appellant, Mr. Wallace that day, falsely reported to Andres what Wilson held. Soon Wilson had all the chips in sight. The social game ended, but Andres produced his seventeen chips worth $100 a piece and demanded of the banker the money.' This he refused to pay, charging that Andres had taken the chips off the bed instead of the table and that he had not won them. A dispute followed. The story ends for the day with the escape of Wallace and Wilson from the country together.

Was it an “honest” gambling game or was it a “confidence” game? If a gambling game, the appellant was wrongfully charged. If a confidence game, the result was theft by false pretext. This turns upon the intention of the parties. Intent may usually be shown by proof of similar transactions. Vaughn v. State, Tex. Cr.App., 134 S.W.2d 290, and authorities there cited; Barnett v. State, 119 Tex.Cr.R. 594, 43 S.W.2d 449.

Appellant did not testify, nor did he offer any proof in his behalf. Reliance is had for a reversal principally on the fact that the State offered in evidence other transactions o'r attempted transactions in which the appellant and his companion (Grant) had played the principal roles. The objection is that evidence of these former transactions by which other crimes were committed was prejudicial and not admissible for the purpose of showing guilt in the instant case.

One charged with crime cannot usually be called upon to defend himself against other crimes. Proof is not admissible to show one a criminal generally in order to, secure a conviction on a charge with which he is confronted. Logical as such proof may sometimes be, it is a wise provision in our law which excludes such testimony.

We have a conspicuous class of crime, however, in which the perpetrator lays the scene. He is the chief actor, and the success of it depends upon his skill in working an original plan not known generally. This is necessary to avoid suspicion. They are difficult of identification. Their intentions may be deeply hidden, but proof of their participation in other similar crimes, using the same tools and devices, are like finger prints for identification and for the purpose of disclosing the intention. Always in such circumstances other similar transactions are admissible. That the transactions found in the record in this case may be proven by the State as similar is without argument. That they are admissible is in accordance with the long line of authorities on the subject. The bills of exception complaining of these transactions are each overruled.

Finding no error in the trial of the case, it is affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

Appellant, in his motion for a rehearing, earnestly insists that we erred in holding admissible evidence of other like offense committed by him in which he and Inis companion in crime resorted to the same means and methods to fleece honest and unsuspecting people of their money by means of a crooked poker game as in the instant case. While it is true that ordinarily, evidence of the commission of other extraneous offenses by the accused on trial are not admissible unless they tend to show intent, system and the general scheme of the conspirators, however, in our opinion, the evidence complained of falls within the exception to the general rule and was admissible. Appellant has brought forward nothing which was not considered by this court on the original submission. We have again reviewed the record carefully and remain of the opinion that a proper disposition was made of this case originally.

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. HAWKINS, Presiding Judge.

text:
    WILLIAMS v. STATE.
    No. 21068.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    Rehearing Denied June 26, 1940.
    Eugene Sherrod, Jr., of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the County Court of Wichita County upon complaint and information charging theft of three suits of clothes, each of the value of more than $5, and by a jury was assessed a penalty of $10 and ten days in jail in each of the three cases. From a judgment entered on the jury’s verdict, appeal is taken to this •court.

The principal question presented in the appeal is whether or not the acts of appellant constituted theft or the taking of the suits for the purpose of pawning them with intention of returning them when he had paid the loan. This question arises on the following facts:

Appellant was working at the Orchid Shop in the City of Wichita Falls where he had been employed as a porter for several years. On Saturday at the close of the week he was fired and on the following Monday he went to the owner of the shop and begged to be reinstated. He told the owner that he had taken three suits of clothes on three different dates and wanted to make the promise to pay the suits out of the pawn shop where he had placed them. The evident purpose of this interview was to get himself reinstated in the job. He had been paid a salary of $16 a week, but had engaged much in the very entertaining but unprofitable occupation to which he had inherited a tendency, that of “shooting craps”. It may be concluded that luck had been against him. His wife and his mother, too, had become involved and all failed in their efforts to raise the money. Misfortune never comes singly. Though he poured out his heart to his long and faithful employer, it availed nothing. The officers were notified. He 'confessed to the three transactions. The books, ticket numbers, dates and even the memory of some happenings appear without dispute in the record, tie had taken the clothing from storage vaults and had pawned them as his own. How he convinced the pawn broker that he was the owner in fee simple of three suits of clothes is not revealed in the record, unless the description of the green suit involved made -it so appropriate as to eliminate any question .about its ownership. He admitted before the jury his acts and conduct, which were ample to sustain their finding, though he declared he did not intend to appropriate the suits to his own use and benefit at the time he took them or at any time thereafter. He said, however, that he told the pawn broker that he wanted to get some money '“on my suits”. He did not tell him that they belonged to another. Again he was positive that instead of saying “on my suits” he said “on those suits” or “on this suit”. All of that was proper before the jury who had all the facts and circumstances both from the mouth of the appellant himself and from the owner of the shop where he worked, as well as an employee and the pawn broker. The evidence is ample to sustain a conviction for theft under proper instruction.

On the subject the appellant submitted several requested charges, one of which was given as follows: “If you find and believe from the evidence that the defendant did not intend at the time he took the property to permanently appropriate it, but only obtained it for a temporary use, that is, that he took the property for the purpose of using it as security on,which to obtain a loan and intended to later redeem it and return it to the owner, or if you have a reasonable doubt thereof, then you will acquit the defendant and say by your verdict, not guilty.”

The other charges requested we consider as mere different forms of asking for the same thing. The foregoing is not approved as proper, but certainly is sufficient to instruct the jury on appellant’s theory of the case.

In his charge the court submitted three cases to the jury and furnished them a proper form on which to return their verdict either for or against the appellant. At first they returned into court only the first of the three forms filled out, in which they seem to have agreed on thirty days in jail and a $2,5 fine. Before accepting the verdict the court called their attention to the fact that they had not completed their verdict and told them to return “and deliberate further as to counts two and three”. The jury did this and returned with the verdict as stated, giving the appellant ten days and a $10 fine in each case. This act is assigned as error, but is not sustained by us. Texas Jurisprudence Vol. 23, p. 662.

By bill of exception No. 6 the appellant complains of the following paragraph of the court’s charge: “You are further instructed that if from the evidence you believe beyond a reasonable doubt that the defendant is guilty under the two preceding paragraphs, but you have a reasonable doubt as to the value of the property taken being $5.00 or more, then you must give the defendant the benefit of such doubt and in such case if you find him guilty, his punishment shall be assessed in any sum not to exceed $200.00.”

The giving of this charge is assigned as error. We doubt if it is warranted by the facts of the case as all the evidence shows each suit in question to be worth more than $5 and that fact is not disputed; however, it could only be favorable to appellant and by no process of reasoning can it be contended that it is harmful to him.

Finding no error in the trial of the case, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

In his motion for rehearing appellant criticises that part of the trial court’s charge quoted in our original opinion and the disposition made of the complaint relative thereto.

The court had told the jury in paragraph 2 of the charge that the punishment for theft of property under the value of $5 was by fine not to exceed $200. In the charge complained of the court was endeavoring to protect appellant in an application of the law theretofore stated. If appellant thought the charge fell short of doing this he should not only have excepted thereto but — this being a misdemeanor — should also have presented a special charge correcting what he thought to be an error. Not having done this the question is not before us for review. See Teem v. State, 79 Tex.Cr.R. 285, 183 S.W. 1144; Hand v. State, 88 Tex.Cr.R. 422, 227 S.W. 194, and other cases cited in notes under Art. 662, Vernon’s Ann.Tex.C.C.P., Vol. 2; see also Jones v. State, Tex.Cr.App., 20 S.W.2d 1067.

The motion for rehearing is overruled.