author: CHRISTIAN, Judge. KRUEGER, Judge.

text:
    HASH v. STATE.
    No. 21122.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Rehearing Denied June 26, 1940.
    Ralph P. Dickson and Arthur Tipps, both of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is rape. The indictment embraced a paragraph alleging a former conviction for rape. In view of the repetition of offenses, the punishment assessed was confinement in the penitentiary for life.

Appellant contends that the evidence is insufficient to show penetration. Maybelle Davis, the prosecutrix, was 13 years of age. Appellant is an elderly man. According to the testimony of prosecutrix, she frequently went to the place where appellant lived. Appellant bought her candy, gave her money, and also bought her bicycles. Appellant began having sexual relations with her. In her direct examination prosecutrix testified that appellant penetrated her female organ with his penis. On cross-examination it was her version that on the occasions she was with appellant he indecently fondled her person. She said, however, that he did not penetrate her female organ. Upon redirect examination she testified: “I said that Mr. Hash got on me and put his privates in my privates between my legs. That is not what he did. * * * As to what he did he just fondled around. I know what doing it to you means. He has done it to me. I do not like to talk about this. * * * He got on top of me and put his privates in my privates. That is what I said a while ago. I change that because I am telling you because I don’t know what happened myself.” Further, she testified: “The testimony that I gave first when I said that he had intercourse with me is true. * * * That is the thing that he did all along that I testified to before when I said that he had intercourse with me.” On recross-examination prosecutrix maintained that appellant penetrated her female organ.

According to the testimony of Charlie Wilson, a member of the police department of Wichita Falls, he went to the place where appellant worked on the 14th of July, 1939. Aftef watching for a while he observed appellant and prosecutrix coming out of the engine room of the Wichita Cotton Oil Company. After they came out they went to the end of a seed house, unlocked the door and got a bicycle out of it. After the bicycle had been taken out the officer took appellant and prose-cutrix into custody. Looking into the seed house, the officer observed an old mattress and a bed stead.

After being taken to the police station appellant made a confession, which, omitting the formal parts, reads as follows: “I work for the Wichita Cotton Oil Co. and have worked for them about 14 years, except when I was in the penitentiary for 5 years for rape in 1932 here in Wichita County, Texas. I know Maybelle Davis and also Gladys Ray, and have known them for about 4 years. I started having intercourse with Maybelle about three or four months ago and have been having intercourse with her two or three times each week since. Sometimes I would have intercourse with her at my house and sometimes she would come down to the mill where I work. I would have intercourse with her at the mill out at a little house across the street against the hull house; we use it to keep some tools in now. The last time I had intercourse with Maybelle was to-day; she came down to the mill with another girl named Genevie Hanks. She came down on her bicycle and the other girl was on a bicycle. The other girl left and me and Maybelle went into the engine room and got a drink. I had already had intercourse with her before we got the drink. When she came I had just finished making my rounds, I am a watchman there at the mill, and she waited for me there in the office. Then I rolled her bicycle in the seed house and then she and myself went across the street to the little house and I had intercourse with her on the bed that is in there. She consented to this and has consented every time I have had intercourse with her since I started some two or three or four months ago. Gladys Ray said she was going to tell on me if I didn’t buy her a bicycle like I had bought Maybelle. (Portion stricken.) I have, in addition to giving Maybelle the bicycle that cost $41, given her money also for spending or going to the show. (Portion stricken.) I would judge that Maybelle is about 13 or 14 years old.”

Testifying in his own' behalf, appellant denied that he had sexual intercourse with prosecutrix. It was his version that he was only guilty of indecently fondling her person during the time he had been associated with her.

We deem the evidence sufficient ón the question of penetration.

In bill of exception No. 1 it is shown that in argument cfounsel for the state referred to appellant as a fiend and a depraved sexual maniac. If the argument was improper, we are not impressed with the view that, under the circumstances reflected by the record, it should work a reversal of the judgment.

We think it was proper for the state to prove the course of conduct between appellant and prosecutrix. Therefore we overrule appellant’s contention that his bill of exception No. 2, in which it is shown that the prosecutrix was required to testify that appellant had hugged and kissed her and fondled her person and had intercourse with her, reflects error.

Bill of exception No. 3 is in the same attitude as bill of exception No. 2.

In view of the fact that appellant testified that he had intercourse with a young girl prior to the present conviction, we are unable to reach the conclusion that the argument set forth in bill of exception No. 4 to the effect that appellant got a little girl pregnant in 1932 should work a reversal of the judgment, in view of the instruction of the court to the jury to disregard the argument for any purpose. We do not believe the argument could have contributed to the conviction of appellant in this case. Having found appellant guilty of the charge in the present case and also having found that he had been previously convicted of rape as charged in the indictment, the minimum penalty the jury were warranted in assessing was confinement in the penitentiary for life.

A careful examination of all of appellant’s contentions leads us to the conclusion that reversible error is not presented.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

KRUEGER, Judge.

Appellant, in his motion for a rehearing, asserts that in disposing of this case on the original submission we erred in three respects: First, in holding that the evidence is sufficient to show penetration; second, that the trial court did not err in declining to strike from the indictment the allegation of his former conviction of rape; and, third, that there was no variance between the allegation in the indictment of his former conviction and the proof in support thereof. By reason of appellant’s contention, we have again carefully reviewed the record and considered each of his propositions. We find no such vari-anee as would justify a reversal, and the evidence, including his confession, is ample to sustain his conviction.

The motion for a rehearing is overruled.

PER CURIAM.

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


source: Caselaw Access Project

author: CHRISTIAN, Judge.

license: Public Domain

text:
    WOFFORD v. STATE.
    No. 21096.
    Court of Criminal Appeals of Texas.
    May 29, 1940.
    Rehearing Denied June 26, 1940.
    M. H. Barton, of Overton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

Upon appellant’s plea of guilty of the offense of theft of property over the value of $50, the jury assessed his punishment at two years confinement in the penitentiary.

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:
    WOFFORD v. STATE.
    No. 21097.
    Court of Criminal Appeals of Texas.
    May 29, 1940.
    Rehearing Denied June 26, 1940.
    M. H. Barton, of Overton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

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

The judgment is affirmed.

PER CURIAM.

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


author: HAWKINS, Presiding Judge.

text:
    WOFFORD v. STATE (two cases).
    Nos. 21093, 21095.

      Court of Criminal Appeals of Texas.
    May 29, 1940.
    Rehearing Denied June 26, 1940.
    M. H. Barton, of Overton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for theft of property over the value of $50, punishment being assessed at two years in the penitentiary.

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

The judgment is affirmed.


text:
    WOFFORD v. STATE.
    No. 21094.
    Court of Criminal Appeals of Texas.
    May 29, 1940.
    Rehearing Denied June 26, 1940.
    M. H. Barton, of Overton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for theft of property over the value of $50, punishment being assessed at two years in the penitentiary.

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

The judgment is affirmed.


text:
    BUTLER v. STATE.
    No. 21089.
    Court of Criminal Appeals of Texas.
    May 29, 1940.
    Rehearing Denied June 26, 1940.
    M. H. Barton, of Overton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

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

No error having been perceived, 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.


text:
    BUTLER v. STATE (four cases).
    Nos. 21088, 21090-21092.
    Court of Criminal Appeals of Texas.
    May 29, 1940.

    Rehearing Denied June 26, 1940.
    M. H. Barton, of Overton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

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

The judgment is affirmed.

PER CURIAM.

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


text:
    LONG v. STATE.
    No. 21067.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    Rehearing Denied June 26, 1940.
    H. S. Beard, of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft from the person; the punishment, confinement in the penitentiary for three years.

A. H. Kramer owned some rent houses in the City of Victoria, which were generally rented to negroes. Julius Williams and a woman by the name of Zella Hobbs lived in one of these houses. On the occasion of the alleged theft Mr. Kramer had collected $19.70 from one of his renters. According to his testimony, he received from this renter a 10-dollar bill, a 5-dollar bill, four 1-dollar bills, and 70 cents in silver. He placed the silver on one side of his purse and put the currency on the other side, after which he put the purse in his “left hand pants pocket.” As he was leaving the house he saw appellant on the porch of another house. According to his testimony, she winked at him, and he asked her if she wanted to rent one of his houses. She replied, “I want to see you about one of the houses. Come in.” She insisted that he come into the house. After entering the house he observed two other women there. Appellant then made an effort to persuade him to have sexual relations with her. He testified: “She kept fooling around and finally I shoved her and backed out of the door and got on the gallery and come away.” After leaving the house he found that $19 had been taken from his pocket book. He did not know when it had been taken, but knew that he had it in his possession when he entered the room with appellant. The money taken from his purse consisted of a 10rdollar bill, a 5-dollar bill, and four dollars in currency.

Zella Hobbs, a witness for the state, testified in part as follows: “I know Mr. Kramer who owns the house. I recollect one day last August when he was out there collecting rent. With reference to whether I saw him collecting any rent from this Martinez, this Mexican, well, I did not see him collecting any rent, but he was there that day. I saw him over there. Martha Long (appellant) was at my house that evening. * * ' * While I and Martha were there Mr. Kramer came over to the house.” The witness testified, further, that she heard a noise in a room. She said: “I knew somebody was with her (referring to appellant) because I heard tumbling in the room. * * * I heard her and looked in the room and I said, ‘Oh, that is my rent man.’ So, well, then I came back and started ironing again. Before Martha came in Mr. Kramer said something in the room. * * * I heard Mr. Kramer say T don’t want to go to bed.’ * * * He said he had a bad cold. He did not want to go to bed. Finally Martha came in where I was ironing. She said ‘Oh, I done rolled him,’ and I said, ‘Oh’ and she wanted to give the money to me and I would not take it. She told me, ‘I done rolled him’ 'and she wanted to give it-to me but I did not take it. There was $10 and $5, and $4, like $1 bills, and she tried to give it to me. I said, ‘No, I am not going to take it. That is Mr. Kramer’s money.’ ”

Julius Williams, a witness for the state, testified that he saw Mr. Kramer go to the house in question on the occasion of the alleged theft. Again, he testified ■ that he heard appellant tell Mr. Kramer something when he entered the house, but did not understand it, and that later he heard a noise in a room. Further, he testified that he saw Mr. Kramer when he left the house. Again, it was his version that appellant came to him with the statement that she had taken some money from a man, and wanted the witness to take some of it. She tendered $19 to the witness.

A deputy sheriff testified that he arrested Julius Williams and found him in possession of $19, consisting of a 10-dollar bill, a 5-dollar bill and four 1-dollar bills.

Testifying in her own behalf, appellant admitted that Mr. Kramer had been in the house in question, but denied that she had taken his money.

Appellant excepted to the charge of the court for its failure to embrace an instruction covering the law of circumstantial evidence. We think the court was warranted in declining to respond to the exception. Immediately after leaving the room, in which she had been with Mr. Kramer, appellant»stated to one of the witnesses that she had “rolled him.” According to the witness, appellant offered her some of the money. She declined to take the money and told appellant that it belonged to Mr. Kramer. The money appellant offered to give the witness consisted of a 10-dollar bill, a 5-dollar bill, and four 1-dollar bills. The injured party had lost money in corresponding denominations. In 6 Words and Phrases, Third Series, 879, it is said: “It is commonly understood in police circles that ‘to roll’ means to rob.” Lasecki v. State, 190 Wis. 274, 208 N.W. 868, is cited in support of the text.

The judgment is affirmed.

PER CURIAM.

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


author: GRAVES, Judge. CHRISTIAN, Judge.

text:
    TATE v. STATE.
    No. 21036.
    Court of Criminal Appeals of Texas.
    May 1, 1940.
    Rehearing Denied June 26, 1940.
    Oxford & McMillan, of Stephenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged with the theft of one head of . cattle, . and upon conviction therefor was sentenced to serve a term of four years in the State prison.

The testimony of the State shows that the complaining witness Mr. Polk lost a certain Jersey cow sometime in December 1938, in Erath. County, and she was later located in Palo Pinto County sometime in September 1939. The State showed that appellant and one Robert Caldwell took this cow in December 1938 to Palo Pinto County and there sold her for $23 and divided the money received therefor between themselves. The State relied upon circumstantial evidence to establish the unlawful taking, and the court so instructed the jury in a proper charge thereon.

The appellant complains in his bill of exceptions No. 1 because of the following facts: In the beginning of the trial appellant’s attorney filed a written motion before the trial court praying that he enter an order requiring the district attorney to furnish the defendant with a list of' the witnesses whom he expected to use in the trial of the case. Although it seems that the court did not make any ruling on said motion, nevertheless the said attorney did furnish such a list to the defendant’s attorney of nine witnesses, omitting the name of one witness, and also the name of Robert Caldwell, who was also indicted for the theft of the same cow. When said Robert Caldwell was offered in evidence by the State the appellant pleaded surprise on account of the fact that said witness’ name was not included in the names furnished him by the district attorney, and this fact is made the basis of this bill.

Art. 392, C.C.P., reads as follows: “The attorney representing the State shall prepare ' all indictments which have been found, with as little delay as possible, and deliver them to the foreman, who shall sign the same officially, and said attorney shall indorse thereon the names of the witnesses upon whose testimony the same was found.” It can readily be seen from a reading of this statute that the same is only directory—not mandatory, and has been so held from the beginning of our State jurisprudence. See Steele v. State, 1 Tex. 142; Walker v. State, 19 Tex.App. 176; Jackson v. State, 103 Tex.Cr.R. 258, 280 S.W. 836; Easterwood v. State, 132 Tex.Cr.R. 9, 101 S.W.2d 576; Pruett v. State, 114 Tex.Cr.R. 44, 24 S.W.2d 41, and many other cases.

A reading of the statute will readily show the implausibility of appellant’s ■contention. The phrase “and said attorney shall indorse thereon the names of the witnesses upon whose testimony the same was found,” if carried out to its herein contended conclusion, would mean that only the witnesses who appeared before the grand jury could be used upon the trial of the case, and any later discovered witnesses, or new rebuttal witnesses, would be precluded from testifying. We do not attach any importance to appellant’s claim of surprise when confronted with the witness Caldwell. In the indictment returned herein counts three and four thereof alleged that appellant had received this property from Robert Caldwell and concealed same, etc. He filed no application for a continuance, but merely relied upon his bill. We do not think same reflects any error.

What we have first above said also applies to appellant’s'bill No. 2, which relates to the omission of the name of Boss Ray in the names of the witnesses furnished to appellant at the opening of the case. It is evident from the progress of the case that the testimony of Boss Ray only became admissible in rebuttal of the appellant’s defense, which doubtless could not have been accurately anticipated before the trial began.

Bill of exceptions No. 2 is concerned with the following argument of the county attorney in the opening address to the jury: “Gentlemen of the Jury, our Constitution and our laws give to every person certain safeguards, among those are these: The right of a trial before a fair and impartial jury, in open court, and before an impartial judge, and the right to be represented by counsel of his own selection, and the right to compel the attendance of witnesses in his behalf, and is not compelled to testify in his own behalf.” Immediately upon objection the trial court sustained the objection and instructed the jury to disregard such argument.

Evidently the county attorney was attempting to quote Section 10 of Article I of the State Constitution, commonly called the Bill of Rights, Vernon’s Ann.St., and made only a casual reference to appellant’s right to not be compelled to testify against himself, the same thing that the trial court later mentioned in his charge to the jury. The case of Wimberly v. State, 109 Tex.Cr.R. 581, 6 S.W.2d 120, 121, seems to be in point, and we quote therefrom:

“The transcript contains two bills of exception. The first complains of a statement made by the district attorney in his closing argument, deemed by appellant to be a comment on the failure of the defendant to testify. The statement made as set out in the bill was as follows:

‘The defendant in a criminal case has every right guaranteed to him, and is given the benefit of the presumption of innocence and the reasonable doubt; he is not required, and cannot be required, and cannot be compelled, to take the witness stand and testify as a witness in his own behalf.’

“It is customary for trial courts to instruct the jury that the accused does not have to testify, and that his failure to testify cannot be taken as a circumstance against him, and it has been held that the attorney for the state in his argument, who reads that portion of the court’s charge, and makes no comment upon it, commits no reversible error. Unless something should appear in the statement made from which this court might conclude that the language used was such as to induce the jury to consider against the accused the fact that he did not testify, we would not be inclined to hold such action reversible error. The statement made by the district attorney in this instance was in almost the exact language used by the court in the charge, and it does not appear to have been made with any sort of purpose of calling the jury’s attention to the fact, or in any wise using it against the accused. We do not believe the action amounted to more than a casual reference. Goldsberry v. State, 92 Tex.Cr.R. 108, 242 S.W. 221; Kimbrough v. State, 99 Tex.Cr.R. 535, 270 S.W. 862.”

The above case seems to answer appellant’s contention.

Bills of exceptions Nos. 4, 5 and 6 are all based on the same legal proposition, and that is the general doctrine that where the State has introduced a statement of the accused which exculpates him from criminality in the charged offense, it becomes the duty of the State to disprove the exculpatory portion thereof under certain circumstances. That this is a sound principle of law we again assert, and a lucid explanation thereof will be found in the opinion by Judge Hawkins on the motion for a' rehearing in the case of Otts v. State, 135 Tex.Cr.R. 28, 116 S.W.2d 1084, 116 A.L.R. 1454. However it is to be noted that such duty devolves upon the State only in the event such statement is introduced by the State. We nóte from the trial court’s qualification to the bills in the present situation the exculpatory matters introduced herein were brought out by the appellant in his cross-examination of the State’s witnesses, and were not adduced by the State in their examination in chief. It is said in the Otts case, supra:

“Where the defendant does not testify in the case, and where the State in developing its case in chief introduces in connection with a confession or admission of the defendant an exculpatory statement which if true would entitle him to an acquittal, the jury should be told that he is entitled to a verdict of not guilty unless such exculpatory statement has been disproved or shown to be false by other evidence in the case.” Also see the case of Tate v. State, 116 Tex.Cr.R. 340, 31 S.W.2d 453, wherein it was held, in effect, that the duty of disproving such a statement did not lie upon the part of the State where it did not rely wholly or even in most part upon such a statement for a conviction, citing Slade v. State, 29 Tex.App. 381, 16 S.W. 253; Wilkirson v. State, 113 Tex.Cr.R. 591, 23 S.W.2d 731; Casey v. State, 54 Tex.Cr.R. 584, 587, 113 S.W. 534.

We see no error reflected in these three bills for two reasons: In the first place the State did not introduce such an exculpatory statement, and, in the second place, same was not relied upon either in whole or in part for a conviction.

We note from the judgment that the trial court failed to apply the terms of the indeterminate sentence law, art. 775. C.C.P., Vernon’s Ann.C.C.P. art. 775. The. sentence will therefore be reformed so as to sentence the appellant to serve a term in the State penitentiary of not less than two nor more than four years, and as thus reformed the judgment is affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

We have carefully reconsidered the record in the light of appellant’s motion for rehearing and are constrained to adhere to the conclusion expressed in the original opinion.

The motion for rehearing is overruled.

PER CURIAM.

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


author: BEAUCHAMP, Judge. HAWKINS, Presiding Judge.

text:
    FAMBRO v. STATE.
    No. 21027.
    Court of Criminal Appeals of Texas.
    May 15, 1940.
    Rehearing Denied June 19, 1940.
    Floyd Jones and D. T. Bowles, both of Breckenridge, W. R. Ely, of Abilene, and Frank Sparks, of Eastland, for appellant.
    Ben J. Dean, Dist. Atty., of Breckenridge, J. R. Black, Dist. Atty., and Esco Walter, Co. Atty., both of Abilene, B. L. Russell, Special Prosecutor, of Baird, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted in the District Court of Taylor County on a charge of murder and sentenced to 20 years in the penitentiary. The offense is alleged to have been committed in Stephens County .and, after a trial with a hung jury in that county, was transferred to Taylor County, from which this appeal comes.

On November 16, 1938, appellant shot Dave Wagley, a neighbor. This occurred between 7 and 8 o’clock in the morning and the victim died about noon that day in a hospital in Breckenridge. There is some evidence that bad blood had existed between appellant and deceased for a period of time, but the immediate trouble arose over the title to a small tract of land or lot in what was once laid off as a town-site. Dave Wagley’s father-in-law, a Mr. Cooper, had acquired a deed to a tract of land, including certain lots to which appellant had prior deeds, together with a number of other lots which had been sold to various and sundry people. The town had died out or failed to materialize and none of the lots were occupied by the purchasers. Mr. Cooper and his son-in-law, Dave Wagley, had put all their lots under fence, plowed them and had planted or were fixing to plant grain on them. Previous to that appellant had, without any dispute from other claimants, moved a building off of the lots to other property which he owned in the community and had openly asserted title to the lots to which he had a recorded deed. After the land was fenced and plowed by Cooper and Wagley appellant consulted an attorney, who instituted suit in the form of trespass to try title. While this suit was pending appellant went early in the morning with two hands and a truck with tools and equipment and entered the premises by way of a gap adjacent to his lots and proceeded to pull the piping out of a well situated on it preparatory to moving it, as he had the building, to other property. Cooper and Wagley saw them there and approached appellant together. Wagley, acting as spokesman, commanded appellant to get off of the land.

There is a sharp difference in the testimony as to what occurred, Cooper giving his version while Leslie Vick and Homer Perry, the two workmen who had come with appellant, gave theirs.' All agree, however^ that the deceased approached cursing and, according to the testimony of appellant and his two witnesses, the deceased immediately called appellant very vile names, ordered him off and approached him in a threatening manner with his hands in his pockets.

It is sufficient to say that according to the testimony of Cooper, the act of appellant was unjustified, while the testimony of Perry and Vick with that of appellant raised an issue of self-defense.

On the trial from which this appeal comes the state introduced its proof of declarations made by deceased before his death which were pertinent on the issue of self-defense. In their motion for a new trial, as well as on examination of the witnesses, it is admitted that the state did not introduce this testimony on the first trial. The evidence is very important and bears directly on the issue raised by the defense. Just why the state did not introduce this evidence on the first trial is not explained, but the importance of that is of interest to this court only on the issues raised in appellant’s motion for a new trial and subsequently on the question of diligence on the part of the defense to obtain certain evidence which is presented as newly discovered evidence.

Albert Wagley, father of deceased, testified to a statement made by his son in the hospital, as follows: “He said something to me about dying. He told me he was going to die. At that time he was conscious or sane and knew what he was talking about. I did not ask him any questions to lead him on after that. He told me he wanted to tell me something then. He said: ‘Papa, I thought he went home. He said he was going on home and when I looked up why there he stood with'a gun. I couldn’t do a thing but just throw up my hands.’ ”

Mrs. Katie Wagley, the widow of deceased, did not testify while the state was introducing its evidence in chief, but was placed on the stand in rebuttal and told the story of seeing her husband stagger immediately after he was shot, of jumping in their car and driving to him, taking him in their coupe and with her father going to a hospital, in Breckenridge. She details certain statements of deceased made during the morning and "before his death, as follows :

As they were leaving the scene of the tragedy for Breckenridge she quoted her husband as saying, “Cooper, I had an awful sweet little wife.” , This evidence was later withdrawn from the consideration of the jury by instruction of the court. Later she said her husband asked her the question, “Won’t you put me away nice?” This statement made on the way to the hospital was also withdrawn from the consideration of the jury by instruction later. She further testified that after they reached the hospital her husband called her to the side of his cot and kissed her and told her that whenever she passed away to have them put her by his side; that he wanted to be buried beside her. This testimony was also withdrawn from the jury by later instruction. Whatever harm resulted from this testimony was of a nature that would linger with the jury regardless of instructions to disregard it. She further testified to the following statement by deceased: “Katie, when I first got up there there he first drew a double bitted ax on me”. Further, “Katie, when I first got there he drew a double bitted ax on me, and I asked him to lay it down, and we would settle it without further trouble. I asked him to lay the ax down and we. would settle it without further trouble”. When I say “I asked him” I am using Dave’s words.

He said “I asked him to leave, and he told me- he would leave” and he said, “I asked the other boys to leave. I thought he was leaving and I asked the other boys to leave. I turned around and when I turned around he was standing there with the gun and all I could do was hold my hands in the air and say, if you are that kind of a man shoot me”. (Witness further says that she testified on the former trial and did not tell any of these things.) She further says that prior to his death that morning she did not hear him say anything indicating that he thought he might get well.

F. L. Freeland testified that he visited the hospital and heard Dave Wagley say that he tried to get appellant to wait and let the court settle it.

The testimony embracing the declarations of deceased made in contemplation of death was introduced at the close of the trial of the case in the town of Eastland, some sixty miles from Breckenridge, and it is reflected that appellant had no indication of the nature of this testimony until it was introduced by the state.

Appellant filed a motion for a new trial in which it is presented, among other grounds, that they had since the trial of the case discovered new evidence pertinent to the main issue in the case, that of self-defense, and particularly as relating to the dying declarations of deceased and also on the question as to whether or not he contemplated death at the time such statements were made. Attached to this motion were the following affidavits:

One by Mrs. Billington saying that she was a nurse in the hospital at the time Dave Wagley was there, detailing the things that took place, in which she said that Wagley was, “Shouting a great deal in anger arid cursing, which was all to the effect that he was going to be sewed up and go home. He repeated a number of times that he was all right and was cursing Alex Fambro a great deal. He told his wife not to cry; that he was not going to die and would go back home in a little while and be all right.” She said, further, that in her opinion he never thought that he was going to die. She was in and out of his room, but with him most of the time. She declared that she did not hear him make the statement testified to by his father as to the occurrences at the time of the killing.

The affidavit of Dr. P. C. Wray is attached in which he said that he told Wagley that he would fix him up as soon as he could and he answered, “all right”; that Dave’s wife started to weep and Dave told her not to cry, that, “we’ll get these things back in here and I will go back home and be all right”. He was present when the victim’s father came into the room and heard him say, “Hello, Dad, he got me”, but did not hear -him say anything to his father about the things that took place at the time of the killing and particularly those things testified to by Albert Wagley, his father. He said that after he went into the operating room they gave him ether and that after that he was never in position to make a rational, sane or conscious statement. The doctor also stated that the attorneys for appellant had asked him previous to the trial about what took place and that he declined to tell them because he did not want to become involved in the matter. He told them subsequently that he did not know anything about it and did not want to be a witness on either side. He said that he never heard of any purported statement by Dave Wagley concerning appellant until after the trial in which this conviction was had.

The attorneys in the case also attach affidavits showing diligence to secure the testimony of the doctors and of the nurse.

The principal question presented on the appeal is whether or not the trial court should have, under this state of facts, granted their motion for a new trial.

We must admit in the beginning that we are confronted with the consideration of a question under circumstances different to the ordinary. Appellant had gone through one trial of his case. His attorney had sought- evidence from the doctors and the nurse as to what took place and they declined to tell. True, they could have brought them into court as witnesses and compelled them to testify; yet,'it is doubtful if an ordinary prudent and skillful attorney would have done so. When a witness declines to say what their testimony will be, they are not ordinarily placed on the stand as witnesses for the party calling them unless there is some .circumstance making it necessary to do so, or unless the attorney has advice by which he feels secure in doing it. Viewed from the standpoint of the appellant and his attorneys, it is not unusual that they failed to call these witnesses, even after the other ’parties had testified. The evidence as to the state of mind of Dave Wagley at the time he made the statements, as well as the statements themselves, come to the court shrouded in mystery which would justify the trial court in receiving an explanation as to why testimony of this nature was not presented on the first trial of the case. The interested parties in this prosecution were insufficiently diligent in revealing their testimony in the first trial, or else they were over diligent in the second. This is a circumstance for consideration by this court only on the question as to whether or not the appellant should have been required to meet the evidence when it was presented. Furthermore, the evidence as to the state of mind of the injured party at the time of making the statements was so nearly insufficient as to make it doubtful if it ever warranted the introduction of the evidence he was purported to have made. Oral reproductions of dying declarations are admissible when satisfactorily proven, Art. 725, C.C.P., but should not be so favored as to be admitted when there existed only a slight fear of death. The most which may be said of the testimony before us is that it contemplated a danger of death. All of this could be true and, yet, if the jury believed the evidence of the nurse and the doctor as to the state of his mind, then the statements would hardly be admissible. See Vernon’s Ann.C.C.P. Art. 725 and cases there cited. Edmondson v. State, 41 Tex. 496, 497; Morgan v. State, 54 Tex.Cr.R. 542, 113 S.W. 934; Figaroa v. State, 58 Tex.Cr.R. 611, 127 S.W. 193. It is possible that he discussed these matters with his wife and father in the manner stated and yet retained a hope of recovery. If there did exist in his mind a hope of recovery at the very time of the utterances they would be inadmissible.

Appellant insists that he had a right to shoot Wagley in defense of his property. The pertinent facts on this issue are hardly disputed. Appellant seems to have been the holder of prior record title and apparently the owner of the property. However, this had been submitted to a civil court with jurisdiction to determine the rights of the parties. He was attempting to remove some of the pipe from an old well, but there is no evidence that the deceased was trying to harm the property, to remove any of it or to do other than insist that the matter of ownership be settled by the courts. He claimed to be in possession and appellant so alleged in his suit. If appellant had desired to possess his property, the courts offer a legal remedy. Under all the circumstances we do not believe that his right to defend his property was sufficiently invaded to warrant the taking of a life.

While it may be said that the act of the court in withdrawing certain evidence from the jury after its admission did not. cure the harm done, it becomes unnecessary to discuss these bills in view of a reversal of the case as they will not occur again.

For the failure of the court to grant appellant’s motion for a new trial on the ground of newly discovered evidence, the case is reversed and remanded for new trial.

On State’s Motion for Rehearing.

HAWKINS, Presiding Judge.

A re-examination of the affidavits and counter affidavits attached to the motion for new trial, and the State’s answer thereto, leaves us of the opinion that the judgment of conviction was properly ordered reversed and remanded.

It is necessary, however, to advert to some matters in our original opinion which we think should be modified.

When Mrs. Wagley’s evidence was tendered it appears as a predicate for the receipt in evidence of statements made by deceased to her as it was developed that deceased said she had been a “sweet little wife,” and also spoke of his wishes about how he should be buried, and like matters. These statements were withdrawn from the jury, but Mrs. Wagley’s evidence as to what deceased said to her about the shooting was admitted. In view of the withdrawal by the court of the matters mentioned, we assume that the statement made by deceased to his wife about the shooting was admitted as a res gestae statement. In so far as the statements withdrawn from the jury might bear upon the condition of deceased’s mind and his apprehension of approaching death either at the time he told his wife, or later told his father, as to how the killing occurred, the statements were admissible on the predicate for a dying declaration. As it appears to us from the record now before us deceased’s statement that he had a “sweet little wife” does not seem relevant as establishing the predicate mentioned. The other two statements so withdrawn do appear relevant on that issue as we understand the present record.

The rule governing in cases of this kind is clearly laid down by this court in Downing v. State, 113 Tex.Cr.R. 235, 20 S.W.2d 202, 204, in which the court said: “As a predicate for receiving in evidence a dying declaration, it is not essential that the declarant shall state in specific terms that he is conscious of impending death. It is enough if it satisfactorily appears in any mode that they were under that sanction, whether it be proved by the express language of the declarant, or be inferred from his evident danger, or the opinions - of the medical or other attendants stated to him, or from his conduct or other circumstances of the case; all of which are resorted to in order to ascertain the state of the declar-ant’s mind. Hunnicutt v. State, 18 Tex. App. [498] 499, 51 Am.Rep. 330. See collation of authorities in Vernon’s Tex.-Code Cr.Proc., 1925, vol. 2, p. 805.”

See, also, Branch’s Ann.Tex.P.C., Sec. 1863, p. 1035, and .cases cited.

Upon another trial an issue may be drawn as to the predicate for admission of a dying declaration and calling for proper instructions to the jury upon that question. It is anticipatory of such contingency that we have thought it necessary to write as we have on the present motion.

The motion for rehearing is overruled.


author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    GOODE v. STATE.
    No. 21077.
    Court of Criminal Appeals of Texas.
    June 5, 1940.
    Rehearing Denied June 26, 1940.
    Quinton Wright, of San Diego, and H. E. Lobdell, of Decatur, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

It was charged in the indictment that on or about the 29th day of August, A. D., 1939, the appellant, O. B. Goode, “did then and there unlawfully, voluntarily and with malice aforethought kill Margaret Goode by shooting her with a pistol.”

Appellant challenges the sufficiency -of the evidence to justify and sustain his conviction.- In the development of its case, the State relied entirely upon circumstantial evidence. The record shows that on the afternoon and night preceding the killing the appellant and the deceased were quarreling, fussing and cursing; that during the episode the deceased struck appellant with a salt-shaker. This fussing continued until about ten or eleven o’clock at night. A neighbor, who was sleeping within thirteen feet of where the deceased slept in her house, heard the appellant ask his wife to get up and fix him some breakfast. This was just a few minutes prior to the time that he heard the shot. This neighbor, although sleeping right at the window facing the spot from which the fatal shot was fired, did not see any one at that time about the premises or leave the same; that immediately after the shot was fired he heard some one walking in the Goode house. He then heard appellant call a neighbor, who evidently was on his way over there. The neighbors immediately assembled at the Goode home. According to the testimony of some of them, he was on the back porch barefooted and bareheaded, while some testified that he had on shoes with rubber soles and rubber heels. Appellant requested that a doctor and the officers be sent for, which request was complied with. When the officers arrived at the scene, they found the deceased lying on the bed. She had been shot in the left breast. The bullet went entirely through the body and made its exit near the' spine below the shoulder blade and was found resting in a pillow.' The bullet proved to have been fired from a .45 caliber pistol. The officers made a thorough search of the appellant’s home, the premises, and the adjoining cabins but found no .45 caliber pistol or shells. They did find, 'however, in the appellant’s room a .38 caliber Smith & Wesson pistol, but so far as the record shows, this pistol had not been fired.

The officers discovered two human foot prints running parallel with the window through which the shot had been fired. They took the appellant’s shoes and fitted them into the foot prints, and according'to their testimony, they fitted perfectly. They testified that one of the shoes had a hole in the sole and this was plainly visible in the foot print. It appears from the testimony that no other foot prints were found; that the surface of the ground was rather hard so that foot prints would not be visible except at the spot where the wind had blown up some dust. The appellant was immediately taken to jail and confined.

Later during the day a doctor melted some paraffin in two separate vessels. He dipped the appellant’s right hand in one and his left hand in the other and then waited until the paraffin had solidified on his hands, when he cut it off and applied some sulphuric acid. The testimony discloses that when the acid was applied to the paraffin which had been cut from .the right hand, it showed some blue specks and small streaks between the index finger and the thumb of the right hand. The paraffin taken from the left hand did not disclose anything. A person employed by the Texas Public Safety Commission in this character of work admitted that this was not an infalliblé test. The officers also found some spots of blood on the hook and eye to the scre'en door leading to the porch. Upon a close examination of the bullet found in the pillow, it revealed the fact that it had been fired through the scre'en from the outside of the building. Appellant admitted that he and his wife had quarreled and fussed on the afternoon and night preceding the alleged homicide; that they had been drinking, but he denied having killed his wife.

There was testimony to the effect that appellant and his wife quarreled and fussed quite frequently. A number of witnesses testified to the good reputation of the appellant as a law-abiding man.

The foregoing 'are in substance the salient facts and circumstances proved on the trial.

The rule by which circumstantial evidence may be measured in order to determine its sufficiency is stated in Tex.Jur., Vol. 22,- p. 915, sec.' 244, in. the following language: “To warrant a conviction on circumstantial evidence, every element of the offense must be proved beyond a reasonable doubt. * * * The circumstances taken together must be of a conclusive nature, and must produce in effect a reasonable and moral certainty that the accused and nobody else committed the offense. They must exclude every reasonable hypothesis other than that of his guilt, and if the proof reveals only a mere possibility of guilt the conviction cannot stand. It is not necessary, however, that any one of the circumstances proved shall suffice to sustain the conviction, nor that each-fact, standing alone, be of such weight as to establish guilt; on the contrary, .all the facts which the jury ire authorized to believe from the evidence are to be considered collectively and it is sufficient if a conclusion of guilt is warranted by their combined force.”

Now, let us analyze the evidence adduced, as reflected by the record, and see whether it meets the requirements of the law. The fact that the deceased and appellant quarreled and cursed each other tends to show that some ill feeling existed between them. This at best showed but a motive for the commission of the offense. However, the unpleasant conduct on the part of. both of them was not an unusual occurrence. We have also the two foot prints near the window through which the fatal shot was fired. These foot prints were parallel with the window and appeared to have been made by a person walking by the window going south, but no foot prints leading up to the window were found. It would seem that the person who fired the fatal shot would have walked up to the window as well as away from it. Hence, the two foot prints found to have been made by appellant might have been made by him some time before the shot was fired. Appellant resided there, and according to the testimony, he had flowers and shrubbery in the yard which he watered, and therefore it would be but natural for his foot prints to be found on his premises. Consequently, the finding of the appellant’s foot prints next to his home where he walked and had a right to walk would be of little probative force. If those foot prints had been made by some other person who would not ordinarily have been about the premises, they, no doubt, would be of greater cogency. The test made with the paraffin, according to the State’s witness, was not an infallible one and therefore amounts to nothing more than a strong suspicion. The pistol with which the homicide was committed was not found in the appellant’s home, nor on his premises or in any of the adjoining cabins, although the officers made a diligent and careful search therefor; neither did the. officers find any shells that fitted a .45 caliber pistol. If we take the combined circumstances proved, do they produce in effect a. reasonable and moral certainty that the accused and no one else committed the offense? Do they exclude every reasonable hypothesis other than the guilt of the accused so as to establish his guilt beyond a reasonable doubt? We do not think so. Proof which reasonably creates a strong suspicion or a possibility will not suffice to sustain a conviction. Of course, there is no fixed rule for determining the sufficiency of the evidence in every instance. Each case must be tested by its own facts.

Having reached.the conclusion that the evidence does not measure up to the requirements of the law to authorize and sustain the conviction, we are in duty bound to .reverse the judgment. See Milligan v. State, 97 Tex.Cr.R. 544, 263 S.W. 296; Owens v. State, 134 Tex.Cr.R. 384, 115 S.W.2d 920, and cases there cited.

It is therefore ordered that the judgment of the trial court be, and the same 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.

Our re-examination of the statement of facts in the light of the State’s motion for rehearing leaves us of opinion that the evidence is' not sufficient to support the conviction.

The motion for rehearing is overruled.

PER CURIAM.

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


author: KRUEGER, Judge. GRAVES, Judge.

text:
    SCOTT v. STATE.
    No. 21085.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    Rehearing Denied June 26, 1940.

      Clifford Graves, of Paducah, for appellant.
    Lloyd W. Davidson, State's Atty., of Austin, for the State.
   KRUEGER, Judge.

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

Appellant claims the evidence is insufficient to justify and sustain his conviction and that the court erred in declining to peremptorily instruct the jury to return a verdict of not guilty.

The evidence introduced by the State, briefly stated, shows that on the night of July 23, 1939, some one entered the office of W. C. Briggs, located in the town of Paducah in Cottle County, opened the safe and took therefrom approximately $84 in money. Mr. Briggs had acquired the business from Mr. Brock by purchase about the first of March, at which time appellant was employed in and about the business by Mr. Brock. After Briggs acquired the business he retained appellant in his employ until the first day of June. However, on special occasions Mr. Briggs would have appellant make some deliveries for him. Mr. Briggs, in the conduct of his business, had some delivery trucks which he kept in Mr. Etter’s storage garage. On Saturday night, those trucks were placed in the garage and locked up. Mr. Etter had given to Mr. Briggs a key to the garage and whoever went to get a truck out of the garage had to come and get the key from the office where it was kept and then return the key to the office after the truck was taken from the garage. On the night in question, some one entered the office by the use of a key and the person who entered it knew the combination to the safe in which Briggs kept his money. Appellant had theretofore told Miss Osborne, an employee of Mr. Briggs, that he could open the safe while blindfolded. On Saturday following the Saturday night of the burglary, appellant appeared at the sheriff's office and told the sheriff and his deputy that he had been told that they were checking up on him and he then told them that he entered Mr. Briggs’ office about 2:30 A. M. on the night in question. He asked the sheriff and his deputy to go with him to see Mr. Briggs about it, which they did. The officers left appellant talking to Mr. Briggs. In about thirty minutes or more the officers returned and then Mr. Briggs told them he wanted appellant held and they took him in charge.

Appellant took the witness stand and testified that he entered the building with a key which he claims Mr. Briggs had given him; that he felt he had permission to enter the building at his pleasure at any time, day or night, inasmuch as Briggs had furnished him a key, the means by which he might enter; that he entered the building three different times: the first time about 9:30 o’clock, the second time about midnight, and the last time about 2:30 A. M., but he denied that he opened the safe and took any money therefrom. He also denied that he knew the combination to the safe.

Mr. Briggs testified positively that he did not give appellant any key to the building and that he did not know appellant had a key; that he did not give appellant permission to enter the building either on the night in question or at any other time. Thus, it will be seen that the entry of the building by appellant on the night in question is uncontroverted, the only controverted issues remaining to be determined by the jury were the questions of permission, his intent, and as to whether or not appellant took any money from the safe.

In our opinion, the evidence is ample to support the jury’s conclusion of appellant’s guilt. Consequently, the trial court did not err in declining to give appellant’s requested peremptory instruction.

Appellant complains seriously of the court’s action in permitting the State to show by the officers what appellant told them when he came to the sheriff’s office and inquired of them if they were investigating him and what he told Mr. Briggs after he had invited the officers- to accompany him to Briggs’ place of business. His contention is that he was under arrest at the time, or at least thought he was. We are of the opinion that the evidence fails to show that he was under arrest. The officers had no warrant for his arrest. They went with him at his’ request to see Mr. Briggs. They left him at Briggs’ place of business and went away, then later returned but did not arrest him until Briggs requested that In be held, stating that he (Briggs) would file a complaint. However, appellant, while on the witness stand, admitted that he entered the building on the night in question. Consequently, he has no just ground of complaint.

All matters complained of in Bills of Exception Nos. 4, 5 and 6 have been carefully considered by us and are deemed to be without merit.

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.

Opinion On Motion for Rehearing.

GRAVES, Judge.

Appellant’s main complaint herein is relative to the facts, his contention being that they are insufficient to show him guilty of the offense charged.

There is no need to again relate the facts as set forth in the original opinion. Under the careful trial judge’s charge, the appellant’s defense was properly presented to the jury, and they failed to give it credence. We do not think we would be justified in setting their verdict and judgment aside under the facts herein shown.

The motion is overruled.


author: CHRISTIAN, Judge. GRAVES, Judge.

text:
    BEVIL v. STATE.
    No. 20997.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Rehearing Denied June 26, 1940.
    Myres & Myres and Horace E. Moore, all of Fort Worth, for appellant.
    Marvin H. Brown, Jr., Crim. Dist. Atty., and Austin F. Anderson, Asst. Crim. Dist. Atty., both of Fort Worth, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is'failing to stop and render aid; the punishment, confinement in the penitentiary for two years.

During the evening of July 4, 1939, appellant, while driving his car at a high rate of speed, collided with an automobile occupied by several young ladies, among them being Elizabeth Shackelford. Miss Shackelford received a ’ mortal injury. The other young ladies were severely hurt. After striking the car appellant failed to stop and render aid.

Testifying in his own behalf, appellant admitted that he struck the car occupied by the; young ; ladies. Touching the circumstances of the collision, he said: “I think Ben Crowe was in front with me. We were all talking and laughing, like four or five will get together and do. We were all looking at Ben, then at one of them in the back, and Ben said Watch the car’, or something like that. I looked around just in time to see the back of a car. We were already on it. I cut my wheels as hard as I could to miss it, and thought I had just clipped the bumper on it. ' I kept going, and could see in my rear view mirror a car behind me. I thought it was the same one, and I didn’t think it was hurt in the-least. In my rear view mirror I couldn’t see the whole street or anything, so I just thought it was behind' me, and to - save argument or anything else, I just kept going until we heard those ambulances. Then that scared Elizabeth, and she ’went out of the car, and Wart was with her, and he got out with her.”

An examination óf appellant’s car shortly after the collision disclosed that the front end was badly damaged. Touching the condition of the car, one of the witnesses testified as follows: “I will state to this jury the condition we found that car in, the right front end on it was mashed up, the right front tire was chewed all to pieces. By chewed I mean the fabric of the tire was torn to pieces. The tire was just shreds. It was hard to tell whether it was a tire, or what it was, all the way around. The right front fender was mashed back.”

Appellant’s car struck the rear of the car in which the young ladies were rid--ing. It turned their car into the side of the viaduct and threw it against an iron post, completely wrecking the car.

The court instructed the jury, in part, as follows: “You are further instructed that even tho you may find from the, evidence, beyond a réasonable doubt, that the defendant was driving an automobile on the occasion in question, and that said automobile' collided with an automobile containing the said Elizabeth Shackelford, yet if you find from the evidence that the defendant did not know at the time of said collision that he had collided with said automobile, ,or if you have a reasonable doubt thereof, then you will acquit the defendant.”

Appellant excepted to the charge of the court as follows: “Defendant objects and excepts to the Court’s Main Charge for the reason that it wholly fails to instruct the jury on the affirmative defense offered by the defendant in this case, that is to say, that the defendant did not know that a collision had been occasioned which resulted in any injury to any occupant of the car.”

Also, appellant submitted to the court the following requested instruction: “You .are. instructed that before .you could convict the defendant in this case, you must find and believe from the ■ evidence, beyond a reasonable doubt, that the defendant knowingly left- the .scene of the collision, and that he knew that persons had been injured, particularly Elizabeth Shack-elford, in the automobile with which his car collided,, and, in case you have a reasonable doubt that the defendant knew that persons had been-injured in the car in which Elizabeth Shackelford was riding, then you will acquit the defendant and say by your verdict L ‘not guilty.’ ” -

■ It is appellant’s Contention that the court .fell into error in failing to' respond to the exception we have quoted 'and in -refusing to submit the foregoing requested instruction. We are unable to agree with this contention. Art. 1150, . Vernon’s P.C., reads as follows: “Whenever an automobile, motorcycle or other motor vehicle whatsoever, regardless of the power by which the same may be propelled, or ■drawn, strikes any person or collides with any vehicle containing a person, the driver of, and all persons in control of such automobile, motor vehicle- or other vehicle shall stop and ’ shall render to the person struck or to ’ the occupants of the vehicle collided with all necessary assistance including the carrying of such person or occupants to a physician or surgeon for medical or surgical treatment, if such treatment be required, or if such carrying is requested by the person struck or any occupant of the vehicle collided with; and such driver and person having or assuming authority of such driver shall further give to the occupant of such vehicle or person struck, if requested at the time of such striking or collision or immediately thereafter, the number of such automobile, motorcycle or motor vehicle, also the name of the owner thereof and his address, the names of the passenger or passengers not exceeding five in each automobile or other vehicle, together with the address of each one thereof. Any person violating any provision of this article is punishable by imprisonment in the penitentiary not to exceed five years or in jail not exceeding one year or by fine not exceeding five thousand dollars, or by both such fine and imprisonment.”

It is observed that this article imposes upon one whose automobile strikes any person or collides with any vehicle containing a person the duty, in the first place, to stop, and, in the second place, to render to the person struck or to the occupants of the vehicle collided with all necessary assistance. Among other things, there is especially included as a part of such conditions the carrying of the person struck to a physician or surgeon for medical or surgical treatment, if such treatment be required, or if such carrying is requested by the person struck or any occupant of the vehicle collided with. Obviously, the failure to stop is a violation of the statute; and, notwithstanding the injunction to stop should be complied with, the accused would still be guilty if he failed to render the assistance required by the statute under the conditions therein set forth. It is observed that the requested charge would have advised the jury to acquit appellant in the event he did not know that persons riding in the car with which he collided had been injured, notwithstanding the fact that he did not stop after the collision. This is not the law. It was the duty of the appellant to stop if he knew that he had struck the automobile in question, in order that he might be in a position to comply with the requirements of Article 1150. In short, the failure of appellant to .stop constituted a violation of the statute, and the fact that he might not have known that the collision resulted in injury to any of the occupants of the other car would not exculpate him. See Garcia v. State, 131 Tex.Cr.R. 84, 96 S.W.2d 977.

In passing sentence the court failed to take note of the Indeterminate Sentence Law. See Article 775, Vernon’s C.C.P. The sentence is reformed in order that it may be shown that appellant is condemned to confinement in the penitentiary for not less than one hour nor more than two years.

As reformed, the judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

Appellant again insists herein that the trial court was in error in refusing to give his requested instruction No. 1, which was to the final effect that he was not punishable under the law unless he knew that in the collision between his automobile and the one in which the deceased young lady was riding some one had been injured. Such is not the law. It was his duty to stop merely on account of the collision; and there also arose a further duty, if an injury arose by virtue of the collision, and that was to render aid, if possible, and also other duties, as shown by the quoted statute in the original opinion.

We think this cause was .properly decided in the original opinion, and the motion will be overruled.


text:
    RAINWATER v. STATE.
    No. 20908.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Rehearing Denied June 26, 1940.

      James E. Faulkner, of Henderson, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is neglecting and refusing to provide for the support and maintenance of minor children under 16 years of age; the punishment, confinement in the penitentiary for two years.

The indictment charged in substance that on or about the 1st day of February, 1939, appellant was the father of Noble Rainwater, Lloyd Rainwater, Billie Rainwater, Jack Rainwater, Ray Rainwater and Este: Lena Rainwater, and that appellant unlawfully and wilfully deserted, neglected, and refused to provide for the support and maintenance of said Noble Rainwater, Lloyd Rainwater, Billie Rainwater, Jack Rainwater, Ray Rainwater, and Ester Lena Rainwater, said Noble Rainwater, Lloyd Rainwater, Billie Rainwater, Jack Rainwater, Ray Rainwater and Ester Lena Rainwater, and each of them, being under the age of sixteen years.

It is appellant’s contention that the testimony fails to show that the minors named in the indictment were under sixteen years of age.

We are unable to agree with this contention. Mrs. Lela Rainwater, the mother of the children, testified that Ester Lena Rainwater was six years of age. Noble Rainwater testified that he was 15 years old. Further, he said: “I am one of the minors named in the indictment.” Referring to the children of appellant, a witness for the state testified: “The children weren’t grown, they ranged from 5 or 6 on up, about like stairsteps.” A deputy sheriff testified that he went to the home of Mrs. Lela Rainwater 'during the last of May, 1939, and observed the children who were there at the time. He said: “There were five children there at that time, little fellows, one was 14 and from that on smaller.” Mrs. Lela Rainwater testified that Lloyd Rainwater was 11 years old. Appellant introduced in evidence paragraphs 1 and 2 of a divorce petition filed by Mrs. Lela Rainwater against the- appellant. We quote paragraph 2 as follows: “Plaintiff represents to the Court that there was born to this marriage several children, the following of whom are now under the' age of 16 years, to-wit: Noble Rainwater, a boy 14 years of age, Lloyd Rainwater, a boy 12 years of age, Billie Rainwater, a girl 10 years of age, Jack Rainwater, a boy 8 years of age, Ray Rainwater, a boy 7 years of age and Ester Lena Rainwater, a girl 6 years of age.” In the petition for divorce- Mrs. Rainwater prayed that she be given the permanent care and custody of the minor children named in the petition, and that the appellant .be required to pay not less than $25 a month for the support and maintenance of said children. After appellant introduced the mentioned excerpts from the divorce petition the state introduced a part of the decree of divorce, which reads as follows : “It is further ordered that the plaintiff be awarded custody of the minor children and defendant ordered to pay twenty-five dollars per month to the minor children under sixteen years of age.” We think the record, in its entirety, sufficiently shows that the children whose names were set forth in the indictment were under 16 years of age.

Appellant contends that the evidence is insufficient to support the judgment of conviction, it being his position that the proof on the part of the state fails to show that he was able to contribute any more to the support of his minor children t.han they received at his hands. Before adverting to the testimony adduced by the state, it is observed that the indictment charged that appellant wilfully deserted, neglected and refused to provide for the support and maintenance of his minor children on or about the 1st day of February, 1939. The indictment was returned on the 11th day of July, 1939. Hence it is seen that under the indictment appellant could be held for his failure to support his children during 1936, 1937, and until February 1, 1939. Mrs. Lela Rainwater testified that from July 12, 1936, to July 11, 1939, her children had been in need of clothes and food. She said: “My boy was working on the WPA getting twenty-six dollars a month. They were in need of food, clothing and medicine from time -to time. They couldn’t go to school. I have put my little children to bed lots of times crying for something to eat, and they would get up in the morning hungry, crying for food. My husband married again two weeks after he got the divorce. From July 12, 1936, until July 11, 1939, Mr. Rainwater (appellant) did not give me any money.”

The witness testified further that the youngest child was six years old and was affiicted. It was her further version that she (the witness) was unable to work. Again, she testified that occasionally appellant would bring some groceries to the house, but they were brought at wide intervals and were not sufficient to give the children enough to eat. She testified that after appellant left her he sold what cattle he had and used the money. Shortly after making the sale of the stock he bought an automobile.

Again, we quote from the testimony of the witness, as follows: “The children named in the indictment have lived with me all the time from July 12, 1936 until the first of January 1937, and they are still living with me. Melvin Rainwater, the defendant, hasn’t supported the children very much from the 12th of July, 1936 until the 1st of January,'1937; he has helped some but it was so little we couldn’t live on it. He did not furnish any money. He furnished a few groceries this Spring a year ago, but mighty little. From July 12, 1936 until January 1, 1937, he did not give me any money at all and whát groceries he would bring in would not do a week. What he did bring was just a little paper sack, a little sack of flour, sometimes 4 pounds of lard and sometimes 1 pound of lard,- and a little meal, and 1(⅜ worth of baking powder, and a small amount of beans, like he was buying for a small family. I had 9 children to feed. When he would bring these groceries it was mighty far apart, sometimes a month and sometimes two months and sometimes three months before I would see him.”

The witness testified further that during the first half of the year 1937 appellant was living “at Eloise Norvell’s”, where he and Miss Norvell made a crop. The witness said: “In 1937 he was working for them, staying at Mr. Norvell’s and helping. He owned an automobile at that time, he was driving it and she was with him.” The witness testified further: “During the year 1938, part of 1938 I was living on the Kan-gerga place. Melvin Rainwater was living on Mr. Norvell’s place. He and Eloise Norvell were farming on the place at Tatum during that year. During 1938 my husband did not buy any clothing for the children and did not give me any money with which to buy the children food and clothing. He did not contribute any to the. family, through me or through any of the children there at home. During the year 1938 he brought us out some groceries from Tatum, just a little, not very much, it was so far apart we couldn't live on it and we were on relief, what the boy was making and relief we tried to get by, that was in the Spring of 1938, he didn’t bring in very much, like I told you just like for a small family, and that fall he- hasn’t brought us a bunch of groceries, in March he brought us a bill of groceries, along the middle of March in 1939. He brought those himself, a negro was driving the car, he was in a car with a negro, that is when he came and wanted me to give him the divorce is when he brought the groceries.

“In March was the biggest bill of groceries, .it lasted a week that time, he brought a sack of flour, sack of meal, 4 pounds of lard, a quarters worth of beans, and 10 pounds of potatoes, 10 pounds of baking powder, nickle box of salt; a nickle box of soda. That is the first time he brought that much.”

Mrs. Rainwater was awarded a divorce during the Spring of 1939. According to her testimony, appellant married Eloise Norvell two weeks after the divorce had been granted. It appears that at the time appellant left his wife and children — in March, 1935, — that he had work which paid him from twenty to forty dollars a week. Mrs. Rainwater testified that appellant stated to her that he made from twenty to forty dollars a week. Further, she testified: “Mr. Rainwater could have gotten a job, he had a job when he went to Eloise’s, he lost it on account of it. He could have bought more groceries than he sent to us.” We quote from the cross-examination of the witness as follows: “In 1937 he was still staying at Mr. Norvell’s and they were working together, claimed they had oil wells, going to have, he told me that and talked like he would get rich. As to whether or not I knew he had money to buy supplies for the children, I will state he was working for them, he was taking care of Eloise, I don’t know how much cotton they sold and they had pea checks. The pea check came in his name last year, I was at the court house. In 1937 I know they farmed, I didn’t go down there, I don’t know how many bales I didn’t go and ask, I gave this man plenty of chances to do. something, I gave him more chances than he would give me.”

Mrs. C. E. Brasick, a witness for the state, testified that she went to the home of Mrs. Lela Rainwater during the month of April, 1939, and found that her children were sick with the measles. She testified, that the children were in need of food and clothes; that she (the witness) fixed a gallon of soup and bought a three-pound box of crackers and a gallon of buttermilk for' them. She said: “I found that -the ■ children needed clothes. Their clothing was ragged and the baby was without any underwear on. Just a dress. Some of the boys were ragged and dirty.”

, Robert Rainwater, a son of the appellant, testified that when appellant left home he sold almost all of the stock he had and bought an automobile. Again, he testified that appellant bought another automobile in 1937. At this juncture we quote from the testimony of the witness: “Fie (appellant) sold the only milk cow we had. I have talked with my father myself during that three year period of time and urged and requested him to do something for the children, but it didn’t do any good. I told him the circumstances, that they were in need * * * Every time I would hit him up he would always tell me he was going to do something the next week, had a check coming in, had a lease at Talco, and would do it next week. * * * He goes dressed most of the time in good clothes, a whole lot better than my mother and the children. There have been times when they looked scary. I have gone down there to see them and turned around and come to town and got groceries to do them a night or two, do as much as I could, and I wasn’t able to do that.” We quote further from the testimony of the witness as follows: “My father was living here in town during that period of time, he was living at Mr. Norvell’s. He never did tell me he did not do these .things for his family because he wasn’t able, he would tell me he he would have it coming, that he,would have plenty of money and he was going to do this as soon as the check came in, he was buying things one time I carried some stuff down there and the next time he went down he bought some new tires and fixed up his old car and everything, had a new motor put in it where he could get around and about.”

Sam Howard, a witness for the state, testified that he had been in the home of Mrs. Rainwater during the time in question and had found that they had practically no food in the house; that on one occasion the children had nothing to eat but a little corn bread. He testified that he bought them some groceries'.

Reverend G. T. Reeves, pastor of the Christian Church in Henderson, testified that he visited in the home of Mrs. Lela Rainwater on several occasions; that about ten months before the trial he went there for the purpose of investigating the condition of the children; that they were very much in need; that on several occasions he took them provisions; that his church people visited them. He testified: “I ascertained the children were in needy circumstances. I didn’t see their wardrobe but from all indications they needed clothes. They were not so well clothed and looked like they were in need.”

Luke Howeth testified that during the period of time in question he had been in the home of Mrs. Rainwater when the children had nothing to eat. He said his wife had at times provided them with milk and other food. Again, he testified that during the month of February, 1938, he frequently gave Mrs. Rainwater’s children the lunch he had carried to his work on the highway.

George Rainwater, a son of the appellant, testified that appellant had not contributed $10.00 toward the support of the children under 16 years of age in three or four years; that on several occasions the children were in dire need of food and were hungry. He said: “There have been times we didn’t have one bite in the house. A couple or three days and we would borrow from somebody. We would go that long without milk for the youngest to drink, daddy sold the cow. We didn’t have clothing or bed clothes, you might say, until people brought some out there. We didn’t have sufficient cover to keep warm at night, it has been that way a long time, most of the winter, lots of times we would keep a fire in the heater all night long. My father was acquainted with conditions out there, he knew we were in need of food and clothing and bed covers, I told him. I would go out to the farm close to Tatum with my father. One time he wanted me to help him do something and said he would give us some groceries if I helped him so I helped him and he didn’t give us any groceries. * * * I have seen my father with money during the last three years. I have asked him for money to carry to my little brothers and sisters, he said he didn’t have it to spare.” The witness testified that during the years 1937 and 1938 while appellant was working on Mr. Norvell’s farm he had seen appellant with money on several occasions.

Noble Rainwater, fifteen year old son of the appellant, testified, in part, as follows: “I recall when I ceased to live with my father four years ago. My father quit living with me. He started going with other women, I know he did, I saw the one he was going with, running around with. I saw that up there by the old jail when he worked up there at the old jail poisoning rats. I seen him .and this woman he is living with out lots of times together.” The witness testified that he had seen his father working on the Norvell farm since 1936. We quote further from the testimony of the witness: “During the last three years we have been very much in need of something to eat out there, we didn’t have anything to eat at all. Some berries is all, we picked the berries and ate them every meal, that was all we had. * * * My father never sent any food down there that I know of by anybody, cab drivers or ne-groes.”

Testifying in his own behalf, appellant denied that he had wilfully neglected and refused to support his minor children. He said that he left his family in 1935 because his wife’s family constantly carried groceries and supplies away from his home. He testified that after the separhtion he carried groceries to his home and found that two or three families were living there. In 1937 he worked in the oil field, during which time he furnished his family groceries. At this juncture we quote from appellant’s testimony as follows: “Lots of times I carried groceries down there, several times. The first part of 1937 I worked some in the oil field, that was not regular work. My average pay roll for the month would depend on'how much I could make, I was leasing and subleasing, some months it wasn’t anything, some months I would make a little money. I would come in and go down and see my boy at the Safeway, I always used him to buy the groceries, I knew if that was put in other hands they would not get them, I had the understanding when I came through to get the groceries or leave money, or leave a check, they would be delivered, most of the time I delivered them myself but I bought them from him at the Safeway.”

Appellant produced several checks which had been executed by Eloise Norvell. It was his version that she had delivered these checks to him for the purpose of buying’ supplies for Lela .Rainwater and her minor children, and that they were used for such purpose. Further, appellant testified that during the year 1936 he worked in the oil field most of the time, coming to town about once a month. As to his income during that time, appellant testified: “As to what my income was during that time I will state I don’t know, sometimes I would make a little money and sometimes I would not, of course I still have a little property up there hut it is in a law suit and I haven’t realized anything much out of it. Sometimes I would make a trade and make $50 or $75 and go along and not make anything. Whether I made a pay day or not I would send money in because I could get the money from Eloise and I did it too, those checks I gave on her I borrowed from her. I sent them supplies or groceries when I was able to do so, I borrowed money to get groceries for them.”

During the year 1937, according to his version, appellant worked for his room and board. During 1938 he made a crop on the place belonging to Eloise Norvell. He said he planted twelve acres of cotton and raised one bale, for which he received about 8 or 9 cents a pound. He planted some corn but did not raise any. He said: “I didn’t pay any rent out of it. I was trading with Porter-Pitman. I signed up with them and got groceries, they had a mortgage. I signed up the Government Conservation Program and got a check for $80 or $90. this year, I signed up in 1938. That payment was divided between the landlord and myself. That was the year I made the one bale of cotton. I did not have any other income that year. Year before last when I was overseeing Miss Norvell’s place I received a check for $13. and something. I was just managing that crop, that was Miss Norvell’s place at Tatum, I wasn’t farming, I was overseeing. * * * I gave the $13 check to Miss Norvell for my room and board.”

Appellant testified that he married Miss Norvell April 30, 1939. He said: “I considered myself able to support my present wife and the children also, if you will permit me to tell you what I offered them, I certainly do. The place I offered them is not in my back door, it is a mile from where we were staying, we were willing to give her a deed to 20 acres of land on the place and I would see that the children got to go to school at Oakhill or Tatum. I didn’t have any land to deed her but I had made arrangements with Miss Eloise Norvell for 20 acres of land, she had some land. I tell this jury that I certainly did tell Mrs. Lela Rainwater that she would be given a deed to 20 acres of land outright, I told you that, deed it to her in fee simple as long as she lived there she could have the place, not to trade or sell but as long as she lived there or the children. It was an out right deed as long as she made her home there. I made them that offer before I married and after I married too, I made it to them several times this year. It is about a mile and not in sight of the house occupied by Eloise Norvell and myself. I told my wife if she would go down there we would rent the other part of the farm to somebody else that we didn’t have to live there, and we would furnish her a team and tools and rent the remainder out to somebody else.” Appellant testified that at the time Miss Norvell authorized him to offer his first wife a farm he had no income.

It was appellant’s version that he had high blood pressure and was unable to do heavy work. Pie said that he had sought work on many occasions, without success. Mrs. Eloise Rainwater, formerly Miss Eloise Norvell, testified for appellant. It was her version that during the year 1938 she and appellant frequently gave groceries to appellant’s first wife. In short, her testimony corroborated that of appellant. She testified, further, that in 1938 and again in 1939 she authorized appellant to offer Mrs. Lela Rainwater a 20-acre farm to be used by her during her life and the time she lived on it. She said: “It was my land— our’s now.” Further, she testified that the offer was made prior to the witness’ marriage to appellant, and several times thereafter. At this juncture we quote from her testimony as follows: “As to whether or not if my position and that of Lela Rainwater were just the reverse, were she the present wife of Melvin Rainwater and me the mother of those children and he the father, would I accept such an offer coming from her, I will state that I believe I would, considering how far apart it would be, there is no difference she came to see Robert, I can’t see a bit of difference, I would not molest the woman, she would not have to lay eyes on me. I believe I would accept it if I had those children and the father thought as much of them as he does, let him tell you. If I was as hungry as the hoys said I would get a job, I can always get a job. As to whether or not I have been able to find him a job, I will state he has been sick, he had a fibroid tumor cut off the base of his brain, if you had that you would feel it too, he has been sick since 1937.”

In rebuttal, the state proved that the offer mentioned in the testimony of appellant and his second wife had not been made. Further, the state introduced witnesses who rebutted the testimony of appellant and his witnesses to the effect that appellant many times furnished ample supplies of groceries for the support and maintenance of his minor children.

We deem the evidence sufficient to support the conclusion of the jury that appellant, “with evil intent and malice and set purpose and design” neglected and refused to support his minor children.

Appellant testified, in effect, that he contributed to the support and maintenance of his children to the best of his ability and in proportion to his earning capacity, when he was earning money or had funds. Appellant requested an instruction submitting this affirmative defense to the jury. The court embraced in his main charge the following instruction, which was written in substantially the language as the requested instruction presented by appellant: “You are further instructed that if you find from the evidence- in this case the defendant, Melvin Rainwater, contributed to the support and maintenance of his said children to the best of his ability and in proportion to his earning capacity when he was earning or had funds, or if you have a reasonable doubt thereof, you will acquit the defendant, Melvin Rainwater.”

Appellant also presented to the court the following requested instruction, which was refused: “If you find from the evidence in this case that the said children of the defendant, Melvin Rainwater, while in custody of their mother, refused the only support, maintenance and help that the defendant, Melvin Rainwater, could possibly offer or give them, or if you have a reasonable doubt thereof, you will find the defendant, Melvin Rainwater, not guilty.” It is appellant’s position that the testimony of his second wife and of himself touching the offer of a 20-acre farm to his first wife during her life raised the issue covered in the requested instruction. It is observed that there is nothing to show that the use of such land could have contributed anything to the support of appellant’s small children. The land is not described in the testimony. As far as the record reflects the matter, it might have been an incum-brance instead of an asset. Under the terms of the offer, if appellant made it, his first wife could not have sold the land and used the proceeds for the support of appellant’s children. Again, appellant could not exonerate himself because Eloise Norvell made an offer to support the small children of his first wife. And particularly is this true as to the offer made during the year 1938 when Miss Norvell was not the wife of the appellant. It could not be expected that the first wife would accept such an offer, and, in our opinion, she was not required to in view of the testimony of the state to the effect that appellant' left his wife because of his desire to be with Miss Norvell. Hence the offer, in so far as it was made in 1938, would not constitute a defense. It was appellant’s duty, and not the duty of Miss Norvell, to furnish support to his children. If he did not support them, and was able to support them during the year 1938, he was guilty of the offense with which he was charged. In passing, it is observed that Mrs. Rainwater denied that any such offer had been made. Be that as it may, it follows from what we have said that we are of opinion that the offer of the appellant which his second wife claims she authorized in no manner exonerated appellant for his failure to support his minor children during, the year 1938. We think the court’s instruction on the appellant’s affirmative defense to the effect that he contributed to the best of his ability and in proportion to his earning capacity was adequately covered in the charge of the court.

It might be added that appellant’s second wife testified that the first offer was made during the year 1938. The proof on the part of the state was to the effect that appellant also wilfully failed and neglected to support his children during the year 1937 and part of the year 1936. The years last mentioned were within the period of limitation. Manifestly, appellant was not entitled to be acquitted because of an offer made in 1938 and 1939 if during the years 1936 and 1937 he wilfully neglected and failed to -support his children.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

KRUEGER, Judge.

In his motion for rehearing appellant earnestly contends that we érred in several respects in the original disposition of this case as reflected by the opinion delivered by this court on the 8th day of May, 1940.

He first asserts that he was entitled to an instruction by the court to the effect that if the children of the appellant, while in the custody of their mother, refused the only support and help which he could possibly give or offer them, etc., to acquit him. If the evidence had raised the issue, then there might be some merit in his contention, but the evidence fails to show that the children refused to accept any material assistance or support. His testimony to the effect that he offered her (the mother of the children) the use of a 20-acre tract of land would not, in our opinion, contribute to their support. They could not have sold it. They could not have lived thereon without food or wearing-apparel. Even if they had undertaken to grow a garden or a crop, they still needed food which he failed to furnish until whatever they planted and undertook to grow had matured. Moreover, the land mentioned did not belong to the appellant. It belonged to Eloise Norvell whom he married on the 30th day of April, 1939.

We have carefully reviewed the record and remain of the conclusion that the question here presented was properly disposed of on the original submission.

Appellant next contends that inasmuch as in the divorce proceeding the trial court awarded the children to the mother and ordered appellant to pay $25 per month to the mother for their support that this order deprived the court of jurisdiction to try him for the offense herein charged. The order referred to was not an res ad-judicata of fact that he failed and refused to support his minor children. The order merely directed him what to do in the future with reference to the children. Consequently there is no merit in the appellant’s contention that the plea of former jeopardy should have been sustained.

Appellant also contends that the evidence relative to what occurred in the years 1935 and 1936 should not have been admitted because the same was beyond the period of limitation. There is no exception in the record to any of this testimony. Moreover, the court, in his charge to the jury, specifically instructed them that in determining the issue of whether or not he failed and refused to support his children, they could only take into consideration evidence of his neglect and refusal to provide for their support within the period of three years prior to the 11th day of July, 1939, and not what he failed or refused to do prior to the three-year period. Consequently there is no' merit in the appellant’s contention.

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

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.