author: SMEDLEY, Commissioner.

text:
    RANDERSON et al. v. DALLAS JOINT STOCK LAND BANK OF DALLAS.
    No. 1853-7599.
    Commission of Appeals of Texas, Section B.
    Feb. 5, 1941.

      Ayres & Ayres, of Floydada, and Malone, Lipscomb, White & Seay, of Dallas, for plaintiffs in error.
    Searcy L. Johnson and Lawther, Cramer, Perry & Johnson, all of Dallas, for defendants in error.
   SMEDLEY, Commissioner.

By motion filed in one of the district courts of Dallas County, defendant in error, the Dallas Joint Stock Land Bank of Dallas, sought recovery of damages from plaintiff in error Randerson,' who was sheriff of Floyd County, and the other plaintiff in error, which was surety on Rander-son’s official bond. The district court sustained a general demurrer and a number of special exceptions to the motion and rendered judgment of dismissal after defendant in error had declined to ajnend. The Court of Civil Appeals reversed the trial court’s judgment and remanded the cause, holding that the trial court should' have overruled the general demurrer and certain of the special exceptions. 127 S.W.2d 593.

Three original suits filed by the Land Bank against A. N. Gamble and others were consolidated in the district court of Dallas County for the 101st judicial district. Judgments of foreclosure were rendered, orders of sale were placed in the hands of Randerson and sales of the property were made on August 7, 1934. On motion of the Land Bank alleging that the sales were made fraudulently and contrary to law, the court, on August 27, 1934, and September 4, 1934, entered orders setting the sales aside and providing that the properties be resold under orders of sale to be directed to any constable of Floyd County. Sales were finally made under such new orders on the first Tuesday in August, 1936.

The Land Bank’s motion for judgment was filed in the district court of Dallas County for the 101st judicial district, its caption bearing the numbers and style of the three consolidated original causes and designating the complaint or pleading “motion for judgment against sheriff and sureties”. The motion is also endorsed in the same way. It sets forth the judgments and the securing of the orders of sale thereon. It relates the making of the sales alleged to have been fraudulent and wrongful ■ and the setting aside of the sales by the court, and proceeds to detail the expenses incurred after the making of such sales until proper sales were made almost two years later, pointing out that if proper sales had been made under the orders first issued none of such expenses would have been incurred. The damages alleged in the motion as suffered by the Land Bank on account of the first sales include interest on the ultimate sale price from the date of the alleged wrongful sales until the date of the proper sale, traveling expenses and court costs in defeating dilatory tactics taken by the debtor to avoid the making of the sales and the attorney’s fees incurred by the Land Bank in securing the resales. The motion contains also a plea for exemplary damages. The prayer of the motion is that the sheriff and his surety “be given five days’ notice as provided by statute of a hearing upon this matter” and that upon hearing the Land Bank have judgment for its damages and for other and further legal and equitable relief.

The court endorsed on the motion an order that it be set down for hearing on August 19, 1936, and that the clerk issue notices as provided by law. The transcript contains a copy of one of the notices issued by the clerk. It is not in the form prescribed by statute for citations in ordinary original suits and it describes the Land Bank’s complaint or ■ pleading as a motion for judgment against the sheriff and his surety.

The allegations of the motion, to show that the original sales were fraudulent and unlawful, are as follows: “On said 7th day of August, 1934, although C. B. Harder, agent for plaintiff, made an appointment with the respondent sheriff and his deputy to sell such property at 11:30 A. M. in Floydada for the purpose of bidding on it for the benefit of plaintiff, to which said sheriff had agreed, the said sheriff by his deputy, G. Scott King, proceeded to hold said sale at eleven o’clock at the side entrance of the Court house in Floyd County, not being the place provided by law for holding such sales, and at such sale, no bidders being present except the principal defendant A. N. Gamble, the said King as deputy sheriff of E. S. Randerson, proceeded to strike off and sell the aforesaid pieces of property to Edith Gamble, wife of the principal (defendant A. N. Gamble, for $10.00 per tract. Before a deed had been executed by respondent Randerson as sheriff plaintiff’s agent Harder arrived and in writing made a bid for the full value of such property and advised the sheriff that he would have made such bid had he been present, and that the sale was improper but the said Randerson as sheriff, nevertheless, proceeded to execute and deliver a deed to each of said properties to Edith Gamble-, wife of the said A. N. Gamble, for $10.00 per tract.”

As has been said, the trial court sustained a general demurrer and many special exceptions to the motion. One of the special exceptions was that the motion was wholly insufficient as a motion under the terms of Article 3819, Revised Civil Statutes of 1925, in that it wholly failed to allege or show, in the making of the sales, a violation of any of the provisions of Title 56 of the statutes, save and except as to the place where the sales were alleged to have been held, and further that the motion alleged and showed that the making of the sales in such place did not in any manner cause or contribute to plaintiff’s alleged injury. Another of the special exceptions sustained was in substance that the allegations as to the making of the .sales at the side entrance of the courthouse were insufficient because the motion failed to allege facts showing wherein or how the Land Bank was injured by the holding of the sales at that place, other than by conclusion of the pleader.

The Court of Civil Appeals [127 S.W.2d 596], held that “plaintiff’s pleading, although labeled a motion, and, obviously following provisions of the execution statute in question, has all the indicia of, and must be properly denominated, an ordinary civil suit”-; that the pleading stated a common law action for damages and was sufficient as such when tested by general demurrer; and that in so far as the pleading stated facts and sought relief or remedy beyond the purview of Article 3819, it was subject to appropriate pleas in abatement or to the venue, which plaintiffs in error did not file.

Article 3819 is as follows: “Any officer who shall sell any property without giving the previous notice herein directed, or who shall sell, the same otherwise than in the manner prescribed herein, shall forfeit and pay to the party injured not less than ten nor more than two hundred dollars in addition to such other damages as the party may have' sustained, to be recovered on motion, five days notice thereof being given such officer and his sureties.”

The article is a part of “Title 56, Execution”, which contains many articles prescribing the manner in which executions and orders of sales shall be issued, executed and returned, the notices that shall be given and the manner of making sales. As to the time and place for making sales, it is required by Article 3804 of the Title that sales of real property be made at the courthouse door, on the first Tuesday of the month, between the hours of 10 o’clock A. M. and 4 o’clock P. M. Article 3809 defines the term “courthouse door” as meaning “either of the principal entrances to the house provided by the proper authority for the holding of the district court.”

As is apparent from the motion, the gist of defendant in error’s complaint is -that the sheriff made fraudulent sales of the several tracts of land by selling them for nominal considerations at .11 o’clock, after having promised and agreed that the sales would be made at 11:30 o’clock thus selling the property in the absence of defendant in error’s agent, who, had he been present, would have bid the full value. Since, according to the allegations of the motion, the sales were made at 11 o’clock, it does not appear from the motion that, as far as time is concerned, the sales were made otherwise than in the manner prescribed by the statute. There was a violation of the promise or agreement but not a departure from the provisions of the statute.

The allegations as to the place where the sales were made are that the sheriff held the sales “at the side entrance of the courthouse in Floyd County, not being the place provided by law for holding such sales.” The special exceptions pointed out that the motion failed, otherwise than by conclusion of the pleader, to allege that the Land Bank was injured by the making of the sales at the side door. That door may have been one of the principal entrances to the courthouse within the definition of “courthouse door” given by Article 3809. To meet these special exceptions, allegations of fact should have been made so that it would appear from the facts averred, rather than from the pleader’s conclusion, that the side door was not one of the principal entrances to the courthouse and that the making of the sales at that place caused or contributed to the damages alleged. It appears from the motion that the damages sought to be recovered were the result of the failure of the sheriff to perform the agreement to sell the property at 11:30.

It is our opinion, therefore, that defendant in error’s complaint, tested by the general demurrer and the special exceptions above referred to, is insufficient as a motion for recovery of damages under Article 3819. The somewhat strict construction given to the allegations of the motion is justified, and we think proper, because the proceeding authorized by the statute is, as compared to the ordinary suit for damages, special and summary. The article permits the filing of the motion in the cau?e in which the execution was issued (in this case in the consolidated causes in the district court of Dallas County) and a hearing of the motion after five days’ notice; whereas, if defendant in error had instituted an ordinary suit for damages against the sheriff and his surety on account of fraudulent or unlawful sales of the property under the orders of sale, the venue of such suit would have been in Floyd County (Bachus v. Foster, 132 Tex. 183, 122 S.W.2d 1058), and plaintiffs in error would have been required to answer only at an appearance day of a regular term of court and after service of citation at least ten days before the beginning of the term. It has been held that the proceedings authorized by Articles 3825 and 3826, which are substantially the same as those authorized by Article 3819, are summary and that such statutes should be strictly construed and their requirements strictly followed. Robinson v. Schmidt & Ziegler, 48 Tex. 13; J. M. Radford Grocery Co. v. Owenby, Tex.Civ.App., 34 S.W.2d 385; Huff v. Matula, Tex.Civ.App., 58 S.W.2d 855.

As has been said, the complaint filed herein was designated by defendant in error, in its caption and by endorsement, a motion for judgment against sheriff and sureties. The process prayed for was five days notice as provided by the statute. The court by its endorsement directed the issuance of notices and notices rather than citations were issued by the clerk of the court. Thus it clearly appears that the defendant in error, the judge and the clerk of the court treated the complaint as a motion under the statute rather than as a petition in an ordinary suit for damages. Furthermore, we think it apparent from the substance of the motion that defendant in error was attempting to allege grounds for recovery on motion as authorized by Article 3819. Since the proceeding was instituted and intended as a motion under the statute, rather than as an ordinary suit for damages, and the pleading filed appears to be such motion, it was the right of plaintiffs in error, when notified of a hearing on the motion, to invoke by general demurrer and by special exceptions the court’s decision of the sufficiency of the allegations as grounds for recovery under the statute.

It follows from our approval of the trial court’s decision that the judgment of the Court of Civil Appeals should be reversed and the judgment of the district court affirmed. It is so ordered. '

Opinion adopted by the Supreme Court.


source: Caselaw Access Project

author: GRAVES, Judge. BEAUCHAMP, Judge. HAWKINS, Presiding Judge

license: Public Domain

text:
    FELDMAN v. STATE.
    No. 20550.
    Court of Criminal Appeals of Texas.
    April 17, 1940.
    Rehearing Denied Feb. 19, 1941.
    Further Rehearing Denied March 12, 1941.
    See 148 S.W.2d 835.
    Fulbright, Crooker & Freeman and C. A. Leddy, all of Houston, for appellant.
    W. C. McClain, of Conroe, R. A. Bas-sett, of Richmond, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was indicted in Montgomery County, charged with having conspired with seven others to use a forged tender in order to induce the handling and transportation of oil produced in violation of law, and upon a conviction he was awarded a penalty of five years in the penitentiary.

It appears that under the law and the rules of the Railroad Commission of Texas, in order that crude petroleum should be allowed to move in the pipe line common carriers of this State, it is necessary that a proper tender be first obtained, which tender is initiated by means of a sworn statement made by the person desiring to move such oil in the lines of such carrier. However before such sworn tender can operate as a warrant or direction for the moving of such oil it is necessary that same be approved by some agent of, or proper person representing, the Railroad Commission. The gist of the herein charged offense lies ..not in the making of a forged tender, but in the entering into a conspiracy together with seven other persons upon the part of this appellant to use a forged tender for the purpose of transporting crude petroleum oil produced in violation of our State laws. In short, the appellant was charged not with having forged the instrument, nor with having used the same knowing it to have been forged, but he was charged with conspiring with certain others to use such an instrument.

Herein we are early met with the contention on appellant’s part that the venue of this case, which was originally laid in Montgomery County, was improperly thus placed, and that the Brazoria County District Court, where the case was moved on a change of venue, was without jurisdiction herein.

It is here granted that the State must necessarily show that venue originally was properly laid in Montgomery County, otherwise the trial in Brazoria County must have been without warrant of law.

As above noticed, this is not a prosecution for making or using a forged tender, but the allegations in the indictment in the fourth count thereof, which was the one submitted by the court to the jury, charge that the mentioned person conspired to use a forged tender in the movement and transportation of oil in Montgomery County, Texas. Under the statute the county wherein the conspiracy was to be executed is one of the counties of venue, and this case properly originated in Montgomery County. Art. 205, C.C.P., reads in part as follows: “Conspiracy may be prosecuted in the county -where the conspiracy was entered into, or in the county where the same was agreed to be executed; * *

We held in Kutch v. State, 32 Tex.Cr.R. 184, 22 S.W. 594, that: “The Code declares that the offense of a conspiracy may be prosecuted in the county where the conspiracy was entered into, or in the county where it was agreed to be executed (Code Crim.Proc. art. 221) [now 205], that is to say, the venue of the conspiracy may be laid in El Paso county if the agreement was to be carried out in that county.”

To the same effect is the holding in Dawson v. State, 38 Tex.Cr.R. 9, 40 S.W. 731. In that case the agreement or conspiracy was entered into in Dallas County to burn a house in Milam County. Venue in Milam County was upheld by this court. It is immaterial, so we think, where the conspirators may have met for the purpose of entering into their agreement, if they did thus meet,—not where their negotiations might have been had one with the other; the gist of this offense is where was the final pla.ce of a full fruition of their plannings. The oil to be moved thus unlawfully was to be moved in Montgomery County; that county was the final goal of their conspiracy, and in accordance with the statute, there the venue can be fixed. All assignments and bills of exceptions relative to the venue being laid in Montgomery County are overruled.

Appellant’s assignment of error No. 2 is overruled. It relates, to the trial court’s charge wherein he says that: “Circumstantial evidence is competent to prove the existence of a conspiracy.” The objection therein is directed at the word “competent,” which it is contended was on the weight of the evidence. We think the criticism is without merit. The court only meant that such evidence, if believed, would be sufficient to establish a conspiracy.

Appellant’s assignment of error No. 3 is based on a statement made by the learned trial judge in a colloquy between attorneys on opposing sides in which the trial court, upon being appealed to, made the unguarded statement that he would have to agree with the 'State’s attorney in the matter at difference between the attorneys. This matter will doubtless not occur again. Such was after all but an academic question, at difference between enthusiastic advocates upon each side, and a casual remark by the court, when appealed to, indicating his opinion that the State’s attorney was correct in his interpretation of a certain illustration of the effect of a charge on circumstantial evidence, did’ not operate to appellant’s injury, so we are convinced, and was not a verbal charge to the jury as contended by appellant.

Appellant’s next assignment of error is No. 4, and is based on the trial court’s refusal to grant a motion for an instructed verdict in that appellant contended that it was not shown that the tenders relied upon by the State, and introduced in this cause, had been executed without lawful authority. With this contention we find ourselves unable to agree. The testimony, • so we think, is sufficient, as presented in the record, to allow the jury to find that such tenders were executed without lawful authority.

Bills of exceptions Nos. 8 to 12, inclusive, are concerned with the same transaction, are grouped by appellant in his brief, and will all be governed by our ruling on the general proposition presented thereby.

The trial court permitted, over appellant’s objection, the details of a certain conversation between Olin Culberson, an employee of the Railroad Commission, and one Shu-ford Farmer, at the Blackstone Hotel in Fort Worth, in April, 1937, to the effect that Farmer, claiming to represent one Frank Bennett, made an attempt to bribe, and did offer to bribe, the said Culberson to “cover up that 35,000 barrel tender down there in the Conroe matter.” The remaining bills all relating either to some one overhearing a conversation between Farmer and Bennett, or a conversation between Farmer and one Neal Powers. In bill -No. 8 we find set forth the conversation alleged to have been had with Mr. Culberson by Farmer, which was objected to by appellant as follows: “Shuford Farmer came into my room and told me that he had a proposition that he wanted to put to me on behalf of a client of his, and he said, T don’t want you to get sore at me when I do it,’ and I asked him to sit down and tell me what his proposition was, and then he asked me if I had my dictaphones in the room, and I told him I didn’t engage in the kind of business that I had to have dictaphones around, and to tell me what he had on his mind; that I was working on some notes that I had taken in a case that day and that if he had any business with me to get through with it; and he said he had a client who was looking for an auditor who knew something about the oil business, as well as income tax matters, and that I had been recommended to him as one that knew something about it, and that his client was wanting to employ me in his service as an auditor. I told him that I wasn’t an auditor; that I wasn’t concerned with or interested in any proposition that any client that he might have could make to me, with reference to that kind of work that the work I was engaged in satisfied me and I wasn’t looking for any change of occupation or employment; and he got up and started around the bed; the bed was setting out in the middle of the room between us and the door, and when he got around to the corner of it, he just turned around and said, ‘Well, Hell, Olin, you can just call the baby a boy or girl, as you want to, but I am going to tell you what I came up here for,’ and he said, T represent the crookedest son of a bitch in the oil business; his name is Frank Bennett, and I am up here to offer you for him $2,500.00 if you will cover up that 35,000 barrel tender down there in the Conroe matter,’ and he stood at the foot of the bed, and repeated again, ‘You can call the baby a boy or a girl; in other words, yes or no’; I told Shuford I was mighty glad that his employer had sent a one-armed man to me, but I was sorry that he did not come himself so that I could throw him out of the window and that he had better get out before I forgot that he had just one arm and try to do it anyway; Yes, sir, he is a one-armed man, and he said, ‘Well, don’t get sore at me; I am just up here for my client;’ and I told him I supposed we had better not talk any more about it, that he had better get going, and he left.”

This testimony was vigorously objected to on many grounds, among them was the objection that Farmer was not one of the alleged conspirators, nor charged as such; the defendant was not shown to have been present, nor to have any connection therewith ; that such conversation took place long after the culmination of the conspiracy, if such there was shown, was hearsay, res inter alios acta, and many other objections. These objections, we think, were practically all of them good, and should have been heeded by the trial court. There is no connection shown between the man Farmer and appellant, and the only connection shown between Bennett arid appellant is the fact that both of their names are mentioned in the indictment.' This matter occurred after the alleged forged tenders had been used, and the conspiracy to thus use them had been consummated. The matter as to appellant Feldman was hearsay, and was also a matter governed by the rule of res inter alios acto, for which appellant should not have been held; that the showing of an effort to bribe a State servant would be prejudicial to one on trial for an offense before a jury can not be denied, arid may be inferred by the verdict of five years, the highest penalty provided by law, returned herein. Being thus convinced, we sustain all bills of exceptions relative to this conversation with Mr. Culberson concerning the attempt at bribery, as well as the bills relative to the conversation with one Neal Powers by Farmer.

In our judgment what we have said just above is sufficient to order a reversal of this case.

This is a large record, the transcript consisting of 131 pages, and the statement of facts of 765 pages, much of which consists of photostats of technical matters, not easily understandable by one unversed in their terminology. We have, however, gone' over the record carefully, and are led to confess that we are in doubt as to the sufficiency of the evidence to show that appellant Feld-man entered into a conspiracy to use forged tenders with anyone. We do find it shown by proof that he signed and swo.re to a certain tender for the moving of 9987.42 barrels of oil, the approval of which was alleged to have been obtained by the forging of the name of an agent of the Railroad Commission thereon showing a necessary approval thereof. However we do find in the statement of facts a verdict of acquittal by a jury of Montgomery County in a case wherein appellant was charged with using such a tender for the purpose of inducing another to transport illegally acquired oil.

The only other testimony that we have found that could be said to connect appellant with any of the conspirators, relative to the moving of illegally produced oil, which impressed us with probative force, is located in the testimony of Glenn H. McCarthy in which he relates a conversation with one Otis Gibson, who is charged herein as being one of the conspirators, as follows : “Some -time thereafter, I saw Mr. Gibson again, but it is not quite clear in my mind at this time whether he was accompanied by any one or not at that time; you are referring to Mr. Feldman, I suppose; as I recollect, Mr. Feldman was in the office, either after or at the time of Gibson’s visit this other time; Mr. Feldman’s purpose in my office was for the purpose of the Bertrand lease. As to what statement was made in my office, either by Feld-man, or in Feldman’s presence, with reference to what would be the effect of purchasing the Bertrand lease from me, I will reply that the idea was first given by Gibson, and it was a proposal to me; I told him that I didn’t want to have anything to do with this over-production business, and I didn’t want to sell my oil under the market price, and I didn’t want to fool with .it at all, and I think we even wrote that in a letter; this letter, I believe, was sent to Mr. Feldman, that we weren’t interested in doing it on that basis, or changing our pipe line; and Gibson then came back to me and said: ‘well, suppose you sell the lease then, you are not doing anything wrong; you are not over-producing your wells, and you would be entirely in the clear; would you sell your lease?’ I said: ‘certainly, I will sell my lease, if I get the proper amount of money out of it, what I think is the value of it.’ Mr. Feldman, this defendant here,' was to buy my lease from me; and Mr. Gibson said that if we would agree to sell it on a very low cash payment and a real large oil payment, then they could go on and run this oil, if they saw fit, and be able to make me those large payments, and which was also in excess of the allowable.”

It is to be noted that the deal above discussed in the presence of appellant is shown not to have been consummated and had no effect on the moving of any oil alleged to have been the subject of this indictment.

These are the salient facts, so far as our examination has shown us, as presented against this appellant. True, a conspiracy can be shown by circumstances, and usually must be thus shown because conspirators usually work in the dark and do not noise abroad their agreements to effect their illegal objects, and when circumstances are relied upon, as in this instance, they must exclude every other reasonable hypothesis than that of the appellant’s guilt. We confess that such has not been the effect upon our mind after a careful reading and rereading of this record. If this cause is again tried the evidence should be strengthened, if possible.

The cause, however, is reversed and remanded on account of the error in admitting the conversation of Farmer with Cul-berson and other kindred matters related thereto.

The judgment is reversed and the cause remanded.

On State’s Motion for Rehearing.

BEAUCHAMP, Judge.

The state has filed herein a vigorous motion for rehearing and, while we have considered it in its entirety, we are not discussing all questions raised by the motion in as much as we believe that portion of the original opinion which holds the evidence of the conversation between Shuford Farmer and Olin Culberson at the Blackstone Hotel in Ft. Worth in April, 1937, correctly states the law. This makes it necessary to overrule the State’s motion for rehearing. Perhaps we should not have intimated in our original opinion that we entertained doubt as to the sufficiency of the evidence. Such intimation is withdrawn, and we now express no opinion on that matter.

The State’s motion for rehearing is overruled.

HAWKINS, Presiding Judge

(concurring).

I concur in the opinion on the State’s motion for rehearing upon authority of Sessions v. State, 37 Tex.Cr.R. 62, 38 S.W. 623, in which accused was being prosecuted for the substantive crime of conspiracy, and which appears to be direct authority against the admission in evidence of the conversations that occurred at the Blackstone Hotel in Fort Worth.


author: CHRISTIAN, Judge. BEAUCHAMP, Judge.

text:
    HANKS v. STATE.
    No. 21352.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    Rehearing Denied Feb. 19, 1941.
    A. R. Rucks, of Angleton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Minerva White by cutting her with a knife.

The testimony is sufficient to support the judgment of conviction.

Two questions are presented for review. The first involves appellant’s exception to a portion of the court’s charge, which read as follows: “If you do not believe the defendant to be guilty of any offense, you must acquit him, and say by your verdict ‘not guilty.’ ” If the charge was incorrect, as pointed out in Brinkoeter v. State, 14 Tex.App. 67, we do not think that it should work a reversal in view of the provisions of Article 666, C.C.P., from which we quote as follows: “Whenever it appears by the record in any criminal action upon appeal that any requirement of the eight preceding articles has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.”

It is observed that in submitting the offense of murder with malice, the court required the jury to believe beyond a reasonable doubt that the appellant was guilty before he could be convicted. Also the “reasonable doubt” was coupled with the charge on self-defense. In submitting murder without malice, the jury was required by the charge of the court to believe, beyond a reasonable doubt that the appellant was guilty. In concluding the charge the court instructed the jury as follows: “In all criminal cases the burden of proof is upon the State. The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt and in case you have a reasonable doubt as to the defendant’s guilt, you will acquit him, and say by your verdict ‘not guilty.’ ”

Viewing the charge in its entirety, the opinion is expressed that the instruction complained of could not have harmed appellant.

It is shown in bill of exception N6. 1 that a daughter of deceased, while testifying for the state,' was asked how many brothers and sisters she had.. Over appellant’s proper objection, she replied: “Two sisters and four brothers.” The bill of exception was qualified by the court to show that appellant had previously testified that during her lifetime deceased had asked him to help her with her children. The fact that deceased had children was therefore in evidence without objection. Under the circumstances, we would not be warranted in holding that the bill of exception reflects reversible error.

The judgment is affirmed.

PER CURIAM.

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

On Appellant’s Motion for Rehearing.

BEAUCHAMP, Judge.

After due consideration of appellant’s motion" for rehearing, we have concluded that the original opinion properly disposes of the questions raised.

Appellant has cited Anderson v. State, 99 Tex.Cr.R. 13, 267 S.W. 486, which was decided on January 7, 1925, in reply to the statements in the foregoing opinion that the legislature had, by the enactment quoted, modified the previous rule so that the court may not now be called upon to reverse the case unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from tlie record that defendant has not had a fair and impartial trial. We do not think the Anderson case authority for the contention made. In it the only charge discussed squarely places the burden on the accused to show his innocence. In the case before us the, court has been so specific and repeatedly states that the burden is upon the state to show the guilt of the accused beyond a reasonable doubt that it is inconceivable that the jury should be mislead by some awkward expression. Certainly under the facts of this case, if the jury should believe the state’s evidence, the penalty assessed is a very reasonable one. There is nothing in the record to indicate that appellant did not have a fair trial.

The motion for rehearing is overruled.


author: BEAUCHAMP, Judge. HAWKINS, Presiding Judge.

text:
    GILLUM v. STATE.
    No. 21350.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    Rehearing Denied Feb. 19, 1941.

      R. B. Hood, of Weatherford, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Two years in the penitentiary on a charge of bigamy was assessed against Raymond E. Gillum, Jr., by a jury in Parker County.

Appellant’s home was in Burnet County, where he was first married and lived with his wife intermittently until something like July of 1938. At this time, after several separations between them she went to the home of her twin sister in the state of New Mexico where she seems to have resided until the time of .the trial. Without having obtained a divorce himself, appellant was married in Parker County on the 27th day of May, 1939, to another girl to whom he did not disclose, his marital difficulties or previous experience.

Numerous witnesses from Burnet County, men of 'prominence and reliability, testified to the good reputation of appellant and his family. His mother said that she saw a letter which the first wife wrote back about getting a divorce, but she didn’t read it. The father testified that he read a letter to the son to the effect she was getting a divorce from him, his exact language being: “While she was gone I read a letter she wrote my son to the effect she was getting a divorce from him. It seems like he had written her and she wrote him back and told him there was no need of trying to get along and she thought she had better get a divorce and get loose.” He made a statement to an attorney in Weatherford on the subject in which he said:. “I told him we had a letter from her about her going to get' a divorce.” Again he says: “This girl wrote my boy in this letter saying she was going to get a divorce.”

Appellant’s sister testified more definitely on the subject. She was working at Lometa, which is about thirty miles from Burnet. Appellant’s wife left and the witness said: “I later got a letter from her from Tucumcari, New Mexico. I don’t have that letter * * * I have made a search for that letter, but failed to find it. I told my brother, the defendant, what was in that letter, when I got it from her. She wrote in that letter she was going to get a divorce from my brother; that her brother-in-law was going to furnish her the money for it. * * * I toldmy brother all about that They didn’t live together any after that.”

She gives the date of this letter as about July, 1938. It was written about two weeks after the writer went to Tucumcari.

Appellant testified on the subject: “While she was out there I wrote her twice. She answered my letter. She wrote me back- a letter while out there, but I do not have that letter now. * * * I wrote her and asked her to come back to me and I thought we could make a go of it, and she wrote me back refusing to come back saying we had tried to get along twice and there was no use, and that she was suing for a divorce out there and that it would be granted in a few days. I believe she said it would be about six weeks when it would be granted her. After receiving that letter I believed she would go ahead and get a divorce. * * * I thought maybe she went ahead and got the divorce. I didn’t hear anything about it. I had had no experience about getting a divorce before and I just supposed she would go ahead and get one, or do what she wrote me she was intending to do about it. After getting this letter from her I did not ever see or speak to her or anything. I did see her at Burnet after that, but not to talk to her. I never did live with her any more. It was six or seven months or maybe a year after I-got that letter from her about getting a divorce before I married this last woman. I don’t know exactly how long it was. It was more than six weeks. I got the letter sometime in the summer time. It was' that part of the year. I married again in May of last year. That would be seven or eight months after receiving her letter.”

If this evidence raises an issue which is a defense in a bigamy case, then there are errors in the record which must be considered. If it does not constitute a defense, these errors will become harmless because of the low penalty which the jury assessed.

No representation was made that the wife had' secured a divorce. It was only that she was going to do so. No 'legal papers were ever presented to appellant The only evidence which he had was of her intention in the matter at a future date and this was of a very little, if any, higher dignity than a rumor. True, it came from the wife. It was in response to a letter asking her to return and live with him and was in the form of an excuse for not doing so. His ignorance of the law which required service of citation will not avail as an excuse for failure to make further inquiry about the matter. He knew her address; he discussed the matter with his father, a mature man, and discussed getting a divorce himself. He understood the necessity for one. The father advised him to let her go ahead as he did not have the money to spend for it. Several months passed and he recklessly took his own chance of violating a law he evidently knew to exist, and gambled his own liberty as well as the future welfare of an innocent girl whom he married without the trouble of asking if the divorce had been obtained. His act was wanton and he lost.

Chief Justice Green of the Supreme Court of Tennessee, in White v. State, 157 Tenn. 446, 9 S.W.2d 702, 704, lays • down a reasonable rule which we think this court should follow, in this language: “Plaintiff in error made no investigation of the report that his former wife had obtained a divorce, but acted on a mere rumor. No authority would go to the extent of declaring that an honest belief with respect to a matter like this might be rested on rumor. There must be some diligence and bona fide effort to ascertain the truth, before it can be claimed that a conclusion of fact has been reached in good faith.”

What diligence and bona fide effort do we find exercised by appellant in this case ? What obstacle would he have encountered if he had? The subject was discussed with the father, who apparently did nothing to investigate the facts or advise the son. He wanted the wife, or her relatives, to bear the burden of expense, and now that the victim of his indiscretion, the innocent girl he .married in Parker County, to suffer alone the consequences. He has no complaint that the law has decreed otherwise.

The statement from the wife about which appellant testifies hardly rises to the dignity of an ordinary rumor. The doctrine stated may well be applied. The evidence quoted, when given the strongest interpretation, presents no defense. It, therefore, becomes immaterial to consider the charge complained of relating to it.

Further complaint is made about the admission of prejudicial testimony which may, under circumstances, be harmful, However, in view of the penalty assessed by the jury in this case, and our conclusion that no defense was made to the admitted crime, we deem it harmless, and a discussion becomes unnecessary.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

We reached the conclusion as expressed in our original opinion that the evidence did not raise the issue of a mistake of fact, hence the alleged error regarding the instruction on the subject was not discussed.

We advert to the question now in order to say that we do not regard the charge here complained of as being denounced in Coy v. State, 75 Tex.Cr.R. 85, 171 S.W. 221. In the part of the instruction here complained, of the court was giving the converse, or, in other words, the State’s side of a mistake of fact issue. The instruction as a whole upon that issue is not subject to criticism.

The motion for rehearing is overruled.


author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    FRASER v. STATE.
    No. 21299.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    Rehearing Denied Feb. 19, 1941.

      Fryer & Milstead, of El Paso, for appellant.
    Roy Jackson, Dist. Atty., and William E. Clayton and Harold S. Long, Asst. Dist. Attys., all of El Paso, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is embezzlement of property over the value of Fifty Dollars. The punishment assessed is confinement in the state penitentiary for a term of two years.

Appellant’s main contention is that the evidence is insufficient to justify and sustain his conviction. It appears from the State’s evidence that appellant was employed by the Peterson Lumber & Paint Company, a corporation duly incorporated under and by virtue of the laws of this state; that it was located and doing business at El Paso in El Paso County, Texas, at the time of the commission of the alleged offense; that in March, 1937, appellant was placed in charge of the petty cash box or drawer with instructions to pay all small bills out of the same, including a part of the pay roll. It was appellant’s duty to keep all bills on file and at the end of each week to make up an itemized statement showing the amounts paid out with the bills attached for verification. A check was then drawn in said sum on the bank and the amount of money was placed in the petty cash drawer to replenish the withdrawals.

The record further shows that there were from three to four other employees of the corporation who had access to the petty cash drawer and who at times would pay freight bills oitt of the same and place the freight bills therein as evidence thereof. Some of the employees would take money from said drawer and place a slip of paper therein showing the amount withdrawn by them as part of advance payment of their monthly salary, which would subsequently be deducted from their monthly salary checks. This practice was continued up to September, 1939, at which time Mr. Wells, one of the officers of the corporation, discovered that a freight bill bearing date June, 1938, had apparently been changed by writing the figure “9” over the figure “8” and attached to the itemized statement made by appellant on June 14, 1939.

An audit was then made of all the transactions affecting the petty cash drawer and it revealed a shortage of $1,288.91. However, in the indictment appellant was charged with embezzlement of only $68.09 on or about the 13th day of June, 1938. No direct evidence was introduced showing that appellant and no other person embezzled the money in question.

To establish the charge against appellant the State relied entirely upon the following facts: First, that it was appellant’s duty to handle the cash in the petty cash drawer and pay freight bills out of the same ; second, that it was his duty at the end of each week to make up an itemized statement showing the amount paid and attach the various bills which were paid in verification of the statement; and third, to draw a check in the total sum paid during the week and take the same, together with the itemized statement, to Mr. Peterson, the president, or Mr. Wells, the secretary and manager of the company, for his inspection and having him sign the check, which was then taken to the bank by some employee, cashed and the money brought to appellant, who counted the same and, if correct, placed it in the petty cash box or drawer. It was shown that on the 13th day of June, 1939, appellant drew a check payable to the Southern Arizona Freight Lines in payment of a bill in the sum of $68.09, which he took to the president of the company to be signed and which was signed; that on the following day he made an itemized list of. all bills paid out of the petty cash drawer, including a bill in the sum of $68.09, due to the Southern Arizona Freight Lines for freight charges. The date of this bill appeared to have been changed from 1938 to 1939 by writing the figure “9” over the ,figure “8” and which apparently was placed in the petty cash drawer and at the end of the week this bill was included by appellant in his itemized statement. This bill, with other freight bills, was attached thereto for verification. The itemized statement showed the total amount of money that had been withdrawn from the petty .cash box or drawer during the week. The itemized statement, together with a check drawn in said amount, was taken to Mr. Peterson, who examined it, found it correct and then signed the check. Consequently, the question is, who changed the figure on the freight bill? Who placed it in the petty cash drawer? Who withdrew the sum of $68.09 therefrom? According to the testimony, there were four or five employees who had access to the petty cash drawer and paid freight bills out of it and also withdrew money from the same and placed I.O.U.’s therein which showed the amount withdrawn. The testimony further shows that when appellant found these items in the cash drawer they were presumed to be correct. The other employees weré not called upon to testify that they, nor either of them, changed the figure on the freight bill in question, placed it in the cash' drawer, and took $68.09 therefrom. The State takes the position that if appellant did not do it, he should have discovered it when he made up the itemized statement, but neither the president nor Mr. Wells, or whoever examined it, discovered it until several months later. Just why these other parties were' not called to testify is not disclosed by the record.

Appellant here, as in the trial court, asserts that the evidence being entirely circumstantial and failing to exclude every other reasonable hypothesis except his guilt, the State failed to meet the requirements of the law. Therefore, the court erred in declining to give his (appellant’s) requested instruction to the jury to return a verdict of not guilty. We are of the opinion that his contention is well founded.

In the case of Porter v. State, 1 Tex.App. 394, 399, this court said:

“‘In criminal'cases the mere union of a limited number of independent circumstances, each of which is of an imperfect and inclusive nature, cannot afford a just ground for conviction.’ 1 Starkie on Ev. 5/0; 1 Greenl. on Ev., sec. 13, a; Rose-borough v. State, 43 Tex. [570], 575.
“ ‘There must be legal, competent evidence, pertinently identifying the defendant with the transaction constituting the offense charged against him. It is the duty of the court to require that such legal, competent evidence shall be adduced on the trial in order to sustain a verdict of guilty.’ Tollett v. State, 44 Tex. 95.”

From Tex.Jur., vol. 18, p. 443, § 320, we take the 'following quotation: “The first and essential step in an inquiry into the sufficiency of circumstantial evidence is to ascertain whether the material facts have been definitely established, the general rule being that each fact must be proved by competent evidence beyond a reasonable doubt equally as if it were the main fact in issue. Since it is clear that the existence of the factum probandum must be doubtful where it rests upon inferences from incertitudes, a conviction is not supported when the evidence is in this condition. There must be direct evidence which establishes the basic facts beyond all reasonable doubt. It is not permissible procedure to base one inference upon another. Thus where the conviction depended upon the defendant’s knowledge of what was contained in certain packages was relied on as proof of this knowledge, the court held that it was requisite that the basic fact of possession should be proved by direct evidence.”

In Branch’s Ann.Tex.P.C., p. 1042, § 1877, it is said: “In order to sustain a conviction on circumstantial evidence it should appear not only that an offense as charged was committed, but there should also be proof to a degree of certainty greater than a mere probability or strong suspicion tending to establish that the party charged was the person who committed it or was a participant therein. There must be legal and competent evidence pertinently identifying the defendant with the transaction constituting the offense charged against him.”

In the present case, it appears that some one took money from the corporation which did not belorlg to him, but the evidence does not unerringly point to the appellant alone. The circumstances proved in an effort to connect appellant with the offense are rather suspicious, but in our opinion do not exclude every other reasonable hypothesis except the guilt of the appellant which is necessary to sustain the conviction. See Graves v. State, 119 Tex.Cr.R. 68, 43 S.W.2d 953, which we believe sustains appellant’s contention.

Having reached the conclusion that the evidence does not exclude every other reasonable hypothesis except the guilt of the appellant, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

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

On State’s Motion for Rehearing.

CHRISTIAN, Judge.

Counsel for the state calls our attention in the motion for rehearing to the following statement made in paragraph 2 of the original opinion: “This practice was continued up to September, 1939, at which time Mr. Wells, one of the officers of the corporation, discovered that a freight bill bearing date June, 1938, had apparently been changed by writing the figure ‘9’ over the figure ‘8’ and attached to the itemized statement made by appellant on June 14, 1939.” Counsel for the state is correct in suggesting that the freight bill mentioned in the quoted statement taken from the original opinion was not the freight bill involved in the prosecution, but was another freight bill which was submitted by the appellant to his superiors with an itemized statement prepared in August shortly before the appellant left on his vacation in September, and had no connection with the sum of $68.09 which it was alleged appellant had embezzled.

It is also insisted by counsel for the state that we made an erroneous statement in paragraph 3 of the original opinion when we mentioned the date of the commission of the offense as charged in the indictment. Our examination of the copy of the indictment embraced in the transcript discloses that it was alleged that the offense occurred on the 13th day of June, 1938, which was the date stated in our original opinion. Counsel for the state is in error in stating that the offense was charged to have occurred on the 13th day of June, 1939.

It is pointed out by counsel that we were in error in our statement in the fourth paragraph of our opinion which is as follows: “The date of this bill appeared to have been changed from 1938 to 1939 by writing the figure ‘9’ over the figure ‘8’ and which apparently was placed in the petty cash drawer and at the end of the week this bill was included by appellant in his itemized statement.” We fail to find in the record any testimony showing that the bill referred to in the quoted statement had been altered in any way.

It also appears that in paragraph four of the original opinion we referred to the offense as having been committed on the 13th of June, 1939. The date of the commission of the offense, as heretofore stated, was the 13th of June, 1938.

Counsel for the state makes no contention that the inaccuracies to which we have referred could have led to an erroneous conclusion in the original disposition of the appeal. However, he insists that we were in error in holding that the circumstances reflected by the record fail to exclude every other reasonable hypothesis save the guilt of the appellant. As pointed out in the original opinion, there were some three or four other employees of the corporation who had access to the petty cash drawer and who at times would pay freight bills out of such drawer and place said freight bills in the drawer as evidence the payment. These employees were not called by the state to testify. Hence there is in the record no denial by them that they were guilty of the embezzlement of the corporation’s money. Under the circumstances, we are unable to reach the conclusion that the evidence is sufficient.

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. BEAUCHAMP, Judge.

text:
    PATTERSON v. STATE.
    No. 21369.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    Rehearing Denied Feb. 19, 1941.
    C. C. Denman, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of an assault to murder with malice upon one Carter Hays, and by the jury given a term of five years in the penitentiary.

The facts proven by the State reveal that two women, stepsisters, in company with a man named Jim Woodward, went to D. Brown’s dine, drink and dance place in San Augustine County where beer and sandwiches were sold, and were there dancing, and there consumed certain quantities of beer. While they were thus drinking, appellant, who was unknown to all but one of these persons, came up and was drinking with them. That appellant became offended at some casual remark of one of the women, and upon being told by Woodward that the woman was not speaking to him, the appellant withdrew to a further place in this establishment and sent a negro waiter over after his, appellant’s, can of beer, which he had left at the first table. The women sent him not only appellant’s can of beer but also one that he had purchased for them, which extra can he immediately returned, keeping his own.

About such time, in this confused condition of affairs, as they are presented to us, a State’s witness testified that appellant, abo'dt an hour prior to the stabbing of the complaining witness Hays, told such witness that “he didn’t like Carter Hays’ damn looks.”

Soon after the trouble at the table where the women were with Jim Woodward, appellant, after dancing with one of these women, finally went back into the kitchen of this establishment, where he had been employed at a previous time, and picked up a butcher knife lying on the kitchen table and .put it down inside his trousers, and went back into the front part of this place. Carter Hays knew one of these two women, and after appellant left the table where the women were sitting Hays went over to their table and sat down there and remained there quite awhile, drinking with them. Later he got up and went over to a counter and sat down on a stool at the bar near Estelle Atwood, one of the women first referred to herein, at which time appellant came by and struck Hays with this butcher knife, and the witness testified: “If Pat (PI.) Patterson said anything to me immediately before he stuck that butcher knife in me, I don’t remember it. That butcher knife went practically through my body.” The appellant then went back into the kitchen and put the knife back on the table; it was covered with blood, and immediately thereafter when accused of having struck Hays with said knife he denied it, with accompanying oaths. The wound collapsed the right lung and caused an infection and became a dangerous wound, so the physician said, Hays remaining in a hospital about a month. It seems that Hays and appellant were not acquainted with each other.

Appellant took the witness stand and testified that in the trouble with the women Jim Woodward seemed to have taken offense at him, and when appellant was leaving the table where the women were Woodward stood up and said: “I will see you later,” and noticing a bulge about Woodward’s coat, appellant reasoned that Woodward was armed, and therefore appellant went into the kitchen and possessed himself of this butcher knife. That after carrying this knife around in the dance hall for awhile, appellant testified that 'he approached the man Hays who, seeing appellant, said: “G-d-you, I will fix you up,” and “threw his hand back to his hip pocket,” and appellant stabbed Hays in the chest with the butcher knife. Appellant then saw that Hays did not get anything out of his hip pocket, and he put away his knife. He did not know Hays and Hays did not know him.

Appellant offers and briefs six bills of exceptions as grounds for a reversal of this cause.

Bill of exceptions No. 1 is concerned with the following question propounded to the appellant on cross-examination: “You did not attempt to leave that place or to get away from there after Jim Woodward left the booth, did you?”, which’ question was objected to on the ground that same was an attempt to take away from appellant his right of not being bound to retreat in order to avoid being compelled to act in his own necessary ’self-defense. Appellant answered “No” to the question after the trial court had overruled the objection thereto. This matter might have had some weight had appellant been charged with an assault upon Jim Woodward, but such was not the case. He claimed to have struck another and different person, not in any way connected with Woodward, because of the fact that such other person suddenly made a threatening gesture which caused appellant to think his own person was in danger. We are impressed with the thought that no error is shown by this bill.

Bill of exceptions No. 2 is based upon the asking of the following question to Jim Woodward by the State’s attorney: “You would not have taken Miss Bostick to D. Brown’s place if you had known such a person as Pat Patterson was going to be there, would you?” The objection being that the State was endeavoring to prove that the appellant’s reputation was that of a bad man, and that the appellant had not placed his reputation in issue in any manner, and was an attempt to prejudice the defendant’s cause and inflame the minds of the jury against him. At the time of such objection, the district attorney withdrew such question, and the trial court instructed the jury to disregard the same.

We are not in full accord with the fancied effect upon the minds of the jury that appellant sets forth in his objections to such question, and, in any event, we think the prompt withdrawal of the question, together with the court’s instruction, removed any error that might have arisen from the mere propounding the question.

Bill of exceptions No. 3 complains of the latter portion of the following argument of the district attorney: “Now, let’s look at the facts in this case. I will just review the testimony of the witnesses briefly. The first witness which the State offered was Vernie Bostick. She testified that she was at D. Brown’s that night that this occurred; that she had seen Carter Hays; that Carter Hays sat at the booth where she and her boy friend, Jim Woodward, and her half-sister, Estelle Atwood, who is now in the hospital suffering from an automobile wreck and was not able to be in attendance upon this court. I only wish that she had been here. I am sure she could have told you some of the things — perhaps she could have given you testimony confirming all the other testimony offered in this case.” The portion thereof objected to being the last sentence thereof.

It was shown by the evidence that Estelle Atwood was present at the time testified to by all the witnesses both for the State and the appellant. Bill No. 4 seems to be based upon a continuation of such an argument of the district attorney as follows: “As I say, the evidence in tiiis case is so preponderant, it is so great, it has proven so clearly and so conclusively beyond a reasonable doubt the guilt of this man that no other evidence is necessary, and the evidence of Estelle Atwood, had she been here, would have confirmed the testimony of the other witnesses, perhaps.” And again he said: “She was there and saw the same thing that Vernie Bostick did, according to Vernie Bostick’s own testimony.” The only objectionable part of either of these two bills seems to be the statement: “The evidence of Estelle Atwood, had she been here, would have confirmed the testimony of the other witnesses, perhaps.”

It occurs to us that the strength of the testimony, as referred to in the first above quoted statement, is true. According to the witnesses, outside of the appellant-, Hays was doing nothing to the appellant; but did not even know him, and was sitting down at a counter when appellant, without saying a word to Hays, struck Hays with this butcher knife. Appellant’s own testimony shows no conversation between the two. He only says that Hays cursed him, and made a hip-pocket play, thereby causing appellant to stab Hays. The testimony did show without contradiction that the Atwood woman and the Bostick woman were together, and it would seem that it would be no violent presumption to say that what one saw the other would also see. It was also shown by testimony that the Atwood woman was in the hospital and unable to appear as a witness.

The argument that bears any objectionable weight seems to be “ * * * had she (Atwood) been here, perhaps her testimony would have confirmed that of other witnesses.” That such a statement was merely and entirely speculative upon the part of the attorney áppears from the face of the statement, and could only have been thus understood by the jury. Every other witness, appellant included, had testified to practically the same general condition of facts, from the meeting of appellant with the women up to the stabbing of Hays; at which latter scene, however, appellant and Hays’ testimony differed as to the threat and the hip-pocket movement. Since the construction of this remark lies in conjecture, same might have been interpreted to refer to appellant’s testimony as well as that of the State when it was said, in substance, that the Atwood woman’s testimony might perhaps have confirmed that of the other witnesses. In neither of these bills is it'asserted-as a fact what the testimony of this woman would have been. The word “perhaps” inserted in such statement shows that such a statement was a mere matter of guess or conjecture and not a positive statement as to what her testimony would have been, and a mere assumption on the part of the attorney, based on the practically uncontradicted testimony of all the witnesses, including appellant, save as to the threat of Hays and the hip-pocket movement brought in by appellant.

Mr. Branch in his valuable work on the Penal Code, p. 204, Sec. 361, says: “Before a reversal can be had on account of improper argument of State’s counsel, it must clearly appear that the remarks were improper and that they were of a material character and such as under the circumstances were calculated to injuriously affect the rights of the defendant. House v. State, 19 Tex.App. [227], 239; Pierson v. State, 18 Tex.App. [524], 564; Tweedle v. State, 29 Tex.App. [586], 591, 16 S.W. 544; Frizzell v. State, 30 Tex.App. [42], 56, 16 S.W. 751; Tipton v. State, 30 Tex.App. [530], 532, 17 S.W. 1097; Hardy v. State, 31 Tex.Cr.R. [289], 293, 20 S.W. 561; Dodson v. State, 45 Tex.Cr.R. 574, 78 S.W. 514; Collins v. State [68 Tex.Cr.R. 354], 152 S.W. 1047; Walls v. State [69 Tex.Cr.R. 317], 153 S.W. 130; Davis v. State [69 Tex.Cr.R. 420], 154 S.W. 550; Himmelfarb v. State [76 Tex.Cr.R. 173], 174 S.W. [586], 589; Mooney v. State [76 Tex.Cr.R. 539], 176 S.W. [52], 58.”

It is a general doctrine that before a reversal will be ordered on account of remarks made by the prosecuting attorney, they must be obviously hurtful and prejudicial. See 42 Tex.Jur., p. 239. It will be noted that the objected to remarks were not positively made as a fact supposedly known to the speaker. The word “perhaps” is defined by Webster’s International Dictionary as “perchance, peradventure, it may be,” and under such a definition we think the interpolation might be made that perchance, or maybe the witness Atwood, having been present before the jury, would have confirmed the testimony of other witnesses. We think this statement thus qualified is not subject to the offered objection that the district attorney told the jury that this absent witness would have, had she been present, confirmed the statements of the State’s witnesses. This ruling disposes of bills Nos. 3 and 4.

Bills Nos. 5 and 6 relate to a request for an instructed verdict on account of the State’s supposed failure to offer sufficient proof to make out a case, in bill No. 5, and No. 6 being concerned with the trial court’s failure to grant a new trial because of the failure of such proof.

We think the court was correct in failing to grant such requests. There is a sufficient showing of malice, not only expressed, as shown by the testimony of witnesses, but also from the conduct of the appellant when he spent about an hour in this dance hall, armed with a butcher knife, thus evidencing, as the jury thought, a heart regardless of his duty to society, especially that in which he was moving at such time, and fatally bent on a mischief that culminated in the stabbing of this unarmed man.

We see no error shown in this record, and the judgment is affirmed.

On Appellant’s Motion for Rehearing.

BEAUCHAMP, Judge.

We think that the original opinion correctly deals with all questions presented in this case which the record requires should be discussed; however, in view of the insistence in appellant’s motion, and his .argument on assignment of error No. One, we express the view that the question asked was wholly immaterial to any issue in the case unless it is pertinent to aid -the state in proving malice. If it did so aid the state it was proper testimony for that purpose. If it did not have this effect, then we are unable to see any reversible error. It is not the intention of this court in so holding to overrule any other decisions or to render ineffective any article of the statute. We simply take the view that under the facts of this particular case the asking of the question was not reversible error, and we think the original opinion clearly expresses the court’s view on the subject.

Again, complaint is made because the district attorney asked one of the witnesses the following question: “You would not have taken Miss Bostick to D. Brown’s place if you had known such a person as Pat Patterson (H. Patterson) was going to be there, would you ?”

Whether'or not the mere asking of this question is error depends upon the circumstances surrounding it and the meaning which it would carry to the jury. As we view the circumstances of the case, it is purely speculative to find that it had any effect whatever. A discussion which leads us to this conclusion would be cumbersome and probably of little aid to appellant and no contribution whatever to the jurisprudence of our state. It is sufficient to say that we will not be called upon to indulge in speculation in order to find error. To this there would be no end. The only argument made by counsel and the only circumstance which we could find in the record indicating error would be the penalty assessed, which is not the least which the jury might have given under the court’s charge.

Counsel asserts: “There is an unbroken line of decisions in this state holding that where a defendant received more than the minimum punishment the court will not speculate upon whether or not he sustained injury.” We think the decisions are misunderstood. The question of the' penalty is not the only factor to consider. First, there must be something, as herein-before stated, which would, under the circumstances of the case, reasonably be calculated to injure the party on trial. When this is true the court will not speculate on whether or not injury did occur, particularly when the minimum penalty has not been assessed. Counsel for appellant did not favor the court with any of the authorities upon which he relies, or the expressions which he has in mind. Consequently, we are unable to help him, further than to say that the punishment is not the only factor to be considered. It is a very cogent one where it becomes a factor, but we cannot make a rule which would apply to every cas'e and say that in the event more than the minimum punishment is assessed a reversal of the case may be based upon some speculative error, which to us has no force whatever.

The motion for rehearing is overruled.


author: HAWKINS, Presiding Judge. GRAVES, Judge.

text:
    BROWN v. STATE.
    No. 21287.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    Rehearing Denied Feb. 19, 1941.
    G. A. Lynn, of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

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

Appellant admitted that he assaulted the injured party, Mark Jones, who was a delivery boy for a drugstore, but denied that he intended to rob him. The testimony of Mark Jones and that of other witnesses for the state was sufficient to warrant the conclusion of the jury that the assault was made with the intent to rob.

In bill of exception No. 1, it is shown that appellant timely and properly objected to the charge of the court on the ground that robbery was therein defined. It is true that the court defined robbery and mentioned in the charge the punishment provided therefor. However, the charge properly submitted an instruction defining assault with intent to rob, and in applying the law to the facts gave a correct instruction relative to such an offense. Under the circumstafi'ces, we are unable to perceive how the instruction touching the .penalty for robbery could have injured the appellant.

Bill of exception No. 2 relates to the argument of the district attorney, it being shown in the bill that he stated to the jury that there were “no filling stations situated within six to eight blocks of the First Methodist Church.” Appellant objected to the argument on the ground that it was not supported by the testimony. We find nothing in the bill of exception in support of the ground of objection. Under the circumstances the bill fails to present error.

Bill of exception No. 3 is not' sufficient in its recitals to enable us to determine that the matter complained of therein presents reversible error.

The judgment is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant complains in his motion because of our ruling in the original opinion relative to his bill of exceptions No. 1, in which error was alleged because of the fact that the trial court gave in charge to the jury not only the law defining robbery by assault but also included in said definition the penalty for a conviction of such robbery.

That it was necessary to define the offense of robbery, before the jury could understand the offen.se of an assault with intent to rob, should be apparent. But it is contended that because of the trial court giving in his charge the punishment for robbery, which could be a severe one under the law, such probably caused the jury to refuse appellant the benefit of a suspended sentence. It is noted by us that the trial court charged the full import of Art. 1408, P.C., in setting forth the offense of robbery. It is also noted that Art. 1163, P.C. says: “If any person shall assault another with the intent to commit the offense of robbery, he shall be confined in the penitentiary not less than two nor more than ten years.”

We think it to be evident from the above quotation that it would be necessary for the trial court to define the offense of robbery in his charge before he could reach the offense of an assault to rob in such charge.

We also note that appellant received the lowest penalty for such an assault, and we are not impressed with the reasoning that the inclusion of the punishment affixed to the offense of robbery in the court’s charge could have so impressed the jury that they failed to respond favorably to appellant’s request for a suspended sentence. From a reading hereof it is possible that the facts produced upon the trial may have conduced to the jury’s failure to award a suspended sentence.

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


author: BEAUCHAMP, Judge. GRAVES, Judge.

text:
    PARKER v. STATE.
    No. 21378.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    Rehearing Denied Feb. 26, 1941.

      Walter E. Gates, of San Saba, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the county court of San Saba County for violation of the liquor laws, and assessed a fine of $100.

Bill of exception No. one complains of a question asked the defendant on cross-examination, in which the prosecuting attorney said, “Do you mean to tell this jury that you have never been in trouble before and that you were not tried for bootlegging in this court the other day?” Over appellant’s objection, he was compelled to answer that he had never been in trouble until this case, or the other case which was tried the first of the week. He said, “they tried me then for bootlegging”. On direct examination appellant testified in his own behalf and said, “I am 'thirty years old. . I have not been in trouble before”. On cross-examination the attorney asked him the question herein complained of. We think the statement made voluntarily was sufficient basis for cross-examination. The bill is overruled.

By bill of exception No. two complaint is made of the argument of the county attorney wherein he said that he sometimes thought a jury knows as much as the officers do about these bootleggers; that if they did it would not be necessary to argue the. case, “but we have to tell the jury in our argument what the facts are”. It is not stated in the bill of exception that the attorney told them any facts or what facts he did tell, if any. Therefore, we are unable to see that any harm resulted. The attorney would be at liberty to tell the jury what the facts were provided he quoted the testimony in the case. So far as we are able to determine, this was done. The bill is overruled.

By bills of exception Nos. three .and four it is stated: “Be it remembered that upon trial of the above entitled and numbered cause that the County Attorney in his closing argument to the jury made the following remarks, to-wit: ‘This bootlegger’ ”.

Also: “Be it remembered that upon trial of the above entitled and numbered cause that the County Attorney in his closing argument to the jury made the following remarks, to-wit: ‘Poor unfortunate wretch’ ”.

We find nothing in the bills or in the record which explains who the attorney was talking about in either case or how it was applied to him. Without this we are unable to appraise the harm which might have been done.

Bill of exception No. five complains of the closing argument of the county attorney in which he said that Mr. Morris had testified that he saw the defendant with a paper bag full of liquor; saw him set it down and walk away a few steps and that his testimony was corroborated by the sheriff of this county. Appellant presents that this was inflammatory and prejudicial and that it was not corroborated by the sheriff as disclosed by the sheriff’s testimony.

We see nothing inflammatory or prejudicial in the statement further than the evidence itself which was before the jury. Mr. Morrow did so testify. The sheriff’s testimony referring to the appellant was to the effect that when he first saw him he had stopped as he came up the hill and coming towards the house that appellant met Mr. Morris; that Hugh Parker had five one-half pints of liquor in his arms and that he took the liquor and kept the same as sheriff and produced the same on the witness stand. The sheriff further says, “I saw him as he stopped and stooped over like he was going to set something down. I saw him stop and in a stooping position. I can’t say that I saw the sack under his arm. I am not telling the jury that I saw him with this sack.”

The witness Morris testified that he saw appellant coming up the hill; that he had the sack of whiskey and that he stopped and stooped down as if to leave it and walk away. Morris, an officer, then approached him and took charge of both the man and his cargo.

It occurs to us that the sheriff’s testimony is corroborative of that given by Morris and that the prosecuting attorney was warranted in so stating.

Finding no reversible error, the judgment of the trial court is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant’s motion is but a repetition of matters that were considered and passed upon in our original opinion. These matters were thus satisfactorily disposed of, so we think, in the original opinion, and the motion is therefore overruled.


text:
    WEST v. STATE.
    No. 21344.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1941.
    Rehearing Denied Feb. 19, 1941.
    Brady & Hill, Dick Young, and C. F. Stevens, all of Houston, on appeal only, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

It appears from the testimony adduced by the State that on the 6th day of January, 1940, the appellant picked up Mary Elizabeth King, a girl thirteen years of age and her little sister, ten years of age, took them outside of the city on a road leading into the piney woods, where he parked his car by the roadside, and took Mary Elizabeth into the timber and had sexual.intercourse with her. A few days after the occurrence, the little girl told her father and mother about what appellant had done. On or about the 15th day of January, the appellant was arrested and charged with the offense, at which time he made a written voluntary confession. About the time that appellant was arrested the prosecutrix was examined by Dr. Elva Wright, who found small tears in the girl’s hymen which had practically healed. It was the doctor’s opinion that the rupture had occurred at least a few days prior to the -time of the examination.

Appellant took the witness stand in his own behalf. He denied having had sexual intercourse with the girl and proved an alibi. He also contended that on the night of the ISth of' January, he was severely beaten by the father and brothers of the little girl, and as a result of said beating he did not know whether or not he had made any statement to the officers concerning the offense for which he was charged; that he was in such frame of mind that he did not know what he was doing.

By Bill of Exception No. 1 appellant complains of the action of the trial court in admitting in evidence appellant’s purported confession to which he objected upon the following grounds: First, because same was made while in custody of the officers and under duress; second, because it was taken a short time after the defendant had been severely beaten by the father and brother of the prosecutrix; third, because the defendant was not in his right mind at the time said confession was taken; and fourth, because the statement or confession was obtained soon after the arrest of the defendant and before he had time or opportunity to advise with counsel. The objections were overruled and the purported confession was admitted in evidence. The court qualified said bill and in his qualification states that he does not certify to the correctness of the “allegations set out in said bill and numbered 1 to 4, inclusive; that as a matter of fact, said confession was reduced to writing and the witness testified that the proper statutory warning was given, which is set out in the confession; that the defendant signed the same, which was witnessed as required by law; that all of the testimony relative to the taking of the confession showed that it was freely and voluntarily made and that no mistreatment, intimidation or promises of any kind were used to obtain the same.” The court instructed the jury that the confession shall not be used in evidence if at the time it was made the defendant was in jail or other place of confinement unless it be made in writing and signed by the defendant, ' which written statement shall show that the defendant had been warned by the person to whom it was made, that he did not have to make any statement at all and that any statement he made may be used in evidence against him on the trial of the case concerning which the same was made. He further instructed the jury that if they believed from the evidence beyond a reasonable doubt that the defendant made the written statement and then signed the same, that he had been warned by the person to whom the statement was made that he did not have to make any statement at all and that any statement made by him could be used- in evidence against him on the trial of the case concerning which the same was made and that the same was voluntarily made without compulsion, persuasion, promises or fear, “then you may consider the same in connection with other evidence in the case in arriving at your verdict. If you do not so believe, or have a reasonable doubt thereof, you will not consider the same for any purpose.”

At the request of the appellant the court gave the following additional instruction: “Gentlemen of the Jury, you are further instructed as part of the law in this case, that if you find from the evidence beyond a reasonable doubt, that the defendant was in such physical condition as to render him unfit to make a free, voluntary and intelligible statement, and unable to understand the consequences of his act, then you will consider the statement for no purpose whatever.”

We think that the court’s charge, together with the requested instruction, protected the appellant in his legal rights.

. The voluntary statement .in itself would indicate that the appellant was conscious and knew what he was doing at the time he made the statement because he stated that he was thirty years of age, which was truc; that he was married to Lois Anne Bowell West, who was twenty years of age, which was true; that they had one child whose name was Janice Wray West, two years of age, which was true; that he was employed by the' Westheimer- Transfer & Storage* Company as a truck driver, which was true; that he had been working at said place for the past seven months, which was true; that he had known the prosecutrix and her little sister for the past year, which was true; that he had theretofore owned a small eating place on Air Line Drive, which was true; that the pros-ecutrix and her little sister would come to the place of business, which was true; and many other statements therein contained were admitted to be true, notwithstanding the appellant’s contention that he did not know what he was doing at the time. Consequently, the court’s instruction to the jury as hereinabove set forth was sufficient to protect the appellant in his legal rights. However, the State did not rely upon the purported confession in establishing its case against the appellant. The State made a complete case against appellant by the testimony of the prosecutrix and the confession was merely offered in rebuttal of the appellant’s testimony.

By Bill of Exception No. 2 appellant complains of the action of the trial court in declining to permit the appellant to prove that the prosecutrix played with negro boys about her age; that she was so brazen to these negro boys that their parents were afraid for them to play with the girl because of her conduct; that the King family lived among and associated with negroes. We fail to see upon what theory this testimony became admissible and pertinent to any issue in the case. The fact that she played with negro boys and that the family lived among and associated with negroes and that she was brazen would not constitute any defense; nor is it legally admissible in mitigation thereof. The Legislature has not deemed it proper to make any distinction between white and black in prescribing the penalty for the offense of rape but placed them all upon the same plane and accorded to them the samé protection.

Bill of Exception No. 3 reflects the following occurrence: The appellant offered to place his wife, Lois West, on the witness stand to show that before her husband, Glenn West, made any statement to the police officers that she had a conversá-tion with members of the Police Department; that she furnished them with information contained in the purported confession which was found to be true; that if the witness had been permitted, she would have testified that she furnished the officer who took appellant’s statement with the information as to the place where the defendant resided, the number of children he had, where he was employed, and other matters which are included in the purported confession. His contention is that the evidence offered was material, and further, because the police officers testified that the witness did not furnish them this information. We think this bill is wholly insufficient to be considered by us. However, there is no testimony from any source that appellant did not give the officers the information contained in the purported confession. On the contrary, the testimony of the officers is to the effect that appellant did furnish the information contained therein. Consequently, the testimony sought to be elicited from the wife of appellant would merely have shown that she, too, gave the officers the same information, although the officers may have denied that she did so.

Appellant, in his brief, makes some complaint of the court’s action in overruling his application for a continuance. This matter is not brought before this court by proper bill of exception.' Hence the same cannot be considered. However, if we should consider it, we do not believe that the testimony of the absent witness was pertinent and admissible for the reasons stated in disposing of Bill of Exception No. 2.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

Appellant reiterates the contention that bill of exception No. 3 reflects reversible error. In the original opinion we expressed the opinion that the bill was insufficient and not entitled to consideration, However, we discussed the bill and reached the conclusion that it failed to present error. The bill recites that appellant offered to prove by his wife that before he made any statement to the police officers she had a conversation with members of the homicide office and told them where appellant resided, the number' of children he had, and where he was employed. It is stated in the bill that the information she gave was embraced in the confession. It is further stated that the officers testified that she had not furnished this information to them. Nowhere in the bill is it shown that appellant did not give the officers the information relative to his residence, the number of children he had, and the place where he worked. Again, the bill fails to show that such proffered testimony was material to any issue in the case. In order to determine whether such testimony was material it would be necessary to read the entire statement of facts. It has been the uniform rule of this court that a bill of exception relating to the exclusion of evidence “must disclose the relevancy and materiality of the excluded testimony.” 4 Texas Jurisprudence, 321. “Enough of the facts and circumstances surrounding and affected by the proposed and rejected testimony must be stated to enable the appellate court to determine from the bill itself that error has been committed, and that the appellant has been injured thereby.” 4 Texas Jurisprudence, 322.

If the statement of facts be considered in an effort to determine whether the proffered testimony was material, the opinion is expressed that, if material at all, its bearing upon any issue in the case was remote. The argument is made that because the wife might have given the officers the address of appellant, etc., the jury would have likely reached the conclusion that the confession had been prepared by the officers without receiving any information from appellant relative to the transaction involving the rápe. Be that as it may, the bill of exception is insufficient, as pointed out in the original opinidn. It is unnecessary to decide whether the proffered testimony was hearsay.

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.