author: SMEDLEY, Commissioner.

text:
    ALEXANDER et al. v. HANDLEY.
    No. 1836-7542.
    Commission of Appeals of Texas, Section B.
    Jan. 22, 1941.

      J. Hardy Neel, Ervin Neel, and Montgomery & Campbell, all of Dallas, for plaintiffs in error.
    John Davis and Bailey & SHaeffer, all of Dallas, for defendant in error.
   SMEDLEY, Commissioner.

The suit is by defendant in error, an attorney at law, against plaintiffs in error on a written agreement, whereby, in settlement of a controversy as to the amount of compensation owing to defendant in error for professional services rendered over a period of several years, plaintiffs in error agreed to pay the sum of $10,000. Judgment of the district court in favor of defendant in error against plaintiffs in error for said sum with interest was affirmed by the Court of Civil Appeals. 123 S.W.2d 379. The facts as to the performance of the services, the dispute as to the amount due and the execution of the written agreement are set out in the opinion of the Court of Civil Appeals and need not be repeated. It is sufficient here to state that there in fact existed a disagreement and controversy as to the amount owing for services rendered and that the parties, for the purpose of compromising and settling their differences, made and executed the following written agreement:

“Dallas, Texas,
“July 26th, -1935.
“Mr. Winfield Morten,
“Dallas, Texas.
“Mrs. Blanche M. Alexander,
“Dallas, Texas.
“Dear Sir and Madam:—
“In re: Estate E. W. Morten, Deceased.
“To compromise and settle the matter of the amount owing me for services rendered you in connection with this Estate, this will confirm the agreement this day made through L. O. Elandley, whereby it is understood that in full and final settlement for such services I shall be paid the sum of $10,000.00, payable $5,000.00 on or before November 1st, 1935 and $5,000.00 on or before November 15th, 1935. Jipan, payment of_such sums, both of you shall stand fully released and discharged from all claims and demands of every character which I now hold or may be entitled to against either of you.
“It is understood, however, that if such amounts are not paid as above specified, then I shall stand discharged of my agreement to accept $10,000.00 in compromise and settlement of my claim for services rendered, and in any suit which I may institute within three months after November 15th, 1935 for the full amount I contend is due me for my services, neither of you will interpose as a defense therein any statute or law of limitation of this State. This provision shall not be construed as an admission on your part of any amount and is placed herein for the purpose of tolling the statutes of limitation in the event the $10,000.00 is not paid as above specified.
“Very truly yours,
“W. B. Handley
“July 26th, 1935.
“We hereby agree and bind ourselves to perform and carry out the above stipulation and agreement in accordance with thfe provisions thereof.
“Winfield Morten,
“Mrs. Blanche M. Alexander.”

The contentions made by plaintiffs in error in the Court of Civil Appeals are fully stated in the opinion of that court. They are directed to the construction of the written agreement. The substance of them is that plaintiffs in error did not in the agreement promise or bind themselves to pay the $10,000 at the' time specified but that the purpose of the contract was, and the proper construction to be placed upon it is, that it gave plaintiffs in error the right either to pay the agreed sum of $10,-000 or to waive limitation in a suit brought on. the original claim, that is, that performance of the agreement of settlement by the payment of $10,000 was left to the option of plaintiffs in error.

We agree with the construction given the contract by the Court of Civil Appeals, thus stated in the opinion by Associate Justice Looney: “In the first paragraph, appellants obligated themselves unequivocally and unconditionally to pay appellee $10,000 in two installments of $5,000 each. The provision in the second paragraph, discharging appellee from any obligation to accept $10,000 in settlement of his claim, in the event appellants failed to pay the amount agreed upon, within the time stipulated, was for the. benefit of appellee, in order to coerce performance by appellants, and is not susceptible of the construction of being merely an option, giving them the right to refuse payment entirely, as they now contend.”

The contract is in the form of a letter written by defendant in error to plaintiffs in error. It provides that in full and final settlement for services rendered by him he shall be paid the sum of $10,000, payable $5,000 on or before November 1, 1935, and $5,000 on or before November 15, 1935. At the bottom of the letter and over the signatures of plaintiffs in error is the statement that they agree and bind themselves to perform and carry out the above stipulation and agreement in accordance with the provisions thereof. By this they agreed and bound themselves to pay the sum of $10,000 to defendant in error in two equal installments on or before November 1 and November 15, 1935. The provisions of the second paragraph of the agreement are clearly intended for the benefit of defendant in error, expressly saving to him the right to sue on the original claim, should he desire to do so, upon failure of plaintiffs in error to perform the agreement of settlement.

In the application for the writ plaintiffs in error, while conceding that distinctions between “compromise and settlement” and “accord and satisfaction” are shadowy and usually of little practical importance, and that they have found no Texas case making a distinction between the two terms, insist that the written agreement in this case docs not evidence áTdmpromíse and settlement, but is properly classified as an execu-tory accord. After thus designating or classifying the agreement they present the proposition that, since the agreement was an executory accord, it could be revoked at the pleasure of either party and cannot be enforced by defendant in error by action thereon.

Without undertaking to discuss the distinctions between the two terms, we assume for consideration of the proposition last stated_ that the agreement is an executory accord. It is a bilateral contract by which plaintiffs in error agreed to make satisfaction by paying $10,000 within a certain time and defendant in error promised to accept it if then paid. The agreement when made was not unilateral and it was clearly binding upon both parties front the time of its execution to tlTe~5ate named for.. performance, by plaintiffs in error, defendant in error having agreed to accept the promised payment, if made at that time, in full satisfaction of the original claim.

While the proposition presented by plaintiffs in error seems to be that the agreement was never binding upon either party, the tenor of the argument under it is that the agreement was, or became, not enforceable as to defendant in error after November 15, 1935, and therefore unilateral and lacking in mutuality, because after that date defendant in error was not bound to accept $10,000. A number of authorities are cited as supporting the position thus taken. All of the cases cited announce the rule that an unexecuted accord is no defense to a suit on the original cause. The sound principle supporting the rule is that the creditor has agreed to accept performance in discharge of the original claim and that to limit his rights to suit upon the accord “would in effect put him in the same position that he would have occupied if he had agreed to accept the accord and not its performance as the satisfaction of the debt.” Accord and Satisfaction, by Samuel Williston, 17 Harvard Law Review, pp. 459, 462; Williston on Contracts, 1920 Ed, Vol. 3, p. 3164, Sec. 1842.

The Texas decisions relied upon by plaintiffs in error are Ashbrook v. Neal, Tex.Civ.App., 103 S.W.2d 1101; Cobb & Gregory v. Parker, Tex.Com.App., 236 S.W. 1108; Street v. Smith Brothers Grain Co, Tex.Civ.App., 255 S.W. 778; Camden Fire Insurance Co. v. Baird, Tex.Civ.App., 187 S.W. 699; Ferguson-McKinney Dry Goods Co. v. Garrett, Tex.Com.App, 252 S.W. 738; Tomson v. Heidenheimer, 16 Tex.Civ.App., 114, 40 S.W. 425. In each of these cases the defendant pleaded an unexecuted accord in defense of the plaintiff’s suit on the original demand and in each case it was held that such accord did not constitute a defense. Plaintiffs in error have cited no decision, and we have found none, holding that after breach by the debtor of a valid executory agreement of accord the creditor may rot. sue on the accord.

The opinions in some of the cases last above cited contain statements or quotations to the effect that an unexecuted accord is not enforceable by action and that prior to satisfaction an accord is revokable at the pleasure of either party. Neither the decisions made in the cases in which such statements appear nor the authorities cited to sustain the text from which the quotations are taken give support or justification for a rule so broad and unqualified. It is sufficient here to cite well-considered decisions in which executory accords have been enforced in favor of debtors who, in accordance with the terms of such agreements, tendered performance which the creditors refused to accept. Bradshaw v. Davis, 12 Tex. 336; Very v. Levy, 13 How. 345, 14 L.Ed. 173; Union Central Life Insurance Co. v. Imsland, 8 Cir., 91 F.2d 365; 1 Tex.Jur. p. 289, Sec. 41; Note 16 Texas Law Review, pp. 101-103.

It is our opinion that the correct rule applicable to the contract and the facts of the instant case is that thus stated by Mr. Williston: “If, however, it is the performance of the accord which is to be the satisfaction of the claim, the creditor may, on default in performance of the accord by the debtor, sue either on the accord or on the original cause of action.” Accord and Satisfaction, Williston, 17 Harvard Law Review, pp. 459, 465; Williston on Contracts, 1920 Ed., Vol. 3, p. 3170, Sec. 1848. The substance of this rule is incorporated in Section 417 of the Restatement of the Law of Contract, which section is as follows:

“Except as stated in Secs. 142, 143 with reference to contracts for the benefit of third persons and as stated in Sec. 418, the following rules are applicable to a contract to accept in the future a stated performance in satisfaction of an existing contractual duty, or a duty to make compensation :
“(a) Such a contract does not discharge the duty, but suspends the right to enforce it as long as there has been neither a breach of the contract nor a justification for the creditor in changing his position because of its prospective non-performance.
“(b) If such a contract is performed, the previously existing duty is discharged.
“(c) If the debtor breaks such a contract the creditor has alternative rights. He can enforce either the original duty or the subsequent contact.
“(d) If the creditor breaks such a contract, the debtor’s original duty is not discharged. The debtor acquires a right of action for damages for the breach, and if specific enforcement of that contract is practicable, he acquires an alternative right to the specific enforcement thereof. If the contract is enforced specifically, his original duty is discharged.”

The rules set out in the above-quoted section of the Restatement of the Law of Contracts make the obligations of a valid contract of accord binding both upon the debtor and upon the creditor. To sustain the contention of plaintiffs in error that the contract was wanting in mutuality after November 15, 1935, and was not enforceable either as to defendant in error or as to them because defendant in error was not bound after that time to accept $10,000 would be to permit them by their own breach to avoid the obligations of the contract. ^

It is our opinion that the Court of Civil Appeals correctly construed the contract and that defendant in error, on default in performance of the contract by plaintiffs in error, had the right of election to sue either on the new contract or on the original cause of action.

The judgments of the district court and the Court of Civil Appeals are affirmed.

Opinion adopted by the Supreme Court.


source: Caselaw Access Project

author: CHRISTIAN, Judge.

license: Public Domain

text:
    KELLY v. STATE.
    No. 21371.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.

      Walter L. Johnson, of Galveston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is pandering; the punishment, confinement in the penitentiary for seven 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.


text:
    WOOLEN v. STATE.
    No. 21356.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    Rowell & Rowell, of Jefferson, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is burglary of a railroad car; the punishment, confinement in the penitentiary for two years.

On the 23d of December, 1939, a freight train of the T. & P. Railroad picked up a box car at Texarkana carrying some merchandise which was billed to W. I. Frost of Mansfield, Louisiana. Some of the merchandise in question consisted of turpentine, castor oil and cane syrup. The train moved from Texarkana about 11:55 p. m. of December 23d and proceeded to Jefferson in Marion County, arriving there in the early morning of December 24th, where it stopped to take water. The car carrying the merchandise in question was “fwenty-one cars from the engine,” which placed it near a cemetery. Leaving Jefferson at 2:50 a. m., the train proceeded to Marshall, arriving there at 3 :50 a. m. When the car carrying the merchandise reached Louisiana it was found that the cane syrup and some castor oil were missing.

L. M. Billington, a special officer of the Texas and Pacific Railroad, lived in Marshall. He testified, in substance, as follows : When the train in question arrived in Marshall he saw appellant and Willie Nelson on a gravel car. In the car with the appellant and Nelson he found some cane syrup and turpentine. He went into the depot and called the police. When he returned to the car appellant and Nelson were gone. The syrup and turpentine were still in the car, and the witness threw it out. When he first discovered the appellant and Nelson they were asleep. He aroused them and asked Nelson where he had gotten the merchandise. After that both Nelson and appellant ran away. Appellant stopped near a bridge, ostensibly for the purpose of catching the train as it moved out. The witness, having pursued him to that point, took him into custody. Examining. the car from which the merchandise had been taken, it was found that one of the doors was open. The witness resealed it. About twenty car lengths back from the engine the witness found a nail which had evidently been used to seal the car. He also found the top of a box which apparently belonged to the box in which the stolen merchandise had been carried. At this juncture we quote from the testimony of the witness, as follows: “I only had one thing as evidence that he (appellant) did rob that car, that I caught him in the car with that merchandise.” The testimony fails to reveal the proximity of the stolen -articles to appellant and Nelson when they were found asleep in the gravel car. It merely shows that such merchandise was in the car where the parties were discovered. There was nothing to show that appellant and Nelson had possession of the merchandise.

Manifestly, the state relied upon circumstantial evidence. In our opinion, the circumstances disclosed by the record fail to exclude every other reasonable hypothesis except that of the guilt of the appellant. See Gillman v. State, 119 Tex.Cr.R. 66, 46 S.W.2d 699.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


author: HAWKINS, Presiding Judge.

text:
    WALDRUP v. STATE.
    No. 21365.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    McCall & Dawson, of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Appellant was indicted for" felony theft, with a further averment that he had previously been convicted of another felony theft. The jury found appellant guilty of the present theft, and also that he had suffered a prior conviction of a similar felony. Appellant’s punishment was fixed by the Court at ten years in the penitentiary under the provisions of Art. 62, P.C.

Appellant complains in his motion for new trial in several instances of evidence admitted on behalf of the State, and he briefs said points by reference to -the objections as reflected in the motion. However, no bills of exception are found bringing the matters forward for review. The complaints must be authenticated by bills of exception approved by the trial court, otherwise, they may not be considered. See Branch’s Ann.Tex.P.C., Sec. 207, page 131; 4 Tex.Jur., Sec. 58, page 92.

Appellant was charged with theft of mercury from W. F. Hyde, who was the general manager of the Hercules Oil Company. The mercury stolen was used in meters for measuring gas. Appellant and a companion took from the meters under Mr. Hyde’s control in Gregg County more than one hundred dollars worth of mercury and disposed of it in Dallas. It was recovered as a result of appellant telling the officers where he had sold it, and pointing out to them the place. Further enumeration of the facts is not necessary. They amply support the conviction.

The judgment is affirmed.


text:
    GRIFFIN v. STATE.
    No. 21367.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    J. D. Todd, Jr., of Corpus Christi, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for rape; punishment assessed at death.

The record reflects no complaint of procedural matters. No bills of exception are brought forward challenging the action of the trial court in any particular.

The only question, therefore, is the sufficiency of the evidence. The facts show one of the most brutal crimes it has ever been the painful duty of this court to review.

Appellant secured a hammer and broke into the home of Mr. and Mrs. Haynes about three o’clock at night. The Hayneses were asleep. They were aroused by the presence of appellant. He struck Mr. Haynes on the head with the hammer and then struck Mrs. Haynes on the head several times with it. While Mrs. Haynes was bloody from the effect of the blows administered, and Mr. Haynes was unconscious, appellant raped Mrs. Haynes. When he left the house, appellant took with him a pair of shoes belonging to Mr. Haynes. Blood was all over the room; the mattress and bedclothes were saturated with it. Officers who reached the house a' few minutes after the crime said: “It looked like a beef had been killed in there.”. In his flight from the house appellant threw the hammer away. Officers found at appellant’s home the shoes belonging to Mr. Haynes, and the bloody clothes of appellant. He told the officers where he had thrown the hammer, went with them and pointed out the place where it was found.

The facts overwhelmingly establish appellant’s guilt, and show that he richly deserves the punishment assessed.

The judgment is affirmed.


author: GRAVES, Judge.

text:
    FRIEDL v. STATE.
    No. 21383.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    J. H. Letts and Leo C. Brady, both of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

The conviction is for the unlawful possession of marihuana, a narcotic drug; the punishment assessed is confinement in the State penitentiary for a term of two years.

The record contains neither statement of facts nor bills of exception. In such condition nothing is presented for review.

The judgment is affirmed.


author: CHRISTIAN, Judge. KRUEGER, Judge.

text:
    HOWELL v. STATE.
    No. 21333.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1940.
    Rehearing Denied Jan. 22, 1941.
    L. H. Welch and Floyd Jones, both of Breckenridge, for appellant.
    Eloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

.The offense is misapplication of public funds; the punishment, confinement in the penitentiary for seven years and six months.

Appellant entered a plea of guilty before a jury. He now contends that the evidence adduced by the state upon the trial shows his innocence. We are unable to agree with this contention. The proof on the part of the state was to the effect that appellant’s accounts were short in approximately the sum of twenty thousand dollars. The state introduced appellant’s voluntary statement, which, omitting the formal parts, reads as follows:

“My name is E. N. Howell. My address is Breckenridge, Texas. I am Tax Assessor and Collector of Stephens County and have been since January 1, 1935. On last Saturday, April 20, 1940, after 5:00 o’clock, Willie Cole, Assistant County Auditor of Stephens County, Texas, came to my office and brought the automobile license receipt books which they had been checking, and they had tabulated on adding machine paper the amount I was due Stephens County on account of the collection of auto registrations for 1940. I told him to come to my office Monday morning. He wasn’t quite through with the books and said he would bring them down Monday morning. Monday morning, April 22, 1940, Willie Cole came to my office and brought the books, and I gave him one check for a few dollars over eleven thousand dollars and one check for three thousand and some dollars. These checks were drawn on the tax collected funds of the First National Bank of Breckenridge, Texas. I didn’t know exactly what I had in the bank, but I didn’t think I had that much. According to his figures there was fourteen thousand dollars due Stephens County, and I think that is about right.
• “I am short about fourteen thousand dollars, and to the best of my knowledge this shortage has been accumulating for the last few years. The accounts are all carried in one account; that is, the ad valorem, automobile taxes- and other tax collections. As to what I did with this money, I just lived it up. I was in debt about three ■ thousand dollars when I went in office and I have paid that. I have no resources to pay the county this money.
“None of my office help knew anything about this shortage and none of them are responsible for it. I am solely responsible for it and I am the only one who ever drew any checks on the tax collecting fund.”

We quote from Anderson v. State, 118 Tex.Cr.R. 194, 42 S.W.2d 1012, as follows: “Under the statute (articles 501, 502, C.C.P.) governing the entry of a plea of guilty, the entry of the plea, after due admonition, is conclusive of guilt, unless the evidence introduced upon the trial makes manifest the innocence of the accused. Harris v. State, 76 Tex.Cr.R. 126, 172 S.W. 975. Upon a plea of guilty, the hearing is, not to determine the guilt of the accused, but to enable the jury to assess the punishment. Garcia v. State, 91 Tex.Cr.R. 9, 237 S.W. 279; Bennett v. State, 98 Tex.Cr.R. 661, 267 S.W. 987.”

The rule is different where the trial is before the court upon a plea of guilty. In that event, it is incumbent upon the state to introduce sufficient evidence showing the guilt of the accused. See Article 12, Vernon’s Ann.C.C.P. of Texas.

Appellant’s delinquent tax account showed a shortage of approximately $3,-800. It appears from the record that, pursuant to an agreement with the commissioners’ court, delinquent taxpayers had been permitted to make installment pay.ments on the amounts that were due. It is appellant’s contention that the money he received by virtue of such payments did not become public funds. He points out that Article 7345c, Vernon’s Ann.Civ. St. had not been strictly complied with. Stated in another way, it is appellant’s contention that the installment payments by the delinquent taxpayers had not been received by him as the agent of the county. We think this contention should be overruled. We quote from American Indemnity Company v. Mexia Independent School District, Tex.Civ.App., 47 S.W.2d 682, 684, as follows: “The funds collected by Arrington were received by him by virtue of his office as tax collector and as taxes claimed to be due the district by the property owners for the use and benefit of the district, and it was his duty to account to' the district for such funds, regardless of whether they were legally or illegally collected from the property owners. He was the agent of the district in collecting the taxes, and whatever came into his hands as such became the property of his principal. If any of such taxes were illegally collected from the property owners, the district and not Ar-rington would be responsible for a return thereof to the property owners. The district therefore became entitled to the funds regardless of whether they were legally collected from the property owners, and was entitled to recover from the collector’s surety, upon his failure to account for said funds. Webb County v. Gonzales, 69 Tex. 455, 6 S.W. 781; Tarrant County v. Rogers, 104 Tex. 224, 135 S.W. 110, 136 S.W. 255; County of Galveston v. Galveston Gas Company, 72 Tex. 509, 10 S.W. 583.”

See, also, Oliver v. Lindsay, Tex.Civ.App., 125 S.W.2d 1097.

Failing to find reversible error, the judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

KRUEGER, Judge.

Appellant, in his motion for rehearing, assigns the same grounds of error as those upon which he relied for a reversal of the judgment of conviction upon the original submission of his appeal.. He stresses his contention that delinquent taxes collected by a tax collector do not become public funds and are not received by the collector of taxes as the agent of the county. Art. 7345a, Sec. 2, Vernon’s Ann.Civ.St., provides as follows: “If any person ór company or corporation owning real estate in the State of Texas upon which taxes due to the Staj:e, county or any subdivision thereof, as' named in Section 1 of this Act, are due and unpaid, shall deliver to the tax collector, whose duty under the laws of the State of Texas is to receive or collect said taxes, a duly executed written instrument authorizing another person, company or corporation to pay such taxes and to receive from such collector the tax receipt showing the payment of such taxes by such other person or company and describing therein the property upon which such taxes are due, and requesting therein that such tax collector, upon the payment of such taxes, issue to such person or company so paying the same a tax receipt, etc.”

It will be observed from the foregoing article that, regardless of the general law which places the duty of the collector of taxes to collect the same, this article not only recognizes the legal duty of the collector to collect delinquent taxes, but expressly makes it his duty to do so. Consequently we are constrained to adhere to our original opinion.

We have again reviewed the other errors complained of but see no good reason to rec.ede from our 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: KRUEGER, Judge. BEAUCHAMP, Judge.

text:
    DUNCAN v. STATE.
    No. 21253.
    Court of Criminal Appeals of Texas.
    Dec. 18, 1940.
    Rehearing Denied Jan. 22, 1941.

      De Witt Bowmer and Joe Carroll, both of Temple, and Martin M. White and White & Countess, all of Belton, for appellant.
    Jim Evetts, Dist. Atty., of Belton, Henry Taylor, Sp. Prosecutor, of Temple, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

It appears from the record that sometime, prior to the killing, the deceased and appellant were partners in a filling station at or near the town of Burnet. They also sold fish bait to sportsmen who came to the Buchanan Dam to fish. A short time prior to the homicide they dissolved the partnership and went back to Temple, their former home. It further appears that sometime later, the deceased contended that in the division of the assets of their business he did not get his full share; that appellant owed him eighty dollars; that on several occasions he had made demands on appellant for the same. However, appellant insisted that he did not owe the deceased anything. It was shown that the deceased made many serious threats against appellant. At the time of the homicide and for some time prior thereto appellant was working for his brother, Marion Duncan, in a furniture store. On the afternoon in question, a brother-in-law of appellant was standing on the sidewalk in front of the furniture store and when he saw the deceased coming up the street he stepped into the store and told appellant that the deceased was out there, whereupon appellant took a pistol, went to the door and fired at the deceased, who ran into a restaurant, fell to the floor, crawled a few feet, arose, ran outside and again fell to the ground while appellant pursued him, firing several shots at the fleeing man. When the deceased was on his hands and knees trying, to get back on the sidewalk, appellant fired two more shots into his- helpless victim. There was some testimony that when the deceased came up the street just before he was fired upon, he had an open pocket knife in his hand. However, no knife or any kind of a weapon was found on the body of the deceased nor where he fell or anywhere along the route he traveled from the point where he was first fired upon to the place where he fell and expired, although a careful search by the officers was immediately made of the premises and along the route which the deceased went when fleeing from the deadly assault.

Appellant did not take the witness stand and testify in his own behalf.

Bill of exception No. 2 reflects the following occurrence: After R. S. Bryan had testified to threats which the deceased had made against the appellant and that he had theretofore seen the deceased attack one G. O. Wendt, he was asked by appellant’s counsel: “Did George Watters brutally beat G. O. Wendt in your pres-' ence ?” The State obj ected • to said question being answered by the witness and the court sustained the objection, to which appellant promptly excepted. The court qualified this bill and in his qualification states that during the trial and before the testimony was concluded, he reversed his ruling and advised appellant and his counsel that they might recall the witness and prove the facts sought to be shown by said witness, but appellant failed to avail himself of the opportunity. Under the circumstances, the bill fails to reflect any error.

By bill of exception No. 3 appellant claims that after he had proved by John R. Bigham that on three different occasions the appellant and his brother had talked to him relative to the conduct of the deceased and had sought his advice, counsel for appellant thereupon propounded to him the following question: “What advice did you give the defendant and his brother?” The State objected to said question being answered. The court sustained the objection and appellant excepted. The court qualified said bill and in his qualification states that the witness did testify as follows: “I told him that I didn’t know whether George would hurt him or whether he wouldn’t; I wasn’t in position to say and I didn’t know.”

This was fully sustained by the record. The greater part of the claimed advice to which the witness would have testified, as set out in the bill, is not advice but the expression of an opinion. We are forced to confess that we fail to see how the excluded testimony was relevant to any issue in the case.

Bill of exception No. 4 complains of the exclusion of similar testimony as shown in bill No. 2. The court qualified this bill and in his qualification states that he ■ reversed his ruling before the testimony was closed and advised appellant and his counsel that they could recall the witness; that he would be permitted to answer the question, but appellant and his counsel failed to avail themselves of the opportunity. Consequently they have no just grounds of complaint.

Bill of exception No. 5 shows that appellant undertook to offer clippings from the Dallas Morning News which carried a news item to the effect that the deceased was placed under a bond in the sum of $500 by the Justice of the Peace in and for Justice Precinct No. 2 of Dallas County. This newspaper report was clearly hearsay and not admissible. Moreover, there is no evidence to show that appellant had any knowledge thereof and it could not have had any bearing on his state of mind.

Bill of exception No. 6 shows that after appellant had proved many threats by deceased against him, he then placed Dr. J. O. Baity, Professor of English at the Southern Methodist University at Dallas, on the witness stand and propounded to him the following question: “Did you know the general reputation of the deceased while a student at Southern Methodist University for being a quiet, peaceable, law-abiding citizen or otherwise?”

The State objected to the witness answering the question and the court sustained the objection, to which appellant excepted. The bill recites that if the witness had been permitted to' answer the question, he would have answered it in the affirmative; that appellant would then have propounded the further question whether said reputation was good or bad and that the witness would have answered that it was bad. The court qualified said bill and in his qualification states that he sustained the State’s objection because the question was not in compliance with Article 1258, P.C.1925, and advised counsel for appellant that if he would reframe his question in compliance with the statute the witness would be permitted to answer the same. This he declined to do. We think that the court’s ruling was correct. Under the statute referred to, appellant, in view of the proof of threats, would have been entitled to show that the deceased was a man of violent or dangerous character but not that his general reputation as a peaceable, law-abiding citizen was bad. Under the statute appellant was restricted to proof of that character which showed a violent and dangerous disposition on the part of the deceased.

Bill of exception No. 7 is without merit and we see no need to enter upon an extended discussion thereof.

The matter complained of in bill of exception No. 8 is similar to that complained of in bill No. 6 in which similar questions were propounded to Mrs. Gardner, matron of the young men’s dormitory at Southern Methodist University, as those which were propounded to Dr. Baity and the bill shows that she would have given the same answer. Consequently the disposition made of the question in bill No. 6 also disposes of the question presented in this bill.

Bills of exception Nos. 9 and 11 complain of the same matter as presented in bills Nos. 6 and 8, and what we have said in disposing of the asserted complaints therein also applies here.

Bill of exception No. 10 reflects the following occurrence: After the conclusion of the testimony and after appellant’s counsel had examined the court’s charge and presented their objections thereto in writing, the court read his charge to the jury and attached thereto three different forms of a verdict: One finding appellant guilty of murder with malice, one finding him guilty of murder without malice, each of which contained a blank space for the insertion by the jury of the number of years of confinement in the penitentiary in the event they found him guilty, and also a form of verdict finding him not guilty. After deliberating for some time, the jury returned into court their verdict finding appellant guilty of murder without malice and assesed his punishment at confinement in the penitentiary for a term of seven years. After the verdict was read aloud by the clerk, the court stated to the jury that they had rendered an impossible verdict and told them to retire and read paragraph 2 of the charge, which they did, and then returned with a verdict finding appellant guilty of murder with malice and assessing the same punishment. This matter was urged by appellant as a ground for a new trial and testimony was offered by him and also by the State relative to the question. The jurors who were called to testify stated that they found appellant guilty of murder with malice but inadvertently inserted “seven years” in the wrong form of the verdict prepared for them by the court; that as soon as they read the verdict and paragraph 2 of the court’s charge they noticed the error and corrected it; that their verdict in each instance was the same.

Under Article 696, C.C.P., the court was authorized to rej ect the verdict and send the jurors back to the jury room to again consider their verdict.

In the case of Hollingsworth v. State, 94 Tex.Cr.R. 244, 250 S.W. 683, 684, the indictment contained three counts charging separate kindred offenses. The court in his charge submitted but one count. The verdict of the jury was, guilty “as charged in the indictment.” This court said that the jury should have been required to correct their verdict so as to make it Conform to the charge of the court and ascertain the count under which they found the accused guilty. See Williams v. State, 78 Tex.Cr.R. 647, 648, 182 S.W. 335; Woolfolk v. State, 127 Tex.Cr.R. 156, 74 S.W.2d 1001; Gandy v. State, Tex.Cr.App., 140 S.W.2d 182.

Appellant complains because one of the twelve jurors by whom he was tried could not read or write the English language. This, of course, was a ground for challenge which appellant might waive, and he no doubt waived it in this instance. Appellant had the opportunity to examine the juror as to his qualifications and he did so. Being satisfied, he accepted him and he cannot now complain.

Appellant addressed .seven separate and distinct objections to the court’s main charge. The main objection seems to be based upon the ground that the court failed and refused to instruct the jury upon the theory of defense of another. If the evidence had raised such an issue then, of course, appellant would have been entitled to an instruction thereon, and the court no doubt would have responded to the objection, but, in our opinion, the evidence did not raise the issue. The salient facts testified to by the witnesses relative to what occurred at the time of and immediately preceding the firing of the fatal shot are as follows: J. O. Kiser, a brother-in-law of the appellant, testified that he went to the store of his b'rother-in-law, M. S. Duncan, where appellant was employed, about 5 P. M., and while standing in the vestibule of said building he saw the deceased coming down the street with a knife in his left hand. Realizing that there might be trouble brewing he went inside of the store and told the appellant that the deceased was out there; that he had not gone very far inside of the store when he heard the report of a gun on the outside. Nothing was said, not a word, by either the deceased or the appellant up to and at the time the shot was fired. After the report of the gun, the deceased went running down the street with the appellant in pursuit. M. S. Duncan, the owner of the store and a brother of the appellant, testified that on the afternoon of the homicide his brother, Raymond, came to the store and told him that the deceased had threatened to cut him (Raymond) up and said he would “wipe out the whole Duncan delegation” (and there was testimony from other sources to the same effect); that appellant was present and heard this conversation; that when the first shot was fired it was getting dark and he (M. S. Duncan) turned on the lights; that he was turning them on when he heard the “pop” of a gun; that he was not at the front of the store at the time the shooting started; that the first thing that attracted his attention was the firing of the. gun. There is not one word, act or demonstration testified to by any witness which would in the remotest degree indicate that the deceased was going to carry into execution his threat to “wipe out the whole Duncan delegation”. There is no evidence that deceased made any hostile demonstration towards either of the members of the Duncan family; nor was he within such distance of either of them as to have committed an assault upon any of them with the pocket-knife, if he had one. Consequently there was no necessity for a charge on the law relating to the defense of another.

In the case of Gomez v. State, 116 Tex.Cr.R. 529, 34 S.W.2d 607, this court said: “According to this testimony, it shows that any attack that may have been made by the deceased and his brother upon the cousin of the appellant had ceased before the homicide, and the cousin had left and was not present when the deceased was cut by appellant, and, the court having given a full charge on the right of self-defense on the part of appellant from any attack, real or apparent, that may have been made upon him by deceased, and the evidence failing to show that any act on the part of the appellant was made in defense of or against any attack that was being made on his cousin by the deceased, we hold that there was no error on the part of the trial court in failing to give a charge on the right of appellant to defend his cousin against any assault made by the deceased and his brother upon said cousin.” See also Wilson v. State, 92 Tex.Cr.R. 118, 242 S.W. 224; Stoker v. State, 118 Tex.Cr.R. 524, 528, 42 S.W.2d 72; Singleton v. State, 74 Tex.Cr.R. 71, 167 S.W. 46, 49.

Appellant, by his counsel, filed an able brief and cites quite a number of authorities which he contends support his position. We have read the brief, as well as the authorities with much interest, but do not believe that they sustain his contention. The facts proven on the trial of the case’s to which he refers readily distinguish those cases from the facts in the present instance.

Having reached- the conclusion that no reversible error is shown by the record, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Motion For Rehearing.

BEAUCHAMP, Judge.

The appellant’s motion for rehearing in this cause very forcefully presents additional argument in behalf of his bill of exception No. ten and insists that the original opinion was wrong in failing to sustain same.

The various articles of the statute dealing with the handling of the subject of jury verdicts are copied in the motion and referred to. All of this we have considered, and it is our conclusion that, while appellant has presented a very effective argument, the wrong premise is taken. He bases his argument on the conclusion which he first reaches that when the jury presented their verdict as described in the original opinion and the court read the same and had it read by the clerk, that this was such' an acceptance of the verdict as made it final, discharged the jury and relieved it of any further power in the case. If that be correct the argument which follows is logical and based on good authority.

Particular stress is laid on the opinion in Landers v. State, 114 Tex.Cr.R. 352, 25 S.W.2d 868, wherein it is held that the jury’s verdict finding the defendant guilty without malice results in acquittal of the charge of murder with malice. It is sufficient to say that in the Landers case the verdict was received and judgment entered thereon and the court was only considering the consequences of a verdict about the receipt of which there was no question. In the case before us the court read the verdict and had the clerk to read it. Appellant was present in the court room and the record does not indicate that objection was made to the procedure at that particular time. After the clerk had read the verdict, and without announcing that it would be received and the jury discharged and judgment entered thereon, the court, perceiving that the verdict was fatally defective as presented, instructed the jury to return to their room for further deliberation, and called their attention to the paragraph of his charge which instructed them as to the penalty which they might assess for murder with malice and for murder without malice. We are unable to carve out of this any oral instruction to the jury, but merely a reference to that which had already been given them in writing. We are not able to agree with counsel that the court’s act in having the verdict read under the circumstances completed his final transaction of receiving the verdict, discharging the jury and entering judgment thereon. It was still within his control, as was the jury. The action he took was not only proper, but it was his duty to do so. Neither are we able to agree that the things he said constituted oral instruction to the jury or undue emphasis on a particular section of his charge. They were as much at liberty, upon returning to the jury room, to adhere to the statement that they found him guilty without malice and reduce the penalty as they were to change the verdict as they did. According to their testimony on the motion for new trial they had made a mistake in filling out the wrong form of verdict and, without further deliberation, corrected that mistake.

The authorities presented by counsel for appellant are not pertinent to the question before us, but we think that Hollingsworth v. State, supra; Williams v. State, supra; Woolfolk v. State, supra, and Gandy v. State, supra, thoroughly support the view of this court that it was the duty of the trial judge to have the verdict corree,ted when it was discovered a mistake had been made. Bill of exception No. ten is not sustained.

Further complaint is made in the motion for rehearing- that appellant had not been given a fair and impartial trial before a jury of twelve- men, because of the disqualification of a juror on the ground that he could not read and write. This juror was recalled for examination and testified that he was a Czech and said: “I cannot write the English language much, but I can understand; you did not ask me that question before; nobody didn’t ask me that question.” Further he said: “I take a daily paper, the Temple Daily Telegram. That is printed in English. I read the newspaper some time.”

The foregoing is the only evidence we find introduced on the subject. It is wholly insufficient to support the contention, and the objection seems without merit.

We have considered each and every question raised and believe the original opinion properly disposes of them.

The motion for rehearing is overruled.


author: KRUEGER, Judge. GRAVES, Judge.

text:
    MIMS v. STATE.
    No. 21280.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.
    Rehearing Denied Jan. 22, 1941.

      Cook & Russell, of Mt. Pleasant, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

Appellant’s first contention is that the • evidence is insufficient to justify and sustain his conviction. The State’s testimony, briefly stated, shows that on or about the 18th day of October, 1939, J. G. and C. C. Connor had some cattle running on the range near Daingerfield in Morris County. Five head of the cattle which disappeared from the range were sold by appellant to Ira Parham and Bill Bixler who immediately carried them in a truck to the sales barn at Pittsburg where they were sold. One of said animals, a black heifer with a sore on each side of her neck, was sold to Mr. Christianberg, who resided near Quitman, where Mr. Connor recovered her. Esque Sterns testified that appellant and Ralph Bryson came to his home on Tuesday night, October 17th, and induced him to go with them and help them drive the five head of cattle into the lot or small pasture owned by appellant; that after appellant had sold the cattle he gave Sterns fifteen dollars for the services which he had rendered.

Parham testified that he purchased five head of cattle from appellant on the morning of October 18th. The description of the cattle purchased by him from appellant corresponded with that of the cattle which the Connor brothers had lost.

Appellant took the witness-stand and denied that he, togéther with Esque Sterns and Ralph Bryson stole the cattle in question. He asserted that he bought the cattle from Sterns for $45 and sold them the next morning to Parham and Bixler for $90. He further testified that Sterns told him on the preceding Saturday that he had inherited some cattle from his deceased parents which he desired to sell; that on Tuesday morning Sterns put the cattle in question in appellant’s enclosure, at which time he purchased them from Sterns for $45. He said he knew that Sterns’ parents had departed this life about four years ago.

At the conclusion of the testimony appellant requested a special peremptory instruction which the court declined to submit to the jury and to which ruling appellant then and there excepted. We see no error in the ruling complained of. Although Sterns was an accomplice and his testimony was not corroborated as to the actual taking of the cattle by himself; or Bryson and the appellant, yet, the uncon-troverted testimony showed that appellant was found in the exclusive possession of recently stolen property, a circumstance from which a presumption of guilt arises and is sufficient to sustain the conviction. The rule was adopted by this court many years ago and has been consistently followed. See Branch’s Ann.Tex.P.C. § 2463; Roberts v. State, 17 Tex.App. 82; Nix v. State, 136 Tex.Cr.R. 240, 124 S.W.2d 386. Appellant cites us to Fields v. State, 131 Tex.Cr.R. 281, 98 S.W.2d 209; Riley v. State, Tex.Cr.App., 139 S.W.2d 802, and many other cases as supporting his con-, tention. It will be observed from a reading of the opinion in the case of Fields v. State, supra, that the accused was not connected with the burglary by any testimony except that of the accomplices. He was not found in possession of any of the recently stolen property taken from the burglarized premises. The case of Riley v. State, supra, is in all respects similar to that of Fields v. State, supra. In the present instance, we could eliminate from our consideration the testimony of the accomplice Sterns and there would still be sufficient evidence upon which the jury might base their conclusion of the appellant’s guilt inasmuch as he was found in possession of recently stolen property.

The court, in his main charge, instructed 'the jury relative to the appellant’s defensive theory. He also charged the jury that if they believed from the evidence or had a reasonable doubt thereof that Esque Sterns sold the cattle in question to the defendant, they should acquit him. This charge tersely presented the appellant’s defensive theory, and if the jury had believed his testimony or entertained a reasonable doubt thereof, they would have acquitted him under the court’s instruction.

By bill of exception No. 2 appellant complains of the following remark made by the District Attorney in his argument to the jury: “Gentlemen of the Jury: It might be that Esque Sterns is afraid to testify against Son Mims.”

By bill of exception No. 3 appellant complains of the following remark made by the District Attorney: “Gentlemen of the Jury: Son Mims was in the lead to conspire to steal Mr. Connor’s cattle from the time this thing begun.”

With reference to the remark complained of in bill No. 2, we desire to state that, in óur opinion, the same fails to reflect reversible error. The District Attorney did not state that Sterns was afraid to testify against Mims but merely said that it might be that he was afraid to testify against Mims. This statement on the part of the District Attorney may have been based upon the conduct of the witness as he appeared upon the witness-stand.

The matter complained of in bill No. 3 was justified by 'the testimony of Sterns who said that appellant and Bryson came to his home at night-time and persuaded him to go with them to steal, the cattle in question. This was the basis for the argument and the same was justified. According to Sterns’ testimony, appellant was in the lead; he was the moving factor, the instigator of the offense; hence there was no error relative to the matter complained of.

By bill of exception No. 4 appellant complains of the action of the trial court in overruling his motion for a new trial based on newly discovered evidence. The claimed newly discovered evidence consists of statements alleged to have been made by Esque Sterns to Dewey Davis and F. H. Holt to the effect that while he (Sterns) was confined in jail he was persuaded by the sheriff to swear Son Mims into the penitentiary; that he was sorry that he swore like he did, etc. Sterns denied having made such a statement. It is obvious that the claimed newly discovered testimony would only have tended to impeach the witness Sterns; and under the well-established rule of this, court would not be ground for a new trial. See Barber v. State, 35 Tex.Cr.R. 70, 31 S.W. 649; Patton v. State, 62 Tex.Cr.R. 28, 136 S.W. 42; Tate v. State, 66 Tex.Cr.R. 198, 146 S.W. 169; Collins v. State, 66 Tex.Cr.R. 602, 148 S.W. 1065; Henson v. State, 74 Tex.Cr.R. 277, 168 S.W. 89; White v. State, 76 Tex.Cr.R. 612, 177 S.W. 93. Moreover, the motion is wholly deficient in that it fails to aver that the appellant’s attorney did not have knowledge of the claimed newly discovered evidence because his knowledge would be chargeable to the appellant. See Williams v. State, 7 Tex. App. 163. However, the court heard testimony relative to the averment in the motion and the State produced Sterns who denied having made any such statements as claimed by the appellant. The appellant did not call any witnesses to substantiate the allegations in his motion. Consequently, the court’s ruling under the circumstances fails to reflect any reversible error.

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

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

Appellant complains in his motion of the following statement in our original opinion, as follows: “In the present instance, we could eliminate from our consideration the testimony of the accomplice Sterns and there would still be sufficient evidence upon which the jury might base their conclusion of the appellant’s guilt inasmuch as he was found in possession of recently stolen property.”

The above statement might be treated as dicta, as same was not necessary nor called for in the proper disposition of this case.

We do think, however, that the possession of the recently stolen property could be used as a circumstance tending to connect the appellant with the offense of the theft. We do also think that it' is not necessary for the State to rely upon such possession in this instance. It had the positive assertion of the confessed accomplice, and such possession was utilized by the State merely as corroborative of such accomplice’s statement.

The trial court very properly instructed the jury that the witness Sterns was an accomplice, and gave an often approved charge relative to the necessity that such witness’ testimony should be corroborated; he also instructed the jury affirmatively on appellant’s presented defense.

Appellant cites us to many cases wherein the doctrine is laid down that a conviction is not authorized where the defendant gave a reasonable explanation of the possession of recently stolen property, and made no attempt to conceal the same. To this effect is the Loving case, Loving v. State, 18 Tex.App. 459, 462, also the Daniel case, Daniel v. State, 60 Tex.Cr.R. 515, 132 S.W. 773, as well as other cases, in all of which we find the application of the above rule made where the State relied upon the possession of recently stolen property as the basis of conviction. In support of the above statement we quote an excerpt from Judge Hurt’s opinion in the Loving case, supra: “The State’s case is, therefore, simply one of recent possession with reasonable explanation, with no proof by the State of the falsity of the explanation. This being the case, the evidence is not sufficient to convict, and hence the verdict of the jury was not supported by the evidence.”

In the Daniel case, supra, 60 Tex.Cr.R. 515, 132 S.W. 773, the just above quoted doctrine is again affirmed, and the Daniel case is also one in which the State relied upon the possession of recently stolen property for a conviction. As heretofore stated, such a reliance is not necessary in this case.

We see no reason to recede from our original opinion herein.

The motion will be overruled.


author: GRAVES, Judge. BEAUCHAMP, Judge.

text:
    MILLER v. STATE.
    No. 21230.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.
    Rehearing Denied Jan. 22, 1941.

      S. M. Adams and R. A. McAlister, both of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State;
   GRAVES, Judge.

Appellant was convicted of murder and given a penalty of two years in the penitentiary.

Appellant’s first bill of exceptions relates to the fact that while Charlie Bru-ton, a State’s witness, was on the stand he was asked why he went down to appellant’s home on the morning of the killing. His answer was that he went down there to get a drink of whisky. Upon appellant’s objection, the court instructed the jury to disregard the question and answer thereto; nevertheless appellant reserved his exception to the asking of the question. Appellant argues that the asking of such question was tantamount to proof that appellant was a bootlegger, and would constitute proof of such before the jury. We do not think so. The mere fact that witness went down to appellant’s home to get a drink of whisky would not of necessity mean that he went there to buy this drink, nor that appellant was engaged in the unlawful sale of such liquor. There are other inferences that might have been drawn therefrom not quite so damaging to appellant. In any event we think the trial court’s prompt instruction should have removed any serious error that might have arisen from the asking of such question, especially in view of the penalty assessed being the minimum for murder.

Bill of exceptions No. 2 ‘complains of a certain statement made by th,e deceased in the presence of Sam Anderson, a witness for the defense, which statement so made was to the effect that the deceased was going to pay the defendant. In order to understand such statement it is necessary to set forth some of the facts proven herein.

The motive for this killing offered by the State, and to some extent by the appellant, arose on account of the fact that the deceased had on the morning of the homicide pawned or sold his watch to one Cherry Marks for the sum of one dollar; thereafterwards it was claimed that he borrowed from appellant $2.35, — $1.10 for the purpose of redeeming this watch, and the remainder for the purpose of buying some whisky, appellant’s claim being that the amount of $2.35 being paid the deceased for the watch as purchase money. The deceased then went into a cafe run by the woman Cherry Marks, while appellant waited on the outside. Deceased went on through the cafe and did not redeem the watch. Appellant then went into the cafe and ascertained the fact that the deceased had not obtained this watch which it was claimed had been sold to appellant. Appellant then started home, but on the way he turned back, as he said, for the purpose of playing a piece on a Victrola in this cafe dance hall. Appellant testified that he saw the deceased in the cafe and asked for his money, and that deceased said, “I ' will pay you right now, when I get damned ready,” and ran his hand in his pocket, and appellant shoved the deceased back, and “he started on me again and I shot him.” As to bill No. 2, while Sam Anderson, a defense witness, was on the stand, upon his cross-examination, over appellant’s objection, he gave the following testimony: “After Hezekiah shot Flanegan (the deceased), then I heard Flanegan say, T was going to pay you.’ ” The witness further says that appellant was at such time fixing to leave, but was still in the dance hall where the shooting took place, and was fixing to go out the front door. It is gathered from ' the testimony that this statement made by the deceased was made immediately after he was shot and in the presence of the appellant, and we think the same was res. gestae of the transaction, and therefore this, bill is overruled.

Bill of exceptions No. 3 complains because of the fact that the witness Previous Adams, a defense witness, upon cross-examination, was asked the question if it was not true that the deceased, just before he expired, had told the witness that the defendant shot, him, deceased, because of twenty cents that he owed him. The appellant objected to such question and an answer thereto, but the witness was permitted to answer, and responded as follows : “I will state that he owed him a debt,” evidently meaning that the deceased owed appellant a debt. This testimony relative to the debt being owed was given by appellant himself and enlarged upon as the basis of the trouble, and there was no contradiction thereof by anyone; the existence of the debt was admitted by both sides throughout the trial, and we do not think that this statement by the witness, not responsive to the question, amounted to any error as shown by this bill, and same is therefore overruled.

Bill of exceptions No. 4 complains of the fact that there was passed to the jury, and they were permitted to take into the jury room with them, a written statement of the witness Previous Adams, and signed by him, which was made the day previous to the trial before a notary public. There was no objection shown to have been offered to the introduction of the statement, the objection going only to the passing of the same into the jury box, and allowing the jury to take same into their room during a recess of the court. It will therefore be noted that there was no objection made as to the introduction of the evidence, but merely to the fact that such statement was handed to the jury and they were allowed its possession during a recess, and nowhere in said record do we find any motion of any kind offered requesting the withdrawal of such statement from the jury, nor an objection made as to its introduction in evidence.

•The statute, Art. 674, C.C.P., says: “The jury may take with them any writing used as evidence.” We also have held, in substance, that “when a jury retires to consider of their verdict, they are entitled to take with them all evidence admitted in the case.” Heard v. State, 9 Tex.App. 1. As this bill is drawn we see no error reflected therein.

Bill of exceptions No. 5 is based on the following occurrence: While the appellant was on the witness stand, upon cross-examination, he was asked by the State if it wasn’t a fact that “Mr. -Burl Martin was at the defendant’s home on Saturday night before the killing Sunday, and that if he did not take the gun away from the defendant on Saturday night before the killing on the following Sunday, and that if it was not a fact that Mr. Burl Martin took the same pistol away from the witness, the defendant, and unloaded • it and kept the shells until the next morning and gave them hack to the defendant the next mornin'g.”

All the parties to the killing, as well as the witnesses thereto, were negroes, and appellant objected to the asking of this question because it was an endeavor to show the commission of another and different offense than the one for which appellant was on trial, and was an attempt to show that appellant had made a gun play in the presence of Mr. Martin, a white man, and an effort to thereby inflame the minds of the jury against appellant However, appellant seems to have satisfactorily answered the question as follows: “I don’t know Mr. Burl Martin. If he was at- my house Saturday evening, I did not know him. I did not see him. He didn’t take a gun away from me on Saturday of the killing. Mr. Burl Martin was not at my house on the Saturday before the killing on Sunday. If he was, I wasn’t there. He did not take the same pistol from me and unload it and keep the shells until the next morning and 'give them back to me on Sunday morning.”

That such question should not have been asked seems clear to us; it is however to be noted that this matter was allowed to rest with appellant’s complete and vigorous denial of the whole transaction, and the State pursued the query no further.

The testimony herein was ample to show appellant’s guilt, and the jury gave him the lowest penalty for murder without malice. This useless killing was based upon a debt, not more than an hour and a half old, of two dollars and thirty-five cents, and the killing of an unarmed man because of this matter, so the jury’s verdict said, which facts would have supported a more onerous verdict, and in view of the two years’ penalty awarded appellant, we do not think the asking of this question could have had any influence on the verdict found by the jury.

In 4 Tex.Jur. p. 597, it is said: “Thus propounding a question, an affirmative answer to which might be hurtful to the accused, is not reversible error if the answer was in the negative,” citing Alexander v. State, Tex.Cr.App., 8 S.W.2d 176; Dyer v. State, 107 Tex.Cr.R. 345, 296 S.W. 525; Musick v. State, 106 Tex.Cr.R. 207, 292 S.W. 223; Ard v. State, 101 Tex.Cr.R. 545, 276 S.W. 263, and cases there cited.

We find the following in the case of Fritts v. State, 119 Tex.Cr.R. 412, 42 S.W.2d 609, 612, in which the jury had awarded Fritts a death penalty: “Bills of exception 6, 7, and 8 deal with the same question, and will be discussed together. Appellant testified, on cross-examination, without objection, that he had been indicted for selling intoxicating liquor to O. S. Shamburger. He had not been tried on this indictment. The district attorney asked appellant if it were not a fact that he went to O. S. Shamburger after he was indicted and told him what he would do if he appeared as a witness against him in the liquor case. Appellant objected to the asking of the question on the ground that it was prejudicial, inflammatory, and irrelevant, and asked the court to instruct the jury to disregard it for any purpose. The objection being overruled, appellant answered in the negative. Substantially the same question was asked appellant in connection with an indictment charging him with the sale of intoxicating liquor to Roy Petit. The district attorney also asked appellant if he knew that Petit was in Louisiana when the case was called for trial. Appellant answered both questions in the negative. The matter was pursued no further by the' district attorney. If the questions were improper, which is not decided, a reversal would not necessarily follow. In Booth v. State, 90 Tex.Cr.R. 240, 234 S.W. 888, 889, this court, speaking through Judge Hawkins said: ‘It is in exceedingly rare instances where this court would feel called upon to reverse a case solely because counsel may have propounded an improper question.' We quote from Ard v. State, 101 Tex.Cr.R. 545, 276 S.W. 263, 265, as follows: ‘The asking of a question whose affirmative answer might be hurtful to the accused would ordinarily present no error when complained of in a bill of exceptions unless the answer is given, and, if given and answered in the negative, as is the case in appellant’s ’bill of exceptions No. 5, no error would be made to appear.’ ”

We are of the opinion that no error is shown in said bill No. 5, and perceiving no error in the record the judgment is affirmed.

On Motion for Rehearing.

BEAUCHAMP, Judge.

Appellant has filed a very insistent motion for rehearing in which he presents his views on two propositions.

In treating bill of exception No. four the original opinion recites that the statement of the witness there involved was admitted in evidence without objection. Appellant’s attorney in his motion urgently insists that he should be put in the proper light. If the court has placed the attorney in an improper position and reflected on his ability as an attorney, it is our duty to do that.

Upon a thorough examination of the record, we find ourselves confronted with this situation: A witness for defendant had given a written statement embracing, in part, his evidence. When he concluded his testimony in behalf of the defendant on the trial of the case the prosecution produced this statement and had him to identify it. As he did so it was then offered in evidence, but it was not at that time exhibited to the jury. If there is anything in the record to indicate an objection to it, or what that objection was, we are unable to find it. Later and after several other witnesses had been placed on the stand the state presented this written statement to the jury for their examination, and the record shows that appellant then objected to it being passed to the jury. If the two incidents of offering it in evidence and passing it to the jury had been simultaneous, we would be able to construe the objection as going to the admissibility of the instrument in evidence. Under the record as we find it, it would appear to be too late to offer any objection to its admissibility, made as it was, at the time it was passed to the jury. Furthermore, the bill does not disclose an objection to the evidence, which, we think, would be valid even if made at the time it was offered in evidence. If there is a difference between the evidence which the witness gave upon the trial and the contents of the written statement which bears on any material issue in the case, we have been unable by comparison to discover it. The statement in the original opinion seems to be warranted by the record before this court.

We are frank to admit that an able argument of counsel in his motion for rehearing on bill of exception No. five presents a troublesome question. It was so recognized by this court on original hearing. It is not viewed by us as an elementary proposition as it appears in the record before us. The conclusion was reached in the original opinion which we believe to be sound, and that is herein adhered to.

The motion for rehearing is overruled.


text:
    BARKER v. STATE.
    No. 21305.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    R. T. Correll, of Perryton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted in the county court of Ochiltree County of willfully setting fire to a fence, the property of another, and was by the jury fined the sum of $25; the charging part of the indictment being as follows: “That C. W. Barker on or about the 8th day of March, A.D. one thousand nine hundred and forty and anterior to the presentment of this indictment, in the Cpunty of Ochiltree, and State of Texas, did then and there unlawfully and wilfully set fire to a fence there situate, the property of another, to-wit, J. W. Moore, the said C. W. Barker then and there not being in possession of said fence at the time, and the said C. W. Barker not then and there being in control of said fence at the time of the said setting fire to said fence aforesaid,” etc.

The statute under which this prosecution is based being found in Vol. 3, Vernon’s Ann.P.C., as Art. 1388b — 1, reads as follows: “Section 1. Any person who willfully sets fire to woods, forests, fences, gr.ass or rubbish of any kind, on lands of which he is not in possession or control at the time of setting out such fire, or who willfully causes fire to be communicated to such woods, forests, fences, grass or rubbish, or who willfully and maliciously sets oil fire or causes to be set on fire any timber, weeds, or marshes, so as to cause loss or injury to another, shall be guilty of a misdemeanor, and on conviction must be fined not less than Ten ($10.00) Dollars, nor more than Two Hundred ($200.00) Dollars.”

It is our opinion that this indictment is defective in that it fails to allege that appellant set fire to this fence “so as to cause loss or injury to another,” that being the gist of the offense.

We are also of the opinion that, in the event of a further trial of this matter, the court should respond to the request of the appellant and give in charge to the jury a definition of the legal meaning of the term “willful”. See Bennett v. State, 109 Tex.Cr.R. 237, 4 S.W.2d 62; Townsend v. State, 121 Tex.Cr.R. 79, 51 S.W.2d 696.

On account of the defect in the indictment, this judgment is reversed and the prosecution ordered dismissed.


author: BEAUCHAMP, Judge.

text:
    Ex parte SOLSONA.
    No. 21467.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.

      See, also, 144 S.W.2d 270.
    Joe Burkett, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

This is an appeal from an order of the district court of Bexar County refusing the application of Fred Solsona to have the amount of bail required of him in the sum of $2,500 reduced to $500.

The application alleges that relator was held in the custody of the sheriff upon a charge of robbery by assault; that he had been held to bail in the sum of $2,500 and that this amount is excessive; that petitioner is a man of humble means, poor, and without friends available as sureties in such an excessive amount.

It will be presumed that the records of the case were before the court and that he acted upon all of the factors which may be considered in fixing the amount of bail. The record contains a statement of facts which would justify a jury in finding him guilty. The appeal appears to be predicated upon the sole theory that the relator was unable to make bond in the amount of $2,500 and that it was the duty of the court for this reason to reduce the same to an amount which he could make.

It is the duty of the court under the constitution and laws to fix a reasonable bond, and in the event the amount should be unreasonable this court would order the same reduced. Ex parte Osborne, 127 Tex.Cr.R. 136, 75 S.W.2d 265. However, it has' been frequently held that the ability of the party to make bond is not the sole and only factor. The nature of the offense and the punishment which may be meted out are factors which the court should properly consider in fixing the bond. Ex parte Jones, 107 Tex.Cr.R. 438, 296 S.W. 886; Ex parte Nelson, 125 Tex.Cr.R. 439, 69 S.W.2d 126; Ex parte Brooks, 127 Tex.Cr.R. 535, 78 S.W.2d 183. There is nothing in the record to indicate that the amount of bail is excessive, considering the charge under which he is held and the punishment which may be meted out, and, in the absence of a showing that the evidence is insufficient upon which to hold him for the crime, the amount of bail appears to be reasonable.

The judgment of the trial court is affirmed.


text:
    MOORE v. STATE.
    No. 21235.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1940.
    Rehearing Denied Jan. 22, 1941.

      Wm. E. Davenport, of San Angelo, for appellant.
    u d w_ Davidsorl) state’s Atty., of Austi for ⅛£ Stat&
   KRUEGER, Judge.

The offense is theft of property over the value of fifty dollars. The punishment assessed is confinement in the state penitentiary for a term of five years.

It appears from the record that about 7 P. M. of December 19, 1939, some one took from Mrs. Emmett Cox’s automobile while parked on a street in San Angelo a number of packages containing Christmas gifts which had been addressed to various persons and which she intended to carry to the postoffice to he mailed. She had only been absent from the automobile a few minutes when she discovered that her property had been stolen. She immediately notified the police who arrested appellant a short distance from where the theft was committed. At the time of his arrest, he had in his possession some of the stolen property and the balance was found in the weeds some thirty steps away. Mrs. Cox had a list of the articles and knew the actual cost price of each article, the total of which amounted to $53.35. Appellant denied taking the property in question out of her automobile.

It appears from the record that the court declined to approve appellant’s bill of exception No. 1 complaining of certain remarks by the District Attorney in his argument to the jury because the same was incorrect and in lieu thereof the court prepared and filed a proper bill which shows that appellant did not make any objection to the argument at the time it was made; that he, for the first time complained thereof in his motion for a new trial. “It is a settled general rule that objection to improper argument to the jury should be made at the time — not for the first time upon a motion for a new trial.” Tex.Jur. Vol. 31, p. 212, § 20, and cases cited in note 4. Under the circumstances disclosed by the bill, it fails to reflect reversible error.

By bill of exception No. 2 appellant complains of the action of the trial court in overruling his application for a postponement of the case for a day or two until he could ascertain from the clerk of the District Court of Childress County whether or not he had been awarded a suspended sentence in said court upon a similar charge. We see no error reflected by the bill. Appellant and his attorney had ample time by the use of proper diligence to have ascertained the true facts, if in fact he did not know what the result of his trial was in Childress County. However, the District Attorney had a letter in his possession from the clerk of said court stating that appellant had not received a suspended sentence or any other kind of a-sentence. Notwithstanding this information he declined to make a sworn application for a suspended sentence until further time was given him in which to make the necessary and proper investigation. In our opinion, this bill fails to show error because appellant failed to exercise proper diligence. He was indicted on February 13,. 1940, and his trial' was hot had until February 26th, some two weeks after the indictment was returned.

Bill of exception No. 3 shows that after the trial of the case had proceeded until 6 :30 P. M., appellant moved the court to postpone the trial until the next day in order that his brothers, who had agreed to be present at the trial, might appear and testify to his insanity due to the excessive use of alcohol. The bill shows that appellant at no time made an application for process to have his brothers summoned and in attendance upon the court. Here, again, appellant failed to exercise any diligence. See Art. 543, Vernon’s Ann.C.C.B., Vol. 1, p. 422, subd. 2, notes; Holmes v. State, 38 Tex.Cr.R. 370, 42 S.W. 996; Boyd v. State, 57 Tex.Cr.R. 647, 124 S.W. 651; Branch’s Ann.Tex.P.C., p. 186, § 314.

By bill of exception No. 4, appellant complains of the action of the trial court in declining to give him sufficient time in which to study the court’s main charge and file proper written exceptions thereto. He did address five exceptions to the charge but no request for further time in which to file additional objections seems to have been made. It is true that under the law the trial court should give the defendant a reasonable amount of time in which to read the charge and present his objections thereto in writing. Howéver, in the case under consideration, appellant 'fails to point out ■ any other' objections which he might have had thereto. We have carefully reviewed the court’s charge and reached the conclusion that the same contains a full and fair application of the law to the facts. Hence any amount of time which the court might have granted to the appellant would have been of no avail to him. Consequently, the appellant could not have suffered any material injury as a result of the court’s action. If the court in his charge had misapplied the law, ignored any defensive theory or incorrectly stated the law to which appellant might have addressed an objection, then a different question would have been presented.

Appellant objected to the court’s charge in failing to submit to the jury the issue of misdemeanor theft. If the evidence had raised that issue, then most certainly he would have been entitled to an instruction thereon by the court, but such issue was not raised by the testimony. The stolen articles were all new, had not been used, and had been recently purchased at the prevailing price in the town where the theft was committed.

Having discovered no error, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

We have read with interest appellant’s motion for a rehearing herein, and are of the opinion that all matters presented herein were properly passed upon in our original opinion.

Appellant does contend, however, that it was not proven that he was in pos-' session of the recently stolen property at any time. We note from the record that he was apprehended by the officers under a bridge, and that he had the radio in his possession at such time; that the officers asked him where the gown was, and, after looking in his pockets, he finally pulled a lady’s silk gown from inside his trousers. These were a portion of the articles that were all taken at the same time from Mrs. Cox. The officers had already found all the other articles scattered out in the weeds and brush, some packages bursted-open, about thirty yards from where they found appellant under the bridge. These-articles were lying near the river in ten or eleven packages.

We think that appellant’s possession of two of the stolen articles while under a bridge, and his close juxtaposition to the other articles, evidently hastily discarded by the person taking the same, would be sufficient proof to authorize the jury to conclude that he who had stolen a portion of these goods, as shown by his possession thereof, also took the remaining goods that were found in such close proximity to appellant at the time of his apprehension. See Perry v. State, Tex.Cr.App., 78 S.W. 513; Lamater v. State, 38 Tex.Cr.R. 249, 42 S.W. 304.

We think this case was properly decided in our original opinion, and the motion is overruled.


author: BEAUCHAMP, Judge. KRUEGER, Judge.

text:
    JENKINS v. STATE.
    No. 21266.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.
    Rehearing Denied Jan. 22, 1941.
    Collins, Williams, Hatchell & Garrison, of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted o’f the theft of a hog alleged to be the property of Drew-ie Stanley, and was assessed a penalty of two yéars in the state penitentiary.

A rather lengthy statement of facts accompanies the case, but there are no bills of exception and the only question before us for consideration is whether or not the evidence introduced is sufficient upon which the jury may have found the defendant guilty. We have concluded from an examination of the statement of facts that not only was the evidence sufficient, but considered with all the facts and circumstances, presents a very strong case against the appellant.

The country surrounding the residence of the injured party is open timber country where hogs run at large throughout the year. A number of the inhabitants own hogs in large numbers which range in territory whose bounds.are fairly well fixed, though the ranges are overlapping. The theft is alleged to have taken place on about the 30th day of November, 1938. During this period of time quite a number of the owners of hogs were riding the woods looking after them, sometimes alone and frequently 'two or more together. Two witnesses who were thus engaged came across a truck parked by the side of a road which attracted their attention. The drivers of the truck were not there. These range riders waited for the return of the owner of the truck. As night neared they decided that they would move away and, as they started, two parties, appellant and another, approached the truck and were about twenty five yards from the witnesses before either discovered the other. As they did so, appellant and his companion turned immediately and retreated in the woods which was described as a thicket. Appellant was carrying a tow sack with something which proved to be three pigs.' The witnesses made their way through the thicket and overtook appellant as he was trying to let the pigs out of his sack. A sandy colored pig which bore the mark of Drewie Stanley was pulled out of the sack in the presence of one of the witnesses. It seemed frightened and ran, for refuge under a myrtle bush. The witness examined it and identified it as having the mark of Drewie Stanley and also as one that he had seen with a particular sow belonging to Stanley. This sow had five pigs,, four of which were black and one slightly colored. Appellant, when questioned by the range riders about the pigs, claimed that he was aiding his' companion and was only hired to do so; that his companion claimed to be the owner of a sow and some pigs in the territory. He was warned by the witnesses that his companion had no hogs in that country. Nevertheless, he and his companion carried away the two pigs remaining in the sack and appellant admits that in their transactions he became the possessor and owner of these two black pigs, and that he disposed of them at a nominal price to some buyer whose name is not disclosed.

There is much other evidence in the case, none of which was calculated to help appellant before the jury. The necessary jurisdictional facts, lack of consent by the owner, etc;, are found ini the statement of facts.

The foregoing evidence, considered with all the circumstances of the case, is sufficient upon which the jury might have found appellant guilty. They did do so and it is not within the province of this court to set aside their verdict. The judgment of the tri'al court is affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

Appellant, in his motion for rehearing, strenuously insists that we were in error ■in our original opinion in holding the evidence sufficient to justify and sustain his conviction. In view of his contention, we deem it but fair to ourselves, as well as to appellant, to summarize the facts as developed upon the trial.

The State’s testimony, briefly stated, shows that Drewie Stanley had a sandy-colored sow with five pigs running on the open range. Four of the pigs were black in color and one, a female, was sandy-colored with black spots. The female pig was marked while the others were not. On or about the 30th day of November, 1938, while Jack Rushing and Frank Boul-ware were riding the range looking for hogs, they saw this sow with her five pigs. Some two or three hours later, they saw a truck parked some distance from the road in the vicinity of where this sow and her pigs ranged. They watched this truck for quite a while, expecting the owner to make his appearance. After waiting for something like two or three hours, they observed the appellant (Bill Jenkins) and A1 Varner, coming from the west and going in the direction of where the truck was parked. Appellant at the time was carrying a sack on his shoulder with some object therein. Rushing and Boulware rode toward where the appellant and Varner were, and when they saw Rushing and Boul-ware approaching, they turned and started walking in the opposite direction. Appellant was seen to lower the sack and take out a sandy-colored pig with black spots, which bore Stanley’s mark, and liberated it. The other two black pigs in the sack were of the same size. About two days later, Boulware again saw the sow at which time there were only three pigs with her. Two of the five pigs which she had two days prior thereto were missing and were never seen thereafter. No dead pigs were found by any one on the range.

It is true that appellant denied stealing the pigs. He said that he was hired by Varner to assist him in catching the pigs. However, there is some testimony to the effect that appellant left the county the day before the indictment was returned against him and was not apprehended until nearly a year later. Appellant took the two black pigs home in the sack and a few days later sold them for the price of one dollar each to some unknown person who came through the country buying pigs. The appellant’s testimony to the effect that he purchased the pigs from Varner, like all other defensive evidence, was disregarded by the jury.

We are of the opinion that the foregoing condensed statement of the facts is sufficient upon which the jury could reasonably base their conclusion of the appellant’s guilt.

We therefore overrule the appellant’s motion for rehearing.

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:
    HANCOCK v. STATE.
    No. 21384.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    Leon Dean Lusk and Leo C. Brady, both of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for assault with intent to rape, punishment assessed at two years in the penitentiary.

No bills of exception or statement of facts are found in the record. In this condition of the record nothing is presented for review.

The judgment is affirmed.


text:
    BRADFORD v. STATE.
    No. 21360.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    W. S. Shipp and J. W. Thomas, both of Belton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for swindling, punishment assessed at two years in the penitentiary.

No statement of facts or bills of exception are found in the record. In this condition nothing is presented for review.

The judgment is affirmed.