text:
    HENDERSON v. STATE.
    (No. 3380.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.)
    1. Criminal Law (§ 1095) — -Appeal—Bill op Exceptions — 1Time poe Presenting.
    A bill of exceptions which was not filed until more than 20 days after the adjournment of the term at which defendant was convicted will be stricken from the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. § 1095.]
    2. Criminal Law (§§ 365, 371) — Evidence-Receiving Othee Peopeett — Res Gestas.
    In a prosecution for receiving one stolen pool ball, testimony that the accused at about the same time received other balls from the same person is admissible as part of the res gestee and to show intent.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 807, 830-832 365, 371.] see Criminal Dee. Dig. §§

      3.Receiving Stolen Hoods (§ 8) — Admissibility oe Evidence — Possession oe Peoperty — Acts oe Defendant’s Wife.
    _ Evidence was also admissible that the wife of accused took the stolen ball from a bureau drawer and delivered it to the officers in the presence of accused.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 15-18; Dec. Dig. § 8.]
    4. Witnesses (§ 350*) — Impeachment—Conviction of Crime — Details.
    Where a witness for the prosecution had admitted that he had been convicted of stealing, it is not permissible for the defense to cross-examine him as to the details of such conviction.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. § 350.]
    5. Cbiminal Daw (§ 713) — Misconduct of Peosecutoe — Argument.
    A statement by the prosecutor in his argument that to turn the defendant loose would invite crime for all other criminals is legitimate.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1663, 1678; Dec. Dig. § 713.]
    6. Cbiminal Daw (§ 829) — Teial—Request-ed Chaeges — Repetition.
    A special charge requested by one accused of a crime which is sufficiently presented in the court’s main charge need not be given.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 2011; Dec. Dig. § 829.]
    7. Cbiminal Daw (§ 956) — New Teial — Evidence — Time fob Filing.
    Evidence in support of a motion for new trial on the ground that the jury discussed the failure of the defendant to testify, which was not filed until 24 days after the court adjourned for the term, cannot be considered.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2373-2391; Dec. Dig. § 956.]
    8. Cbiminal Daw (§ 857) — Trial—Misconduct of Juey — Defendant’s Failuee to Testify.
    A discussion by the jurors during their deliberations of the fact that defendant had offered no evidence is proper, and not a comment on the failure of the defendant to testify in his own behalf.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2054, 2055; Dec. Dig. § 857.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Joe Henderson was convicted of receiving stolen property, and he appeals.
    Affirmed.
    Marvin B. Simpson, of Ft. Worth, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of receiving stolen property— one pool and billiard ball — of the value of $1, and his punishment assessed at 90 days confinement in the county jail.

The term of court at which appellant was tried adjourned on October 31,1914. The bills of exception were not filed until more than 20 days had elapsed after the adjournment of court. Consequently, the motion of the Assistant Attorney General to strike them from the record must be sustained. But, should we consider same, we do not think they present any reversible error. Will Barre testified:

“My name is Will Barre. I live here in Ft. Worth with my mother. • Yes; I know Joe Henderson. I think I have known him two or three years. I was standing in the front door of the Third Street pool hall between 8 and 9 o’clock on the night of September 29th, when he come up to me and said he needed some pool balls, and said if I could get some pool balls he would buy them from me. I said, ‘Well, I will try to get some.’ I left then and went home. I stole a pool ball, No. 7, about 1 o’clock, from Henry Watson’s pool hall on West Weath-erford street. I took this 7 ball up to his room on Weatherford street, and saw him there. He came out of his room and said, ‘Hello, what do you know?’ I said, ‘I’ve got a 7 ball,’ and handed it to him. He took it, but didn’t pay me anything then. He said, ‘Are you going to get some more?’ and I said, ‘Yes; I’m going to try to.’ I went out and met up with Rambert; and we went to Watson’s, where I got two more pool balls, and he got two. We took them up to Joe’s room, but he wasn’t there; his wife said for us to lay them on the floor, so we did so. Then we started down the street and saw Joe Henderson. I said I had four more up there, and asked him how much he was going to pay me for them. He said, ‘About two bits apiece,’ and when I said, ‘All right,’ he said he didn’t have the money then, and only gave me four bits. Yes; this all happened in Tarrant county, Tex. No; I am not in the pool ball business, nor a manufacturer of pool balls, nor a pool ball salesman.”

Appellant objected to the witness testifying that when he met Henderson on the street, after delivering him the first ball, that he said “he had four more up there, and asked him what he was going to pay him.” He insists that as he was charged with receiving only one stolen ball, that the state had no right to prove that he had received five instead. As said in Branch’s Crim. Daw, § 338, when extraneous crimes, or other transaction is res gestee, or tends to show intent, when intent is an issue, or tends to connect defendant with the offense for which he is on trial, it is admissible. Gilbraith v. State, 41 Tex. 567; Dong v. State, 11 Tex. App. 381; Stanfield v. State, 43 Tex. Cr. R. 12, 62 S. W. 917; and other cases cited in that section. He also objected to the officers being allowed to testify that they recovered all five balls, for he contends that he was charged with having received one. This testimony was all clearly admissible, as was the statement that appellant’s wife got the “7 ball” out of the bureau drawer and delivered it to the officer. Appellant was present when the officer called for this ball, and his wife went and got it and delivered it.

When the witness Barre, on cross-examination, testified that he had been convicted of theft, the court did not err in refusing to permit appellant to ask him “of what he had been convicted of stealing, whom he had stolen the property from, and where he had stolen it, and other details.” The fact that he had been convicted of theft was admissible as affecting his credit as a witness, but the remainder of the testimony sought to be elicited was inadmissible for any purpose.

Appellant also complains that the prosecuting officer, in presenting the case said: “Gentlemen of the jury, to turn this defendant loose would invite crime for all other criminals.’’ This remark, if not entirely legitimate, which we think it is, would not present reversible error.

In special charge No. 1 appellant requested the court to give peremptory instructions to acquit. The court did not err in refusing to give the jury such instructions, for the evidence is plain that appellant did receive the stolen property, and the facts and circumstances are such, in our opinion, as to authorize the jury to find that he knew the property was stolen property at the time he received same.

Special charge No. 2 was sufficiently presented in the court’s main charge.

These are all the bills of exception in the record, and the only other ground in the motion for new trial is that the jury discussed the failure of the defendant to testify. The evidence heard on this ground of the motion for new trial was not filed until 24 days after court adjourned for the term, and therefore cannot be considered. Probest v. State, 60 Tex. Or. R. 608, 133 S. W. 263, and cases cited.

We have read the evidence, and it does not show that the failure of defendant to testify was discussed, but only the fact that “defendant had offered no evidence.” This was true, and, while it would perhaps include the fact that he had not testified, yet they had the right to comment on the fact that all the testimony they had before them was that introduced by the state to show his guilt. Some of the jurymen testify they did not know whether or not he would have been permitted to testify, if he had so desired.

The judgment is affirmed.
      ♦For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    EVANS v. STATE.
    (No. 3366.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.)
    1. Witnesses (§ 380) — Impeachment — Right to.
    In a prosecution for assault to murder, a witness introduced by accused failed to testify, as expected, that the complaining witness was armed at the time of the assault. The witness did not testify adversely to accused. Sold that, under Code Cr. Proc. 1895, art. 795, authorizing'a party to impeach his own witness for testimony adverse to his cause, accused could not impeach his witness by proof of his declarations out of court that the complaining witness was armed.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1210-1219; Dec. Dig. § 380.]
    2. Homicide (§ 142) — Prosecution — Evidence.
    In a prosecution for assault to murder, the question whether the prosecuting witness, who admitted trouble with an interurban conductor some months before, was at that time armed with a pistol, is immaterial on the issue of accused’s plea that he acte<[ in self-defense because the witness was armed.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 250-259; Dec. Dig. § 142.)
    3. Witnesses (§ 383) — Impeachment.
    A witness cannot be impeached on an immaterial issue.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1224; Dec. Dig. § 383.]
    Appeal from District Court, Brazoria County ; Samuel J. Styles, Judge.
    Peter Evans was convicted of assault to murder, and he appeals.
    Affirmed.
    A. E. Masterson, of Angleton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at five years’ confinement in the penitentiary.

Appellant introduced Stirks Williams as a witness, and, among other things, sought to prove by the witness that on the night of the difficulty he saw Charley Taylor, the person shot by appellant, with a pistol. The witness testified: “I heard shots that night; I heard two shots, .and they were in rapid succession. I did not notice whether Charley Taylor had a pistol that night or not.” It will be noticed that the witness testified to no fact injurious to appellant, but only failed to testify to a material fact that defendant expected to prove by him — that he saw Charley Taylor with a pistol that night. When the witness failed to testify as appellant expected him to testify, and stated, instead, “I did not notice whether he had a pistol that night or not,” appellant sought to lay a predicate to impeach him, and asked him “if he did say in the presence of Tom Hennessy, A. R. Rucks, A. E. Masterson, and Bob Britton that on the night of the alleged assault he did see Charley Taylor with a pistol.” The court sustained an objection to this question. Appellant then introduced Tom Hennessy, and sought to prove by him that he had heard Stirks Williams say that on the night of the assault he saw Charley Taylor with a pistol, and that he had cocked and presented it at him and demanded to know who it was. Appellant was desirous of proving that the prosecuting witness had a pistol that night. It was material to his defense, but could he make the proof in this indirect way? Had he been permitted to prove that Stirks Williams had made the statement, it would have been no evidence that Charley Taylor had a pistol; it would only have been admissible as evidence to impeach the testimony of Stirks Williams. A party is only permitted to impeach his own witness when he is surprised by his testimony, and the witness testifies to facts which are hurtful to his defense. It. may be that, appellant was surprised at tlie witness declining to make this proof, but, as be testified to no fact hurtful or harmful to his defense, he would not be permitted to impeach his own witness. Article 795 of the O. O. P. provides that: .

“The rule that a party introducing a witness shall not attack his testimony is so far modified as that any party, when facts stated by the witness are injurious to his cause, may attack his testimony in any other manner, except by proving' the bad character of the witness.”

Had Stirks Williams testified to any fact injurious to appellant’s cause, then he should have been permitted to attack his testimony, but, as the witness simply failed to testify to facts that appellant was desirous of proving by him, this would present no ground to impeach him. Erwin v. State, 32 Tex. Cr. R. 519, 24 S. W. 904; Dunagain v. State, 38 Tex. Cr. R. 614, 44 S. W. 148; Einley v. State, 47 S. W. 1015.

When the prosecuting witness, Charley Taylor, was testifying, defendant, on cross-examination, asked him if in December,

1912, while on the interurban car between Houston and Galveston, he had not had trouble with the conductor. The witness admitted having trouble with the conductor, and that they cursed each other, but he denied having a pistol, stating he had a shotgun. The appellant desired to impeach him, and offered Charley -De Brell as a witness, and this witness would have testified that Charley Taylor did have a pistol on that occasion. The shooting for which appellant was prosecuted took place on the 1st day of March, 1913, some three months after the interurban car incident, and whether or not Charley Taylor had a pistol on that occasion was not a material issue in this case, and the court did not err in sustaining the objection to the witness De Brail’s testimony. It is not permissible to impeach a witness upon an immaterial issue. Rainey v. State, 20 Tex. App. 485; McCray v. State, 38 Tex. Cr. R. 611, 44 S. W. 170; Holland v. State, 60 Tex. Cr. R. 117, 131 S. W. 563.

These are all the bills of exception in the record. No exceptions were reserved to the charge as given,.and no special charges requested.

The judgment is affirmed.


author: DAVIDSON, J. PRENDERGAST, P. J.

text:
    DENTON v. STATE.
    (No. 3371.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.)
    1. Criminal Law (§ 1086) — Appeal — Bill of Exceptions — Exceptions to Charge.
    Exceptions to a charge in a criminal case should show that they were taken before the charge was read to the jury.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dec. Dig. § 1086.]
    2. Assault and Battery (§ 78) — Indictment —Use of Prohibited Weapon.
    An indictment under Acts 33d Leg. c. 114, making punishable any person who shall commit an assault with a pistol which he is carrying unlawfully, which merely states that the pistol was unlawfully carried without alleging the facts which made the carrying unlawful,'is insufficient.
    [Ed. Note. — Eor other cases, see Assault and Battery, Cent. Dig. §§ 116-122; Dec. Dig. § 78.]
    Prendergast, P. J., dissenting.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Clyde Denton was convicted of assault with a prohibited weapon, and he appeals.
    Reversed, with directions to dismiss.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig, Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

The indictment in the first count charges appellant with assault to murder. The second, omitting formal parts, is thus copied:

“Did unlawfully and willfully commit an assault and an assault and battery upon one W. W. Cook with a pistol, the said pistol being then and there carried unlawfully by the said Clyde Denton, contrary,” etc.

The case was tried under the second count, and appellant was convicted under that count. The statement of facts does not accompany the record.

A bill of exceptions was reserved to the charge of the court for various and sundry reasons. However, this bill of exceptions was not approved by the judge. The exceptions do not show they were taken before the charge was read to the jury. This ought to have been shown in some way. However, in the absence of a statement of facts, the exceptions to the charge cannot be intelligently revised.

It is contended that the indictment is insufficient and fails to charge any offense against the laws of the state, and does not define in terms or any other way what it takes to constitute carrying a pistol unlawfully. There are various other exceptions to the indictment. The act under which appellant was indicted is found on page 237 of the Acts of 33d Legislature, and reads as follows:

“If any person shall willfully commit an assault or an assault and battery upon another with a pistol, dirk, dagger, slung-shot, sword cane, spear or knuckles made of any metal or made of any hard substance, bowie knife, or any knife manufactured or sold for the purpose of offense or defense, while the same is being carried unlawfully by the person committing said assault, he shall be deemed guilty of an assault with a prohibited weapon and upon conviction shall be punished,” etc.

It will be noticed that the indictment charges appellant with having unlawfully committed an assault and battery upon Cook with a pistol, the same being then and there unlawfully carried. The term “unlawfully” is not defined in this particular statute. It is not an offense against the law to “unlawfully” carry a pistol. In order to make it a violation of the law, it must be carried in some prohibited way. To say that a person unlawfully carried, a pistol charges no offense. If appellant had been charged with a violation of the statute forbidding the carrying of a pistol, and it was simply charged that he unlawfully carried a pistol, it would not have charged a violation of the law. That statute provides he must carry it on or about his person or in saddlebags, etc., in order to constitute- a violation of that statute, or that he unlawfully carried it; the manner and means of carrying it being specified. If it be permissible to go from the statute under which appellant was indicted to the statute prohibiting the carrying of a pistol for a definition, then the indictment is defective in not stating some one of the prohibited ways. As before stated, this indictment • does not charge that appellant carried the pistol in any unlawful or prohibited manner. The statute itself does not define what it takes to constitute unlawful carrying. By going to the statute prohibiting the carrying of a pistol on or about the person, etc., we do find a definition; but this indictment does not conform to that statute.

So from any viewpoint this indictment is totally insufficient, therefore the judgment will be reversed, and the prosecution ordered dismissed.

PRENDERGAST, P. J.

(dissenting). The indictment follows the language of the statute, and in my opinion is clearly sufficient. I think the judgment should be affirmed. Act of 1913, p. 237; O. O. P. arts. 460, 453; section 344, Wh. An. 0. O. P., and cases cited.