author: CHRISTIAN, Judge. BEAUCHAMP, Judge.

text:
    LERA v. STATE.
    No. 20515.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1939.
    Rehearing Denied Dec. 20, 1939.
    Marsene Johnson, Jr., of Galveston, for appellant.
    Chas H. Theobald, Co. Atty., of Galveston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is murder; the punishment, death.

It was charged in the indictment, in sub- ' stance, that appellant, with malice aforethought, killed Harry Phillips by shooting him with a gun.

Omitting the formal parts, bill of exception No. 2, as qualified, reads as follows:

“The testimony showed that the cause of the death of deceased was a bullet fired from a pistol, entering just behind the left ear in the area of the mastoid bone, ranging upward and coming out of the head above and in front of the right ear.
“Before midnight or Christmas Eve, 1938, deceased and his fiancee, and John Miranda and Miss Sharp drove out to a place called ‘Deppens’, where food and drinks were sold.
“In front of the bar were stools or seats, where this party of four sat to celebrate the engagement of deceased; the bar was on the West side of the room; and the seats ran South and North; Miranda taking the nearest seat to the South, Miss Sharp next to him, the fiancee next, and deceased on the fourth seat. About 12:30 a. m. of December 25th, 1938 deceased took his fiancee to her home, and at 1:35 a. m. came back alone to ‘Deppens.’
“While deceased was gone, defendant, Miss Jen Bennett, Mike Calandra and Fred Vaiani came into ‘Deppens’ and sat down in the next four seats North of Miss Sharp and Miranda, and put in their order for food. Miss Sharp testified that defendant sat next to her, that is, in the third seat.
“When deceased came in no one was then in the third seat, and he half-way sat down on the third seat, facing South. Miss Sharp testified that defendant approached deceased, and said: ‘Buddy, you have my stool. Do you mind,’ and that deceased replied: ‘I am sorry. Do you mind,’ and that immediately following the answer of deceased to defendant that defendant hit deceased with his fist, and that Calandra was pushing Miranda toward her, and she saw defendant with a pistol pointed up in the air, and when she saw the gun she ran into the kitchen.
“Miranda testified that when deceased came back he halfway sat down on the third stool, and said he was ready to leave, so witness started to the door and as he turned around he saw defendant hit deceased, and he started back when Calandra shoved witness back and witness grabbed Calandra, and in just a few seconds he saw defendant with his gun, and heard four or five shots, and deceased fell to the floor, and witness went to the telephone, and afterward took deceased to the hospital. The shots were fired about two minutes after the return of deceased.
“After he was shot, deceased did not say anything. Four bullet holes were found in the ceiling, and an officer dug one bullet out; it was from a 45-calibre pistol, and defendant’s pistol was a 45-automatic. The members of one party did not know the numbers of the other party.
“Benny Stephens, the bartender, testified : That he knew Calandra and the defendant ; that he was at -the cash register and heard some reports that he thought were fire-crackers at first, and he looked around after the second report, and saw defendant with a pistol up in the air and it was going off, and deceased, who was close to defendant, was trying to ‘rush’ the defendant, or trying to push his arm away, and then about that time deceased fell. Witness saw no blow struck, and heard no conversation, except that defendant said: ‘What happened ? What happened ? It was an accident.’ Witness testified that when deceased returned he took the stool that Mike Calandra .had occupied; that Calandra had left it and was telephoning; that defendant sat next to Calandra, that is, on the fourth stool, and that Miss Bennett was sitting to the right of defendant.
“Defendant’s own testimony is, that when his party came in and ordered their drinks and food, the seating arrangement was such that Mike Calandra sat in the seat to defendant’s left, and defendant in the seat North of Calandra, and Miss Bennett in the next seat to the right of defendant; that Calandra left his seat, and that a person he now knows was deceased, came to the seat Calandra had occupied; that Calan-dra returned to this seat that was now occupied by decéased and tapped deceased on the shoulder and said: ‘Buddy, you have my seat, do you mind?’ That deceased said something to Calandra that defendant did not hear and about that time Calandra hit deceased in the face, and, as defendant turned to the South on his stool, Miranda grabbed Calandra and there was a scuffle, and that defendant pulled his pistol out and raised it in the air, intending to shoot it in the air, and trying to scare them and maybe stop the fight, and that deceased grabbed his arm and they had a scuffle during which the pistol fired, and that he did not know at which shot deceased was hit. That when deceased fell, defendant hollered: ‘What happened? It is an accident.’
“Defendant also testified that he never knew deceased before; that it was not he who hit deceased with his fist, but that it was Calandra; and that he had no intention to shoot deceased, and that it was an accident.
“After deceased was taken to the hospital, defendant drove Miss Bennett home, and then returned the automobile he had borrowed, and then with Mike Calandra went to the police station and surrendered.
“And on cross-examination of defendant by Hon. Emmett Magee, Assistant County Attorney of Galveston County, for the purpose of impeaching and contradicting the testimony of the defendant who had just testified that he fired his gun to scare and without intent to shoot deceased, and that Calandra, and not he, had struck deceased, brought before the jury, by a question only, the fact that defendant had told Mr. Theobald, the County. Attorney, and himself down at the police station, on the night of the killing, that he, defendant, did not know how it (meaning the homicide) happened.
“The said question to the defendant was:
“ ‘Isn’t it a fact that you told Mr. Theo-bald and me down at the police station on the night of the killing that you did not know how it happened?’
“The question assumed the fact to be that defendant did tell these gentlemen that he did not know how the homicide happened. The question assumed the truth of this matter. The jury were liable to conclude that said State’s Counsel would not have asked said question, in the form as asked, unless he had knowledge that such was the case. The question was not answered, but it was stated in such manner that the jury did not fail to understand what was meant, and so as to make them believe that defendant did make such statement at the police station, and that defendant did not then tell said prosecuting attorneys, that it was Calandra, and not he, who struck deceased, and that the gun was shot to scare only and without intent to shoot deceased.
“Before said question was asked, neither defendant nor the court had any intimation that the state’s counsel would seek to put in evidence any statement made by the defendant at the police station, where he was under arrest and in custody of the peace officers of Galveston; and, therefore, defendant had no opportunity to object to said question before it was asked. The facts in evidence had already shown that defendant had gone home after the homicide, changed clothes, drove back to the beach, and had talked and been with several persons before going to the police station and surrendering, and at the time the statement so put before the jury was made, it was an oral statement, which was not admissible as a part of the res gestae, and was made while defendant was under arrest and so in custody, and was not a part of any conversation or transaction put in evidence by the defendant.'
“And as soon as said question was so asked, and before it was answered, defendant, by his attorney, objected thereto; the statement of defendant while in custody being obviously inadmissible for any purpose, and the Court sustained the objection, it being obvious to the Court that the question brought before the jury an oral statement of defendant, made while under arrest, and in custody at the jail, and without any statutory warning, and not otherwise admissible, and which statement might be used by the State as a criminative fact; whereupon, defendant’s attorney took a bill of exceptions to the question, and asked the Court to instruct the jury, and whereupon the Court said: ‘Mr. Magee, you well know the rules of evidence,’ and Mr..Magee said: ‘Yes, sir,’ and the Court continued: ‘And any statement made by this man while-under arrest is, by statute, inadmissible unless the statutory warning is given;’ and. Mr, Magee said; ‘That is right,’ and then the Court said to the jury: ‘Gentlemen of the jury, you will disregard the last question and answer,’ and defendant’s attorney again took a bill of exceptions thereto.
“And said Assistant County Attorney is-a reputable prosecutor, and stood well in Galveston County and with the jury that tried this cause, and members of the jury-were acquainted with him.
“The Court certifies that it is necessary to-a full understanding of this bill of exceptions, that the matter be stated in somewhat question and answer form.
“And defendant here now tenders this, his bill of exceptions No. 2, to said question and incident, and the said implications therefrom, and asks that the same be by the Court allowed, approved, signed and ordered filed by the clerk of this court, as a part of the record in this cause; which is accordingly done, this the - day of --, A. D. 1939.
“See next page for approval CGD “Judge Presiding.
“Defendant’s foregoing bill of exception No. 2 has been carefully considered and is. approved, allowed, signed and ordered filed by the Clerk of this Court as a part of the record in this cause, subject, however, to-the following explanatory qualification :
“While the defendant, Leo Lera, was on the witness stand testifying as a witness in his own behalf he stated and testified as follows:
“ ‘After this shooting had taken place and I saw Mr. Phillips lying there on the floor, I said: ‘What happened? It was an accident.’ (P. 6, St. F.)
“And again at page 58, St. F., Lera testified :
“ ‘Mr. Phillips fell. When Mr. Phillips fell I hollered: ‘What happened? It was an accident.’ And then there was a lot of confusion. I heard someone say, ‘He is shot.’ ”

It is clear from the bill of exception that appellant was under arrest at the time he made the statement to the county attorney and his assistant relative to the homicide and that such statement was not res gestae. Further, it is made manifest from the bill that the provisions of Art. 727, C.C.P., had not been complied with. We quote the article!

“The confession shall not be used if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless made in the voluntary statement of accused, taken before an examining court in accordance with law, or be made in writing and signed by him; which written statement shall show that he has been warned by the person to whom the same is made: First, that he does not have to make any statement at all. Second, that any statement made may be used in evidence against him on his trial for the offense concerning which the confession is therein made; or, unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed. If the defendant is unable to write his name, and signs the statement by making his mark, such statement shall not be admitted in evidence, unless it be witnessed by some person other than a peace officer, who shall sign the same as a witness.”

'The purpose and effect of the quoted statute is to prevent the prosecution from using against the accused a verbal statement made by him while he is in custody or confinement which the state seeks to use in proving his guilt. Lightfoot v. State, 117 Tex.Cr.R. 515, 35 S.W.2d 163. Proof of á confession or of a statement of facts amounting to a confession, made while the accused is in custody or confinement, and which would not be admissible as original evidence, is not admissible to impeach the accused. Lightfoot v. State, supra.

Under the circumstances reflected by the bill of exception the question was not warranted and the court’s action in sustaining the appellant’s objection was. correct. If we can say that the mere asking of such question was not obviously prejudicial and hurtful it would follow that harmless error is presented. On the other hand, if we are driven to the conclusion that it is impossible for us to gauge the evil effect upon the jury of such improper question and that its mere asking was calculated to lead them to believe that appellant had made a statement to the county attorney and his assistant strongly combating the testimony he had given upon the trial in support of his defensive theory, it becomes our duty to order a reversal of the judgment. Looking to the situation in the light of the fact that the jury could have reached no other conclusion than that the appellant stated to the prosecuting officers while under arrest that he did not know how the hotnicide occurred, and further, in the light of the qualification appended to the bill of exception to the effect that appellant testified upon his trial that immediately after the homicide and while deceased was lying on the floor he (appellant) asked what had happened and stated that “it was an accident,” we feel that we would not be warranted in holding that the error manifested by the bill of exception is harmless. Clearly, the question carried the strong implication that appellant made the statement inquired about. In this connection, it is observed that it is certified in the bill of exception that the assistant county attorney asked the question for the purpose of impeaching and contradicting the testimony of the appellant “who had just testified that he fired his gun to scare and without intent to shoot deceased, and that Calandra and not he had struck deceased.” We think it is obvious that if appellant had answered the question in the affirmative he would have impeached and contradicted the testimony he had given upon his direct-examination as a witness upon the trial. The fact that in concluding his testimony relative to the things that occurred prior to the time that deceased was killed appellant testified that at such time he asked what had happened, and stated that it was an accident, would not seem to militate against the conclusion that the testimony as to appellant’s statement to the county attorney and his assistant, if same had been proven, would have strongly tended to contradict and impeach the appellant. We say this in view of the fact that if the question had been answered in the affirmative without amplification the jury might have argued in their retirement that appellant himself, shortly after the homicide, had attempted to exculpate himself by falsely stating in effect that he knew nothing about the transaction which resulted in the death of the deceased, notwithstanding his testimony upon the trial consisted of a detailed statement of the incidents involved in the transaction which resulted in the death of the deceased. If this would have been the probable effect of an answer to the question, we think it cannot be said that the mere asking of the question, with its strong implication that appellant made the statement inquired about would not have had the same probable effect. In this connection, it is proper to observe that appellant’s counsel felt that in the protection of appellant’s rights, he should object to the question being answered. The fact that counsel was forced to object placed appellant in a bad light before the jury, who naturally would have concluded that he would have answered the question in the affirmative if the objection had not been sustained. See Childress v. State, 92 Tex.Cr.R. 215, 241 S.W. 1029. It follows from what we have said that we are unable to escape the conclusion that the question was obviously prejudicial and that therefore the instruction of the court was not calculated to save the appellant from injury. Coon v. State, 117 Tex.Cr.R. 158, 35 S.W.2d 419; Hunter v. State, 113 Tex.Cr.R. 90, 18 S.W.2d 1084; Hollingsworth v. State, 122 Tex.Cr.R. 545, 56 S.W.2d 869.

The judgment is reversed and the cause remanded.

PER CURIAM.

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

On Motion for Rehearing.

BEAUCHAMP, Judge.

The State has filed a motion for rehearing in this cause and presented an earnest oral argument in its behalf. We have again reviewed the record on the question upon which it was reversed and think that the original opinion in this cause logically and exhaustively treats the question and that the proper conclusion was reached. We cannot adhere to the view advanced by the State that the question asked the appellant while on.the witness stand was helpful to his theory of the case and therefore harmless error.

Appellant received the extreme penalty and no theory of helpfulness can find support in the jury’s verdict. The question was an improper one. The court instructed the jury to disregard it and gave to the jury legal reasons for such instruction. There is nothing in the court’s charge, and probably1 none could have been framed, which would serve to remove from the jury’s mind the implication which the question carried, — that the appellant had contradicted himself, and it is quite possible that the court’s discussion of the matter served to emphasize the position in which the appellant was thereby placed. Under the facts of this particular case, both the appellant and the court were helpless in an effort to remove the unfavorable impression from the jury.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: GRAVES, Judge.

license: Public Domain

text:
    MANNING v. STATE.
    No. 20666.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    Jas. Tafolla, Jr., and Gus C. Garcia, both of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant, a negro boy about nineteen years old, weighing 145 pounds, was indicted, together with one Webster Lyons, for the killing of H. W. Seely. There was a request for a severance made by Lyons, which request was granted by the court, and upon a failure of the two defendants to agree as to which one should go to trial first, the court directed that the appellant should be first tried. Upon his trial appellant entered a plea of guilty, and was found guilty of murder with malice by the jury, and given the penalty of death.

There are no bills of exceptions to be found in the record. We are therefore relegated to the statement of facts in our review hereof.

H. W. Seely, the deceased, operated a second-hand clothing store in San Antonio, and on March 7, 1938, he had living quarters in the rear of this store. On such date, after dark, he was evidently struck many times on the side and hack of the head with some blunt instrument from the effects of which heating he died in about eleven days thereafter. It was evident that two negroes went into his place of business, and while one of them was trying on an overcoat, the other negro struck Mr. Seely in the back of his head. The deceased was robbed, and his desk was rifled. Mr. Seely’s keys were taken, as was a pistol, later identified as one thereafter sold by appellant. The appellant made and signed a written confession relative to this matter, and later on in the trial of this case took the stand and practically corroborated his written confession in all its material particulars. There was also introduced a dying statement of Mr. Seely which was corroborative of appellant’s statement and testimony at the trial.

We quote the salient portions of appellant’s testimony at this trial:

‘T have known Webster Lyons for about five years. I heard the confession read here. On the night of March 7, 1938, I was on East Commerce Street at a place where my brother is a bar tender and I was talking to him concerning my brother’s death when Webster Lyons walked in and he said that he had heard my brother had died and said he would like to go to the funeral with me, and I told him he could go and he replied when he went to any place like that he wanted money of his own. I told him I had enough •money to go down there, but he said he wanted money of his own. He then said he knew where he could get money and I asked him where and he said, ‘Come with me.’ Then we left the place. When he told me he knew where he could get money, I did not know where he meant or how he was going to get it. We went around behind the San Antonio Machinery Company on the railroad tracks near the railroad express company and we sat on the platform and he began to discuss where he intended to get the money. He said he was going to Mr. Seely’s and’ that he had once worked for Mr. Seely and he knew Mr. Seely had a large sum of money around the place all the time. He told me if I would go with him he would cut even with me and that there was a lot of easy money for both of us. I told him I did not want to go into anything like that and that I had never done anything like that before. I told him I did not want to go into anything like that.

“I went with him because I had been in trouble with Lyons before and he told me if I ever refused to go with him any place he would tell Mrs. Carter I had been running around with him. I told him I would go. We picked up an iron bolt and walked right by Mr. Seely’s place and we saw that he had a customer in there and we waited for about fifteen minutes and then went into Mr. Seely’s place. Webster Lyons said, ‘We will go in there with the understanding I am going to try on a coat, and while I am trying on the coat you hit the old man,’ and I told him, T don’t want to hit him,’ and then he said, ‘You had better do it.’ We went in there and Webster suggested that he wanted to buy a coat because he was going to take a trip out of town, and Mr. Seely took him to the rear where he kept the coats and Webster tried on several coats and kept motioning to me to hit the old man. He came to me and said, ‘Give me a dollar,’ and told me to hit the old man. When he asked me for the dollar he said, ‘Robert, go ahead and hit the old man.’ He said, ‘If you don’t I will fix you up.’ I said, ‘All right’ and he went back to Mr. Seely again. I was then standing to the rear and Mr. Seely was standing between me and Webster, and was facing Lyons. Then Webster Lyons was stretching his arms like he was trying to see whether the coat was too tight or not, and then I hit him and he fell to the floor face forward into the clothes rack and then Lyons turned out the lights and closed ■the door and came back and said to me, ‘Don’t be standing there like a fool.’ He said, ‘Give me that bar and go over and see if you can open the desk.’ I handed him the bar and went to the desk and shortly after I was at the desk Mr. Seely started groaning.
“This bar you show me is the bar I am talking about, and it is the bar I gave to Lyons. When I was at the desk I was looking through the drawers, and Mr. Seely was still groaning and I heard Lyons hit him two or three times. I went to Webster and said, ‘Stop hitting him. Don’t hit him any more.’ He asked me if I got the desk open and I told him I had and he asked me if I had found anything and I told him I had not had time to go through it. I opened the big drawer in the desk. Lyons told me to go back to the desk and see if I could find anything and I went back-and found a pistol and put the pistol in my pocket. Lyons then said that we had better go out because people were walking up and down the street, and we went out the front door.”

It seems that these two then went to a pawn shop where certain clothes were redeemed and some new ones purchased, and then appellant and his companion took the train to San Marcos, where appellant’s brother was buried on that day. That while at San Marcos appellant sold this pistol, which was later identified as Mr. Seely’s, for $5 and his connection with such sale was clearly .established by the testimony. In fact it is only necessary, in order to find the reason for this severe penalty, to read the testimony of the appellant given at his trial. It appears therefrom that he and a companion planned this robbery beforehand, down to its minute details, even to the place of the assault upon their victim, and that all of such details were carried out according to prearranged schedule.

There were many corroborating circumstances introduced by the State, and the reviewing mind is led to the conclusion that as near as human testimony is concerned, there can be no doubt not only of" appellant’s acknowledged guilt but also no doubt of the malice employed in such killing. There are no further matters presented to us for review.

The judgment is affirmed.


author: CHRISTIAN, Judge. GRAVES, Judge.

text:
    KISINGER v. STATE.
    No. 20532.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1939.
    Rehearing Denied Dec. 20, 1939.
    John L. Poulter, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is false imprisonment; the punishment, a fine of $200.

A. L. Cavender testified, in substance, as follows: He bought an automobile from appellant and had failed to make one of his payments. Appellant and one Brown came to his home and demanded payment. He got in the car with them for the purpose of driving to a neighbor’s in an effort to secure the payment he was due. Instead of carrying him to the appointed place, Brown assaulted him with brass knucks and a tire tool while appellant held him. They then forced him to go to Fort Worth with them. He appeared before a notary public and signed a bill of sale to the car. Brown then carried him to his home. .Other witnesses for the state testified to the fact that Cav-ender had been beaten. On the way to Fort Worth appellant and Brown stopped at a store which was operated at Brazos Point by William Powell. Powell testified to seeing someone in the car who appeared to have been beaten up. He said he talked to Brown on this occasion and Brown said to him: “Look what I done to this s— of a b-.”

The notary public before whom Caven-der appeared testified that when Cavender executed the bill of sale he (Cavender) talked with appellant and Brown relative to the matter and it was agreed that he would have ten days within which to redeem the car provided he paid appellant the .amount he owed him.

Testifying in his own behalf, appellant denied that he and Brown had forced Cav-ender to go to Fort Worth. It was his version that he went voluntarily and that he was not forced to sign the hill of sale. He testified, further, that while they were in the car Brown asked Cavender what he had done with the mortgaged car, and his reply to Brown was that it was none of his damn business. A fist fight then ensued between Brown and Cavender. Appellant separated them and the three then proceeded to Fort Worth.

It appears from the single bill of exception in the record that after the bill of sale had been executed by Cavender and after the conspiracy between Brown and appellant, if there was one, had terminated, Brown returned to the place of business of Mr. Powell, and, in the absence of appellant, who appears to have been nowhere in the vicinity of the store, stated to Mr. Powell, in substance, that he had forced Caven-der to give him and the appellant a bill of sale to the car. In the course of the conversation he said that he could take care of his own business any time anybody failed to make payments that were due him. Mr. Powell testified that Brown showed him his fist and pointed out there were no bruises or anything on him (Brown). Appellant’s objection to the foregoing testimony on the ground that it was hearsay should have been sustained. We think the bill of exception reflects reversible error. The hearsay statement of Brown tended to combat appellant’s defensive theory that Cavender voluntarily went with Brown and him to Fort Worth and executed a bill of sale to the automobile in question. Brown’s statement tended to show that coercion and force had been used in carrying Cavender to Fort Worth and in securing from him the bill of sale.

The judgment is reversed and the cause remanded.

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

Appellant has filed a motion for a rehearing herein, requesting this court to pass upon appellant’s second and third assignments of- error so that a ruling might be had-thereon in the event of another trial of this cause.

We suggest that in paragraph three of the court’s charge there was doubtless inadvertently omitted the italicized phrase from removing from one place to another as he might see proper, which matter will doubtless be remedied on another trial.

Wé are of the opinion that appellant’s second and third assignments are without merit. The court seems to have followed the statute in defining the offense, and the facts as offered by the State seem to evidence a violation of such statute.

The motion is overruled.


text:
    JONES v. STATE.
    No. 20567.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1939.
    Rehearing Denied Dec. 20, 1939.

      J. A. Kibler, of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

It is shown in bill of exception No. 1 that in his closing argument the district attorney used language as follows: “The defendant could have taken the stand and testified if he had wanted to.” Appellant’s objection to the argument was overruled and he duly excepted. The bill of exception is qualified to the effect that when the foregoing statement was made by counsel for the state he had just finished reading that portion of the court’s charge with reference to the defendant’s failure to testify, and that he followed it by admonishing the jury to obey the court’s charge in that respect. It is made clear from the bill of exception that appellant did not testify. The charge of the court upon the subject of the failure of the accused to testify was as follows: “The law provides that the failure of the defendant to testify shall not be taken as a circumstance against him, and you must not allude to, comment on, or discuss in your retirement the failure of the defendant to testify in this case, nor will you refer to or discuss any matter not before you in evidence.”

Article 710, C. C. P., reads in part as follows: “Any defendant in a criminal action shall be permitted to testify in his own behalf the’rein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.” The provisions of this article are mandatory. The opinion is expressed that the language used by the district attorney constituted a violation of the terms of the statute and a comment on the failure of the appellant to testify. While the district attorney was warranted in reading that portion of the court’s charge relative to the failure of the accused to testify, his statement to the jury following such reading cannot be held to have been authorized. See McPhail v. State, 114 Tex.Cr.R. 635, 26 S.W.2d 218. His statement was clearly an allusion to the fact that appellant did not testify. The expression “The defendant could have taken the stand and testified if he had wanted to” was not in the charge of the court which the district attorney had read to the jury but was purely gratuitous, and clearly and unequivocally referred to the failure of the appellant to take the witness stand in his own behalf. See Brumbelow v. State, 122 Tex.Cr.R. 198, 54 S.W.2d 528, and authorities cited.

The judgment is reversed and the cause remanded.

PER CURIAM.

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

On Motion for Rehearing.

BEAUCHAMP, Judge.

The State’s motion for rehearing in this case challenges the application of the rule in Wimberly v. State, 109 Tex.Cr.R. 581, 6 S.W.2d 120, as authority for the conclusion' reached on the facts of the instant case. It is also asserted that the case of Brumbelow v. State, 122 Tex.Cr.R. 198, 54 S.W.2d 528, which followed the Wimberly case, is not in point because the argument in that case was not made in connection with the reading of the charge. We have given careful consideration to the two authorities, together with the facts of the case at bar, and also the insistence of the State’s Attorney that the Wimberly case should be specifically overruled or that the motion for rehearing should be granted and this case affirmed.

We have concluded that a proper judgment has been rendered in the case and that the State’s motion should be overruled. We cannot agree with the State’s Attorney that the opinion is inconsistent with the Wimberly case, or the Brumbelow case. In the original opinion, Judge Christian followed the doctrine heretofore laid down that the District Attorney had the right to read the court’s charge, but the error calling for a reversal of the instant case is in the statement which the prosecuting attorney made to the jury after reading a part of the court’s charge. This is the point here held to be an allusion to the fact that appellant did not testify. If it should be understood that the original opinion in this case does not hold as error any part of the attorney’s statement so far as it embraced a reading of the charge, but that error was committed in the additional statement which the hill of exception shows that he made to the jury and which was not contained in the court’s charge, then it is clear that the opinion is consistent with both of the previous authorities under discussion. We think that the opinion in the Wimberly case, as well as that in the McPhail case, McPhail v. State, 114 Tex.Cr.R. 635, 26 S.W.2d 218, correctly stated the law and that the original opinion in this case is consistent with them.

The State’s motion for rehearing is overruled.


author: KRUGER, Judge. CHRISTIAN, Judge.

text:
    BAUGH v. STATE.
    No. 20551.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1939.
    Rehearing Denied Dec. 20, 1939.
    Russell & Edwards, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUGER, Judge.

The conviction is for misdemeanor theft; the punishment assessed is confinement in the county jail for one day and a fine of $100.

It appears from the record that appellant and one, Walter Bruton, were charged with the theft of an automobile trailer from J. R. Mason. Bruton testified on behalf of the State that he was employed by appellant to aid him in the theft and that he received $1.50 for his services. He stated that he and the appellant went to the premises of J. R. Mason, hitched the trailer to appellant’s car, and took it away. Mason, the owner of the trailer, testified that the trailer was stolen from his premises. The State further proved that several months later appellant was found in the possession of said trailer. Appellant denied stealing the trailer, and testified-that one day as he and a party of friends-were out bird hunting, they discovered the trailer in the woods, without the wheels thereon. In this he is corroborated by members of the hunting party. About two weeks later he stated that he went back and found the wheels nearby covered with leaves. He then went to the justice of the peace and told him of having found the trailer and asked if it would be proper for him to take the same. The justice of the peace told him to take it. In this he is also corroborated by the justice -of the peace.

Appellant’s principal contention is that the accomplice witness, Bruton, is not sufficiently corroborated as to the theft of the trailer, and that therefore the evidence is not sufficient to sustain his conviction. He cites us to a number of authorities which he claims sustain his position. We have examined them but are unable to agree with him that under the facts of this case they are applicable here. It will be noted from the foregoing brief statement of the testimony that an issue of fact was raised as to whether the appellant stole the trailer or found it. The determination of this question rested exclusively with the jury, who decided the issue adversely to appellant’s contention. The jury had a right to accept the State’s version of the case as true and disregard that offered by appellant. We think the evidence is sufficient to justify and sustain the jury’s conclusion of appellant’s guilt.

Some complaint is made of the court’s charge. An examination of the same reveals that the charge actually given by the court was much more favorable to the appellant than the one which he requested. Consequently he has no right to complain thereof.

No error of a reversible nature appearing in the record, 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 renews his contention that the testimony is not sufficient to corroborate the accomplice witness. After re-examining the statement of facts we find ourselves unable to agree with this contention.

We remain of opinion that appellant’s affirmative defense was adequately submitted in the charge of the court.

The motion for rehearing is overruled.

PER CURIAM.

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


author: HAWKINS, Presiding Judge. KRUEGER, Judge.

text:
    COOK v. STATE.
    No. 20486.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1939.
    Rehearing Denied Dec. 20, 1939.

      Gray & Pope, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for conveying into jail a hacksaw blade to aid a prisoner therein to escape, punishment being assessed át confinement in the penitentiary for two years.

It is appellant’s contention that the evidence does not sufficiently corroborate that given by R. T. Polk, who was an accomplice. Appellant did not testify himself, and offered no other witnesses in his behalf. Eliminating for the time being the evidence of the accomplice witness it may be stated that the evidence of the non-accomplice witnesses established the following facts. One Strickland, Polk and appellant were in the same cell of the jail in Smith County, Texas, the cell being in the basement of the jail. The three mentioned were in the cell on the night of October 16, 1938. Appellant was released from jail some time during the morning of October 17th. About seven o’clock that night appellant went back to the jail and requested the jailer to let him take 'some tobacco to Strickland and Polk. The jailer declined to let appellant go to the cell but took the tobacco, telling appellant he (the jailer) would give it to the boys. It was raining at the time and appellant remained in the jail office thirty or forty minutes. A short time after appellant left the jailer stepped out on the jail porch and heard a noise which sounded like “sawing on steel” coming from the cell in the basement. Investigation disclosed that one of the bars had been sawed three-quarters through, and under a bunk in the cell a hacksaw blade was found. This blade was about twelve inches long, was red on one end for about two inches and had “Simonds” marked on the blade. Between 12:15 and one o’clock on October 17th appellant bought a hacksaw blade answering the description of the one found. The clerk who sold it to appellant said it was about like lots of hacksaw blades, but the Simonds Company was the only one he knew that made “red-end hacksaw blades.” The blade found was shown the hardware clerk who said it was' like the one sold to appellant; he further testified that the wrapping paper used in the store was brown. The accomplice witness Polk testified that appellant told witness and Strickland that when he (appellant) got out of jail he would bring them a hacksaw blade; that appellant was released from jail about nine o’clock in the morning, and about 7:30 that night he appeared at the jail, called to Strickland and made a motion from which they understood he had the hacksaw; that Strickland pushed a broom out through the bars on the window, and appellant stuck the hacksaw blade in the straw of the broom; that Strickland pulled the broom back in the jail and the hacksaw was in it wrapped in brown paper; that both witness and Strickland ttsed the blade in sawing on the jail bars.

It is not necessary that the testimony of the non-accomplice witnesses make out a complete case. It is apparent from the foregoing condensed statement that the accomplice witness does make out a complete case against appellant, and we fail to observe wherein the evidence of the non-accomplice .witnesses falls short of meeting the requirements of Art. 718, C.C.P., that such testimony must tend to connect accused with the commission of the offense charged. What has been said disposes of bill of exception number .one, which complained of the refusal to give an instructed verdict of acquittal.

The only other bill complains of argument of the district attorney. The trial court certifies that after discussing fully the testimony of witnesses in the case as reflected by the statement of facts, the district attorney said to the jury that Strickland was in jail charged with theft and burglary, and that appellant evidently did not believe in our system of laws whereby a man is tried before a jury; that appellant himself tried Strickland, found him not guilty and set about to release him from jail, and that that kind of man ought to be confined for the full limit of the law.

We find no basis for serious objection to’ such argument. The district attorney was not undertaking to state any new fact to the jury, nor to discuss the character or reputation of appellant further than conclusions warranted from the evidence before the jury.

The judgment is affirmed.

On Appellant’s Motion for Rehearing.

KRUEGER, Judge.

Appellant, in his amended motion for a rehearing, contends that the law of principals does not apply in a case of this nature. That Strickland, who was legally confined in jail on a charge of having theretofore committed an offense denominated as a felony, was not guilty of any offense in trying to escape from jail, and therefore could not be a principal with appellant. Appellant secured the saws and carried them to the window of the jail, where Strickland extended a broom through" the bars of the jail cell and window. Appellant then placed the saws on the broom straw and Strickland withdrew the broom into the jail, thus acquiring the saws.

It may well be conceded that it was not an offense for a prisoner to try to escape from jail, and it may further be conceded that Strickland was not a coprincipal in the sense that he could be prosecuted and punished as such. But even so, he might be an innocent agent of appellant, which would nevertheless make appellant a principal and guilty of the offense charged. One may be a principal who employs a person who .cannot be punished for the commission of an offense. See Duncan v. State, 86 Tex.Cr.R. 191, 215 S.W. 853. Consequently, appellant would be a principal although Strickland could not be prosecuted and punished for aiding appellant in the commission of the offense charged. Hence the court’s instruction on the law of principals was proper.

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: CHRISTIAN, Judge. HAWKINS, Presiding Judge.

text:
    NICHOLS v. STATE.
    No. 20603.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.
    Rehearing Denied Dec. 20, 1939.
    Clifford Graves and J. D. Bell, both of Paducah, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

The trial was had in Cottle County on a change of venue from Baylor County.

The prosecutrix, Mrs. Maude Nichols, and appellant had been married about 21 years when domestic troubles resulted in prosecutrix securing a divorce from the appellant. They had several children, the oldest of whom was 19 years of age. According to the testimony of prosecutrix, some time after the divorce had been granted appellant came to her home and demanded that she talk to him. She told her children to go for help. Finally appellant broke into the house, and, according to the version of prosecutrix, he grabbed her, began beating her, and dragged her out to his car. He cursed her for getting a divorce, choked her and told her that he ought to kill her. After they drove away from her home he stopped the car and forced her to have sexual intercourse with him. She begged him to desist. He had threatened to kill her and she was afraid of him. She testified: “I had to yield to him. I had to do just what he told me to or he would kill me.” According to the evidence, prosecutrix weighed ninety pounds and appellant one hundred ninety pounds. After the act of intercourse had been accomplished appellant drove prosecutrix down the road in his car. An officer, accompanied by the brother of prosecutrix, overtook them. Her brother testified that prosecu-trix was excited and screaming; that her face was bruised; and that he carried her to a doctor at Seymour. He said: “Her face was bruised from the left eye on down here (indicating) and black and blue, and the corner of her mouth.” He testified, further, that he carried her to his home on the night of the assault. Further, he said: “She told me that night what had taken place out there, the details of what happened.” Appellant was arrested and on the following day prosecutrix filed a complaint against him. Sue Nichols, a daughter of prosecutrix, testified to the effect that appellant had slapped prosecutrix when he came to her home on the night of the assault and had forcibly put her in his car. It was her further version that appellant told prosecutrix at the time that he ought to kill her.

Testifying in his own behalf, appellant admitted that he entered the house on the occasion in question and slapped prosecu-trix one time. He denied that he carried her to the car and asserted that he and prosecutrix became reconciled after they entered the car and that she consented to have sexual relations with him. In short, he denied that he threatened prosecutrix, and testified that he had intercourse with her with her consent.

Under appellant’s testimony he was entitled to no further instruction on his affirmative defense than that given in the charge of the court. The court instructed the jury as follows: “If you find and believe from the evidence that the defendant had carnal knowledge of Maude Nichols at the time alleged in the indictment, but you further find that such carnal knowledge was with her consent or acquiescence, or either, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict not guilty.”

Bills of exception 3 • and 4 relate to the contention of appellant that the judgment of divorce which was entered in the suit filed by the prosecutrix against the appellant was void. In short, the bills reflect an effort on the part of the appellant to collaterally attack that judgment. An examination of the bills of exception reveals that the judgment is not void and that it is therefore not subject to collateral attack. See Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 89 A.L.R. 1198.

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

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 has addressed to this court two letters in which he expressed a wish to have his case again reviewed. We have done this and given attention to the matters of record which are properly before us for consideration, and remain of opinion that the case was properly disposed of originally-

The communications mentioned contain many statements and charges which are not reflected by the record, and of course cannot be considered.

The motion for rehearing is overruled.


author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    BRICKELL v. STATE.
    No. 20529.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1939.
    Rehearing Denied Dec. 20, 1939.
    Raymond Wilson and Henry R. Bishop, both of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, and Marvin H. Brown, Jr., Crim. Dist. Atty., and Dayton Moses, Asst. Crim. Dist. Atty., both of Fort Worth, 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 testimony adduced, briefly stated, shows that on the 13th day of October, 1938, Mrs. Mary Owens Campbell parked her car on Throckmorton Street in the City of Fort Worth. Intending to be gone only a few minutes, she left the key to the ignition in the car. When she returned, the car was gone.' At the time the car was taken, there was a golf bag containing six balls and six clubs in the turtle back. Some two days later the officers located her car near the Riverside School Building in the same city. The keys were in the car and only a little gasoline had been used. Mrs. Campbell testified that the car had been driven only a few miles since it had been taken, and that no damage had been done to it. However, the golf bag apd clubs were missing, but the officers located these at .a pawn shop where appellant, under an assumed name, had borrowed $4 on them. The alleged total valué of these club's was around $39, while the car was valued at $700. Appellant did not testify or offer any affirmative defense.

Appellant did, however, complain of the court’s action in two separate bills of exception in failing to submit to the jury two specially requested instructions. The first was a peremptory instruction to the jury to return a verdict of not guilty. The second was an instruction to the effect that if the appellant took the car but at the time of said taking intended to use said car without the consent of said owner, but did not intend to appropriate it to his own use and benefit other than to drive it and that he thereafter abandoned it after such unlawful use, then and in that event the jury could not convict the defendant for the theft of the car, and would then only consider the' unlawful taking of the golf bag, balls and clubs.

We are of the opinion that the appellant was entitled to this requested instruction or one of like import, because the issue was fairly raised by the evidence. If the appellant took the car with no intention of stealing the same, but only intended to use it without the owner’s consent and for a mere temporary purpose, he would not be guilty of theft,, but only of using a vehicle without the owner’s consent, which is denounced by Art. 1341, P.C., as a misdemeanor. The evidence showed that the car had been driven only a few miles and then abandoned in the same city, undamaged and unharmed. Only the golf clubs and bag were missing. Under these circumstances, we feel that the trial judge should have given the requested instruction or one of similar import. For analogous cases see Smart v. State, 116 Tex.Cr.R. 639, 32 S.W.2d 197; Carroll v. State, 114 Tex.Cr.R. 309, 25 S.W.2d 345; Sec. 116 Tex. Juris, Vol, 41, p. 277; Galloway v. State, 126 Tex.Cr.R. 294, 71 S.W.2d 871.

It is a well settled rule in this state that a defendant is entitled to an affirmative instruction upon every issue raised by the evidence, whether such evidence was produced by the state or the defense and whether it be strong or feeble, un-impeached or contradicted. See Kibbe v. State, 133 Tex.Cr.R. 494, 112 S.W.2d 733, and authorities there cited.

For the error above mentioned, the judgment is reversed and the cause remanded.

PER CURIAM.

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

On State’s Motion for Rehearing.

CHRISTIAN, Judge.

A careful review of the testimony adduced upon the trial in the light of the State’s motion for rehearing leaves us of opinion that the circumstances of the transaction raised an issue as to whether the taking of the automobile in question was for a mere temporary use. Hence 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: GRAVES, Judge. CHRISTIAN, Judge.

text:
    BOWERS v. STATE.
    No. 20580.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1939.
    Rehearing Denied Dec. 20, 1939.

      Heidingsfelder & Wander, of Houston, and H.. G. Hart, of Mt. Pleasant, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged by indictment with theft, evidently by a false pretext, and was assessed a penalty of ten years in the ' penitentiary.

The facts from the State’s standpoint indicate that appellant and one' P. R. Stokes were companions in a scheme to obtain from the complaining witness, one Reuben McGowan, $700 in money. The witness was an aged negro man seventy-one years old, a basket maker, living by himself in San Jacinto County, Texas. About October 1, 1937, this Stokes got the negro in an automobile by means of promising the negro $2 if he would accompany Stokes to some kinspeople of McGowan’s in order to sell such kinsfolk some life insurance. They passed the road leading to these kinsfolk’s house, and continued over into San Jacinto County, where they eventually stopped at a filling station and beer joint, where the negro met this appellant, the owner of this station. Mr. Stokes began there to instruct the complaining witness in the intricacies of a card game, the said witness contending that he did not know how to play cards. Eventually the three parties, Stokes, appellant and the negro repaired to a “dilapidated” house some one hundred yards from the filling station, and there began a game of cards. After playing awhile, the game was finished, and Stokes informed the old negro that they had won $4200 from appellant, and appellant exhibited a large roll of bills, which it was said contained 'a large amount of money, and, in order for appellant to pay off, it was necessary for Stokes and the negro to produce $1100 in cash. They did not seem to have that sum present, and Stokes said that his sister who owned the Burch hotel in Conroe had $2500 of Stokes’ money in the bank, and they would go there and get.this $1100. Stokes and the negro went to Conroe, and Stokes went into the hotel, leaving McGowan in the car. Soon Stokes came out and said his sister was gone and he could not get the money, and asked the negro if he did not have that much money. The negro said yes, but his money was in the bank at Sheppard. Mr. Stokes then told the negro that they would go to Sheppard and get the money there. They went to Sheppard and the negro drew out of the bank $688 which together with $12 he had in his pocket, made $700. The pair then returned to appellant’s place of business, and found appellant waiting in the “dilapidated” house. Mr. Stokes had already made many extravagant promises to the negro, telling him that he would not lose his money; that he would rather have his arm pulled out than that McGowan should lose this money; that he hoped that he (Stokes) would die the next minute if the negro lost his money, etc. Upon the return to this house Stokes announced that they had only obtained $700, but it seems that Stokes and appellant “decreased” the amount to $700 after some argument, and at such time Stokes directed the negro to produce the money from his pocket; the negro reluctantly did so, and Stokes proceeded to count the same. When it was ascertained that the full $700 was there, Stokes placed the money in a paper hag in front of appellant, and appellant picked up the hag and placed the money in his, appellant’s, pocket. The lamentations of McGowan immediately followed, but only availed him to the extent of the return of $10, appellant retaining the balance. The State’s testimony further shows that sometime in June 1938, after appellant had been indicted herein, and had made bond, he came to the district attorney’s office and told such attorney that he had only gotten $350 of this negro’s money; that he and Stokes had divided the money, and asked the attorney that if he paid the old negro back the $350 appellant had gotten, would it help him any in his trial. The district attorney suggested that such a return of the money would be very commendable in appellant, and appellant indicated at such time that he might sell or pledge some of his property and pay McGowan this $350 but the next time the district attorney saw appellant was after the sheriff brought him back from Kansas.

Appellant’s defense was that he engaged in a poker game with the negro, who won for awhile, but finally lost the $700 with which appellant is herein charged with stealing. This defense is bolstered up by the testimony of appellant’s wife, as well as a young man who worked for him at the filling station. Evidently appellant’s theory was not believed by the jury, their verdict being an indication that they accepted the old negro’s version of the transaction. The careful trial court gave a requested instruction stating, in substance, that if the appellant had won the money from McGowan in a wager on a game of cards, then same would not constitute theft, nor an essential element of theft.

Appellant’s bill of exceptions No. 1 complains of the failure of the trial court to place P. R. Stokes on trial first for this alleged offense. It appears that pending the hearing of said motion Stokes filed a like motion, asking that appellant be first tried in this matter. The court then gave the two defendants an opportunity to settle their differences relative' to priority of trial, which they were unable to do. Appellant being in jail and Stokes out on bail, the trial court ordered appellant to trial first, in keeping with the court’s custom to try all jail cases first if possible. We see no error in such a proceeding.

Bill of exceptions No. 2 complains of the fact that while the complaining witness McGowan was on the stand, he was handed a pack of playing cards, and after-having testified that he had never played cards in his life, on re-direct examination by the State’s attorney the witness was asked to “make” these cards; meaning to shuffle them. The witness stated that he could not do so. It appears from the bill’s qualification that the deck of cards was handed to the witness by defendant’s attorney, in an attempt to prove that the witness knew the different cards in the pack, after the witness had said, in substance, that he did not know one card from another. It was then that the witness was asked to “make” these cards. We see no serious error presented herewith. The matter seems to have been initiated by appellant’s attorney, and this bill is overruled.

Bills Nos. 4, 5 and 6 relate to the allowing of certain witnesses to testify as to the good reputation of the complaining witness Reuben McGowan for truth and veracity in the neighborhood in which he resided. The only objection certified thereto by the court was “I object to the form of the question.” A perusal of the question shows that same was in proper form.

It appears that the testimony of this witness was sharply contradicted by three witnesses, and he underwent a sharp cross-examination which attempted to show that the witness lost his $700 in a gambling game with appellant, and was' now telling a fabricated story relative to the whole transaction, and was lying about the whole thing. It was further shown that witness was a seventy-one year old negro who lived in an adjoining county, and was a stranger in the county of the trial. Under these circumstances we think the rule mentioned by Mr. Branch in his Penal Code, p. 115, Sec. 184, is applicable:

“If the witness is in the situation of a stranger and is assailed on cross-examination by questions attacking his credibility and tending to bring him into disrepute before the jury, he may be sustained by proof of his general reputation for truth. Phillips v. State, 19 Tex.App. [158] 163; Crook v. State, 27 Tex.App. [198] 241, 11 S.W. 444; Harris v. State, 49 Tex.Cr.R. [338] 339, 94 S.W. 227; Goode v. State, 57 Tex.Cr.R. 220, 123 S.W. [597] 606; Contra: Payne v. State, 40 Tex.Cr.R. [290] 294, 50 S.W. 363.”

Bill of exceptions No. 7 relates to an objection to a statement testified to by McGowan to the effect that when witness left appellant’s place of business, appellant had the witness’ money; and at the timé Stokes left witness McGowan at Con-roe, the appellant had witness’ money, and Stokes then and there stated that he was going back to get it. This was objected to because told in the absence of the defendant. We think the same was admissible on the doctrine that the two conspirators had not at such time divided the money that they had obtained from McGowan, and the acts of either conspirator would continue to be thus admissible against either until such division of the spoils was succes-fully obtained by the carrying out of their conspiracy. See Robins v. State, 134 Tex.Cr.R. 617, 117 S.W.2d 82, and cases there cited.

It seems that this instant case is very similar in its facts to the case of Barnett v. State, 119 Tex.Cr.R. 594, 43 S.W.2d 449, in which this court held that such similar proven facts constituted theft by false pretext.

We find no error evidenced herein, and the judgment is therefore affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

In his motion for rehearing appellant insists that the qualifications appended to his bills of exception are not supported by the statement of facts. It is observed that these qualifications were not excepted to by the appellant. Under the circumstances, we must accept them as correct. We quote from 4 Texas Jurisprudence 278, as follows:

“If appellant accepts and files a bill with a qualification he is bound by the qualification, which will not only be accepted by the appellate court as correct, but will also control’ in so far as it is in conflict with the bill as prepared by the appellant’s counsel. Moreover, the appellate court will presume that qualifications in a duly certified bill were made with the consent of the accused or his counsel unless the contrary appears over the certificate of the trial judge, and it will accept as correct qualifications to which no objections are filed or no exception taken, in the court below, of to which objection or exception is not verified by the trial court, and will not consult the statement of facts or other parts of the record to verify the statements therein.”

As qualified, the bills of exception fail to reflect error.

We remain of opinion that the evidence is sufficient to support the judgment of conviction.

The motion for rehearing is overruled.

PER CURIAM.

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


author: GRAVES, Judge. KRUEGER, Judge.

text:
    LOVELL v. STATE.
    No. 20468.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1939.
    Rehearing Denied Dec. 20, 1939.

      Owen & Bohannon, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged with the offense of burglary, and by the jury found guilty and sentenced to a term of two years in the penitentiary.

There is only one bill of exceptions in the record, and that is concerned with an oral confession claimed to have been made to the officers who arrested appellant, relative to where a portion of the stolen property could be found.

It seems that some time in the month of April, 1938, Mr. Cal Evatt’s house, close to the town of May, had been burglarized and a quantity of clothing and wearing apparel had been stolen, presumptively by two persons. One Ed Putty was arrested for such burglary, and made certain statements to the officers arresting him. Later appellant was arrested, and a suit of clothes, claimed to have been taken from the burglarized house,' was found, and a hat, also claimed to have been stolen at the time of the burglary, was recovered at Cisco.

Appellant complains because of the introduction of certain testimony of W. E. Hallmark, Sheriff of Brown County, wherein he testified as follows:

“On the way from Carbon toward East-land I had some conversation with Stut Lovell with reference to a hat of Cal Evatt’s, from his house that was gone into down here at May. Stut said that there was a hat and maybe a belt over at Cisco. He said that it was over at the home of a man by the name of Tumlin at Cisco. He said where it came from. Best I remember he said it came from the same place the suit came from over close to May. As to who he said got it: His remark was that he and Ed Putty had gotten it. He said that they got it over close to May. He said that the hat at Cisco came from the same place the suit of clothes had over close to May. At that time we had a suit of clothes there in the car. * * ⅜
“And prior to the time that he told me about the hat as I have testified, I did not know who had the hat. I did not have any idea who had the hat at that time. I did not know where to go to find the hat. We came on into Cisco and Stut Lovell directed us coming out like you were coming to Rising Star until he said you pass a sign, and he directed Howard to turn to the left at that sign, — it was a church sign, — and we turned to the left there and drove down the street a couple-of blocks and they told him to turn into a house there. He said that a man by the name of Tumlin lived there. We drove up in front of the house and honked the horn and a lady came to the door and on to the front porch and he asked her where Tumlin was, and she said down town, and he said ‘I want to get that hat that we left here.’ I believe he said ‘We’ or he said ‘that me and Ed Putty left' here.’ I would not be sure. We did not get the hat at that time. Prior to the time that we went to that house I did not know the hat was there. I did not know that a fellow by the name of Ed Tumlin had it. I had not heard'that name before. We did not get the hat at that time. We drove down through town looking for Mr. Tum-lin. He said that he would know him when he saw him.”

Appellant’s attorneys contend vigorously that the sheriff already had knowledge of where the supposedly stolen hat could be found prior to the time of this conversation had with appellant, and therefore this statement by him was not the cause of the finding of this stolen property. There may have been some possible reason for saying that the sheriff could have had information that the stolen suit of clothes was in the possession of one Pete Courtney, but we must confess that we do not find any probable reason in the record upon which to base a contention that at the time of the conversation with appellant the sheriff, or anyone with him, had any knowledge that a part of the stolen property, the hat, would be found in the possession1 of Mr. Tumlin. -In fact all the State’s testimony goes to show that such knowledge was not possessed by the officers, and that upon receiving such information they were directed to Mr. Tumlin’s home, and at a later date the stolen hat was recovered from Mr. Tumlin, and identified at the trial. We do not think it necessary to advert to the finding of the stolen suit, information of the location of which was claimed by appellant to have been in possession of the arresting officers at the time of .the convers'ation with appellant relative to the hat. We do find, however, that the careful trial court charged the jury that if they believed that the officers had acquired the knowledge as to the location of the stolen property from any other source than the appellant, then they should disregard the same and not consider such testimony for any purpose.

Appellant also challenges the sufficiency of the testimony, and contends that same is insufficient upon which to predicate a verdict of guilt. Under the facts relied upon by the State, one Ed Putty and appellant were together when they sold the hat to Tumlin; both of them talked to Tumlin about the sale, and appellant claimed the hat. The hat was recently stolen property, and its possession in appellant was a sufficient quantum of proof upon which the jury might predicate its verdict, appellant’s explanation of such possession and its reasonableness being a question to be decided by such jury. See Branch’s Penal Code, Sec. 2464, p. 1332.

We do not think any error has been shown herein, and the judgment is affirmed.

On Appellant’s Motion for Rehearing.

KRUEGER, Judge.

Appellant in his motion for a rehearing urges two grounds upon which he seeks to have this court set .aside the af-firmance of the judgment of the trial court and reverse and remand this cause. The first is that this court erred in holding that the purported confession by appellant to the officers while in custody was admissible. An oral confession by an accused while under arrest is not admissible unless by reason thereof the alleged stolen and secreted property or the instrument with which the offense was committed is found. See Art. 727, C.C.P. In the case at ,bar, the officers testified that appellant told them where the hat taken in the burglary could be found and directed them to the place. The officers testified that they had no information as to where the hat was or where it might be found. Under such circumstances, his entire oral statement made to the officers at the time relative to the alleged offense became admissible. See McClure v. State, 100 Tex.Cr.R. 545, 272 S.W. 157; Webb v. State, 102 Tex.Cr.R. 360, 278 S.W. 223; Goosby v. State, 106 Tex.Cr.R. 152, 291 S.W. 237; Lingo v. State, 117 Tex.Cr.R. 582, 35 S.W.2d 153.

Appellant’s second contention is that we erred in holding the evidence sufficient to sustain his conviction. We have again carefully reviewed the statement of facts and remain of the opinion that there is sufficient evidence upon which the jury could legally base a verdict of guilty.

Believing that the case was correctly disposed of .on original submission, 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.


author: CHRISTIAN, Judge. KRUEGER, Judge.

text:
    MONDRAGON v. STATE.
    No. 20686.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1939.
    Rehearing Denied Dec. 20, 1939.

      Fred H. Woodard, of Corpus Christi, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possession of marihuana; the punishment, confinement in the penitentiary for four 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.

On Appellant’s Motion for Rehearing.

KRUEGER, Judge.

Appellant, in his motion for a rehearing, for the first time contends that the judgment of affirmance should be set aside and the cause reversed and remanded, because the court reporter who took the testimony died before completing the statement of facts and the notes of his objections to evidence. That by reason thereof he is unable to present to this Court a true and correct statement of facts and bills of exceptions. The allegations in the motion are entirely too general. There is no allegation to the effect that after the stenographer died, he prepared a statement of facts and bills of exceptions and presented the same to the District Attorney and the judge who presided over the trial for approval, etc., as he might have done under Art. 760 C.C.P., Vernon’s Ann.C:C.P. art. 760. Nor is it alleged that the stenographer died shortly before the time in which to file the same had expired and he did not have sufficient time left in which to prepare one from memory and file it within the prescribed time. Consequently he has not brought himself within the rule which would relieve him of any negligence in failing to prepare a statement of facts, accompanied by a proper'certificate as to its correctness, as required by law, and present the same to the Court and District Attorney for approval. See Vol. 4, Tex.Juris., Sec. 286, p. 418 and authorities cited.

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:
    SMITH v. STATE.
    No. 20510.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1939.
    Rehearing Denied Dec. 20, 1939.
    John H. Benckenstein, of Beaumont, for appellant.

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

The offense is driving an automobile on a public highway while intoxicated. The punishment assessed is confinement in the state penitentiary for a term of one year.

The only question presented by the record is the sufficiency of the evidence to justify and sustain the conviction. The record shows that on the evening of December 22, 1938, two patrolmen saw appellant driving on the highway leading from Vidor into Beaumont. They noticed that the car was zigzagging from one side of the highway to the other, and immediately stopped it and took appellant in charge. They stated that his breath carried the odor of whisky and that he was unsteady on his feet and talked incoherently. Appellant denied being drunk but admitted that from .about S :30 P. M. up to the time of his arrest he had taken three drinks of whisky. He attributed his manner of driving to a defective steering wheel. A lady who was with appellant at the time of his arrest testified that he was not drunk.

It will be noted that the evidence raised an issue of fact which the jury, who are the exclusive judges of the facts proved, the credibility of the witnesses, and the weight to be given their testimony, decided adversely to appellant. We deem the evidence sufficient to sustain the jury’s conclusion of appellant’s guilt.

The judgment is affirmed.

PER CURIAM.

The fo'regoing 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.

CHRISTIAN, Judge.

Appellant insists in his motion for rehearing that the evidence is insufficient to show that he was intoxicated at the time he drove his car on a public highway. We are unable to agree with this contention. We quote from the testimony of one of the arresting officers: “I was stationed in Orange County on the 22nd of December, 1938. I know Joe Smith, the defendant. I saw him on or about December 22, 1938. I first saw Joe Smith right in the town of Vidor on State Highway No. 3 and U. S. Highway No. 90, which is the same. Mr. Smith was driving an automobile. We met Mr. Smith coming down the road darting from one side of the road to the other; so we stopped and let him get by and pulled around and stopped him. Mr. Bearden, a State Highway Patrolman, was with me; he works with me. Mr. Smith was going west, toward Beaumont, and we were coming toward Orange, headed east. Mr. Smith was driving his automobile darting from one side to the other, sort of zig zag. We stopped our automobile and turned around and come. back and stopped him. Our investigation revealed that Mr. Smith was driving the car and he was drunk. Mr. Smith was under the influence of intoxicating liquor. I have had experience in observing men drunk and under the influence of intoxicating liquor. -It is my opinion that the defendant was drunk on this occasion and driving an automobile. I base that opinion on the - way he was going from one side of the road to the other, then his breath was very strong with whiskey, and then his speech, the way he talked, trying to talk, and his action in getting around on foot, walking. Mr. Smith’s speech was incoherent and his steps were not sure.”

The other officer who participated in making the arrest testified, in part, as follows : “I work in connection with Mr. A. S. Wier, and at present I am stationed in Orange County, Texas, and was stationed here on or about the 22nd day of December, 1938. I saw Joe Smith (appellant) on or about that date on State Highway No. 3 and U. S. 90. We were travelling east and met a car that was travelling west that made a zig zag across the road; we pulled over a piece and turned around and went back down there and stopped it, and Mr. Smith and a lady was in the car; we got Mr. Smith out; he had been drinking something with alcohol in it, you could smell it on his breath; he couldn’t hardly stand up, that is, he was top-heavy, he would wobble. From my experience with drunks and with men under the influence of intoxicating liquor and observing their manner and demeanor, I would say the defendant in this case was drunk on that occasion. The defendant ■ was driving an automobile here in Orange County, Texas. I took the defendant in my custody and Mr. Weir drove the lady down about the Shamrock Inn. I observed Mr. Wier driving the defendant’s car. The car did not zig zag then in the same manner as when I saw the defendant driving it; Mr. Wier kept it on the right side of the road.”

The motion for rehearing is overruled.

PER CURIAM.

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


text:
    PARRISH v. STATE.
    No. 20552.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1939.
    Rehearing Denied Dec. 20, 1939.
    Denman & Fowler, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of burglarizing the house of Willard Yates at nighttime, and by the jury assessed a punishment of five years in the penitentiary.

His only complaint herein is as to the sufficiency of the testimony. The State offered in evidence and admitted accomplice, Carl Harris, who testified, in substance, that on the date alleged in the indictment he and appellant, late in the afternoon, a little before sundown, were together, both drinking, and appellant said “Let’s go up to Bottley’s (Yates) house and go in;” that appellant said he did not like Yates, and wanted to do something to him. “He said he didn’t like Bottley, and wanted to do something to him. He said he was going in the house to get even with him; he wanted to go over the house and prowl about, and so we went over there, and when we got over there it was mighty near dark; it wasn’t quite dark but it was mighty near it. We went there and went around the west end of the house and crawled through a window by the fireplace. The window was up and we went in there and -got some clothes, * * * and got a ten pound sack of sugar, and got some stuff he had in the pots on the stove, and after prowling the kitchen got some canned goods, I believe between six and seven kinds of canned goods.” It appears that the witness and appellant ate some of the food gotten from the pots on the stove, and appellant then went up to one Harvey Commander’s store and traded some of the canned goods and the sugar for some whisky. That later the appellant and his companion were found by the constable, Mr. Spradley, and on account of their near intoxicated condition and boisterous conduct, the officer told them to go home, and they went out in a near-by field and laid down and went to sleep.

There are no bills of exception in the record, and the only ground urged before us for a reversal is the insufficiency of the evidence to show that appellant was guilty of a nighttime burglary of Mr. Yates’ house.

The first contention offered is that Carl Harris, the accomplice, was not sufficiently corroborated as to the entry of the house by appellant. Mr. Harvey Commander testified that somewhere around August 16, 1936, the alleged date of the burglary, appellant traded him some sugar and canned goods; the sugar was in a ten pound sack, and the labels on the cans showed them to have been purchased from the store. It was early in the night, around seven or eight o’clock; it was after dark.

Mr. Spradley testified that he was constable of precinct No. 1 in Nacogdoches County; “that on the night of August 16, 1936, down about the oil mill, around eleven or twelve o’clock at night, he heard some one talking loud and rather boisterously, and he came across Luther and Carl Harris, and they were pretty well lit up; he told them that if they didn’t quit talking so loud he would run them in, and he said he had started home and I let them go. I did not see them any more that night. I heard .the next day about the house of Willard Yates being burglarized, and I made an investigation of that. * * * I found out .what was taken out of the house, and from that I made an investigation as to where that property was, and I got a pair of scissors at Mr. Carl Harris’ house in the Berger quarters, and a ten pound sack of sugar at Harvey Commander’s. * * * I found the sugar and canned goods at Harvey Commander’s; that was probably on August 17th; it was the next day.”

It appears from the above quoted testimony that sometime during the night of and after the burglary the appellant was in possession of a portion of the property taken from, the burglarized house on that same night. It is also worthy of note that the appellant made no explanation of such possession. Under these facts the circumstances are strong enough to uphold a verdict of guilt as to the actual burglarious entry upon the part of appellant, and we feel sure that such facts are clearly sufficient to corroborate the accomplice. See Branch’s Penal Code, p. 1283, Sec. 2346, and cases there cited.

The next proposition offered by appellant is relative to the entry not having been shown to be at nighttime. It will be observed that the indictment contains two counts, one for an ordinary burglary, and the second count for a nighttime burglary of Mr. Yates’ private residence, the latter count being the one submitted to the jury, and upon which the verdict was predicated. We are convinced that there is a sufficient amount of testimony in the record to warrant the jury in thus finding that this entry was made in the nighttime, as defined by law. We think the court was correct in defining nighttime as beginning thirty minutes after sunset and continuing until thirty minutes before sunrise. See Art. 1396, Penal Code.

We note that this testimony shows that the accomplice testified that “It was about dark at the time the defendant Luther Parrish and I went there, and it was after dark when we went in the house.” Again he says: “It was about dark when we got there, and I say we went through a window.”

The facts show that Mrs. Yates left her house sometime after five o’clock in the afternoon of the burglary, and the house ■ was closed; that she walked to a neighbor’s about a quarter of a mile away, and when she returned about eleven o’clock that night her house had been entered by some one, evidently through a window, about as high as the lady’s head, which was an unusual mode of entry to that house.

Mr. Commander, who traded for the Canned goods and sack of sugar, testified that: “It was around dark when you (appellant) were at my place; it was a little after dark. * * * It was early in the night when the defendant, Luther Parris, brought the canned goods and sugar to me; I don’t remember exactly the time-—-it was around seven or eight o’clock; it was after dark.” This testimony seems to be sufficient to justify the jury in concluding that this was a nighttime burglary.

It is also shown that the window, through which it is testified an entry to the house was made was an unusual mode of entry, and an entrance made to such house through the window could be utilized by the jury as an unusual mode of entry under the statute. Art. 1394, Vernon’s Ann.P.C.; also see Alexander v. State, 31 Tex.Cr.R. 359, 20 S.W. 756; Davis v. State, 52 Tex.Cr.R. 332, 335, 107 S.W. 855. In our opinion these facts are sufficient, and meet the requirements of the law.

The judgment is affirmed.

On Appellant’s Motion for Rehearing.

KRUEGER, Judge.

Appellant, in his motion for a rehearing, strenuously insists that we erred in our original disposition of this case in this: That we held the evidence sufficient to sustain the conviction. His contention is: (1) That the alleged articles taken from the burglarized house were not identified and (2) that the testimony of the accomplice, Carl Harris, was not corroborated. We have again read the record with much care and reached the conclusion that the evidence is sufficient.

Carl Harris, an admitted accomplice, testified that he and appellant, about dark on August 16, entered the home of Mr. Yates by crawling through a window. That they took some shirts, pants, a pair of slippers, ten pounds of sugar in a cloth sack, canned goods and some food that had been cooked which was in pots sitting on the kitchen stove. That they took the pots containing the cooked food to the railroad where they ate it and threw the pots away. That they traded the sugar and some of the canned goods to Harvey Commander for a pint of whisky! Mrs. Yates testified that when she left home on the evening in question she left some cooked food in pots on the stove. That when she returned about 11 p. m. the food and pots were gone. The ten pounds of sugar in a cloth sack, canned goods, shirts, pants and all oi her husband’s every day clothes were gone. Did this not corroborate the accomplice as to what was taken in the burglary? We think so. Again, Harvey Commander testified that appellant did, in the early part of the night in question, trade to him some canned goods and ten pounds of sugar in a cloth sack for a pint of whisky. He further testified that on the following day when the constable came to his home, he, the witness, showed the constable the sugar and canned goods. The constable testified that he saw appellant and the accomplice together on the night in question and both appeared to be pretty well “lit up”, probably due to the consumption of the whisky which they obtained from Commander in exchange for the sugar and canned goods. The constable also testified to finding the sugar and canned goods at Harvey Commander’s home on the day following the night of the burglary. Mr. Yates testified that he recovered a coat, a pair of pants, and scissors.-

Now, let us take this testimony and analyze it and see if it tends to connect the appellant with the offense and corroborates the accomplice. That appellant and the accomplice were together on the night in question and that they traded ten pounds of sugar together with some canned goods to Commander on the night of the burglary is not denied or controverted by any testimony. That these goods were similar to those taken in the burglary is also shown. The sugar and canned goods were traced into the possession of Harvey Commander to whom they had been given in exchange for whisky by appellant. We are of the opinion that all the facts and circumstances proved do corroborate the accomplice’s testimony, and sufficiently show that the stolen articles were the ones taken from the burglarized premises.

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:
    McCOY v. STATE.
    No. 20508.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1939.
    Rehearing Denied Dec. 20, 1939.

      R. E. Eubank, of Paris, and C. A. Holloway, of Clarksville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

This is the second appeal of this case, the opinion on the first appeal being found in 135 Tex.Cr.R. 73, 117 S.W.2d 787, with a four year penalty assessed. The offense charged herein is murder, and the punishment assessed at this trial is ten years confinement in the penitentiary.

The facts show some kind of disagreement between appellant and the deceased, Johnny Burks, relative to their partnership in the hay baling business, and the record contains some threats having been made by both parties relative to their differences, as well as some abusive language, prior to the time of the killing, indulged in by both of them. At the time of the killing appellant contends that the deceased was approaching appellant’s wagon with an open knife in his hand in a threatening manner. Some conversation ensued that finally ended in appellant, while standing in his wagon, shooting Burks with a pistol, and he soon thereafter died from the wound.

Bill of exceptions No. 1 complains of the trial court’s ruling in refusing to allow Mrs. Annie Belle Gough to testify before the jury that her husband told witness that he, the husband, would not tell her what the deceased had said to the husband at the time that he had a certain conversation with deceased, because the witness would have said her husband said “Women popped off,” which portion of the conversation relative to women popping off was communicated to appellant a short time prior to the killing. The court’s qualification to said bill shows that the court refused to allow this testimony when first presented, and we think properly so; but on further reflection, on the following morning and while the trial still proceeded, the court notified appellant’s attorneys that they would be permitted to introduce this testimony. While the witness had been allowed to return to her home, some few miles from the county seat, only by permission of appellant’s attorneys, nevertheless they did not see fit to recall her and exercise the privilege granted by the court. We see no error reflected therein.

Bill of exceptions No. 2 complains of the court’s charge on self-defense, and it is argued that the court’s charge thereon does not present all the facts shown relative to such defense. To this we do not agree. The court’s charge seems to be full and fair on that phase of the case, requiring the jury to judge the reasonable appearance of danger from the appellant’s standpoint alone in the light of all the surrounding facts and circumstances, taking into consideration the defendant’s knowledge of the character and disposition of the deceased, and the relative strength of the parties. We think that the charge on self-defense as, given by the court was sufficient under the facts herein.

Bill of exceptions No. 3 complains of the trial court’s charge on threats as a ground of self-defense. It is noted that there is not found in the record any objections to the trial court’s charge, and it seems that appellant’s attorneys contented themselves with merely submitting to the court their requested instructions in lieu of the instructions prepared by the court. We note that the trial court’s instructions on threats, as applied to the doctrine of self-defense, embodied all the pertinent parts set forth in the requested instruction presented by appellant’s attorneys to the court, and we think the charge given was in fair conformity with the one requested by appellant.

Bill of exceptions No. 4 is in the same condition as bill No. 3, and our ruling thereon is the same.

Bill of exceptions No. 5 complains of the trial court’s failure to give in charge to the jury a requested charge that embodied, in substance, the fact that appellant had the right to arm himself for the purpose of protection against the deceased. In answer thereto we note that the trial court in no way limited appellant’s right of self-defense, but gave a full and fair charge thereon untrammeled by any limitation thereon, and under such circumstances appellant was not entitled to such a requested charge. Branch’s Penal Code, Sec. 1950, p. 1091, says: “If the court does not limit defendant’s right of self-defense by a charge on provoking the difficulty, or otherwise, but gives him the perfect right of self-defense on every defensive theory, it is not error to refuse to charge on his right to arm himself and seek an explanation,” citing authorities.

In our judgment no error has been presented herein, and the judgment is affirmed.

On Appellant’s Motion for a Rehearing.

KRUEGER, Judge.

In his motion appellant presents three grounds upon which he seeks a rehearing. The first is that the evidence is wholly insufficient to warrant and sustain his conviction. After a most careful review of the testimony, we remain of the opinion that the evidence is sufficient to support the jury’s conclusion of appellant’s guilt. His second contention is that the court in his charge on self-defense failed to instruct the jury that if the deceased by his acts, coupled with his words, if any, reasonably induced the defendant to believe that the. deceased was about to attack him (the defendant) with a knife, etc., to acquit him. His contention seems to be that the court’s failure to so charge was a limitation on his right of self-defense. Had appellant addressed an exception to the court’s charge and specifically pointed out the alleged error, he would have some basis for his contention; but this he did not do. He merely requested a special charge which embodied the omission in the court’s main charge on “acts coupled with his words.” This has been held by this court not to be sufficient. See Boaz v. State, 89 Tex.Cr.R. 515, 231 S.W. 790; Parker v. State, 98 Tex.Cr.R. 209, 261 S.W. 782; Banton v. State, 119 Tex.Cr.R. 169, 46 S.W.2d 703, and authorities there cited. ■ If the court had not given any instruction at all on the subject then a special charge would have been sufficient, but in the case at bar, the court gave an instruction thereon, not, however, as full as that covered in the special charge. There was nothing in the specially requested charge which distinctly pointed out the omission. To hold otherwise would be in effect to nullify the provisions of Art. 658, C.C.P., Vernon’s Ann.C.C.P. art. 658, requiring the defendant to present his objection to the court’s charge in writing, distinctly specifying each ground of objection.

Appellant’s third and last contention is that the court erred in instructing the jury that “if the deceased was making or was about to make an attack upon the defendant with an open knife * * * and by the use of said knife was attempting to commit murder, maiming, disfiguring or castration on the person of the defendant, etc., then it is presumed that the deceased intended to inflict such injury upon the defendant.” While a charge should apply the law to the facts of the particular case, yet in the absence of an objection addressed thereto prior to the time the same is submitted to the jury, the presumption obtains that appellant was satisfied with the instruction.

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.